The legal struggles of diagnosing brain injuries in child accident victims

February 1st, 2025
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Picture source: Getty/iStock

Brain injuries in children seem to be a highly underrated concept. It is very possible for a child to have sustained a neurological head injury, without any signs of such injury presenting on the day of the accident and without any signs showing up on the Magnetic Resonance Imaging (MRI) scan or Computed Tomography (CT) scan.

However, we are often faced in practice with problematic situations where the Road Accident Fund (RAF) rejects an RAF4 serious injury assessment report, because the head injury is undocumented, the MRI scan is clear of any abnormalities, the hospital records contain no mention of a head injury or simply that there is no physical bump to the head.

Yet the minor (plaintiff) presents neurological and behavioural issues post-accident, clearly indicative that something is wrong. To diagnose a brain injury in these cases might be daunting, as the injury solely manifests through external evidence such as a decline in school performance and in an alteration in psychological behaviour, which can be seen by observing personality changes and monitoring the development of symptoms relating to anxiety and post-traumatic stress.

The legal practitioner is then further presented with subjective evidence from the family members of the minor, confirming that nothing prior to the accident could have caused the neurological fallout that one sees. However, since the hospital records show no indication of a head injury, this will lead to the RAF4 serious injury assessment report being rejected. In the matter of Meyer v Road Accident Fund (GP) (unreported case no 52229/2011, 4-12-2013) (Potterill J) the court found that even where experts confirmed an injury in joint minutes, the RAF was still entitled to reject the RAF4 on their reasoning that the clinical records did not mention the injury and its sequelae in question.

Different presentations of ‘missed’ head injuries in children

Head injuries suffered by children often have a worse prognosis than head injuries suffered in adults. Studies have shown that children might make what looks like a quick recovery after the head injury, only to find later that they suffer from a ‘neurocognitive stall’, this is where we then see the long-term cognitive deficits develop (Laura N Purcell, Rachel Reiss, Jessica Eaton, Ken-Kellar Kumwenda, Carolyn Quinsey, and Anthony Charles ‘Survival and Functional Outcomes at Discharge following Traumatic Brain Injury in Children versus Adults in a Resource-Poor Setting’ (2020) 137 World Neurosurgery e597 (https://pmc.ncbi.nlm.nih.gov, accessed 20-11-2024)).

Head injuries in children, especially in cases where the injuries are not discernible on MRI scans are quite problematic and must be evaluated and proven by the plaintiff’s legal team in more stringent and subjective ways by way of collateral evidence. If you are lucky, you might have pre-accident and post-accident school reports showing a decline in particular subjects in school, a marked indicator that the child is struggling academically. Other times, pre-accident school records may not be possible, perhaps because the minor was too young, and not yet at school. To add to this problem, the younger the child, the worse the neurological impact is on those academic skills (Mary R Prasad, Paul R Swank, and Linda Ewing-Cobbs ‘Long-Term School Outcomes of Children and Adolescents with Traumatic Brain Injury’ (2017) 32(1) The Journal of Head Trauma Rehabilitation E24 (https://journals.lww.com, accessed 20-11-2024)).

Diagnoses of ‘missed’ brain injuries in children

With so much emphasis on MRI scans, it is important to understand what an MRI scan can do. MRI scans can detect brain injuries, and they can further assist in detecting haemorrhaging in the brain. MRI scans are in fact helpful even years after the injury has taken place, as was well explained in the matter of Modise obo a Minor v Road Accident Fund 2020 (1) SA 221 (GP). However, a negative MRI scan does not mean that a brain injury does not exist. Most of the time traumatic brain injuries are missed on MRI scans, and only 10% of CT scans pick up traumatic brain injuries (Mike Klora, Jan Zeidler, Stefan Bassler, Franz Wolfgang Hirsch, Jan-Hendrik Gosemann, Martin Lacher, and Peter Zimmermann ‘Frequency of neuroimaging for pediatric minor brain injury is determined by the primary treating medical department’ (2019) 98(28) Medicine e16320 (https://pmc.ncbi.nlm.nih.gov, accessed 20-11-2024)).

Sequelae of ‘undocumented’ brain injuries in children

Studies have gone on to show that the younger the child at the time of injury, the lower the functional academic skills were as far as reading, writing and basic math are concerned (Prasad et al (op cit)).

Further studies indicate that the younger the age at injury, the worse the effect on their memory, executive functioning, and socialisation (Cathy Catroppa, Nikita Tuli Sood, Elle Morrison, Justin Kenardy, Suncica Lah, Audrey McKinlay, Nicholas P Ryan, Louise Crowe, Cheryl Soo, Celia Godfrey, and Vicki Anderson ‘The Australian and New Zealand brain injury lifespan cohort protocol: Leveraging common data elements to characterise longitudinal outcome and recovery’ 2023 13(1) BMJ Open e067712 (https://pmc.ncbi.nlm.nih.gov, accessed 20-11-2024)).

Head injury sequelae manifest as the child grows older. An Australian study on young children who sustained head injuries indicated that they showed neurological sequelae up to ten years after the accident. Their IQ was assessed as average to below average; they also suffered at school compared to their peers who had not sustained Traumatic Brain injuries (Vicki Anderson 1, Cathy Catroppa, Celia Godfrey, and Jeffrey V Rosenfeld ‘Intellectual ability 10 years after traumatic brain injury in infancy and childhood: what predicts outcome?’ (2012) 29(1) Journal of Neurotrauma 143 (https://pubmed.ncbi.nlm.nih.gov, accessed 11-20-2024)).

Traumatic brain injuries present with other secondary effects such as post-traumatic stress disorder and depression. One must bear in mind that children are resilient in terms of physical injuries, but the opposite is true in terms of head injuries. The sequela may only later manifest or present itself, as the child gets older. It might take a few years for these issues to surface. If the child has damage to the frontal lobe of the head, the sequelae may only start to show when the child starts to develop a higher level of reasoning, we would only be able to see the extent of the issues when the child develops interpersonal skills. If there is damage to the parts of the brain that control reading or writing, these would only surface when the child starts to show delays or deficits on those areas (Lise E Nigrovic, Lois K Lee, John Hoyle, Rachel M Stanley, Marc H Gorelick, Michelle Miskin, Shireen M Atabaki, Peter S Dayan, James F Holmes, and Nathan Kuppermann ‘Prevalence of Clinically Important Traumatic Brain Injuries in Children with Minor Blunt Head Trauma and Isolated Severe Injury Mechanisms’ (2012) 166(4) Archives of Pediatrics and Adolescent Medicine 356 (https://jamanetwork.com, accessed 20-11-2024)).

Bearing the above in mind, when assessing whether there is a head injury, consideration must be given to other factors such as post-traumatic stress disorder and psychological changes.

What does ‘trauma’ mean in the context of a brain injury in children?

With so much taboo surrounding mental health, there is another cycle we need to break. We are focussing too much on the word ‘brain injury’ and should consider the trauma itself. What if there were trauma, but no injury to the head? No need for an MRI; no bump to the head; in other words, nothing physical happened to the head. Would the psychological and neurocognitive effects still affect the child in question? The answer is yes. Simply put, trauma during a child’s development causes changes in the brain. These changes are very real, very scientific and culminate into an actual brain injury.

The trauma disrupts the way in which the biological stress systems react and in so doing they cause changes to the brain and affect the child’s development. In fact, this disruption directly influences the cognitive development. Trauma further disrupts the way in which the brain releases serotonin, and this disruption in turn causes depression (Michael D De Bellis and Abigail Zisk ‘The biological effects of childhood trauma’ (2014) 23(2) Child and Adolescent Psychiatric Clinics of North America 185 (https://pmc.ncbi.nlm.nih.gov, accessed 20-11-2024)). Trauma goes further and even affects the executive functioning of the brain.

Case studies

In the matter of Kruger v Road Accident Fund (GP) (unreported case no 27383/2009, 14-2-2022) (Neukircher J) the court was advised that an MRI scan does not assist in diagnosing neurological and neurocognitive issues. Further to this, medical records themselves are not the only diagnostic tool that should be used to determine a head injury or the severity thereof.

In the matter of LD obo TD v Road Accident Fund (GJ) (unreported case no 2021/50120; A2023-0691885, 23-2-2024) (Turner AJ, Maier-Frawley J, and Wright J) the minor had suffered a loss of earnings on the basis that she sustained a head injury. The court, however, found that the head injury was not proven on the evidence before the court, specifically, that no factual evidence was led relating to the head injury. In this matter, it is important to note that the head injury was not documented in the hospital records, but the experts explained on factual information, that prior to the collision, the minor had no difficulties but post-accident she presented with cognitive deficits and a learning disability. The issue that both the court a quo and court of appeal held was simply that no factual evidence regarding the head injury was offered into evidence.

In the matter of DB obo NOB v Road Accident Fund (GJ) (unreported case no 7955/2019, 26-10-2023) (Kom AJ), a four-year-old child was involved in a motor vehicle accident. She lost consciousness at the scene of the collision, but the CT scan results showed no abnormalities, and her Glasgow Coma Scale score was recorded as 15/15. Approximately four years later, the child manifested with, inter alia, anxiety and language-based difficulties. In this matter, there was evidence that the child’s elder sister had learning difficulties and further the child in question had dyslexia. The court, however, took a pragmatic view and considered the depth of a laceration (5cm) that she had to the forehead and concluded that the blow to the head had to have been significant for such depth to be possible. On a balance of probabilities, the court then concluded that the child sustained a mild traumatic head injury.

Conclusion

As indicated above, children are more resilient to physical injuries, but less resilience exists with changes in the brain due to trauma.

MRIs and medical records are helpful but not necessarily insightful. Legal practitioners should always subjectively look at head injuries in children by evaluating the social and psychological changes reported by the child’s family and ensuring that factual, subjective information forms part of the evidence.

Azraa Janse van Vuuren LLB (UP) is a legal practitioner at VZLR Inc in Pretoria.


This article was first published in De Rebus in 2025 (Jan/Feb) DR 50.

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