Abstract
Purpose of Review
This review explores the workings of the legal process in posttraumatic headache (PTH) claims by discussing representative court cases, the approaches taken by both plaintiff and defense attorneys in evaluating a client with PTH, and the role of the expert witness. This discussion also examines the question of whether or not litigation prolongs the symptoms of PTH and concussion, looking at the issues of malingering and the psychological effect of litigation.
Recent Findings
Litigation prolongs recovery of PTH, primarily not from malingering but rather due to the psychological mindset of the plaintiff as created by the litigation process.
Summary
Just as the medical community struggles with PTH diagnosis, mechanism, and treatment, the legal system grapples with identifying valid claims for PTH. Psychological support is an important component for PTH recovery to more effectively deal with the psychological impact of litigation and the concept of perceived injustice.
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Data Availability
Upon request.
References
Papers of particular interest, published recently, have been highlighted as: • Of importance
Rothrock JF. The medicolegal aspects of headache medicine. Headache. 2008;48:855.
• Evans RW, Strutt A. Medico-legal aspects of concussion. Headache. 2020;60:1749–60 This paper is a good overview of concussion and PTH, addressing the pertinent issues that arise in the medical-legal arena in a question-answer format.
Westlaw database search for “headache complaints” www.westlaw.com. Accessed on November 5, 2020.
Westlaw database search for “post-traumatic headaches” www.westlaw.com. Accessed on November 5, 2020.
Lachney v. Automotive Casualty Insurance Company, 647 So.2d 645 (La. App. 1 Cir. 1999).
Mikulec v. Mercedes-Benz USA, 2009 WL 10681943 (W.D. New York 2009).
Lincoln Hockey, LLC v. District of Columbia Department of Employment Services, 831 A.2d 913 (DC Ct. App 2003).
Metrejean v. Prudential Insurance Company, 761 So.2d 198-2170 (La. App. 1 Cir. 1999)
DeBofsky M. Objective medical information for claims. Chicago Daily Law Bulletin. 2015.
Miller R. Settlement value of headaches in personal injury cases, Maryland Injury Lawyer Blog; 2020. https://www.marlandinjurylawyerblog.com/settlement_value_of_headaches_1.html. Accessed 3 Nov 2020.
Gladstone J. Posttraumatic headaches. In: Hubbard J, Hodge SD, editors. Head trauma and brain injury for lawyers. Chicago: ABA publishing; 2016. chapter 8. p. 189–209.
Russo A, D’Onofrio F, Conte F, Petretta V, Tedeschi G, Tessitore A. Post-traumatic headaches: a clinical overview. Neurol Sci. 2014;35:153–6.
Woodward B, Kendall G, Dayton K. Pitfalls of oversimplified headache diagnosis in TBI litigation. Brain Inj. 1997;11:26–9.
International Classification of Headache Disorders, 3rd edition. Cephalgia. 2018;38:1–211.
Solomon S. Chronic post-traumatic headache – understanding the complexities and treatment options. US Neurology. 2010;6(1):78–81. https://doi.org/10.17925/USN.2010.06.01.78.
Casale M. More than a headache: how the application of New York’s no-fault threshold has effectively eliminated head injury plaintiffs’ chances of recovery. Albany Law J Sci Technol. 2013;23:446–79.
• Casper ST. Concussion: a history of science and medicine, 1870-2005. Headache. 2018;58:795–810 An excellent historical review of concussion concepts and beliefs.
Hall C. Social security disability practice. Part II. The medical basis for determination of disability – a lawyer’s perspective, Chapter 7, section 7.60. Headaches. Westlaw. Thompson Reuters; 2016
Jurewicz RM. Traumatic brain injury – a plaintiff’s perspective. In: Hubbard J, Hodge SD, editors. Head trauma and brain injury for lawyers. Chicago: ABA Publishing; 2016; chapter 21. p. 505–27.
Hodge S, Cohen A. The physician as expert Witness. 21 No. 1 Practical Litigator 25 2010.
American Academy of Neurology. Qualifications and guidelines for the physician expert witness. https://www.aan.com/globals/axon/assets/2687.pdf. Accessed November 9, 2020.
Friedman HJ. The roles of experts and litigation support consultants in medical-legal claims. NeuroRehabilitation. 2001;16:123–30.
Joseph v. District of Columbia Bd. Of Medicine, 587 A.2d 1085 (D.C. Ct. App. 1991).
• Evans RW, Ghosh K. A survey of neurologists on postconcussion syndrome. Headache. 2018;58:836–44 This paper presents a revealing contemporary survey of neurologists’ attitudes and perspectives regarding the persistence of postconcussion symptoms, including PTH.
Packard RC. Posttraumatic headache: permanency and relationship to legal settlement. Headache. 1992;32:496–500.
Kamins J, Charles A. Posttraumatic headache: basic mechanisms and therapeutic targets. Headache. 2018;58:811–26.
The impact of compensation on health outcomes and recovery, Compensation and Health Outcomes. https://www.pc.gov.au/inquiries/completed/disability-support/report/34-disability-support-appendixj.pdf. Accessed November 6, 2020.
Carroll LJ, Cassidy JD, Peloso PM, et al. Prognosis for mild traumatic brain injury: results of the WHO Collaborating Centre Task Force on Mild Traumatic Brain Injury. J Rehabil Med. 2004;suppl.43:84–105.
Hanks RA, Rapport LJ, Seagly K, Millis SR, Scott C, Pearson C. Outcomes after Concussion Recovery Education: Effects of litigation and disability status on maintenance of symptoms. J Neurotrauma. 2018;36:554–8. https://doi.org/10.1089/neu.2018.5873.
Binder LM, Rohling ML. Money matters: a meta-analytic review of the effects of financial incentives on recovery after closed-head injury. Am J Psychiatry. 1996;153:1–10.
Covington EC. Psychogenic pain – what it means, why it does not exist, and how to diagnose it. Pain Med. 2000;1:287–94.
Spitzer WO, Skovron ML, Salmi LR. Scientific monograph of the Quebec Task Force on Whiplash-Associated Disorders: redefining “whiplash” and its management. Spine. 1995;20:3S–73S.
Formisano R, Bivona U, Catani S, D’Ippolito M, Buzzi MG. Post-traumatic headache: facts and doubts. J Headache Pain. 2009;10:145–52.
Obermann M, Keidel M, Diener H-C. Post-traumatic headache: Is it for Real? Crossfire debates on headache: Pro. Headache. 2010;50:710–5. https://doi.org/10.1111/j.1526-4610.2010.01644.x.
Vanderploeg RD, Belanger HG, Kaufman PM. Nocebo effects and mild traumatic brain injury: legal implications. Psychol Inj Law. 2014;7:245–54.
Miller L. Not just malingering: Syndrome diagnosis in traumatic brain injury litigation. NeuroRehabilitation. 2001;16:109–22.
McBeath JG. Labeling of postconcussion patients as malingering and litigious: a common practice in need of criticism. Headache. 2000;40:609–10.
Evans RW. Persistent post-traumatic headache, postconcussion syndrome, and whiplash injuries: the evidence for a non-traumatic basis with an historical review. Headache. 2010;50:716–24.
Andrikopoulos J. F84. Post-traumatic headache in mild head injured patients. Headache. 2003;43:554.
• Jacobs MS. Psychological factors influencing chronic pain and the impact of litigation. Curr Phys Med Rehabil Rep. 2013;1:135–41 This paper provides excellent psychological insights into chronic pain and how it is negatively affected by ongoing litigation.
Iverson GL, Silverberg N, Lange RT, Zasler ND. Conceptualizing outcome from mild traumatic brain injury. In: Zasler ND, Katz DI, Zafonte RD, editors. Brain Injury Medicine. Principles and Practice. 2nd ed. New York: Demos Medical; 2013; chapter 30. p. 470–97.
Weissman HN. Distortions and deceptions in self presentation: effects of protracted litigation on personal injury cases. Behav Sci Law. 1990;8:67–74.
. Carriere JS, Pimentel SD, Yakobov E, Edwards RR. A systematic review of the association between perceived injustice and pain-related outcomes in individuals with musculoskeletal pain. Pain Med. 2020;21:1449–63 This paper discusses the concept of perceived injustice which perpetuates painful symptoms resulting from injury. Many patients with PTH ruminate on this notion, either subconsciously or consciously, prolonging their symptoms and disability.
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J.E. Hubbard—conception and design; drafting and final revision of the manuscript for content, including medical writing for content. S.D. Hodge—drafting/revision of the manuscript for content, including legal writing for content
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Jack E. Hubbard—serves as expert witness and consultant in medical-legal cases. Samuel D. Hodge, Jr.—serves as a mediator and neutral arbitrator for The Dispute Resolution Institute and is paid for speaking engagements.
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Hubbard, J.E., Hodge, S.D. The Litigation Complexity of Posttraumatic Headaches. Curr Pain Headache Rep 25, 39 (2021). https://doi.org/10.1007/s11916-021-00954-3
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DOI: https://doi.org/10.1007/s11916-021-00954-3