Traumatic Brain Injury

LEGAL AND SCIENTIFIC ARTICLES

Traumatic Brain Injury and a Divergence Between Moral and Criminal Responsibility

Paul Litton, Traumatic Brain Injury and a Divergence Between Moral and Criminal Responsibility, 56 L. Rev. 35 (2018).

Excerpt: One aim of this essay is to examine the plausibility of each interpretation of his attorney’s claim. In doing so, this essay will discuss the ways in which a traumatic brain injury may be relevant to assessing a person’s responsibility status. In this discussion, I will emphasize a point previously made: The fact that a brain injury caused an agent to commit a criminal or immoral act that he would not have otherwise committed is not, by itself, relevant to criminal responsibility. A corollary to that claim is that neuroscientific findings are irrelevant to responsibility insofar as they are offered to show that one’s brain caused his wrongful act. Traumatic brain injury may be relevant to criminal responsibility depending on the rationality impairments it causes. Rationality impairments, if serious enough, undermine or diminish criminal responsibility.

Athletes, Veterans, and Neuroscience: A Symposium on Traumatic Brain Injury and Law

Jane Campbell Moriarty, Foreward to Athletes Veterans and Neuroscience: A Symposium on Traumatic Brain Injury and Law, 56 Duq. L. Rev. 1 (2018).

Excerpt: In fact, TBI occurs in the United States with alarming frequency: Between 1.7 and 2.5 million TBIs occur every year, and some estimate that 5 million of those injured individuals will suffer from permanent disability. Scholars have described the rate of TBIs as an “epidemic of concussive brain injuries.” One study tracking data concluded that from 2002-2006, approximately 275,000 hospitalizations and 52,000 deaths from TBI were related to accidents, assaults, and sports-related injuries. Data compiled by the United States government suggest that 12% of Iraq and Afghanistan veterans are diagnosed with TBI from blast exposure, but there is evidence that this number is vastly underreported. Evaluations of veterans returning from Iraq and Afghanistan conclude that TBI is a “pre-eminent injury” of those wars. Sports-related concussions in young athletes and the discovery of chronic traumatic encephalopathy (CTE) in former NFL players have prompted much concern in the public generally6 and in legal/medical fields specifically.

The medical and psychological implications of TBI are profound for individuals with such brain injuries. Over the last decade, TBI has become part a more prevalent aspect of cases moving through the legal system. TBIs are often an element of damage in accident cases, are raised as defenses or mitigation by defendants in criminal cases, and are litigated in both veterans benefit claims and workers disability hearings. State legislatures are grappling with concussion statutes designed to protect young athletes, and the NFL has been involved in a massive concussion settlement program. The criminal and civil litigation issues include how to prove mild TBIs (mTBIs), what types of expertise and imaging is appropriate for court, and whether TBIs can excuse or mitigate a defendant’s liability in criminal cases.

Lesion Network Localization of Criminal Behavior

Darby, R. Ryan, Andreas Horn, Fiery Cushman, Michael D. Fox, Lesion network localization of criminal behavior, Proc. Natl. Acad. Sci. USA 2017 0 (2017) 1720442115v1-201720442.

Abstract: Following brain lesions, previously normal patients sometimes exhibit criminal behavior. Although rare, these cases can lend unique insight into the neurobiological substrate of criminality. Here we present a systematic mapping of lesions with known temporal association to criminal behavior, identifying 17 lesion cases. The lesion sites were spatially heterogeneous, including the medial prefrontal cortex, orbitofrontal cortex, and different locations within the bilateral temporal lobes. No single brain region was damaged in all cases. Because lesion-induced symptoms can come from sites connected to the lesion location and not just the lesion location itself, we also identified brain regions functionally connected to each lesion location. This technique, termed lesion network mapping, has recently identified regions involved in symptom generation across a variety of lesion-induced disorders. All lesions were functionally connected to the same network of brain regions. This criminality-associated connectivity pattern was unique compared with lesions causing four other neuropsychiatric syndromes. This network includes regions involved in morality, value-based decision making, and theory of mind, but not regions involved in cognitive control or empathy. Finally, we replicated our results in a separate cohort of 23 cases in which a temporal relationship between brain lesions and criminal behavior was implied but not definitive. Our results suggest that lesions in criminals occur in different brain locations but localize to a unique resting state network, providing insight into the neurobiology of criminal behavior.

Neural Signatures of Third-Party Punishment: Evidence from Penetrating Traumatic Brain Injury

Glass, Leila, Lara Moody, Jordan Grafman, & Frank Krueger, Neural Signatures of Third-Party Punishment: Evidence from Penetrating Traumatic Brain Injury, 11 Soc. Cognitive Affective Neuroscience 253 (2016).

Abstract: The ability to survive within a cooperative society depends on impartial third-party punishment (TPP) of social norm violations. Two cognitive mechanisms have been postulated as necessary for the successful completion of TPP: evaluation of legal responsibility and selection of a suitable punishment given the magnitude of the crime. Converging neuroimaging research suggests two supporting domain-general networks; a mentalizing network for evaluation of legal responsibility and a central-executive network for determination of punishment. A whole-brain voxel-based lesion-symptom mapping approach was used in conjunction with a rank-order TPP task to identify brain regions necessary for TPP in a large sample of patients with penetrating traumatic brain injury. Patients who demonstrated atypical TPP had specific lesions in core regions of the mentalizing (dorsomedial prefrontal cortex [PFC], ventromedial PFC) and central-executive (bilateral dorsolateral PFC, right intraparietal sulcus) networks. Altruism and executive functioning (concept formation skills) were significant predictors of TPP: altruism was uniquely associated with TPP in patients with lesions in right dorsolateral PFC and executive functioning was uniquely associated with TPP in individuals with lesions in left PFC. Our findings contribute to the extant literature to support underlying neural networks associated with TPP, with specific brain-behavior causal relationships confirming recent functional neuroimaging research.

Traumatic Brain Injury in Criminal Litigation by Stacey Wood, and Bhushan S. Agharkar, University of Missouri–Kansas City Law Review (2015)

Abstract: Traumatic brain injury (TBI) is a highly prevalent cause of neurocognitive disorders resulting in approximately 2.5 million emergency department visits per year. As a result, the prevalence rate of traumatic brain injury is remarkably high among criminal defendants as derived from studies of individuals in prisons and jails. The Center for Disease Control (CDC) estimated that twenty-five to eighty-seven percent of individuals in jail and prison report having experienced a TBI. In this review we discuss common referral questions involving individuals with a history of TBI in criminal litigation. We cover competency to proceed, mental state defenses, and mitigation in capital and non-capital cases. Read the full article.

An Unusual Case of Acquired Pedophilic Behavior Following Compression of Orbitofrontal Cortex and Hypothalamus by a Clivus Chordoma

Sartori, G., Scarpazza, C., Codognotto, S. et al. An unusual case of acquired pedophilic behavior following compression of orbitofrontal cortex and hypothalamus by a Clivus Chordoma. J Neurol (2016) 263: 1454. https://doi.org/10.1007/s00415-016-8143-y.

Abstract: Structural brain alterations rarely lead to changes in sexualorientation. Acquired pedophilia has been reported fol-lowing lesions in the frontal and temporal lobes in males[1]. Here we report a case in which onset of paedophiliawas the striking symptom of a Clivus Chordoma, a rare,slow-growing neoplasm originating from the bone in theskull base [2], that compressed the hypothalamus and theorbitofrontal cortex (OFC).

“Understanding TBI in Our Nation’s Military and Veterans: Its Occurrence, Identification and Treatment, and Legal Ramifications” by Stacey-Rae Simcox, Michelle Mattingly, Isis V. Marrero,  University of Missouri–Kansas City Law Review (2015)

Abstract: Department of Defense data reveals that of those who served in the U.S. Military from 2000 through 2011, 235,046 service members (4.2% of the 5,603,720 who served in the Army, Air Force, Navy and Marine Corps) were diagnosed with a Traumatic Brain Injury (TBI). Because of the high prevalence of exposure to explosive devices, TBI has been labeled a “signature injury” of the wars in Iraq and Afghanistan. Adding to the unique nature of combat-induced TBI is the occurrence of commingling posttraumatic stress disorder symptoms (PTSD). Because service members’ exposure to events and comorbidities may differ significantly from civilian experiences of TBI, for instance sports injuries, it is important to understand the ramification of this condition for our military. A failure of the Department of Defense (DoD) or Veterans Affairs (VA) to adequately diagnose or treat this condition can lead to significant concerns for service members, including legal ramifications and a denial of treatment or benefits for TBI. Read the full article.

“Military-related Traumatic Brain Injury and Neurodegeneration” by Ann C. McKee and Meghan E. Robinson, Alzheimer’s & Dementia (2014)

Abstract: Mild traumatic brain injury (mTBI) includes concussion, subconcussion, and most exposures to explosive blast from improvised explosive devices. mTBI is the most common traumatic brain injury affecting military personnel; however, it is the most difficult to diagnose and the least well understood. It is also recognized that some mTBIs have persistent, and sometimes progressive, long-term debilitating effects. Increasing evidence suggests that a single traumatic brain injury can produce long-term gray and white matter atrophy, precipitate or accelerate age-related neurodegeneration, and increase the risk of developing Alzheimer’s disease, Parkinson’s disease, and motor neuron disease. In addition, repetitive mTBIs can provoke the development of a tauopathy, chronic traumatic encephalopathy. We found early changes of chronic traumatic encephalopathy in four young veterans of the Iraq and Afghanistan conflict who were exposed to explosive blast and in another young veteran who was repetitively concussed. Four of the five veterans with early-stage chronic traumatic encephalopathy were also diagnosed with posttraumatic stress disorder. Advanced chronic traumatic encephalopathy has been found in veterans who experienced repetitive neurotrauma while in service and in others who were accomplished athletes. Clinically, chronic traumatic encephalopathy is associated with behavioral changes, executive dysfunction, memory loss, and cognitive impairments that begin insidiously and progress slowly over decades. Pathologically, chronic traumatic encephalopathy produces atrophy of the frontal and temporal lobes, thalamus, and hypothalamus; septal abnormalities; and abnormal deposits of hyperphosphorylated tau as neurofibrillary tangles and disordered neurites throughout the brain. The incidence and prevalence of chronic traumatic encephalopathy and the genetic risk factors critical to its development are currently unknown. Chronic traumatic encephalopathy has clinical and pathological features that overlap with postconcussion syndrome and posttraumatic stress disorder, suggesting that the three disorders might share some biological underpinnings. Read the full article.

“Long-term Consequences of Repetitive Brain Trauma: Chronic Traumatic Encephalopathy” by Robert A. Stern, David O. Riley, Daniel H. Daneshvar, Christopher J. Nowinski, Robert C. Cantu, and Ann C. McKee, PM&R (2011)

Abstract: Chronic traumatic encephalopathy (CTE) has been linked to participation in contact sports such as boxing and American football. CTE results in a progressive decline of memory and cognition, as well as depression, suicidal behavior, poor impulse control, aggressiveness, parkinsonism, and, eventually, dementia. In some individuals, it is associated with motor neuron disease, referred to as chronic traumatic encephalomyelopathy, which appears clinically similar to amyotrophic lateral sclerosis. Results of neuropathologic research has shown that CTE may be more common in former contact sports athletes than previously believed. It is believed that repetitive brain trauma, with or possibly without symptomatic concussion, is responsible for neurodegenerative changes highlighted by accumulations of hyperphosphorylated tau and TDP-43 proteins. Given the millions of youth, high school, collegiate, and professional athletes participating in contact sports that involve repetitive brain trauma, as well as military personnel exposed to repeated brain trauma from blast and other injuries in the military, CTE represents an important public health issue. Focused and intensive study of the risk factors and in vivo diagnosis of CTE will potentially allow for methods to prevent and treat these diseases. Research also will provide policy makers with the scientific knowledge to make appropriate guidelines regarding the prevention and treatment of brain trauma in all levels of athletic involvement as well as the military theater. Read the full article.

“Chronic Traumatic Encephalopathy in an Iraqi War Veteran with Posttraumatic Stress Disorder who Committed Suicide” by Bennet Omalu, Jennifer L. Hammers, Julian Bailes, Ronald L. Hamilton, M. Ilyas Kamboh, Garrett Webster, and Robert P. Fitzsimmons, Neurosurgical Focus (2011)

Abstract: Following his discovery of chronic traumatic encephalopathy (CTE) in football players in 2002, Dr. Bennet Omalu hypothesized that posttraumatic stress disorder (PTSD) in military veterans may belong to the CTE spectrum of diseases. The CTE surveillance at the Brain Injury Research Institute was therefore expanded to include deceased military veterans diagnosed with PTSD. The authors report the case of a 27-year-old United States Marine Corps (USMC) Iraqi war veteran, an amphibious assault vehicle crewman, who committed suicide by hanging after two deployments to Fallujah and Ramadi. He experienced combat and was exposed to mortar blasts and improvised explosive device blasts less than 50 m away. Following his second deployment he developed a progressive history of cognitive impairment, impaired memory, behavioral and mood disorders, and alcohol abuse. Neuropsychiatric assessment revealed a diagnosis of PTSD with hyperarousal (irritability and insomnia) and numbing. He committed suicide approximately 8 months after his honorable discharge from the USMC. His brain at autopsy appeared grossly unremarkable except for congestive brain swelling. There was no atrophy or remote focal traumatic brain injury such as contusional necrosis or hemorrhage. Histochemical and immunohistochemical brain tissue analysis revealed CTE changes comprising multifocal, neocortical, and subcortical neurofibrillary tangles and neuritic threads (ranging from none, to sparse, to frequent) with the skip phenomenon, accentuated in the depths of sulci and in the frontal cortex. The subcortical white matter showed mild rarefaction, sparse perivascular and neuropil infiltration by histiocytes, and mild fibrillary astrogliosis. Apolipoprotein E genotype was 3/4. The authors report this case as a sentinel case of CTE in an Iraqi war veteran diagnosed with PTSD to possibly stimulate new lines of thought and research in the possible pathoetiology and pathogenesis of PTSD in military veterans as part of the CTE spectrum of diseases, and as chronic sequelae and outcomes of repetitive traumatic brain injuries. Read the full article.

“Combat Veterans, Mental Health Issues, and the Death Penalty: Addressing the Impact of Post-Traumatic Stress Disorder and Traumatic Brain Injury” by Anthony E. Giardino, Fordham Law Review (2009)

Abstract: More than 1.5 million Americans have participated in combat operations in Iraq and Afghanistan over the past seven years. Some of these veterans have subsequently committed capital crimes and found themselves in our nation ‘s criminal justice system. This essay argues that combat veterans suffering from post-traumatic stress disorder or traumatic brain injury at the time of their offenses should not be subject to the death penalty. Offering mitigating evidence regarding military training, post-traumatic stress disorder, and traumatic brain injury presents one means that combat veterans may use to argue for their lives during the sentencing phase of their trials. Alternatively, Atkins v. Virginia and Roper v. Simmons offer a framework for establishing a legislatively or judicially created categorical exclusion for these offenders, exempting them from the death penalty as a matter of law. By understanding how combat service and service-related injuries affect the personal culpability of these offenders, the legal system can avoid the consequences of sentencing to death America’s mentally wounded warriors, ensuring that only the worst offenders are subject to the ultimate punishment. Read the full article.

“A Practitioner’s Guide to Defending Capital Clients Who Have Mental Disorders and Impairments” by Anne James and Matthew Cross (2006)

Abstract: This manual focuses on the issues arising solely in the representation of persons with mental disorders and impairments in death penalty cases. It does not address the legal excuses for criminal responsibility, the various affirmative defenses such as not guilty by reason of insanity or diminished capacity, available in both capital and non-capital contexts. Clearly, the assertion of such defenses implicates myriad strategic considerations in death penalty cases—most notably, how to resolve the inherent conflict between offering mental health evidence as an excuse in the first phase of a trial and then, if it is rejected for that purpose, arguing that the same evidence is not an excuse, but a reason to spare an individual’s life. In most jurisdictions, insanity defenses may also expose the client to early discovery of defense work product and a wide-ranging evaluation by a prosecution expert. It is simply beyond the scope of this manual to discuss these complex legal and strategic questions. Instead, the manual focuses on the issues unique to capital cases (especially mitigation evidence). Competency questions are addressed because of the unusual ways in which they implicate every phase of capital litigation. Read the full guide.

NEWS ARTICLES

“Could Veterans have Concussion Related CTE?” by Sandee LaMotte, CNN (2015)

This article provides an overview of Traumatic Brain Injury, the “signature injury” of the Iraq and Afghanistan wars. In reviewing the potential brain degeneration that is resulting from the shockwaves caused by explosions, the author covers personal stories of soldiers who are dealing with brain deterioration, finding that individuals are much more willing to accept being diagnosed with a physical injury to their brain, rather than a mental impairment. Watch the full report.

“Veterans and Brain Disease” by Nicholas Kristof, The New York Times (2012)

Veterans of the wars in Iraq and Afghanistan suffering from CTE may be the cause in the sharp rise in suicides among veterans returning home from the wars in Iraq and Afghanistan compared to the suicide rates of the Vietnam War. This opinion editorial also recognizes that what is most troubling about soldiers returning home with brain trauma is the fact that CTE “typically develops in midlife, decades after exposure” and that “we may see much more in the coming years.” Read the full op-ed.