Brain Trauma
The medical opinions of defense expert's in brain injury litigation often rests upon medical "facts" that are simply false. These opinions can readily be discredited with the use of medical literature in cross examination as well as in direct examination to buttress the opinions of plaintiff's experts, in those jurisdictions that permit it.
USE OF MEDICAL LITERATURE:
Federal Rule of Evidence 803(18) provides that medical literature can be used both on the direct case as well as on cross examination if, the expert witness recognizes the publication as an authority or if the Court recognizes the publication as authorative by judicial notice.
In some state jurisdictions, including New York, a learned treatise can only be used upon cross examination of an expert and only if the expert recognizes the text as being an authority in the field.
Some of the frequent medical misnomers utilized by defense witnesses which can easily be refuted by reference to the medical literature include:
- Mild traumatic brain injury is not a serious or permanent disorder.
- Loss of consciousness is required in order to make a diagnosis that a brain injury as occurred.
- Their must be physical contact in order to sustain a brain injury.
- If MRI's, CT scan's and EEG studies are negative, then no brain injury took place.
- If a person does not complain immediately about all the signs and symptoms of concussion, then no brain injury took place
- Neuropsychological testing is not an objective way to determine if a person sustained a brain injury.
- Michael V. Kaplen, Esq.
De Caro & Kaplen, LLP
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