If you or someone you love has suffered a brain injury due to another person’s negligence, you’re facing one of the most challenging situations imaginable. Your world may feel fundamentally different—perhaps foggy, confused, or simply wrong in ways that are hard to articulate. The symptoms can be overwhelming: relentless headaches, memory lapses, emotional volatility, crushing fatigue, and a persistent sense that you’re no longer quite yourself.
These injuries don’t just affect your health. They can disrupt every aspect of your life, from your career to your relationships to your sense of identity. Understanding what lies ahead in pursuing a brain injury claim can help you prepare for the challenges you’ll face and make informed decisions about your legal options.
As Virginia’s only board-certified truck accident attorney through the National Board of Trial Advocacy, I’ve represented numerous brain injury victims through every stage of litigation, from initial investigation through jury verdicts. This experience has shown me exactly what brain injury victims and their families should expect when seeking compensation. Here are the five most important things you need to know.
1. Insurance Companies Will Be Skeptical—and Require Aggressive Advocacy
The harsh reality of brain injury litigation is that insurance companies approach these claims with profound skepticism, even when victims are clearly suffering. This skepticism stems from several characteristics common to brain injury cases:
The “Invisible Injury” Problem
Unlike a fractured bone visible on an X-ray or a laceration anyone can see, brain injuries often leave no visible trace on standard medical imaging. Many brain injury victims—perhaps even most—have completely normal CT scans and MRIs. The damage occurs at a cellular or functional level that routine imaging simply cannot detect. The medical establishment has long recognized that traumatic brain injuries can be hidden from plain view.
This creates what insurance companies view as an evidentiary problem, but what victims experience as a devastating disconnect: they know something is profoundly wrong, yet the medical tests that should provide validation show nothing abnormal.
Missed Diagnoses Are the Norm, Not the Exception
Medical literature consistently demonstrates that even trained emergency department personnel fail to diagnose traumatic brain injuries most of the time. One medical study found that emergency departments missed approximately 56% of mild traumatic brain injuries in patients presenting after motor vehicle collisions.
This diagnostic failure happens for several reasons. Emergency departments prioritize life-threatening injuries, and concussions rarely present immediate mortality risks. Symptoms may be subtle or delayed. Medical providers fail to ask the right questions. Physicians may attribute brain injury symptoms to other causes. Patients themselves may downplay head impact or not recognize that their symptoms indicate brain injury. And the brief cognitive screening tools used in emergency settings lack sensitivity for detecting mild traumatic brain injuries.
What this means for your claim is that the absence of an immediate brain injury diagnosis doesn’t mean you didn’t suffer one. But insurance companies will seize on any diagnostic gap as evidence that no injury occurred.
The Glasgow Coma Scale Trap
Many brain injury patients who are evaluated in emergency departments receive a Glasgow Coma Scale score of 15—the highest possible score indicating apparently normal functioning. Insurance companies point to these scores as proof that victims couldn’t have suffered significant brain injuries.
What they don’t tell you is that the Glasgow Coma Scale was designed to predict mortality and need for neurosurgical intervention in severe head trauma cases—not to diagnose or characterize mild to moderate brain injuries. A person can have a GCS of 15 and still have suffered a concussion or mild traumatic brain injury with lasting consequences. The scale simply wasn’t designed to capture the subtle cognitive deficits that characterize many brain injuries.
What This Means for Your Case
Because insurance companies approach brain injury claims with inherent skepticism, you cannot expect fair treatment or reasonable settlement offers without aggressive legal representation. Insurance adjusters know that many attorneys lack the expertise, resources, or determination to effectively prove brain injury cases that lack “hard” medical evidence.
Your attorney must be willing to invest in the expert witnesses, testing, and case development necessary to overcome insurance company skepticism. More importantly, they must be willing to take your case to trial if the insurance company refuses to offer fair compensation. Insurance companies settle cases for true value only when they face attorneys they know will try cases rather than accept inadequate offers.
For a legal consultation with a personal injury lawyer, call (434) 817-3100
2. Every Aspect of Your Life Will Be Scrutinized
When you file a brain injury claim, expect the insurance company to conduct an exhaustive investigation into your background. They will look for any ammunition they can use to minimize or deny your claim.
Educational and Employment History
Defense teams will obtain your complete educational records looking for evidence of learning disabilities, poor academic performance, or behavioral issues they can attribute to pre-existing conditions rather than your brain injury. They’ll scrutinize employment records for any history of performance problems, conflicts with supervisors, or gaps in employment.
Their goal is to argue that your current cognitive or functional limitations existed before your injury or stem from factors unrelated to the accident. If you struggled with math in high school, they’ll claim your current problems with calculations have nothing to do with your brain injury. If you changed jobs frequently, they’ll argue you’ve always had workplace difficulties.
Medical History Deep Dive
Insurance companies will obtain every medical record they can find from your entire life. They’re searching for:
– Prior head injuries: Any previous concussion, even from childhood sports, becomes evidence that your current problems stem from cumulative prior trauma rather than the recent accident
– Mental health treatment: Depression, anxiety, ADHD, or any psychiatric condition becomes an alternative explanation for your symptoms
– Chronic pain: Previous back problems, migraines, or other pain conditions are used to explain away your current headaches and physical complaints
– Substance use: Any history of alcohol or drug use, even decades ago, becomes character evidence suggesting you’re unreliable or that your symptoms stem from substance abuse
Personal Life Investigation
Defense attorneys will interview anyone they can find who knows you—former spouses, old friends, past employers, even distant acquaintances. They’re hoping to find witnesses who will testify that you’ve “always been” forgetful, emotional, disorganized, or had the personality traits you now attribute to your brain injury.
Social Media Surveillance
Assume that everything you post on Facebook, Instagram, Twitter, or any social media platform will be captured. Insurance companies will analyze it for inconsistencies with your claimed limitations. A single photo of you smiling at a family gathering becomes evidence you’re not really depressed. A post about going to a movie suggests you don’t really struggle with light sensitivity or concentration problems.
Even innocent activities can be twisted. If you claim memory problems but post detailed commentary on a complex news story, the defense will use this as evidence you’re exaggerating. If you say you can’t work but you’re photographed doing yard work, they’ll claim you’re capable of employment regardless of your cognitive limitations.
What You Can Do
While you cannot prevent insurance companies from investigating your background, you can avoid giving them additional ammunition:
– Restrict all social media to private settings, and even then assume anything you post could eventually be discovered
– Avoid posting photos or updates that could be misinterpreted as inconsistent with your claimed injuries
– Don’t discuss your case on social media—anything you say can and will be used against you
– Be completely honest with your attorney about your medical history, employment background, and anything else defense counsel might discover
– Keep a journal documenting your symptoms and limitations—this contemporaneous record will be more credible than testimony about events months or years later
3. Defense Experts Will Attack Your Injuries and Credibility
Virginia’s legal system allows both sides to present expert testimony, and insurance companies use this opportunity to hire medical professionals who specialize in minimizing or denying injury claims.
The “Independent” Medical Examination That Isn’t Independent
At some point in your case, the insurance company will likely demand that you submit to an “independent medical examination” (IME) by a doctor of their choosing. Despite the name, these examinations are anything but independent.
Defense IME doctors are repeat players in the litigation system. Insurance companies hire the same physicians repeatedly because they know these doctors consistently produce reports favorable to the defense. Many defense IME physicians earn hundreds of thousands of dollars (or more) annually from these examinations, creating obvious financial incentives to please the insurance companies that provide this lucrative income stream.
The neurologist who examines you will typically spend 20-30 minutes conducting a cursory evaluation, then produce a report concluding either that you never suffered a brain injury or that any injury you suffered has completely resolved. These conclusions often fly in the face of your treating physicians’ opinions, your documented symptoms, and objective testing results—but they give the insurance company medical cover for denying or minimizing your claim.
The Neuropsychological Testing Attack
Defense teams frequently hire neuropsychologists to perform battery testing looking for evidence that you’re exaggerating or fabricating symptoms. These tests include specific measures designed to detect so-called “malingering”—the intentional exaggeration or fabrication of symptoms.
Defense neuropsychologists approach their task with suspicion, looking for patterns in your test responses that might suggest symptom magnification. If you score too poorly on certain tests, they’ll claim you’re deliberately performing badly. If you score well on some measures but poorly on others, they’ll claim the pattern is inconsistent with genuine brain injury.
The reports these defense experts produce often conclude that you’re either not injured or that you’re consciously or unconsciously exaggerating symptoms for litigation purposes. They may diagnose you with “somatic symptom disorder,” “conversion disorder,” or other psychiatric conditions they claim explain your symptoms without invoking actual brain injury.
The “You Should Be Better by Now” Argument
Even when defense experts cannot credibly deny that you suffered a brain injury, they typically fall back on another standard defense position: claiming that your symptoms should have completely resolved within three to six months after the accident.
This timeframe comes from medical literature showing that most concussion symptoms do resolve within weeks to months for most patients. But that literature also clearly acknowledges that a substantial minority of traumatic brain injury victims develop persistent post-concussion syndrome with symptoms lasting months, years, or even permanently.
Defense experts ignore this nuance and assert that anyone still experiencing symptoms beyond a few months must be exaggerating, misattributing unrelated problems to their injury, or suffering from psychological rather than neurological issues.
Countering Defense Experts
Overcoming biased defense expert testimony requires your attorney to:
– Retain highly qualified experts with stronger credentials than defense experts
– Demonstrate the financial relationship between defense experts and insurance companies
– Identify instances where defense experts have given similar opinions in other cases despite different facts
– Present medical literature contradicting defense expert opinions
– Use cross-examination to expose weaknesses, bias, and unreliability in defense testimony
– Show that defense experts spent minimal time examining you compared to your treating physicians
– Present testimony from treating physicians who have followed your case over time and have no financial stake in the outcome
This aspect of brain injury litigation is one of the most challenging and expensive. It requires attorneys with both the resources to hire top-tier experts and the trial skills to effectively cross-examine defense experts and present compelling expert testimony to juries.
4. You Must Hire an Experienced Brain Injury Attorney
Brain injury cases are among the most complex personal injury claims in Virginia. The combination of medical complexity, evidentiary challenges, aggressive defense tactics, and high stakes makes specialized legal expertise essential.
Why General Practice Attorneys Struggle
Many excellent personal injury attorneys who successfully handle car accident cases, slip and fall claims, or other common personal injury matters lack the specific expertise required for brain injury litigation. These cases require:
Medical Knowledge: Understanding neuroanatomy, brain injury mechanisms, diagnostic criteria, treatment protocols, and the medical literature on traumatic brain injury outcomes. Your attorney must be able to intelligently discuss these issues with medical experts, identify weaknesses in defense medical opinions, and explain complex medical concepts to judges and juries.
Access to Elite Experts: Brain injury cases require neurologists, neuropsychologists, neuroradiologists, life care planners, and other specialists with both excellent credentials and courtroom experience. Building relationships with these experts takes years, and many top experts are selective about which attorneys they work with.
Substantial Financial Resources: Developing and trying a brain injury case can easily cost $100,000 or more in expert fees, neuropsychological testing, medical record analysis, depositions, and other litigation expenses. Attorneys must be able to advance these costs and absorb the risk that cases might not ultimately succeed.
Trial Experience: Insurance companies settle cases based on assessment of trial risk. If they know your attorney rarely or never tries cases, they have no incentive to offer fair settlement amounts. Attorneys must have a proven track record of taking cases to verdict to command respect in settlement negotiations.
Specialized Knowledge: Understanding topics like the Glasgow Coma Scale, diffuse axonal injury, neuropsychological testing methodology, symptom validity assessment, and other technical aspects of brain injury litigation comes only through concentrated experience with these cases.
What to Look for in a Brain Injury Attorney
When evaluating attorneys to represent you in a brain injury claim, consider:
– Specific brain injury case experience: Ask how many brain injury cases they’ve handled, what results they achieved, and whether they’ve taken brain injury cases to verdict
– Expert relationships: Do they regularly work with neuropsychologists, neurologists, and other specialists essential to these cases?
– Resources: Can they afford to fully develop your case with necessary testing and expert opinions?
– Trial record: Have they actually tried cases to verdict, or do they settle everything?
– Credentials: Board certification by the National Board of Trial Advocacy or similar credentials demonstrate commitment to trial advocacy
– Understanding of your injury: Do they grasp the specific challenges of your type of brain injury, or are they learning as they go?
The Value of Board Certification
I’m Virginia’s only board-certified truck accident attorney through the National Board of Trial Advocacy. This certification requires extensive trial experience, peer recommendations, continuing education, and passing a rigorous examination. While not every brain injury case involves a truck accident, the certification demonstrates proven trial skills, substantial litigation experience, and commitment to excellence in complex personal injury cases. Those are all essential for successfully handling brain injury claims.
5. You Need Multiple Sources of Evidence
The biggest mistake brain injury victims make is assuming that because they lack “objective” medical evidence like abnormal imaging studies, they have no viable claim. While medical evidence is important, experienced brain injury attorneys know how to build compelling cases using multiple evidence sources that together paint a convincing picture of injury and its impact.
Lay Witness Testimony Is Often Your Strongest Evidence
The most powerful evidence in many brain injury cases comes not from doctors or imaging studies. Instead, it comes from the people who know you best. Those include family members, friends, co-workers, and others who can testify about how you’ve changed since your injury.
Spouses and Partners: No one knows you better than someone who lives with you daily. Spouses and even ex-spouses can testify about personality changes, cognitive difficulties, emotional struggles, and functional limitations they observe in everyday interactions.
Family Members: Parents, siblings, and adult children can describe changes they’ve noticed in your abilities, personality, and functioning. Their observations often span years or decades, providing baseline comparisons that establish how you functioned before the injury versus after.
Co-Workers and Supervisors: Workplace colleagues can testify about job performance changes, difficulty with tasks you previously handled easily, increased errors, struggles with deadlines or memory, and personality or emotional changes affecting workplace relationships.
Friends: Friends often notice subtle changes in your interests, social engagement, energy levels, and ability to participate in activities you once enjoyed. Their testimony can be particularly effective because they have no obligation to support your claim and are simply reporting what they’ve observed.
Former Spouses: While it may seem counterintuitive, testimony from ex-spouses can be powerful precisely because they’re not expected to support your claim. When a former spouse testifies that you’ve clearly changed and suffered real injury, juries find that testimony highly credible. Their testimony can be especially powerful because they do not have a financial stake in the outcome and they may be incentivized to not help their former spouse.
Functional Evidence
Beyond witness testimony, multiple sources of functional evidence can support brain injury claims:
Employment Records: Progressive performance decline documented in evaluations, increased disciplinary issues, or termination for problems that began after your injury provides objective evidence of cognitive or behavioral changes.
Financial Records: Difficulty managing money, unpaid bills, overdraft fees, and other financial problems that didn’t exist before your injury demonstrate executive function deficits.
Documentation of Daily Activities: Journals kept by you or family members documenting symptoms, difficulties, and limitations create contemporaneous records more reliable than memory.
Medical Records from Treating Physicians: While you may lack abnormal imaging, your treatment records document ongoing complaints, prescribed medications, referred therapies, and your physicians’ clinical observations over time.
Mental Health Treatment: Records from counseling or psychiatric treatment for depression, anxiety, or other emotional consequences of your injury document the psychological impact of brain trauma.
Neuropsychological Testing
Even without abnormal CT scans or MRIs, comprehensive neuropsychological testing can objectively demonstrate cognitive deficits resulting from brain injury. These evaluations measure:
– Memory functions (immediate, short-term, and long-term)
– Attention and concentration
– Processing speed
– Executive functions (planning, organization, problem-solving)
– Language skills
– Visual-spatial abilities
– Motor functions
– Emotional and personality functioning
Neuropsychological testing can identify subtle deficits that might not be apparent in casual interactions but significantly impact real-world functioning. When performed by a qualified neuropsychologist not hired by the defense, these results provide objective, scientifically valid evidence of brain injury.
Video Documentation
“Day-in-the-life” videos showing your struggles with daily activities provide powerful visual evidence that helps insurance adjusters understand your limitations. These can provide insight that testimony and medical records alone cannot achieve. These videos might show:
– Difficulty with self-care tasks like dressing or grooming
– Struggles with household activities you previously managed easily
– Cognitive difficulties when trying to follow conversations or complete tasks
– Fatigue and need for frequent rest
– Personality changes and emotional lability
– Physical limitations and coordination problems
Building a Multi-Faceted Evidentiary Case
The key to successful brain injury litigation when medical evidence is limited is building a comprehensive case using multiple evidence sources that corroborate each other. When a jury hears consistent testimony from your spouse, your co-workers, your friends, and your treating physicians, all describing similar changes in your functioning, and this testimony is supported by neuropsychological testing, employment records, and video evidence, the cumulative weight of evidence becomes compelling even without dramatic imaging findings.
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Moving Forward with Your Brain Injury Claim
Brain injury litigation in Virginia is challenging, expensive, and often lengthy. But it’s also frequently essential for obtaining the compensation necessary to address the profound impact these injuries have on victims’ lives. Understanding what to expect helps you make informed decisions and prepare for the road ahead.
The most important decisions you’ll make are choosing the right attorney and committing to seeing the process through. You must do this even when insurance companies make lowball offers or employ aggressive tactics designed to discourage you. With experienced legal representation, thorough case development, and determination to pursue your claim through trial if necessary, you can overcome the obstacles insurance companies place in your path.
If you or a loved one has suffered a traumatic brain injury, time is critical. Virginia’s two-year statute of limitations means you must act quickly to preserve your rights. Early case development is essential for gathering evidence and building the strongest possible claim.
Contact MartinWren, P.C.
As Virginia’s only board-certified truck accident attorney through the National Board of Trial Advocacy, I have the experience, resources, and trial skills necessary to handle complex brain injury cases against well-funded insurance companies and their teams of lawyers and experts. Whether your injury resulted from a truck collision, car accident, workplace incident, or other traumatic event, our firm can help you understand your legal options and fight for the compensation you deserve.
**Our consultation is free, and you will not owe legal fees unless we recover compensation for you.** Contact MartinWren, P.C. today to discuss your brain injury claim and learn how we can help you achieve justice and accountability. Attorney Robert Byrne drafted this article.
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*The information in this article is intended for general educational purposes and does not constitute legal advice. Every brain injury case involves unique facts and circumstances that affect legal rights and strategies. For advice specific to your situation, please consult with a qualified Virginia brain injury attorney.*
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