Can SPECT scans be relied on as primary tool for diagnosing brain injury?

'Polarizing decisions' reflect lack of consensus in medical-legal community: Bogoroch’s Yoni Silberman
Can SPECT scans be relied on as primary tool for diagnosing brain injury?

This article was produced in partnership with Bogoroch & Associates LLP.

Mallory Hendry of Lexpert sat down with Yoni Silberman, partner at Bogoroch & Associates, to discuss the implications of two recent decisions. 

In 2016, amendments to the Statutory Accident Benefits Schedule opened the door to the more frequent use of single-photon emission computerized tomography (SPECT) scan imaging as a diagnostic tool for brain injuries to qualify someone as catastrophically impaired, but as recent court decisions show, there is far from consensus in the medical and medical-legal community when it comes to the accepted use of these scans.

As outlined in s3.1(1) ss4(i) of the Schedule, an injured party has sustained a catastrophic impairment in the form of a traumatic brain injury, where “the injury shows positive findings on a computerized axial tomography scan, a magnetic resonance imaging or any other medically recognized brain diagnostic technology indicating intracranial pathology that is a result of the accident, including, but not limited to, intracranial contusions or haemorrhages, diffuse axonal injury, cerebral edema, midline shift or pneumocephaly.”

“Catastrophic Impairment, due to traumatic brain injury, led to the introduction to the medical-legal community of SPECT scans as a way to achieve that designation,” says Yoni Silberman, partner at Bogoroch & Associates LLP. “But the legislative wording – more specifically, the requirement of positive findings on ‘a medically recognized brain diagnostic technology’ – has led us to scrutinize whether or not SPECT scan meets this criteria.”

The 2021 case, Meade v. Hussein, involved a woman who had been in a car accident. At the outset of trial, the defence moved for an order that any reference to SPECT scan imaging be deemed inadmissible. The plaintiffs opposed that motion and there was a voir dire. The experts testifying on the use of SPECT can were Dr. Yin-Hui Siow (a neuro-radiologist) on behalf of the plaintiff, and Dr. Sarah Mitchell (a neurologist) for the defence.

Of note in this case was the fact that the plaintiff was not only asserting she had suffered a traumatic brain injury, but said she was also claiming to have sustained psychological disorders because of the accident. This is a distinguishing feature of Meade, Silberman says, because while a SPECT scan is highly sensitive in identifying blood flow changes in the brain, it lacks specificity: if the person is suffering from elevated anxiety or another similar condition, SPECT scan will reveal perfusions but then differentiating those finding as between brain trauma and psychological conditions, at the individual patient level, is where opinions will diverge.

In Meade, Dr. Siow provided a well-reasoned analysis of why he found that these profusion abnormalities in the plaintiff, owing to where they appeared in the brain and the focal nature, represent a common appearance for a traumatic brain injury versus any other condition, but ultimately – after a deep dive into the reliable foundation test – the court decided against admitting the SPECT scan evidence.

“While I agree that the demonstration was compelling, if proving the reliability of Dr. Siow’s methodology was so easy, one would expect it to have gained widespread acceptance,” reads the decision. “The effectiveness of this evidence demonstrates why it is necessary that novel scientific evidence meet at least a basic level of reliability.”

More recently in Wabie v. Wilson, 2022 ONSC 4296, it was ruled that SPECT scans were admissible as evidence, with the key distinguishing factor from Meade being that the scan was used to strengthen and confirm an already established traumatic brain injury diagnosis: it was not presented as the primary diagnostic tool. There was also no claim made for anxiety or depression arising from the accident, meaning it couldn’t be argued that the profusion abnormalities shown in the SPECT scan were caused as a result of some other psychiatric condition. In Wabie, it therefore was more reliable in determining brain injury.

From a trial strategy perspective, another distinguishing factor was that the defendants objected to the inclusion of SPECT scan evidence after the testimony of the plaintiff’s experts was complete, giving them the opportunity to “share in a dynamic and engaging way why the SPECT scan offered the value it did,” Silberman notes, adding that while these two cases present polarizing treatment of SPECT scan, “ultimately, success in the use of SPECT scan comes down to nuanced elements of each trial, including the plaintiff’s medical history, the post-accident medical records, and the manner by which evidence is presented by the party relying on it.”

As for the Licence Appeal Tribunal, it has been generally more receptive to the use of SPECT scan to help prove an applicant’s claim to benefits ­­– but at the LAT, it too depends on the specific facts of the case being presented by the applicant.

From a practice management perspective, until and when SPECT scan becomes a more accepted form of evidence for diagnosis of brain injury in the medical-legal community, lawyers representing plaintiffs must explore other ways to fit into Criterion 4 to establish Catastrophic Impairment. It is a case and fact specific endeavour, but with consistent reporting by the treatment practitioners and specialists, detailing the diagnosis of TBI or mTBI and the effects thereof, SPECT scan is more likely to be considered with greater weight given the already established TBI diagnosis.

Often, an injured party can suffer from a traumatic brain injury, reflected by a reduced Glasgow Coma Scale score, but have no findings of a brain injury in MRI or CT scans. They may choose to undergo additional scans such as enhanced MRIs, which provide greater contrast and specificity than a basic MRI if the person is still in hospital and exhibiting symptomology consistent with a TBI or mTBI.

“These additional measures should be considered at the outset of a claim, if they are medically supported, so as to ensure that evidence of the brain injury is captured,” Silberman says. “Some cases justify the initial MRI imaging being sent to an expert radiologist to examine in more detail. Confirming the presence of a brain bleed can lead to a designation of Catastrophic Impairment, which for some injured individuals is vital for access to medical, rehabilitation, and attendant care benefits that are critical to their safety and recovery. For that reason, it’s worth a second look.”

Though Silberman predicts an ongoing use of SPECT scan imaging, there will continue to be variability when it comes to the extent of the weight to be placed on the evidence presented by these scans.

“The medical and medical-legal community is far from reaching a consensus on the use of SPECT scan as a primary diagnostic for traumatic brain injury at the individual patient level, but I still believe it to be a valuable tool for proving traumatic brain injury not only in the context of a tort case but also under Criterion 4. We will continue to utilize this resource on a case-by-case basis.”

Yoni Silberman joined Bogoroch & Associates LLP in April 2009. Since joining the firm, Yoni’s practice has been devoted to personal injury litigation, including motor vehicle accident cases, accident benefits claims, slip and fall cases, long-term disability claims, and other disability and insurance litigation.