The Most Common Defenses Insurance Companies Raise in Virginia Traumatic Brain Injury Cases and How to Beat Them
Virginia TBI and concussion cases are among the most heavily defended cases in personal injury practice. Insurance carriers will put significant money and manpower into hiring experts, getting record reviews of your entire medical history, and having attorneys litigate TBI cases than in almost any other category of soft-tissue or non-orthopedic claim. The reason is straightforward: a properly built TBI case can be worth many times the medical bills, and the carriers know it.
These defense efforts are concentrated on a relatively small number of recurring arguments we routinely see in TBI and concussion cases. This post identifies the seven most common defenses insurance companies raise in Virginia TBI and concussion cases — and how Summit Law’s experienced Virginia trial attorneys dismantle each one.
For a broader picture of TBI and concussion claims, read our post on Virginia traumatic brain injury and concussion claims. For the medicine and legal concepts key to cases where there was no head-strike or loss of consciousness, see TBI without head impact or loss of consciousness. For the significant role pre-existing mental health conditions can play in TBI and concussion recovery and claims, see TBI psychological symptoms and pre-existing mental health conditions.
| A predictable defense is a beatable defenseWhile each TBI and concussion case is unique insurance defenses in TBI cases are often predictable. They follow a script. A trial firm that has regularly resolved, litigated, and tried these cases knows the script, knows the experts who deliver it, and knows how to take it apart in front of a Virginia jury. |
What you will learn in this guide
- The seven most common defenses Virginia insurers raise most often in TBI and concussion cases
- Why each defense is medically or legally weak
- How an experienced Virginia trial attorney can dismantle each of these defenses
- How the eggshell plaintiff rule plays out in TBI cases
Defense #1: “There Was No Head Impact”
Short answer: A direct head impact is not required for a brain injury. The brain can be injured by the forces of acceleration and deceleration alone — the same way it is in many collisions, falls, and sports impacts.
The “no head impact” defense is the easiest one to retire on the medicine. The brain floats inside cerebrospinal fluid in the skull. It is well-accepted and widely published among medical professionals that rapid acceleration and deceleration of the head and neck cause the brain to shift and rotate inside the skull. This type of injury does not require external impact at all.
You can read more about this phenomenon in our companion post: TBI without head impact or loss of consciousness.
Defense #2: “You Did Not Lose Consciousness”
Short answer: Loss of consciousness is one possible criterion for diagnosing mild TBI or concussion, not a required one. Most TBIs and concussions occur without loss of consciousness.
It is well-established and agreed-upon by medical professionals that altered consciousness — for example, feeling stunned, dazed, or confused — and post-traumatic amnesia (gaps in memory around the event) are sufficient diagnostic criteria for mild TBI without a complete loss of consciousness. The “you didn’t pass out, so you don’t have a brain injury” defense is medically wrong and has been considered so by medical professionals for decades.
Defense #3: “Your CT and MRI Were Normal”
Short answer: Standard CT and MRI scans are designed to detect things like bleeding, swelling, and structural lesions — not mild TBI or concussion. They are almost always negative in mild TBI and routinely negative in moderate TBI as well. A negative scan is not a “no injury” finding.
Diagnosis of mild TBI is clinical. The most common and effective diagnostic tools typically include a careful clinical history, ImPACT testing, neurological examination, vestibular and vision evaluation, and sometimes neuropsychological testing. Nonetheless, it is common for a head CT to be taken in the emergency room setting. Insurance defense doctors who later point a normal CT to prove that you did not sustain a mild TBI or concussion are simply introducing a red herring. An experienced personal injury attorney will use treating physician’s testimony or even their own experts to show that these hired gun experts are mishandling the medicine and prove to Virginia juries that all the necessary diagnostic criteria are met in your case.
Defense #4: “It Was a Low-Speed Crash”
Short answer: There is no settled threshold below which brain injury cannot occur. Visible property damage to a vehicle is not always a reliable proxy for the forces transmitted to the human body in a crash – the insurance industry’s preferred narrative on this point is convenient, not scientific.
Forces transmitted to the brain in a crash depend on body position, head position, headrest construction, your awareness of impact, body mass, prior injury, and many other variables. A 10 mph rear-end collision in which the driver’s head was turned and he or she was unaware of imminent impact can, in some circumstances, deliver greater rotational force on the brain than a higher-speed collision in which the occupant was braced for impact.
The Virginia Supreme Court has determined that evidence of property damage is relevant in personal injury cases for juries to consider in determining severity (and therefore value) of a plaintiff’s injuries. As a result, if you were injured in a crash where there was little visible property damage to one or more of the vehicles involved, the defense will almost certainly argue that you could not have sustained a TBI or concussion. The way to combat this? The science. An experienced personal injury attorney will use medical/biomechanical evidence to show the defense’s position contradicts well-accepted scientific and medical principles
Defense #5: “You Had Depression / Anxiety / ADHD / Prior Trauma Before the Crash”
Short answer: Pre-existing mental health conditions do not bar recovery in Virginia. Under the eggshell plaintiff rule, a defendant who aggravates a pre-existing condition is responsible for the aggravation — not just for what would have happened to a hypothetical “average” plaintiff.
Virginia juries are instructed that a defendant takes the plaintiff as they find them, including any pre-existing physical, psychiatric, or psychological condition. The legal question is not “did the client have anxiety before the crash?” The legal question is whether the crash made things worse — caused new symptoms, intensified existing symptoms, required new treatment, made a stable condition unstable, or made a controlled condition uncontrolled. We address this defense at length in our companion post on TBI psychological symptoms and pre-existing mental health conditions.
If you ever lived with depression, anxiety, attention issues, or trauma — treated or untreated, recent or decades ago — the insurance company will use it. The defense will attribute every current cognitive and emotional symptom to a pre-existing condition. It is a predictable tactic, designed to confuse juries, intimidate plaintiffs, and discount claims. An experienced personal injury trial attorney handles that history with care and uses medical evidence and lay witness testimony to keep the focus on what changed after the injury.
Defense #6: “Symptom Exaggeration or Malingering”
Short answer: The “malingering” defense is overused, often misapplied, and dependent on a small set of validity tests that are routinely overinterpreted by defense neuropsychologists. It can be effectively cross-examined when the case is in the hands of a trial firm familiar with the literature.
In cases where plaintiffs have undergone neuropsychological testing, defense neuropsychologists rely on a category of tests called performance validity tests and symptom validity tests to argue that a TBI plaintiff is not putting forth full effort or is exaggerating symptoms. Those tests have a real role in clinical practice — but they have well-documented limitations. They are sensitive to depression, anxiety, physical pain, fatigue, medications, prior brain injury, sleep disruption – many of the very symptoms TBI or concussion patients have. Defense doctors routinely overinterpret a single failed validity measure as evidence of malingering, when the published literature requires a far more cautious approach.
A Virginia trial attorney familiar with the validity-testing literature can cross-examine these opinions effectively. Most defense neuropsychologists testify in dozens of cases a year, and their reports follow predictable patterns that can be exposed to a jury.
Defense #7: “You Should Have Recovered by Now”
The reality is most concussions do resolve in days or weeks. A meaningful subset do not — and the existence of persistent post-concussive symptoms is well documented in the medical literature. The “you should have recovered” defense ignores the literature and the actual patient in front of the jury.
While it is true that most concussions resolve relatively quickly, it is also true that 10–30 percent of mild TBI patients (the precise number varies by study and population) develop persistent post-concussive symptoms — sometimes called post-concussion syndrome — that last months, years, or in some cases permanently. Risk factors for persistent symptoms include prior concussion, prior depression or anxiety, prior trauma, age, severity of initial symptoms, among others.
The defense argument that “the textbook recovery is two weeks, so anything beyond that is not from the crash” is medically unsupportable. Juries are tasked with valuing your injuries, not a hypothetical textbook patient. The literature is clear that recovery trajectories are not the same for every patient. An experienced personal injury attorney will use experts to testify to the nuances of your specific case and why your persisting systems are related to your injury.
How an Experienced Virginia Trial Attorney Beats These Defenses
Short answer: Defeating the TBI defense playbook requires the right experts, the right medical and scientific knowledge, the right cross-examinations, and the willingness to take the case to verdict when necessary. High-volume settlement firms often won’t do this work — and insurance carriers know which firms can go the distance.
A Virginia trial firm experienced in TBI litigation, like Summit Law, will:
- Build a complete proof package tailored to the details of your case. This could include — treating physicians, specialized experts in psychology, neuropsychology, neurology, neuro-optometry, and vocational and life care planning, among other things.
- Develop a clear before-and-after picture using lay witnesses from all areas of your life – family, friends, co-workers, etc.
- Prepare a comprehensive cross-examination of defense experts to expose their reliance on outdated medicine, scientific fallacies, and cherry-picked records from your medical history.
- Frame the eggshell plaintiff rule for the jury so prior mental health history does not become a discount.
- Take the case to trial when the carrier will not pay fair value — and have the verdict history to make that threat credible.
Frequently Asked Questions: Defenses in Virginia TBI Cases
Will the insurance company really hire a doctor to testify against me?
Yes. In nearly every contested Virginia TBI case, the insurance carrier will retain at least one defense expert — typically a neurologist, neuropsychologist, or both.
These experts often testify in dozens of cases a year and have predictable opinion patterns. Effective cross-examination requires familiarity with their work and the record review methods and literature they rely on.
Should I refuse a defense neuropsychological exam?
Refusing outright is rarely the right answer in Virginia, but the terms and limits of the exam are negotiable, and you should not agree to attend without experienced counsel negotiating these parameters and preparing you for it.
Talk to a Virginia personal injury attorney before agreeing to a defense exam, recorded statement, or independent medical evaluation of any kind.
My doctor said most concussions resolve in two weeks. Is that true?
Most do. A meaningful subset — between roughly 10 and 30 percent of mild TBI patients depending on the study and population — develop persistent post-concussive symptoms.
Risk factors for persistent symptoms include prior concussion, prior depression or anxiety, prior trauma, age, and severity of initial symptoms. Persistent symptoms are well documented in the medical literature.
Will the insurance company use my prior mental health treatment against me?
Almost certainly. They will subpoena records, hire experts to attribute current symptoms to prior conditions, and frame the case as one about pre-existing mental illness, rather than a legitimate injury.
Virginia’s eggshell plaintiff rule protects you. We address this defense in detail in our post on TBI psychological symptoms and pre-existing mental health conditions.
How long do I have to file a Virginia TBI case?
In most Virginia personal injury cases, the statute of limitations is two (2) years from the date of injury.
Some claims and defendants have shorter notice deadlines. Talk to a Virginia personal injury attorney as soon as possible to make sure your claim is preserved.
About Summit Law — Experienced Virginia Brain Injury Trial Attorneys
Summit Law represents Virginia clients in contested traumatic brain injury and concussion cases across the Commonwealth. We have litigated against countless defense doctors, opposing counsel, and insurance carriers, who all play by the same script — and we know what works.
Contact Summit Law: Free Virginia TBI Case Review
We want to help you navigate the complexities of TBI cases and set your personal injury case up for success. If you or a loved one has sustained a TBI or concussion in Virginia, reach out to Summit Law through our website or the contact info below for a free, confidential case review.