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New research helps prove future economic loss claims for plaintiffs with TBIs

A new landmark study on the risk of dementia for individuals who have suffered traumatic brain injuries is a help to plaintiffs with potential future economic loss claims, Toronto critical injury lawyer John McLeish tells AdvocateDaily.com.

The study, published by The Lancet Psychiatry, looked at a sample of more than 2.8 million people and discovered that those with one or more traumatic brain injuries (TBIs) were 24 per cent more likely to develop dementia than those without.

Th effect was even more pronounced among individuals who suffered the injuries during their 20s, as they were 63 per cent more likely to get dementia at some point in their lives.

“This is a big step forward in that it provides more scientific evidence — from a very large sample in a well-respected journal — that brain injuries can have future adverse consequences,” says McLeish, a partner with McLeish Orlando LLP. “There are few things more serious than dementia, so for me, as a plaintiff’s lawyer who represents individuals with TBIs, I will be making sure that any expert I retain to give an opinion on the future impact of TBIs is familiar with this study.”

McLeish explains that following a landmark Ontario Court of Appeal case from 1977, plaintiffs seeking to obtain damages for future losses as a result of an injury did not actually have to prove on a balance of probabilities that damages will actually be sustained.

“Courts recognize that when you’re looking into the future, it’s a bit like gazing into a crystal ball, so they make allowances,” McLeish says.  

Plaintiffs need only prove that there is a “substantial possibility” of economic loss occuring in the future, he says.  

“This study is going to be helpful to a plaintiff's lawyer in meeting the onus of proof in cases of TBIs,” McLeish says.

The longitudinal study tracked Danish people over almost four decades and builds on previous research suggesting that brain injuries and dementia are linked. Even a single mild TBI was associated with a 17 per cent increase in the chance of developing the condition, but that figure increased in line with the number of injuries and their severity.    

The study shows age was also an important factor and found that younger people who suffered injuries were at a higher risk of developing dementia later. For example, suffering a TBI in your 30s resulted in a 37 per cent risk increase, while those who were hurt in their 50s were only two per cent more likely to get dementia.

The results raise “some very important issues, in particular, that efforts to prevent traumatic brain injury, especially in younger people, may be inadequate considering the huge and growing burden of dementia and the prevalence of TBI worldwide," lead author Jesse Fann, a professor of psychiatry and behavioural sciences at the University of Washington School of Medicine in Seattle, told the BBC. 

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