SPECT Examination Admissible at Trial as Evidence of Concussion – Bodily Injury

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In recent years, SPECT (single photon emission computed tomography) scans have become important, although somewhat controversial, in the medical field to aid in the diagnosis of traumatic brain injury (TBI).

SPECT scans are a type of imaging that describes how blood flows to organs and tissues. Before the analysis, a radioactive “tracer” is injected into your bloodstream. As the tracer moves through your body, it accumulates in the organs and tissues of the body. The scan records the location of the tracer, producing a 3D image. The colors of the imaging show the level of blood perfusion in a given area.

A SPECT scan is different from other types of imaging, such as an MRI, because it assesses function as opposed to structure. Areas with impaired blood flow can be detected, even when there is no noticeable difference in the anatomy of the area. For this reason, SPECT scans are now widely recognized in the medical community as an aid in the diagnosis of traumatic brain injury, especially when brain damage cannot be seen on traditional imaging.

As SPECT exams have grown in popularity for diagnosing brain injuries, Ontario courts have grappled with how to deal with this new type of evidence.

Relevant background: Meade v. Hussein

In November 2021, the Ontario Superior Court of Justice issued the decision Meade v. Hussein. That ruling ruled that SPECT scans were inadmissible at trial for the purpose of proving traumatic brain injury because they failed the “reliable foundation test” for new scientific evidence. Specifically, the judge said SPECT scans were unreliable because they cannot distinguish brain damage from anxiety or depression. The 3D image of a brain created by a SPECT scan when a person is suffering from a psychological condition such as anxiety or depression appears indistinguishable from that created when a person is suffering from a traumatic brain injury.

The decision raised concerns among plaintiffs’ attorneys because it denied important medical evidence to be presented at trial.

New development: Wabie v. Wilson

A recent Ontario Superior Court decision, Wabie. c.Wison1, come back to this problem. The action related to a road accident in 2014. The plaintiff, a 50-year-old woman, was rammed at low speed. His injuries initially appeared to be limited to whiplash injuries, but over time his physical and cognitive abilities changed. She developed symptoms such as sensitivity to light, slurred speech, severe headache, reduced concentration, dizziness, trouble sleeping and fatigue. Her family doctor diagnosed her with a concussion and took her off the job. An MRI was performed, which was normal.

The family doctor then referred her for a SPECT exam. Coincidentally, the radiologist who performed the imaging, Dr. Yin-Hui Siow, is the radiologist who performed the SPECT imaging in the Mead Case. The results were abnormal in areas of the brain that are the most common places for traumatic brain injury to be seen.

At trial, Dr. Siow argued that SPECT imaging is one of the tools that can be used to show a TBI. He found that the Plaintiff’s medical history, combined with the abnormal SPECT imaging results, leads to the conclusion that the Plaintiff had suffered a TBI. The defendant asked the Court to disregard the evidence entirely, relying on Mead.

Ultimately, the Court ruled that the SPECT scanner evidence could be admitted in this case. The judge differentiated this case from Mead, indicating that the SPECT scan evidence in Mead was used to diagnose brain injury while SPECT scan evidence in Wabie was used to support the diagnosis of a brain lesion that already existed. In other words, in Mead the SPECT scanner was used as the main diagnostic tool, whereas in Wabie it was used as a secondary diagnostic tool. Importantly, the court also noted that the SPECT scan evidence in Wabie was not relied upon to differentiate brain injury from anxiety or depression.

Summary

This decision opens the door to limited use of SPECT scanners at trial. The bottom line is that a SPECT scan is a secondary tool, to be used in concert with other medical techniques and observational tools. As long as the SPECT scan evidence is presented as a factor to be considered in supporting a diagnosis of brain injury, and not as a diagnosis per se, it appears that it may be admissible at trial.

Footnote

1 2022 ONSC 4296

The content of this article is intended to provide a general guide on the subject. Specialist advice should be sought regarding your particular situation.

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