Five Misconceptions Personal Injury Attorneys Have About Traumatic Brain Injuries

Dawn Pinnisi

May 1, 2026

By: Dawn M. Pinnisi

When a personal injury attorney meets with a prospective client claiming to have an invisible injury that doesn’t seem to affect their ability to walk or talk, conventional wisdom would tell that attorney to proceed cautiously and likely decline representation. That wisdom, however, doesn’t apply when traumatic brain injuries (TBIs) are involved. TBI cases are among the most consequential yet frequently mishandled matters in personal injury litigation.

This isn’t because of a lack of care by personal injury attorneys. TBIs, especially mild TBIs, are often misunderstood by attorneys and clients alike. TBIs defy conventional measures for determining how severely injured a prospective client is. There’s no cast, no scar, no limp, and often, not even a dramatic finding on imaging.

What there is, if a personal injury attorney knows how to look for it, is an individual whose life has quietly come apart, often in ways that they themselves cannot fully appreciate, because of the negligence of another party. TBIs have been described as “invisible injuries” and a “silent epidemic” because they are pervasive, frequently undiagnosed, and involve complications, such as impaired cognition and memory, that are not visible.

My firm and I have handled TBI cases for over a decade, including a recent case in which we secured a $19 million verdict for a plaintiff who did not seek medical treatment for a month after being injured in a car accident, but who was ultimately diagnosed with a mild TBI. Time and again, I’ve seen how often TBIs go unrecognized—not just by emergency room physicians, but by many personal injury attorneys who may be contacted by people who have suffered TBIs but are unfamiliar with the best practices for assessing TBI injuries and litigating TBI cases.

Here are the five most common misconceptions I’ve seen personal injury attorneys have about TBIs.

TBIs are caused only by direct shots to the head

Our brains sit suspended in cerebrospinal fluid. The forces from any impact, including car crashes and slip-and-falls, can cause the brain to accelerate and decelerate within the skull, producing neurological consequences. Direct contact to the head is not required for our brains to accelerate and decelerate within our skulls. In fact, according to the U.S. National Library of Medicine, the most common cause of TBIs is not athletic collisions but falls, which account for half of all TBI-related emergency room visits.

Personal injury attorneys whose intake processes screen out prospective clients who complain of symptoms of a brain injury when there’s no documented hit to the head could be turning away meritorious TBI cases.

There’s a one-size-fits-all approach to evaluating TBI cases

TBI symptoms present at different times and manifest differently from one individual to the next. Symptoms such as headaches, dizziness, and fatigue may develop over weeks for one individual, but over months for another, because of inflammation and structural changes in their brains after trauma. This delay means that these symptoms (and the existence of the TBI) may not be addressed or even detectable when an individual seeks medical treatment immediately after the incident.

Cognitive changes, such as difficulty concentrating, memory problems, and difficulty processing information, are key indicators of a TBI. However, these changes are highly individualized. The functional impact of a TBI is best understood relative to an individual’s baseline and the demands of their daily life. An athlete may notice issues with coordination and balance, while an attorney may notice diminished performance when drafting briefs or analyzing dense material. Yet that same athlete might have no problem with their day-to-day reading, and that attorney might continue their five-day-a-week gym routine without trouble.

An individual’s symptoms can also present in less obvious ways. For example, a TBI can cause visual disturbances, but not because of damage to the eyes. Instead, a TBI can weaken the neural pathway connecting the brain to the eye muscles. Individuals may struggle with screen exposure, finding that prolonged time staring at their computer or phone screen triggers headaches or disorientation, which can have a significant impact on their work and daily function, but is easily misattributed to unrelated causes.

Because of the idiosyncratic nature of these injuries, a personal injury attorney’s intake process must incorporate questions about baseline cognitive function and any post-incident changes. These questions should be asked in the initial client interview, even if cognitive symptoms are not the prospective client’s primary complaint. Attorneys may want to interview a prospective client’s family members and other loved ones because a person with a TBI may underestimate or be unable to fully articulate the changes in their own cognitive functioning. Sometimes, a person who suffered a TBI might need to be convinced to see a specialist by a loved one who is adamant that they observed changes to their cognitive abilities or personality.

Emergency room diagnoses are dispositive

Many personal injury attorneys are quick to decline a TBI case if a diagnosis is not documented in medical records from an emergency room or if an individual did not visit one. That approach places too much weight on a setting that’s not designed to diagnose mild TBIs.

Emergency rooms and their staff are focused on acute, life-threatening injuries. In the context of head trauma, this typically means ruling out intracranial bleeding or skull fracture. When an individual is discharged from the ER, they have not been cleared of a mild TBI; they have merely been cleared of a brain bleed.

That distinction is critical when evaluating new cases and responding to defense arguments that rely on “clean” ER records. Research supports this reality, as at least one study has shown that more than half of patients who meet diagnostic criteria for a mild TBI are not diagnosed as having a TBI by emergency room staff. Personal injury attorneys should not let the absence of an ER diagnosis or a trip to the ER prevent them from accepting what could be a meritorious TBI case.

Neurologists are always the most effective experts for a TBI case

Hiring a good expert in TBI cases is non-negotiable, given the complexity of injuries to the human brain. Many personal injury attorneys assume neurologists will be the most persuasive, effective experts based on their specialties.

In my experience, however, a physician board-certified in brain injury medicine can be more persuasive and effective than a neurologist without that certification. These providers focus specifically on the evaluation and treatment of brain injuries—that’s their entire practice—rather than amassing general knowledge about the spectrum of neurological conditions, which are generally irrelevant to TBI cases.

Defense counsel may attempt to challenge an expert on these grounds, arguing that a physical medicine doctor is out of her depth when evaluating a brain injury. In my experience, that challenge collapses under examination, but it underscores the importance of personal injury attorneys fully understanding their experts’ credentials before trial so that they can anticipate and rebut those arguments.

Additionally, a board-certified brain injury specialist will often refer the individual to a neuropsychologist. Neuropsychological testing evaluates how the brain functions by comparing an individual’s performance with normative data for age, education, and other demographic factors. In other words, an individual is not compared with the general population but with peers with a similar educational and occupational background. Thus, any cognitive deficits identified by the testing reflect a meaningful departure from that individual’s own baseline, not an abstract statistical average. This process allows the expert to identify specific cognitive deficits and differentiate them from preexisting conditions, enabling a personal injury attorney to translate a client’s subjective complaints into measurable damages.

Beyond neuropsychological testing, a brain injury medicine specialist will typically coordinate a full range of therapeutic referrals, such as cognitive, balance, and vision therapy. Each of these referral streams not only serves the individual’s recovery but also creates a documented treatment record that supports both causation and the scope of damages at trial.

Delayed presentations of symptoms are fatal to a client’s case

Defense counsel in TBI cases often run the same causation playbook when a client presents with delayed symptoms. They will focus on why symptoms weren’t documented earlier if the injury was so significant, and why the client began complaining about their symptoms long after suffering the injury. But personal injury attorneys should not let defense counsel bully them into devaluing their client’s claim or questioning the merits of it in these cases.

TBIs differ from soft-tissue tears or broken bones. It’s not unusual for clients to show symptoms, including the first presentation of symptoms, weeks or months after they were injured.

Of course, if a client presents with a potential TBI, obtaining a prompt evaluation, ideally within the first 72 hours after the incident, helps create a contemporaneous medical record that strengthens causation. Early documentation linking symptoms to the traumatic event narrows the defense’s ability to challenge causation.

That said, a delayed presentation is not a death knell for a case. In 2023, the American Congress of Rehabilitation Medicine updated its diagnostic criteria for mild TBIs and allowed the criteria to be applied weeks, months, or even years after the injury. There is no strict requirement that the diagnosis be made contemporaneously to injury. A qualified expert can make a retroactive diagnosis based on a thorough history, a plausible mechanism of injury, and the absence of compelling alternative explanations.

Making a difference by understanding how best to litigate TBIs

TBI cases are as complicated as the injuries they concern. When personal injury attorneys avoid falling for the five misconceptions I’ve described above, and are willing to invest in understanding both the developing medical science around these injuries and the nuanced litigation strategies required to effectively present claims involving them, they will improve their chances of securing a favorable result in their clients’ TBI cases.

Dawn M. Pinnisi is a founding partner and trial attorney at Varcadipane & Pinnisi, P.C., where she predominantly handles injury claims, including traumatic brain injury claims, in New York and New Jersey on behalf of victims of product liability, professional malpractice, and negligence. She can be reached at [email protected].

Reprinted with permission from the April 30, 2026 edition of The New Jersey Law Journal © 2026 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited, contact 877-257-3382 or [email protected].

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