Mild TBI through severe. The workup is what makes the case. Concussion is real, even when the imaging is normal.
Call 904-383-7448Reviewed by Graham W. Syfert, Esq., Florida Bar No. 39104. Last updated .
Traumatic brain injury cases live or die on the medical workup. Severe TBI presents with obvious imaging findings — hemorrhage, contusion, midline shift — and the case proves itself. Mild TBI is the harder case, and most TBIs are mild. Normal CT, no loss of consciousness, symptoms that bloom in the days and weeks after the impact. The defense will argue "no real injury." A jury that gets a clean, structured presentation of the diagnostic criteria, the neuropsychological data, and the before-and-after changes in the plaintiff's life will reach a different conclusion.
Florida insurance law makes this harder. Under section 627.736, the Emergency Medical Condition determination is the gate between $10,000 and $2,500 in PIP medical. A concussion or TBI typically qualifies as an EMC when properly documented in the ER record. Skip that documentation and PIP collapses to $2,500.
Mild TBI (concussion). The most common form. Loss of consciousness, if any, is brief (under 30 minutes). Glasgow Coma Scale 13-15. CT and MRI often normal. Symptoms include headache, dizziness, cognitive fog, memory disturbance, sleep dysfunction, mood changes, and visual or vestibular symptoms. Most concussions resolve in weeks; persistent post-concussion syndrome can last months or years.
Moderate TBI. Loss of consciousness 30 minutes to 24 hours. Glasgow Coma Scale 9-12. Imaging often shows contusion or hemorrhage. Cognitive and behavioral deficits common, frequently permanent.
Severe TBI. Loss of consciousness over 24 hours. Glasgow Coma Scale 8 or below. Major structural injury on imaging. Often produces permanent disability, sometimes vegetative state. Life-care plans frequently project decades of attendant care and rehabilitation.
Florida law recognizes all three. The difference for litigation is the depth of medical workup required to convince a jury the injury is real and permanent.
Florida's PIP statute makes a stark distinction. If the treating provider determines the patient has an Emergency Medical Condition, PIP covers up to $10,000 in medical and disability benefits. If no EMC is documented, the cap drops to $2,500. Concussion and TBI satisfy the EMC standard in nearly every case, but only when the medical record affirmatively documents it.
The EMC must be determined by a physician (M.D. or D.O.), advanced registered nurse practitioner, physician assistant, dentist, or under certain conditions a chiropractor. The determination should appear in the medical record using EMC language tied to the statutory definition: acute symptoms of sufficient severity that absence of immediate medical attention could reasonably be expected to result in serious jeopardy to health, serious impairment of bodily function, or serious dysfunction of any organ or part.
In practice: the ER record after a head-injury crash needs to document head injury, the symptoms, and the EMC. Generic "patient discharged in stable condition" notes without EMC language create unnecessary PIP litigation later. Lawyers familiar with PIP point this out at the first medical consultation.
Standard imaging often appears normal in mild TBI. The clinical diagnosis rests on neuropsychological testing — a structured battery of tests measuring attention, memory, processing speed, executive function, language, and visuospatial skills. A trained neuropsychologist administers and interprets the battery.
Common batteries include WAIS-IV for general cognitive function, WMS-IV for memory, Trail Making Test for processing speed and attention, Stroop for executive function, and various validity measures to detect malingering. Pre-injury IQ estimates from word reading tests anchor the comparison; deficits show up as discrepancies between estimated premorbid function and current performance.
The neuropsychological report becomes the spine of the case. A treating neuropsychologist's testimony — at deposition and at trial — translates the test data into a narrative the jury can follow: this is what was lost, this is what the testing shows, this is how it will affect the rest of the plaintiff's life.
The most powerful TBI evidence is often the spouse, parent, or close friend who can describe before-and-after changes in the plaintiff's personality and daily function. Forgotten conversations, lost patience with children, repeated questions, abandoned hobbies, difficulty at work that wasn't there before, marital strain. Lay witnesses do not need to use medical terminology. They simply describe what they have observed.
In serious mild TBI cases, the lay witnesses can carry the case more than the experts. Jurors who hear a wife describe her husband's changed personality after a crash — calmly, factually, without exaggeration — understand the injury better than they would from any imaging slide.
TBI damages are case-by-case, but the categories are predictable.
Past and future medical expenses. ER, imaging, neurology, neuropsychology, physical therapy, vestibular therapy, vision therapy, medications, follow-up testing. In severe cases, attendant care, durable medical equipment, vehicle modifications. Amended section 768.0427 caps recovery at actually paid plus owed amounts.
Past and future lost earnings. For younger plaintiffs, the present value of lost lifetime earning capacity can dwarf medical damages. An economist projects the loss; a vocational expert addresses transferable skills and likely return to work at reduced capacity.
Pain and suffering, mental anguish, loss of enjoyment of life. Not subject to the medical-damages cap. The largest component in many TBI verdicts.
Loss of consortium. Spouses recover for loss of companionship, services, and sexual relations attributable to the injury.
Life-care plan. In moderate and severe cases, a certified life-care planner projects decades of care needs. The plan documents annual costs at each stage of life and supports the future-damages claim.
Document the EMC in the medical record. The 14-day window under section 627.736 is a hard line. Initial treatment must occur within 14 days of the crash; the EMC determination should happen at or before that visit. Without EMC, PIP drops to $2,500 and a $10,000 medical-treatment runway becomes $2,500.
Get the neuropsychological referral early. A baseline neuropsych battery within the first three to six months after the injury establishes the deficit. Repeat testing at intervals shows trajectory — improvement, plateau, or decline. Defense neuropsychologists will retest later; having a contemporaneous baseline forces a like-for-like comparison.
Preserve the imaging. CT and MRI films from the ER need to be preserved in full DICOM format, not just printed reports. A neuro-radiologist's review of the raw imaging sometimes finds subtle hemorrhage, contusion, or DTI abnormalities missed in the initial read.
Build the lay witness file early. Identify two or three close family members or friends, take statements while memories are fresh, and prepare them for deposition. The before-and-after testimony is often the most persuasive evidence in trial.
Watch for the comparative-fault attack. Defendants in TBI cases routinely argue prior depression, ADHD, sleep apnea, or other conditions account for the cognitive deficits. Pre-injury medical records help close this off — they show the plaintiff was functioning normally before the incident.
Watch the two-year SOL. Section 95.11(4)(a) applies.
Any disruption of brain function caused by external force. Loss of consciousness is not required. Includes concussion (mild TBI), contusion, hemorrhage, and penetrating injury.
Yes when properly documented. Neuropsychological testing, treating-physician deposition, and lay witness testimony build the case even when imaging is normal.
Under section 627.736, an EMC raises PIP medical from $2,500 to $10,000. A documented concussion or TBI typically qualifies.
Imaging, neurological evaluation, neuropsychological testing, treating-physician testimony, and lay witness before-and-after testimony.
Two years for negligence claims accruing on or after March 24, 2023.
The EMC documentation matters in the first 14 days. Call so we can guide the medical workup correctly from the start.
Call: 904-383-7448