Single-photon emission computerized tomography (SPECT) produces images of the brain, similar to an MRI or CT. However, while MRI’s and CT’s provide images of physical anatomy and structure, SPECT is intended to show how the brain actually works.
This relatively new technology has great potential, specifically in the diagnosis of traumatic brain injury. However, the court’s decision not to allow brain SPECT as evidence in the Meade v Hussein case may signal otherwise.
In this case, Melanie Meade alleged that she suffered from a traumatic brain injury as well as psychological and emotional trauma as the result of a motor vehicle accident. She sought damages from the defendant, Ibrahim Hussein.
As evidence of her traumatic brain injury, Meade provided a SPECT scan, interpreted by Dr. Siow. Justice Bale did not allow the SPECT evidence to be admitted at trial on the basis that it did not satisfy the reliable foundation test for novel scientific evidence set out by R v. J.-L.J.
The Reliable Foundation Test
In deciding whether or not to allow the brain SPECT provided by Dr. Siow as evidence, the court was tasked with determining whether this technology is a “novel science”. If it was found to be considered novel, it would have to meet the reliable foundation test to determine whether the science was sound and could be permitted as evidence.
The four-part reliable foundation test was developed in Daubert v. Merrell Dow Pharmaceuticals Inc., (“Daubert”). The evaluation factors of the test are as follows:
- Whether the theory or technique can be and has been tested;
- Whether the theory or technique has been subject to peer review and publication;
- The known or potential rate of error or the existence of standards; and
- Whether the theory or technique used has generally been accepted.
Justice Bale applied these evaluation factors to the SPECT evidence provided by Dr. Siow with strict interpretation. Ultimately, the court found that the evidence did no pass the Daubert test.
The Outcome of Meade
There were several reasons why Justice Bale found the reliable foundation test established in R v. J.-L.J was not satisfied and, therefore, the brain SPECT could not be admitted as evidence.
First, Dr. Siow’s methodology had not been tested. Second, his work has not been published or peer-reviewed. Lastly, there are no other peer-reviewed articles to support Dr. Siow’s theory that a brain SPECT can determine traumatic brain injury from depression or anxiety disorders.
Two additional factors were taken into consideration here. The first was that although Dr. Siow produced his own articles and publications that supported the use of brain SPECT, these did not explicitly address diagnosing traumatic brain injury from depression or anxiety disorders. In other words, these publications did not specifically address the issues in this case and could not be used to support the evidence.
The other factor impacting the result of Justice Bale’s decision has to do with the defense’s medical expert, Dr. Sara Mitchell. The court relied heavily on her evidence, which was that the use of brain SPECT to diagnose traumatic brain injury is not supported in the medical community in which she works.
As a result of all of the aforementioned factors, Justice Bale found that the brain SPECT evidence did not satisfy the reliable foundation test for novel scientific evidence. More specifically, Justice Bale concluded that while brain SPECT is not a novel science, Dr. Siow was using it for a novel purpose – and this purpose had not been tested, peer-reviewed, or supported in additional literature. As such, the evidence was excluded from being admitted at trial
The impact of this case on future personal injury claims that involve traumatic brain injury cannot be understated. The signal to plaintiff lawyers is that, at least for now, the use of brain SPECT scans in diagnosing traumatic brain injury will not necessarily be permitted at trial and before the License Appeal Tribunal.
For personal injury claimants who have a traumatic brain injury and/or psychiatric conditions, this decision is particularly problematic. And that’s even more true if the claimant has normal CT scans/MRI findings.
This is because Criteria 4 and 5 under sections 3.1(1)4(i) and 3.1(1)5(i) of the Statutory Accident Benefits Schedule (SABS) require positive findings on “medically recognized brain diagnostic technology indicating intracranial pathology resulting from an accident”. The decision in Meade (specifically, the disallowance of the brain SPECT as evidence of traumatic brain injury), means that future claimants will likely face challenges meeting that legal definition.
Frustrating this situation even further is the fact that this decision was made without consideration of the fact that there does exist vast literature to support the use of brain SPECT in providing information about, and even diagnosing, traumatic brain injury. Indeed, studies dating back to the 1990’s demonstrate how and why brain SPECTs have an advantage over CT scans because they’re capable of separating disorders with overlapping symptomology. For these reasons, it’s likely time to re-evaluate the strict application of the Daubert reliable foundations test to allow for new and promising technologies.
Have You Suffered a Traumatic Brain Injury?
There are many ways of diagnosing a traumatic brain injury after a motor vehicle or other accident. But some of these methods are considered sounder than others, according to the courts. And, in order to receive the damages you’re entitled to, you need to provide the courts with the best evidence to support your case.
But there’s no need for you to worry about that. Here at Sharma Law, we’re constantly updating our strategy to reflect the latest court decisions. If you’ve been injured in an accident, let us handle all of the big and little details. Contact us to book a consultation today.