Plaintiff-side lawyers now have some new court authority to rely on: Thomson Rogers' Daniel Klein
This article was produced in partnership with Thomson Rogers.
Mallory Hendry of Law Times sat down with Daniel Klein, associate at Thomson Rogers, to discuss the implications of two recent decisions dealing with the admissibility of SPECT scan imaging.
Amidst ongoing debate within the medical-legal community as to whether single-photon emission computerized tomography (SPECT) scan imaging is – or should be – medically recognized by the courts in traumatic brain injury (TBI) cases, two recent decisions out of Ontario’s Superior Court may signal an important shift, says Thomson Rogers’ Daniel Klein.
“This imaging has been around for decades, it’s been approved by various regulatory bodies and medical communities in Canada and abroad as a helpful tool in diagnosing brain injury, but for some reason our courts are behind,” says Klein, associate at the firm. “Wabie v. Wilson and Kolapully v. Myles & TTC give injured people and their lawyers some new court authority to rely on to say SPECT scans are to be admitted as evidence at trial for the purposes of proving brain injury, in concert with other evidence.”
While CT scans and MRIs view the anatomy of the brain and pick up structural issues such as a bleed or a fracture, through the use of IV-administered radiopharmaceuticals SPECT scan imaging completes a 3D image of the brain and measures the flow of blood to various areas. This provides information on how the brain is functioning and can identify abnormalities, such as reduced blood flow, in certain parts of the brain.
There are many cases in the court system where people suffered from mild or even moderate traumatic brain injuries that are not visible on CT scans or MRIs, but the person experiences a host of concussion symptoms, which can sometimes be severely disabling and prolonged. It can be challenging to persuade a juror or a decisionmaker that there’s a real injury when it can’t be objectively seen, and the more sensitive technology of SPECT scan imaging visualizes these “invisible injuries,” allowing plaintiff-side lawyers demonstrate that there is something going on in the brain of their injured client that’s abnormal.
The debate over the admissibility of SPECT scan imaging comes down to the specific legal test that must be met in order to allow evidence: it must meet the reliable foundation test. Insurance companies and the doctors they hire often contest the admissibility and reliability of the scans on these grounds. In a 2021 case, Meade v. Hussein, the court ruled that the plaintiff’s SPECT scan would be excluded from evidence at trial and that decision “caused concern for many injured victims – and the lawyers that represent them – because a lot of the cases we have use SPECT scans to help prove brain injury,” Klein says.
But in both of the 2022 decisions, the court found that the imaging is not a novel science – it is prevalent in Europe and the US and has been used to a support a diagnosis of a variety of issues with the brain for over 30 years. It is a further piece of evidence that the court may use to determine the injuries and the extent of the injuries suffered by an injured victim.
“The recent decisions went the other way from that competing 2021 decision and allowed SPECT scan evidence to go into evidence at trial for the purposes of the injured person proving they have a brain injury,” Klein says. “While there are other things you need to prove, it’s at least recognized as an important secondary tool, to be used in concert with other medical techniques and observational tools.”
SPECT scan imaging has also been the subject of some debate in the accident benefits context, where injured people must demonstrate they have a brain injury through the use of a medically recognized brain diagnostic technology, when they are applying for a catastrophic impairment designation under certain criteria. In this arena, insurance companies and the doctors they hire often contest whether the SPECT scan fits that description – but for some clients still suffering from serious concussion-like symptoms who may have unremarkable MRI or CT scans, it can be the difference between $1M in funding for treatment if found to be catastrophically impaired or $65,000 for treatment otherwise, a significant difference when it comes to someone’s ability to recover.
Klein points to the neurologist in Wabie, who noted that data and research has shown that approximately 25% of individuals may experience prolonged symptoms of post-concussion syndrome and 53% of patients with traumatic brain injury have symptoms a year later and have limitation of occupation, recreation, and social activities.
“The old school of thought was you get a concussion and heal relatively quickly,” he says. “But the new school of thought is that yes, some people recover very quickly but a whole lot of other people don’t – and it could be years. Thankfully for these injured people, the latter view is increasingly being accepted as the norm.”
Daniel’s practice is devoted to personal injury cases, including motor vehicle accidents, slip or trip and falls, accident benefits, tavern/commercial host liability and dog bite claims. His practice revolves around understanding the personal needs of his clients and diligently advocating on their behalf. He has appeared before the Superior Court of Justice, the Ontario Court of Justice, the License Appeal Tribunal and other tribunals.
