Dr. Jonathan Schleimer Questions TBI Diagnosis to Clear Concert Venue in Eight-Figure Trial
The Trial: Hickman v. Hard Rock Café, a premises liability case in which the plaintiff contends she suffered back and brain injuries during a concert.
The Expert: Dr. Jonathan Schleimer, a California-based neurologist testifying for the defense as to the severity of the plaintiff’s injuries.
The Verdict: For the defense.
By Gary F. Gansar, MD, FACS; Senior Medical Director, AMFS
During a performance at a concert venue owned by the Hard Rock Café, an internationally famous DJ leapt from the stage, diving into the crowd below. In the resulting lawsuit, Hickman v. Hard Rock Café, the plaintiff would claim that she suffered traumatic brain injury and a herniated disc as a consequence of that stunt, and that the venue should have protected her from the artist’s well-known antics. But Dr. Jonathan Schleimer, a La Jolla, California neurologist called by the defense to address the eight-figure damage claim, helped clear the venue of liability.
The patient’s caretakers referred to her as having post-concussive syndrome. Schleimer addresses this diagnosis first. Though admitting that the plaintiff, Brittany Hickman, certainly had a concussion as a result of the artist’s crowd dive, he begins to cast doubt upon the post-concussive syndrome diagnosis.
The plaintiff complained of increasing neck pain and headaches soon after the trauma, then months later began reporting dizziness. Since the timing of headaches and later dizziness occurred after her concussion, these symptoms could conceivably be gathered under the label of post-concussive syndrome. Yet the doctor questions whether the additional symptom of dizziness might not be an example of “anchor bias,” the tendency of physicians and patients to adjust new information to fit within an original diagnosis. This is a cognitive error and a natural human bias. It prevents the doctor or the patient from considering new possibilities. Schleimer says that a multitude of symptoms will frequently get grouped into post-concussive syndrome in this way, especially when that diagnosis is not made by a neurologist. The symptoms of headaches, fatigue, trouble sleeping, and dizziness fit into many diagnoses, Schleimer notes. They could be signs of depression or insomnia. Thus, the failure to consider these and other possibilities could be “anchor bias.”
The expert then expounds upon the video nystagmus test used to detect inner ear functional abnormalities that result in dizziness or vertigo. This test had been performed on the plaintiff by an audiologist, who reported that there was “soft” evidence during only one phase of the test that might implicate an inner ear dysfunction. Notably, however, there was no evidence of vertigo or dizziness with this testing. Schleimer tells the jury that the “soft evidence” finding can frequently be seen in normal people and is not strong enough proof to conclude there has been brain damage.
When questioned about any cerebellar dysfunction in the plaintiff, the neurologist distinguishes between dizziness and balance problems. The cerebellum is critical for balance and coordination, he says, but has nothing to do with dizziness.
Since the patient continued to complain of headaches and dizziness long after the injury, her doctor ordered a 3 Tesla MRI of her brain, imaging using an MRI equipped with the most powerful magnet. This was read by a neuroradiologist who concluded the results were normal. Two years after the accident, however, another 3 Tesla MRI was performed, but this machine had DTI [Diffusion Tensor Imaging] capabilities. This technique has been promoted as a way of exposing traumatic brain injury by mapping the direction of the axons within the white matter of the brain. Yet Schleimer says the DTI has its limits. Schleimer explains emphatically that he does not use this technique in his clinical practice due to its unreliability, especially in mild traumatic brain injuries similar to what is claimed here.
He tells jurors that using DTI in cases similar to this is still an experimental technique and is essentially not used as the standard of care, and he explains that the specificity of the results is too low. One might see what appears to be an abnormality when testing, for example, but not know what that abnormality specifically represents in terms of pathology.
In short, Schleimer says he believes that it has not been determined what having an abnormal DTI following a concussion really means. Importantly, he concludes an MRI using DTI leads to too many false-positive readings by radiologists. The DTI may look abnormal, leading to a positive finding, but it is not certain what that positive finding implies.
Finally, the doctor comments on the “perivascular spaces” that were seen, only to state plainly that this is a normal variant, “I see that so commonly… I did not think anything of it.” In fact, the radiologist reading the test did not say that these perivascular spaces were abnormal, only commenting that they were there.
Schleimer’s testimony likely planted significant doubt in the jury’s mind regarding the plaintiff’s injuries. The plaintiff sought over $10 million, but the verdict buoyed the defense.
Gary Gansar, MD, is residency trained and Board Certified in General Surgery. He previously served as Chief of Surgery and Staff at Elmwood Medical Center and on the Medical Executive Committee at Mercy Hospital and Touro Infirmary in New Orleans, LA. Dr. Gansar also served as Clinical Instructor and Professor of Surgery at Tulane University. He received his MD and served as Chief Resident at Tulane University Medical School. Dr. Gansar joined AMFS as a consulting medical expert in 2011 and has served as Medical Director since Nov. 2015. In this capacity, Dr. Gansar provides consultation, review and guidance to attorney clients.