As discussed in the section ‘validity of symptoms’, we as doctors are entirely dependent on what we are told.  In clinical practice, we do not have the luxury usually of the full general practitioner records, alternative therapy records and personnel records that will attest to how an individual has performed in their lives over many years.  A standard clinical consultation will be between twenty and forty minutes.  A minimum neurological medico-legal consultation will be an hour and in my experience, the assessment of the general practitioner and hospital records in order to prepare a full report will require a further three to five hours with some cases taking many times longer.  All depends on the volume of past records and the extent of the injuries and degree of rehabilitation thereafter.  Interestingly severe brain injury rarely requires long periods of note reading because there is a fairly standard course punctuated by whatever medical complications have occurred.

It is usually a mild to moderate brain injury with a complaint of extensive symptoms that leads to the difficulty.  Intriguingly people with the severest brain injury often have no residual symptoms at all because they lack insight as to what has happened to them.  The greater the symptom load, then there should be at least an awareness or the antennae on high that there is at least a significant non-organic component or an individual that was highly symptomatic previous.

The assessment of the general practitioner records is vital.  It is remarkable how often symptoms attributed to a particular event or incident are then found to have been present before the accident.  I suspect all neurologists in medico-legal reporting could give examples of individuals who have complained of neck pain and back pain that has definitely come on after an accident and yet the pre-accident records show that such symptoms have been complained over decades.  Similar comments apply with regard to headache, dizziness and a wide spectrum of emotional disorders.  This phenomenon has rather charmingly been called by Iverson & Others “The Good Old Days”.  It is covered very well in what I think will become a seminal paper helping Courts understand this intriguing phenomenon.  Iverson calls it the “Good Old Days Bias”.  This false attribution or selective memory may not be deliberate (although it may be).  I think it would be better if all Claimants had access to their own GP records early into litigation so that they could at least be reminded of the symptoms that they have complained in the past.

It is almost normal human behaviour to attribute life’s problems and stresses on a tangible event such as an accident, however minor, rather than understand that it is much more likely the genetic make-up of the individual and the general living experience that has made them so highly symptomatic over many years.  This means that symptoms after an accident or legal event will be superimposed on top of what was a previously challenged state.

On average, people visit their doctor approximately 4.5 times each year.  It is usually more common in infancy and childhood and elderly adult life rather than in the ten to forty year old age group unless in women, they have the need for contraceptive or gynaecological advice.  If there are extensive entries in childhood, then it is likely that they come from an anxious parental and in particular maternal background.  If the entries are extensive with unexplained symptoms from ten until forty, then unless there is some definite clinical diagnosis with specialist input, then many of these symptoms will reflect the symptoms of the living process and the compromise that some people find in their lives as a consequence of the complexities of life and their relationships.  Perhaps everyone reading this website as lawyers should think themselves how many times they have taken off work to see their doctor in the last five or ten years assuming that you have not been unfortunate enough to develop a specific illness.  If there are twenty or more GP visits each year before an accident, then that means something.  It does not mean that there will not be post-accident symptoms but the totality of the GP experience and the extent of the GP visits will need to be taken into account.


Trajectory of recovery

It also needs to be identified that with any injury as opposed to disease or ageing, there is a natural trajectory of recovery.  If you break your leg, you rest it in plaster for between six and twelve weeks.  The plaster is then removed.  There is a withered leg with almost no muscles on it and a funny looking pale wrinkled skin.  When you first walk on it, it hurts and physiotherapy and a general exercise programme over the next few months leads to a full recovery though some people will have residual pain at the fracture site.  People who have extensive rehabilitation and a background history of physical fitness such as professional and enthusiastic sports people will get better very quickly.  Those who are overweight and not used to physical rehabilitation will take much longer.  There is however a trajectory of recovery.

It seems that only in the arena of minor spinal and mild and moderate brain injury that this trajectory of recovery is often effectively ignored by the legal process.  Individuals state that they can do nothing and that often the symptoms get worse.  That worsening will not be on an organic or structural basis unless something else has happened which will need investigation.  Where there is an absence of a physical trajectory of recovery, then the indications are usually that an individual has major psychological and/or emotional problems.  Many of these patients find themselves significantly overweight.  Their eating mechanism does not seem to fatigue and this in turn leads to reduced physical activity and a diminished psychological state.  All of these people can be rehabilitated successfully if they can be given the appropriate rehabilitation package and are willing to accept the psychological treatments that are required.  The problem with the legal process is that patients like lawyers understand that the more symptoms they have and the less apparent functional capability, then the greater will be their financial reward.  If they are also living on benefits and also benefiting from being in the sick role, our complex benefit rules makes it even more difficult for an individual to escape from that benefit/injury track and that is not necessarily their own fault.  This encourages a lack of rehabilitation activity although that often combines not only with the false attribution to the accident but also a similarly false awareness of what their actual functional capability can achieve.  Sadly in this group of patients, video surveillance is imperative and is often the only way that twenty witness statements can be overturned or at least questioned for reliability.

It is an interesting reflection that people with severe brain injury usually have relatively few witness statements and usually only from family members.  Brain damaged people do not engage with the outside world comfortably and hence no-one knows them.  Individuals with contentious or mild traumatic brain injury claiming serious amounts of money will produce tens of witness statements, all attesting to how wonderful they were before the accident and how poor they are after the accident, showing that they have continued to engage very well with the social process and none of those witness statements will have considered the pre-accident or personnel records.  They often sound as if they are text-books of injury with terms such as multi-tasking, prioritising, insight, speed of processing and explosive temper being scattered throughout the text.

One of the most remarkable cases that I know about involved a Dutch girl who had a relatively small blackboard fall on her head from 2’ or so in a pub.  She claimed a severe traumatic brain injury and vast compensation, much of which she actually won.  She was a psychologically fragile soul before the accident.  She managed to get a First Class Honours Degree after the accident and was well employed for many years in quite a good job, picking up various emotional consequences on route.  Video surveillance showed her functioning not just normally but very well from a physical perspective.  A coach load (literally) of witness statement providers came to trial from Holland, all quoting the same textbook of brain injury.  The First Class Honours Degree was explained by a Dean of her University as representing the well-known cheating that apparently occurs in most Universities in Holland.  I have no idea of her final outcome but I would not be surprised if in the terms of Kennedy, she had been “cured by the verdict” having had a trajectory of recovery that did not follow any known organic or structural process.