The Evidence Courts Once Dismissed as Invisible

When pain finally shows up on a scan

If you were in an accident that left you with a broken bone or visible scars, you might be able to recover damages from the negligent party with fairly straightforward documentation from your doctor. 

But even with a doctor’s testimony, there are some injuries that are hard to “see” by a jury or insurance company. Chronic pain, mild traumatic brain injury (TBI), and soft-tissue damage have long been dismissed by insurers and juries alike as “subjective” complaints. They’re vulnerable to skepticism because they can’t be seen on an X-ray or other imaging. Therefore, a victim would have a hard time receiving compensation for what the injury really cost them, because the injury and its effects aren’t as obvious as actual broken bones, for example. 

Medical technology has come a long way in a relatively short time. Advanced imaging such as functional MRI (fMRI), diffusion tensor imaging (DTI), high-resolution CT scans, and others are giving plaintiffs a new kind of evidence. These machines provide pictures of injuries that used to only exist in the patient’s own account of their pain. That means the courts have to keep pace with the technology, and case law has been unevenly applied.

How does advanced imaging work?

Both standard X-rays and conventional CT or MRI scans are great for showing fractures, herniated discs, and gross structural damage. But they are less useful for injuries that exist in soft tissue or in the functional wiring of the brain, rather than its visible anatomy. 

For example, a mild TBI can have a normal-looking structural scan in a concussion patient. However, the injury could still result in genuine and sometimes permanent cognitive and emotional impairment. Historically, an accident victim’s attorney would need to rely on neuropsychological testing, testimony from family or coworkers, and opinions from the patient’s treating physician for these types of injuries. The defense attorney or insurer would then typically claim that they were exaggerated or unverifiable—these are not easy cases for a plaintiff to win. 

Today, newer imaging tools close the gap. DTI, for instance, measures the movement of water molecules along white-matter nerve fibers. This allows a radiologist to detect microstructural damage that is invisible to a standard MRI. fMRI goes a step further; it tracks blood-flow changes to show which brain regions are or aren’t activating in response to a stimulus. Researchers have used this technology to demonstrate altered pain processing in patients with chronic neuropathic pain. 

This can allow a plaintiff’s lawyer to present objective, physiological proof of an injury that used to be “proven” only by the patient’s testimony.

From the hospital room to the courtroom

The Daubert standard

Reliability and relevance of expert witness testimony is governed by the Daubert standard. This legal rule was established by the U.S. Supreme Court in 1993 to require judges to block unreliable evidence. [Of note: There are a couple of states that instead follow the older Frye standard, which relies on whether the expert’s methods are “generally accepted” in their specific scientific community.]

Essentially, the legal test for determining the admissibility of this type of evidence requires expert testimony to rely on reliable, peer-reviewed, generally accepted methods properly applied to the facts of the case. However, courts have been inconsistent with this approach for advanced imaging.

Admissibility and DTI (diffusion tensor imaging)

In Marsh v. Celebrity Cruises, Inc. (Case No. 1:17-cv-21097, S.D. Fla.), the plaintiff slipped on a puddle of water on a cruise ship and suffered a mild TBI. The Marsh court set a key precedent by allowing DTI as reliable expert testimony. The defense tried to argue that DTI was “junk science” and didn’t meet the Daubert standard, but the court sided with the plaintiff and determined that DTI is an accepted, peer-reviewed imaging method with a low error rate. This ruling paved the way for the admissibility of advanced neuroimaging in TBI litigation. 

Even so, other courts have excluded DTI evidence in mild TBI cases—which means that whether or not DTI evidence can be shown to a jury depends on the jurisdiction and the judge in each specific lawsuit.

Admissibility and fMRI (functional MRI)

Some attorneys have presented fMRI evidence as more of a lie-detection tool, rather than an injury marker. The technology is typically not acceptable for this purpose. In a 2010 case, the judge ruled that when used as a lie-detector test, an fMRI is more prejudicial than probative. 

In that case, a physician was accused of fraud related to Medicare and Medicaid payments. The doctor voluntarily submitted to an fMRI test to attempt to prove that he was telling the truth; he answered questions related to the case while in the fMRI scanner. Ultimately, despite arguments both for and against the accuracy of the test results, the judge declined to admit the results into evidence. 

However, when fMRI is used to diagnose and assess pain, rather than to catch someone lying, it’s been more successful. In a 2015 case, plaintiff Carl Koch suffered severe burns in a workplace accident. An fMRI test compared his brain activity when stimulating his injured arm as compared to the uninjured arm. The result was admitted as evidence of his chronic neuropathic pain, and the case settled for $800,000—more than ten times the employer’s initial offer. The case resulted in an unpublished ruling, which means there’s no binding precedent (meaning, other lawsuits would follow), but it demonstrates that an fMRI brain scan can be a persuasive and admissible piece of evidence. 

The takeaway: 

Advanced imaging isn’t a single category with uniform credibility. Some techniques hold up under scrutiny, and some don’t. The legal system tends to sort them based on the purpose and utility on a case-by-case basis.

Advanced imaging and insurance companies

Most states allow a defendant or insurer to require an independent medical examination (IME) of an injured claimant. This is a physician selected and paid for by the insurance company who will review the claimant’s imaging, along with their medical records, as selected by the defense counsel. That means they see what the defense counsel wants them to see, and there could be significant omissions. 

Sometimes, this also means advanced imaging can become a battle over competing radiology interpretations, rather than an uncontested tie-breaker. A DTI or fMRI report for a plaintiff could shift the dispute toward these types of questions:

• Was the imaging properly performed?
• Are the abnormalities trauma-specific? 
• Can an opposing expert’s interpretation of the same data support a less severe conclusion?

Sophisticated imaging analysis like DTI and fMRI requires specialized post-processing and expert interpretation—it’s not the same as a simple radiology report. This process is expensive, and well-funded insurers and self-funded corporate defendants can access equally sophisticated rebuttal experts. An individual plaintiff might have more difficulty affording the imaging in the first place. This access gap is one of the more troubling parts of this technology; your “objective” proof could be a function of your litigation budget, more so than the actual injury.

Quantifying damages

The largest financial impact from imaging is the valuation of pain and suffering. This is traditionally the most subjective and contested category of damages. Attorneys report that settlements backed by MRI or other imaging documentation run substantially higher than comparable claims without it. 

That’s because many jurisdictions calculate non-economic damages as a multiplier of “special damages.” In other words, a multiplier of the costs of total economic damages that include medical bills, lost wages, and future care costs. Imaging-confirmed injuries typically require more extensive (and expensive) treatment, which then raises the base multiplier. Insurers tend to be more willing to negotiate seriously if a claim is backed by an objective finding, rather than a pain complaint, alone. Once a jury has seen a scan that demonstrates pain, it’s more likely it will find in favor of the plaintiff.

Calculating future damages

Life care planners are increasingly looking to incorporate findings from advanced imaging. Something like a documented white-matter lesion or abnormal activation pattern, when taken into consideration for projecting long-term medical need, could translate a radiological finding into a dollar figure. This can mean more money for future treatment, therapy, and lost earning capacity. 

While this is a powerful tactic, it also could present a risk. Courts have warned that neuroimages can carry an outsized persuasive force because jurors tend to treat a brain picture as hard science, even when the underlying interpretation is contested or the abnormality isn’t a typical diagnosis of the claimed injury. Sometimes, jurors are taken in by a colorful scan, almost as though it’s simply a visual aid—and it can affect their evaluation of what it actually proves.

What’s next for advanced imaging in personal injury lawsuits?

Advanced imaging has changed what injury victims can prove. This gives a plaintiff with what was previously an “invisible” condition—chronic pain, mild TBI, complex regional pain syndrome, etc.—a path to compensation that they didn’t have before. 

Admissibility rulings remain inconsistent on this issue, and the costs of obtaining and defending sophisticated imaging could make this a tool for deep-pocketed litigants. But the technology has made invisible pain into a visible condition. It’s still to be determined how far it can go to prove pain.