Aug. 13, 2026

Setting Up the TBI Case for Success: The First 6 to 18 Months

Setting Up the TBI Case for Success: The First 6 to 18 Months
Setting Up the TBI Case for Success: The First 6 to 18 Months
Winning The TBI Case
Setting Up the TBI Case for Success: The First 6 to 18 Months
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 One of the most common mistakes I see is lawyers screening for TBI will simply stop at asking the question, “Were you knocked unconscious?” – Tom Crosley

Welcome to Winning The TBI Case, hosted by trial lawyer Tom Crosley. Listen as Tom provides practical, powerful guidance for litigating traumatic brain injury cases. This podcast is meant for litigation attorneys who are ready to explore the essentials of TBI cases to confidently represent clients who have suffered traumatic brain injuries.

What’s In This Episode

Tom Crosley lays out a practical timeline for developing a TBI case during the critical first 6 to 18 months. He explains how better intake questions, four specific symptom-tracking tools, and consistent symptom documentation can establish an early foundation while helping attorneys avoid gaps that may later create problems with proof.

Building the Foundation of a TBI Case

The success of a case often depends on decisions made in the earliest days, long before depositions, expert testimony, or trial. In this episode, Tom explains why the first six months matter enormously and what lawyers need to do during the first 18 months to shape the medical and legal framework of the entire case.

Using a real case example, Tom demonstrates what can happen when persistent brain injury symptoms are not adequately documented early. He then walks through his approach to identifying potential TBI cases, tracking symptoms, and supporting accurate medical documentation.

Key Insights for Trial Lawyers

Go Beyond Loss of Consciousness: Intake forms should explore memory, confusion, altered mental status, acute symptoms, and what others observed immediately before and after the injury.

Create a Written Symptom Record: Vague descriptions such as feeling “foggy” or “not myself” may not adequately capture what a client is experiencing. Written symptom questionnaires can help clients organize their symptoms and communicate them more accurately to their treating physicians. Tom recommends the following four symptom forms:

Avoid Gaps in Medical Documentation: Persistent symptoms need to reach the treating physician. Long periods without meaningful documentation can make an otherwise legitimate injury significantly more difficult to prove later.

Know When to Expand the TBI Workup: For clients with persistent symptoms, Tom discusses when to consider advanced neuroimaging and whether a neuropsychological evaluation is warranted.

Reassess as the Case Develops: As the case progresses into the 12-to-18-month window, repeat neuropsychological testing or neuroimaging may help document whether the client’s condition has improved, remained stable, or changed over time.

For Trial Lawyers: Build the Foundation Early

This episode is for trial lawyers who handle serious injury cases but may not regularly litigate TBI cases. Tom’s message is simple:

  • Start early
  • Ask better questions
  • Document symptoms
  • Make sure those symptoms are reaching treating physicians
  • Continually evaluate whether the developing medical evidence supports the TBI case

The goal is not to overbuild every potential brain injury claim. It is to recognize legitimate TBI cases early enough to develop the medical and factual record needed to accurately demonstrate the client’s injury when the case reaches trial.

Connect

Winning the TBI Case — Episode 23: Setting Up the TBI Case for Success: The First 6 to 18 Months

Crosley Law | Aired: August 13, 2026 | Runtime: 29:37 | Speakers: Narrator, Tom Crosley

[0:00] Tom Crosley: One of the most common mistakes I see is lawyers screening for TBI will simply stop at asking the question, “Were you knocked unconscious?”

[0:11] Narrator: TBI cases can feel like navigating uncharted territory. Your client’s injury is real, but proving it, that’s where the real challenge begins. If you’ve ever felt like you’re missing crucial pieces of the puzzle, you’re in the right place. Welcome to Winning the TBI Case, where Tom Crosley shares the insights he’s gained from over 60 injury trials, not just the victories, but the lessons learned along the way that make all the difference. Winning the TBI Case: Strategy, Science, and Storytelling.

[0:46] Tom Crosley: Welcome back to Winning the TBI Case. I’m your host, Tom Crosley, and today I’d like to talk about how to set your case up for success in the first six months. Because let’s face it, a lot of times a TBI case at trial will only do as well as the foundation that was laid in the early days of that case. Let me tell you what I mean. At trial, we often think about expert witnesses, neuropsychological testing, how well did we prepare for depositions, how well did we pick our jury, but all of that is less important than how well we set our case up for success in the early days. The quality of the intake, the questions we ask our clients at the beginning, the way the client’s symptoms are documented, all those steps taken in the first six months of a case will often determine how successful that case is at trial two or three years later. So I’m speaking now to lawyers that may handle serious injury cases but don’t handle a high volume of TBI cases, and I’m going to provide some tips on how I usually set these cases up for success early. The central point is this: in a TBI case, especially a mild TBI case, the first six months matter enormously, and the first eighteen months or so often define the medical and legal architecture of the entire case.

[2:13] Tom Crosley: Let me begin with a case example about the problem with being too late to recognize your case as a TBI case. Several years ago, I was referred a case involving a young college-aged woman who’d been in a serious intersection collision. This was not a minor crash. She had been unconscious for briefly a minute or two. She had some bleeding on the scalp. She had a laceration. She even had a small spot of bleeding within the brain. She was taken to the hospital in an ambulance. In the hospital, the CT scans showed some abnormality, but a few weeks later she had an MRI, and by that time the blood seen on the CT was gone, and the MRI was read as normal. And the doctor told her, “Hey, look, I know you’re having these symptoms, but it’s probably all gonna go away in six weeks or so,” and no follow-up appointment was ever made, and then I get the case two years later. And so I, first thing I do is I meet with the client, and I learn that she’s still got memory trouble. She’s got headaches. Sometimes the headaches are so bad that she has to go into her boss’s office where she works in a copy center at the university, and she has to lay down on the couch and turn off the lights because these are migraine-type headaches.

[3:32] Tom Crosley: She didn’t used to have these before the crash, and so this was a life-changing injury for her. The problem is she hadn’t seen a doctor about it in almost two years. And so when I got involved, I certainly encouraged her to go back to the doctor and start reporting these symptoms. The problem with it was the defense took it all as lawyer-generated medicine. “Hey, this client was fine. She didn’t really need to go to the doctor again until Crosley got involved and started representing her on the case.” That wasn’t fair, but that’s what we were dealing with in that case. She had all these post-concussion symptoms. She had classic post-concussion syndrome that, in her case, was unresolved after two years and would likely be permanent, but it wasn’t adequately documented in the medical records. So when there is a long period of time with little or no meaningful documentation about the brain injury symptoms, that creates a problem for our proof. She had seen other doctors in that span of time. She had been to doctors for routine medical care visits, but none of these other symptoms that she was supposedly having were documented, and certainly not documented in a way that supported the full picture of what she was experiencing.

[4:48] Tom Crosley: In that case, I had to rely on friends, family members, coworkers to help explain that these symptoms were legitimate, they were real, they persisted all the time. But it sure would have been nice if there had always been a medical doctor checking in with her every ninety days or so and documenting her ongoing symptoms in a medical record. So from a litigation standpoint, the defense argument was very predictable. Hey, if these symptoms were real and they were significant, why was there nearly two years with no documentation of any TBI related symptom? That was a problem in the case. The case ultimately settled, but for less than it would have if we had set it up for success in the first six months. The gap in those records made the case much harder than it needed to be. Had I received that case weeks after the crash instead of more than two years later, the development of the case would have looked very different. As long as she remained symptomatic, she would have had someone encouraging her to follow up with her doctors and tell them what she was experiencing. Someone would have been tracking her symptoms. Someone would have been considering whether advanced imaging or neuropsychological testing was appropriate.

[6:05] Tom Crosley: Someone would have made sure the medical record reflected the reality of her condition. That is the lesson. A real injury, especially an invisible injury like a mild TBI, can be undermined by poor early documentation. So how do we avoid that? Step one, let’s ask better intake questions. One of the most common mistakes I see is lawyers screening for TBI will simply stop at asking the question, “Were you knocked unconscious?” Well, that’s a threshold question, but it is not the end all be all of the analysis in a TBI case. Loss of consciousness is not required for concussion or mild TBI. A person can sustain a mild TBI without being knocked out, so the intake has to go far beyond loss of consciousness. It has to focus on brain function. We need to be asking the client what they remember about the crash, whether they remember the minutes immediately before or after the crash, whether they were dazed, confused, disoriented, or slow to respond, whether there are other witnesses who can attest to how they behaved during this timeframe because sometimes the client themselves isn’t the most reliable narrator of those events. You know, was this person still repeating the same question over and over?

[7:23] Tom Crosley: Our client probably won’t know that, but they will have heard it from others in their lives. We need to find out whether the client had a headache, dizziness, nausea, light sensitivity, noise sensitivity, blurred vision, balance problems, mental fog, difficulty concentrating, memory problems, irritability, emotional changes. We need to be looking at all of that stuff, and those questions are important because modern mild TBI diagnosis is not built around one single fact. The 2023 ACRM criteria, which I did a previous episode on, begin with this, a biomechanically plausible mechanism of injury, and then they evaluate clinical signs, acute symptoms, and objective findings when available, and neuroimaging when present to lead to that generally accepted diagnosis of TBI. So for lawyers, my practical point is simple: do not reduce the screening for TBI to loss of consciousness. Expand and cover those other things. Ask about memory, ask about confusion, ask about altered mental status, ask about symptoms in the first seventy-two hours. Ask about what other people observed. Those facts may later be important to a treating doctor or an expert witness in the case, and they may ultimately be important to the jury in the case.

[8:42] Tom Crosley: Now, this doesn’t mean the lawyer themselves has to conduct every detailed interview. In a well-run law firm, this can be handled by the intake department or a well-trained paralegal. What matters is that the right questions are asked, the answers are recorded, and the lawyer understands those answers. This leads us to step two. Step two is we must help the client create a written symptom record. So one practical thing I recommend in any suspected TBI case is to have the client complete a written symptoms form early in the case. Most lawyers who don’t regularly handle TBI cases probably do not use this kind of process. They may ask the client generally how they’re doing. They may ask whether they lost consciousness. They may ask about headaches, but that’s not enough. So brain injury symptoms can be hard for clients to describe. A client may say, “I don’t feel right,” or, “I’m foggy,” or, “I’m just not myself.” But those statements might be true, but they don’t give the treating doctor, the lawyer, or the later experts enough detail. A written symptom form helps to organize that information. It helps the client to think through the symptoms that started after the crash, trace them to the present day, talk about what’s improved, what continues to be a problem, and it gives the client, here’s the kicker, it gives the client something concrete and tangible to take to the doctor, to their next doctor appointment.

[10:09] Tom Crosley: So that’s my key point. The goal is not to create a law firm document that sits in the file. The goal is to help the client communicate accurately with his or her physician. So if the client’s still having headaches, dizziness, memory problems, et cetera, a written form can help the client document and explain those symptoms to a physician. For this purpose, I recommend four forms. The first is called the Philadelphia Head Injury Questionnaire, or the PHIQ. This form, originally created, I believe, in the early nineties, ’cause I’ve used it for a while, just has the client fill out some basic information about the accident, whether they lost consciousness. Did they feel dazed? What did they strike their head on? Did they go to a doctor or hospital? Did they have any imaging? And then it has them describe any persistent symptoms. Do they have recurrent headaches? If yes, describe. Do they have seizures? Do they have dizziness, numbness, clumsiness, loss of balance, changes in vision, hearing, taste, smell, and so on. And they circle yes or no, and sometimes they fill out a brief description. There’s also a cognitive component to the form.

[11:25] Tom Crosley: Have you noticed changes in memory, concentration, understanding what you’ve read, understanding instructions? Do you have word-finding difficulties? There’s a personality changes inventory on the form. Are you more irritable or short-tempered? Are you more easily fatigued? Are you having depression or crying spells? And on and on. But the point is that it’s a two-page form with a pertinent medical history. Because it’s a generally accepted form, our client can fill this out. We can keep one copy in the lawyer’s file, but the client can take another copy with them to their next doctor visit. Sometimes the doctor will incorporate that form into the client’s medical record. Sometimes instead, they will use the information on that form to conduct their own screening. The point is, we’re avoiding getting things lost in translation. If the symptom is real, we want the symptom to be documented. If the client hand carries this form to the doctor, it is far more likely to end up being adequately documented in the medical record. The second form that I like to use is the CDC’s Acute Concussion Evaluation form, or the A-C-E.

[12:40] Tom Crosley: It’s useful because it’s also a doctor-friendly form. The client can fill out the symptom portions of it and take it to a physician, who can decide whether to review it and to incorporate it in their medical record as part of the clinical history. A third form that I like is called the Rivermead Post-Concussion Symptoms Questionnaire, also the RPQ. Rivermead is helpful because it allows symptoms to be tracked over time. It can be completed early in the case, and then it can be repeated later to show whether symptoms have improved or resolved, whether they persisted, whether they’ve worsened. This one is a list of a few dozen symptoms, and they ask the person filling it out to compare it with before the accident, do you now or over the last twenty-four hours have you suffered from? And then it lists these things like headaches, dizziness, nausea, vomiting, sleep disturbance, fatigue, etc. And the client circles a zero for not experienced at all to a one for no longer a problem, all the way up to a four for this is a severe problem. And so it’s tracking all those typical post-concussion symptoms, and the client is endorsing which ones are currently affecting them.

[13:56] Tom Crosley: So that’s a useful one to have the client fill out serially through the life of the case and also to hand-carry with them to their doctor in follow-up visits. There’s a fourth form that I would use if headaches are a significant component of the client’s symptoms, and it’s called the HIT-6. It stands for Headache Impact Test. That one is basically having the client rate their headaches and describe like, how severe is the pain? How do they limit your activities? It’s a two-page form. And the reason that’s important is headaches, I think, according to the literature at least, accompany about ninety percent of TBIs. And in some of our cases, most of the other cognitive symptoms may have resolved, that a client is left with a migraine-type headache syndrome that is attributable to their TBI. In those cases, it’s important that we document the evolution of the headache and whether it responds well to medications. My point is simple. In a suspected TBI case, if you’re the lawyer, do not rely on vague verbal reports. Help the client create a written symptom record that can be shared with the treating physician. If the doctor finds it useful and incorporates it into the medical chart, so much the better.

[15:13] Tom Crosley: That’s how you avoid a false gap in the medical records, a situation where the client is having real symptoms but the medical records don’t show them. Step three, make sure these ongoing symptoms reach the doctor. It’s not complicated. It’s the same advice you would give your own spouse, your own child, a good friend of yours, and it’s make sure the doctor understands what you’re going through. We do not want our TBI cases going off the track because the early medical care focuses solely on the orthopedic injuries, and ignores the potential TBI injuries. It is not uncommon in my cases that I’ll get a case where there’s been other body parts injured but, and the TBI symptoms are underreported and no one’s really following them up very well, and then I get involved in the case, usually on a referral, and I start working up the TBI symptoms. Every single time I wish I had gotten the case sooner so that we could work up all aspects of that injury case at the same time. As a lawyer, I am not directing the medical care, but I can make sure the client understands the importance of accurately reporting ongoing symptoms to his or her doctor. This is especially important in the first ninety days. That’s when many concussions improve. A lot of early doctors that see that client may assume the client’s going to get well in that thirty to ninety day period because most people do, and so they won’t even schedule a follow-up appointment.

[16:37] Tom Crosley: What happens if that client didn’t get well and there’s no appointment scheduled? Well, if the, if no one’s paying attention, that client might not go to the doctor at all, which creates the classic problem that we often face in these cases. So if we’re in tune with these issues and the client is still having those symptoms, then we could be in their corner encouraging them to follow up with appropriate medical care and have those symptoms documented. Step four is deciding whether advanced imaging is needed. So a normal CT scan that your client may or may not have gotten in the emergency room does not rule out mild traumatic brain injury. CT is excellent in the emergency setting for identifying skull fractures, bleeding, swelling, or surgical emergencies. But CT is not designed to detect many of the microstructural injuries associated with mild TBI. A conventional MRI may also be normal even when the patient has persistent symptoms. So if the client remains symptomatic and the case appears significant enough to warrant a full TBI workup, the lawyer should be thinking about advanced brain imaging within the first six months. Ideally, this would be ordered by a treating physician.

[17:54] Tom Crosley: The best practice is for the client’s symptoms to be evaluated by a physician specializing in head injury and for that physician to determine whether advanced imaging is appropriate. In my practice, when advanced imaging is warranted, I generally want a brain MRI with a trauma-sensitive protocol. What does that mean? That means, if available, a three T MRI. Tesla or T is a unit of measurement of magnet strength. The typical MRI is a one point five T machine. A three T machine can give us a better picture. That’s not so important when we’re looking at knees. It’s very important when we’re looking at brains. So I would want a 3T MRI with susceptibility weighted imaging or SWI is useful because it can detect microhemorrhages or hemosiderin deposits, little deposits of dried up blood, which could show evidence of prior bleeding. That picture is worth a thousand words when you’re trying your lawsuit. This trauma-sensitive protocol would also include DTI or diffusion tensor imaging, which I’ve talked about on prior episodes. DTI evaluates white matter integrity by measuring the movement of water molecules along white matter tracts.

[19:16] Tom Crosley: It is not a standalone diagnosis of TBI, but it can provide important corroborative evidence. This protocol we would get should also include volumetric analysis when available. Volumetrics can help evaluate whether there are patterns of brain volume loss or asymmetry that may be relevant, especially when interpreted by a qualified expert in the context of the full clinical picture. So this is an area where lawyers need to understand the distinction between clinical medicine and litigation proof. Mild TBI is a clinical diagnosis. A doctor does not need DTI or volumetrics to diagnose a concussion. Some clinical guidelines do not even recommend advanced imaging for routine management of every mild TBI patient. That’s understandable. But litigation is different. In a serious case with persistent symptoms, we’re not just asking whether the client had a concussion. We’re also asking whether there is objective, verifiable evidence that helps corroborate the injury, explain the symptoms, evaluate the prognosis, and respond to predictable defense arguments. We’re looking for proof. And so that’s why in the right case, advanced neuroimaging can be important because timing matters.

[20:34] Tom Crosley: If the client is still symptomatic weeks or months after the injury, and the case appears to be having the trajectory of a more significant TBI case, I would not let the first six months pass without deciding whether advanced imaging is warranted. That doesn’t mean every client with a headache needs advanced imaging. It doesn’t mean every concussion case gets a DTI. It’s all dependent on how severe the client’s symptoms are. If they’re still symptomatic ninety days out, I’m starting to think about getting advanced neuroimaging. We certainly don’t want to discover three years into the case that that advanced imaging was never obtained and the client is still symptomatic because that’s a lost opportunity to prove a strong case. So the next step after advanced neuroimaging is neuropsychological evaluation. I like to consider it around the six-month mark. Sometimes it’s ordered clinically. Sometimes it’s not ordered clinically, and I’m getting it as a forensic expert witness. But in any serious case involving persistent, ongoing cognitive, behavioral, or functional symptoms related to TBI, I generally lean toward getting a neuropsych exam at six months. If I haven’t gotten the case in the first six months, then I’m trying to do it at least within the first year.

[21:54] Tom Crosley: There are some reasons not to do this comprehensive testing too early. In the first few weeks after a concussion, the symptoms might be fluctuating. Client may still be in pain. There might be other explanations for why they might not perform a certain way on neuropsych testing. But at the six-month mark, if they’re still having problems with memory, attention, processing speed, mental fog, et cetera, then I tend to lean toward getting the neuropsych exam at that point. It will help identify cognitive strengths and weaknesses. It will evaluate validity and effort. It’ll assess functional limitations. It’ll help us sort through the overlap between the TBI symptoms and PTSD or anxiety or other symptoms. Again, this doesn’t mean every TBI case needs a neuropsych test either. If it’s just a headache symptom, and that’s predominantly what I’m building the case around, I don’t need a neuropsych. It depends on the cluster of symptoms the client has. But if they’re cognitive and emotional and they’re significant, I’m probably getting a neuropsych test. And then at the six-month mark, I’m hoping to have classified my case. Was this the type of concussion or mild TBI that largely resolved?

[23:09] Tom Crosley: What am I left with? Or is this instead a persistent post-concussion syndrome case? Is it a complicated TBI? Is there more severity to this one with positive neuroimaging? Is there evidence of structural injury? You know, are the symptoms real, but maybe it’s more related to physical pain or depression or PTSD or sleep disruption or medication or other conditions? So I’m really trying to figure out at six months, does this hold together as a TBI case? This prevents potentially two costly mistakes. Number one, missing a real TBI case because nobody developed it early. Or number two, the flip side of that, overbuilding a weak TBI case that doesn’t have the factual or medical foundation to support it. So often I’ll have a case that starts out as a TBI case, but my client has gotten well by ninety days or one hundred and eighty days. I don’t continue to try to pretend it’s a TBI case anymore. I mean, I work up those symptoms for what they were, but I focus on, you know, all my cases. I’m focusing on how has this injury changed my client’s life going forward? Because that’s where the real loss to the client is.

[24:26] Tom Crosley: That’s where the real value in a jury argument is, a lifetime of future disability. So now let’s shift beyond the first six months and talk about the first eighteen months. So there are certain things that I’ve done by six months, and there are certain other things I want to do by eighteen months. At eighteen months or at least a year or so after that first neuropsych, I probably want to repeat one so I can see whether they’re more or less the same or whether they’ve changed. Plus I want my experts to have recent information by the time the case is going to court. I will also consider repeat testing with advanced neuroimaging. I might get another MRI, repeat the SWI, the DTI, and the volumetrics. Sometimes we can learn things about the volumetric changes. If there’s been atrophy in an area of the brain that was injured and we look at it again a year later and we see that that part has gotten smaller or atrophied more, that can create powerful evidence when we try the case. So I’m usually doing repeat imaging and repeat neuropsych testing, at least a year after the first time. And then if the case lives long enough, I’m probably doing this repeat testing every twelve to eighteen months during the life of the case, and certainly less than six months before the trial of the case so that my experts can testify based on recent testing results.

[25:54] Tom Crosley: So here’s my practical timeline for lawyers. In the first thirty days, screen your case carefully. Don’t stop at loss of consciousness. Ask about memory, confusion, altered mental status, acute symptoms, and what others have observed about the plaintiff. Use these written symptom forms that I’ve mentioned to help the client document their own symptoms and to communicate them to the treating doctors. These forms are the PHIQ, the CDC ACE, the Rivermead, and the HIT-6. Get the emergency room records, EMS records, imaging reports, and discharge instructions, and monitor your client to determine whether the symptoms are resolving or continuing. If they’re continuing, it’s important that the client is still seeing a physician and having these symptoms documented and getting the treatment that they need. At the three to six-month window, I’m usually looking at whether the case requires advanced brain imaging. I’m considering a three T MRI with SWI, DTI, and volumetrics, preferably ordered through a treating physician. Around the six-month mark, I’m considering whether a neuropsych evaluation is warranted, especially if the client’s still symptomatic and depending on what those symptoms are.

[27:10] Tom Crosley: And around the twelve to eighteen-month mark, I’m starting to consider repeat testing. So here’s my closing takeaway. I’ll wrap it all up. If you suspect a brain injury in your client, then start early by documenting all those symptoms and have your client make sure they are reporting these symptoms to their physician and that the client’s medical records are documenting those symptoms also. If the client is still symptomatic at ninety days, it’s time to start thinking about ordering advanced neuroimaging. If the client is still symptomatic at one hundred and eighty days, in my practice, it’s time to start thinking about a referral for a neuropsychological evaluation. And then during the life of the case, I want my client to continue to have their symptoms documented and followed over the entire life of the case at least every ninety days. And I probably want repeat neuroimaging and repeat neuropsychological testing at intervals in the life of the case every twelve to eighteen months, and certainly within six months of my trial date. The right fact documented early is often more valuable than a perfect explanation you could come up with years later. So that’s why we lawyers that handle TBI cases need a disciplined early protocol for how to recognize and work up the TBI case.

[28:31] Tom Crosley: What’s that saying? An ounce of prevention is worth a pound of cure. So here we’re doing an ounce of prevention early in the case. The ounce of prevention is preventing there from being a big gap in the medical records that don’t adequately explain what your client is going through. The pound of cure is gonna come later, right? When we have set up the TBI case for success at a trial two or three years down the road. That’s it for today’s episode. This has been Winning the TBI Case: Strategy, Science, and Storytelling. I’m Tom Crosley. See you next time.

[29:04] Narrator: If today’s episode helped you see your current case in a new light, share it with a colleague who’s facing the same challenges in a case. Subscribe wherever you get your podcasts and join our community of trial lawyers who refuse to settle for average results. This has been Winning the TBI Case: Strategy, Science, and Storytelling with Tom Crosley.