Alleged Traumatic Brain Injuries: Causation Issues with Chiari Malformations
By: Blair J. Cash and Margaret Twomey, Defense Research Institute, In Transit: The Newsletter of the Trucking Law Committee, Volume 20, Issue 3, 2017
No vehicles were towed from the scene. The accident report does not reference any complaints of injury by any driver or passenger. Even the claimant’s hospital records include references such as “No LOC (loss of consciousness)”, “Oriented to time, person, and place”, and “Normal Head CT”. Still, sometimes within weeks, sometimes not until months later, a claimant alleges that a condition known as a Chiari Malformation is due to the subject incident. The malformation itself is generally a congenital defect present at birth, but symptoms may be triggered by a physical trauma. (Brain Disorders Sourcebook, 4th edition, edited by Keith Jones, Omnigraphics, 2015). Familiarity with this malformation will prepare you to deal with this claimed injury when facing it in negotiations.
A Chiari malformation is a structural defect in the cerebellum—the part of the brain that controls a person’s balance. (Brain Disorders Sourcebook). This can occur at or around the time of birth or later in life if spinal fluid seeps into the spinal column. (Brain Disorders Sourcebook). When someone has a Chiari malformation, part of their cerebellum has shifted below the funnel-like opening to the spinal canal. In a “normal” brain, the cerebellum is located entirely above that opening. This defect may force additional pressure onto the cerebellum which can affect the functions controlled by the cerebellum and may restrict the flow of cerebrospinal fluid, which surrounds and cushions the brain and spinal cord.
According to the National Institute of Neurological Disorders and Stroke, Chiari malformations were previously thought to occur in one in every 1,000 births. (Brain Disorders Sourcebook). Improved diagnostic imaging suggests that Chiari malformations may be much more common. However, many children born with the condition do not show symptoms until adolescence or early adulthood—if at all. If a young adult plaintiff alleges a Chiari malformation as a result of an accident, or aggravation of a pre-existing condition, disproving causation of the alleged injury can be difficult. On one hand, this defect has likely been with a plaintiff since birth. On the other hand, the plaintiff may have been asymptomatic. While not a classic “traumatic brain injury” (hereinafter “TBI”), there is a rising tide in the efforts of plaintiffs to relate these underlying conditions to an accident or incident. Many reported decisions reference a Chiari malformation in the context of a social security benefits denial and appeal and workers compensation benefits hearings. See Parker v. Berryhill, 2017 WL 3705774 (S.D. Cal., Aug. 25, 2017) (alleged Chiari malformation symptoms leading to application for social security); McCoy v. W.A. Kendall & Co, Inc., 181 So.3d 817 (2015) (workers compensation plaintiff alleged complications from Chiari symptoms). However, many physicians will opine that a Chiari malformation is due to some kind of physical trauma.
Symptoms of Chiari Malformations
The symptoms of a Chiari malformation can sometimes be confused for a concussion or mild TBI. These symptoms include neck pain, balance problems, muscle weakness, numbness in the arms or legs, dizziness, vision problems, insomnia or headaches. In one study, pain from sub-occipital headaches was the most frequently reported pre-diagnosis symptom. (Patient-reported Chiari malformation type I symptoms and diagnostic experiences: a report from the national Conquer Chiari Patient Registry Database, Fischbein, Rebecca, et al, 14 May, 2015, Neuro Sci. (2015) 36: 1617-1624). Spinal curvature and scoliosis may also often accompany Chiari malformations. Syringomyelia is another disorder that often accompanies Chiari malformation. This is when the cerebrospinal fluid that is restricted in flow causes a tubular cyst in the middle of the spinal cord. This can cause pain, weakness and stiffness in the back, shoulders, arms or legs—symptoms that are common amongst plaintiffs with soft tissue injuries. (Tieppo Francio v. BMJ, Case Rep 2014. Doi:10.1136/bcr-2014-207319). The main issue then becomes telling the difference between “garden-variety” soft tissue injuries and more serious TBIs.
Causation and Treatment of Chiari Malformation
Chiari malformations can be caused in two ways. As discussed previously, the far more common form of a Chiari malformation is a primary/congenital Chiari malformation where the defect occurs during fetal development. There is also acquired/secondary Chiari malformation, which is far less common. Acquired Chiari malfunctions can be caused by spinal fluid draining excessively from the lumbar or thoracic spine, either due to injury, exposure to harmful substances or infection. Often the draining that leads to an acquired Chiari malformation stems from medical procedures to treat an injury (such as a malfunctioning shunt) and not from the injury itself, so any claim of an acquired Chiari malformation from soft tissue injuries should be viewed with extreme skepticism. There is also medical support suggesting that surgeries to treat Chiari malformations may bring little to no relief to patients. (Fischbein, 2015). If plaintiff has received a surgical recommendation because of the malformation, it may worthwhile to challenge the efficacy of such a surgery.
Because Chiari malformations are often asymptomatic, they are often diagnosed during the course of tests for an unrelated issue—such as imaging after a minor head trauma or cervical strain. This is particularly common when, after an accident, a plaintiff receives diagnostic testing from an emergency facility to evaluate potential soft tissue vs. “hard” spinal injury. In fact, a study published in 2015 found that the most common incident to trigger a diagnosis of a Chiari malformation was a car accident (approximately 5% of respondents had symptoms triggered by a car accident). Unfortunately this gives plaintiffs’ counsel the opportunity to argue that the malformation was “caused” by the subject accident when in reality there is little to no scientific support for the claim that a structural deformity can be caused by a soft tissue injury. However, in the Fischbein study discussed above, upwards of 10% of patients reported that some kind of head trauma from an accident was a triggering event. However, when examined more closely, the study found that trauma triggered only 3.5% of reported cases of Chiari malformations.
In one particular example, a plaintiff in her early 40s was diagnosed with a Chiari malformation and syringomyelia around her 40th birthday, after testifying that she had suffered from headaches her whole life. Plaintiff had spinal decompression a year and a half before the subject motor vehicle accident and had been treating with a pain management doctor for over a year when the accident occurred. In this case, it was integral to assess both how the plaintiff was at present day, as well as how she was before the accident. Plaintiff stated that she was in constant pain before the accident and had applied for disability because work was too painful. While Plaintiff testified about her sever symptoms since the accident, her medical records prior to the accident reflected that she was almost constantly in similar kinds of pain.
Difficulties in Diagnosis and Case Assessment
The similarities between symptoms of the already-existing Chiari malformation and symptoms commonly experienced by plaintiffs with soft tissue injuries are very similar, but when defending a case involving a Chiari malformation, it is key to distinguish between symptoms of the soft tissue injury and symptoms of the Chiari malformation. Headaches, for instance, are a common symptom of people with Chiari malformations before the defect is diagnosed. Some patients have struggled with headaches their whole lives, but do not visit a doctor until they begin to experience other symptoms such as neck pain or radiating pain into the arms. When defending a case involving Chiari malformations, it is essential during discovery to identify any possible pre-accident symptoms that plaintiffs experienced. Anxiety and other mental illnesses are also seen at a higher rate in people with Chiari malformations. (Fischbein, 2015).
Conversely, there is patient-reported data suggesting that some type of physical trauma – like a car accident or a fall – commonly triggers Chiari symptoms. The majority of research is done on the malformation itself and relieving symptoms, rather than identifying what triggers symptoms. This makes it difficult to refute assertions that symptoms of a preexisting condition were triggered by the subject accident. Since most Chiari malformations are discovered during the course of diagnosis or treatment for another disorder, it may be difficult to truly prove that the malformation was preexisting, in spite of an abundance of literature supporting that most malformations are indeed congenital or preexisting.
Accordingly, while causation of the deformity should be challenged, plaintiffs with alleged Chiari malformations are best treated as “eggshell plaintiffs.” Identifying previous Chiari symptoms throughout discovery and attempting to limit the plaintiff to changes in symptoms since the accident are essential to a strong defense. In many cases, a plaintiff will be able to deny the existence of these symptoms before an accident and then point to the new symptoms since the accident. Without pre-accident medical records impeaching the plaintiff’s testimony, a jury will oftentimes be forced to believe the plaintiff and find that the Chiari malformation – and its symptoms – were caused by a traumatic event. On the flip side, the existence of a Chiari malformation should also not immediately intimidate clients into a large settlement, until more details about the plaintiff’s malformation and symptoms are known. In short, evaluation of these claims requires a thorough examination into the plaintiff’s medical history along with a potential expert evaluation of the “before” and “after” records.
Blair J. Cash is a Partner in the Alpharetta office of Lueder, Larkin & Hunter where his practice focuses on general liability defense and litigation, including defense of personal injury claims, uninsured / underinsured motorist claims, and claims against trucking companies and other motor common carriers. Blair has represented clients at trial, at mediation, and in settlement negotiations across the State of Georgia in both State and Federal Courts. He can be reached at bcash@luederlaw.com
Margaret (“Meg”) Twomey is an associate in the Alpharetta office of Lueder, Larkin & Hunter, where her practice focuses on general liability defense. Meg received her Juris Doctor Degree from the University of Michigan Law School in 2016. During law school she was involved with the Michigan Telecommunications and Technology Law Review, worked in the Community and Economic Development Clinic, and acted as a Senior Judge for the first-year legal research and writing classes. Meg has represented clients at hearings, at mediation, and in all stages of litigation across the State of Georgia. She can be reached at mtwomey@luederlaw.com