Legal Information
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Discusses three areas where legal issues are likely to emerge in personal injury litigation concerning head injury. |
One lawyer methods and procedures for identifying and securing legal rights. |
Outlines legally recognized personal injury aspects regarding brain injury. |
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Assists and empowers persons surviving traumatic brain injury and their families to be able to select and, hire the most qualified attorney possible for their case. |
Selecting Legal Representation: Helps you find an attorney with experience in personal injury cases involving brain injury. |
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Medicolegal Aspects of Head Injury
Reprinted from: Rehabilitation of the Adult and Child with Traumatic Brain Injury
By Kenneth L Kolpan, Esq.
http://www.kolpan.com/pages/articles/medico.html
Persons who incur head injury will necessarily face legal problems as a result of their injury. The nature of the injury with its resultant treatment, as well as the cause of the injury (often a motor vehicle accident), leads to involvement in the legal system. Legal rights of the head injured and concomitant responsibilities of healthcare providers occupy an important role in the treatment of the head injured patient from acute stages through sub-acute rehabilitation and the post-hospital rehabilitation stage. Early medical treatment for head injuries involves emergency treatment of person(s) who will be unable to give consent for treatment; other medical treatment is long range, raising legal issues of insurance coverage. Finally, many head injuries are the result of motor vehicle accidents, sports injuries, or trauma caused by a responsible third party. The responsible party is sued in what is known as personal injury litigation. Each of these areas - medical treatment, insurance coverage, and personal injury compensation - is affected by the law.
This chapter discusses three areas in which legal issues are likely to emerge. The topics are discussed according to a medical chronology – acute care, rehabilitation, and long term planning though the legal concerns do not neatly fit into any time sequence. Nor does each pennon with a head injury face every legal problem discussed subsequently; however, these are the most common legal problems when a head injury occurs. The following discussion uses statutes and legal cases for illustrative purposes only and is not a substitute for seeking competent legal advice. To read more, download Medicolegal PDF
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Pertinent Legal Aspects
Sawaya, Rose, Roberts & Sawaya,
P.C. Attorneys At Law
1650 Emerson Street
Denver CO 80218
Phone: 303.839.1650
Fax: 303.832.1128
Minor Traumatic Brain Injury Handbook: Diagnosis and Treatment
Chapter 18
Pertinent Legal
Aspects of MTBI
By: Michael Sawaya
Mumbo jumbo. Why do lawyers talk the way they do? What is in the mind of the lawyer that makes that person so different from the rest of the mortals of the world? Legal matters do differ from ordinary transactions since there is so much history and precedent that is followed in legal issues.
Legal matters involve jumping through hoops, fitting into legal precedent, following rules, complying with the rule of law, and other arcane methods of contortion. Truly, the training that good lawyers receive rather quickly changes the way they look at formal human relations. They learn that from the legal standpoint, wrongs cannot be made right without carefully following legal procedures and methods to make sure that the right can be secured. Legal procedure is similar from one type of case to another, and the law has been likened to “a seamless web.” This author has distilled his 24 years of legal experience as a trial lawyer working with brain trauma cases to outline the important areas and issues of concern to the brain trauma victim, his family, and his lawyer.
This outline is one lawyer’s method of conceptualizing the brain trauma case from its beginning to the end, showing methods and procedures for identifying and securing legal rights.
OUTLINE
- Pre-trauma history of the victim (specifically how the person functioned before the trauma).
- Event of injury: giving specifics and showing as exactly as possible how the injury occurred.
- Identifying who is responsible for the event of injury. (What person, agency, business, etc. caused the event to occur.)
- What is the theory of liability? Is someone strictly liable (as in a defective product or dangerous activity), or was injury foreseeable such that negligence law applies?
- What state or federal laws, agency rules (such as OSHA regulations), or general principles of law apply?
- What notice needs to be given either that the injury occurred or that there may be liability (such as Uniform Commercial Code notice for breach of warranties in the event of a defective product), what insurance company or companies must receive notice. What governmental entity needs notice to make it liable, etc.?
- What proof needs to be acquired to prove the event of injury and tile the causation by some person or entity?
- What is the injury that has occurred? Is it primarily physical (causing organic damage to the brain and nervous system), or does it also (as it almost always does) involve psychological trauma?
- Do the treating medical and psychological providers have experience in dealing with brain trauma cases? Are they sympathetic enough, empathetic enough, and open-minded enough to accept the constellation of injuries and the overall effect that the injury has on the victim, family, friends, co-workers, employers, etc.? Will the treating providers be willing and able to testify on behalf of the victim?
- Does the attorney or law firm reviewing the case have the knowledge, experience, capabilities, and wherewithal to take the case and see it to fruition?
- What will it cost to enforce the legal rights of the victim and who will pay for them? What will it cost to hire an attorney and when will payment be required?
- Where will the legal action be filed (what state, or federal court)? What state or federal laws will apply?
- How will the damages (provable losses to the victim) be proven? What additional experts will be necessary (such as vocational rehabilitation experts, life-planners, economists, toxicologists, accident reconstruction experts, engineers, etc.)? What non-expert testimony will be needed (such as friends, co-workers, teachers, relatives, etc.)? How will physical evidence need to be presented, and how will it best be presented to convince the insurance company, governmental entity, judge, or jury that the damages are extensive and justify the compensation requested?
- When and if a settlement or an award is made for the injury, how will that money be paid, right away, in a structure over time, or in a trust to avoid losing or being ineligible for government benefits such as Medicaid and Social Security Supplemental Income?
- What governmental benefits are available to the victim?
- Is any particular claim for injuries time-barred under a relevant Statute of Limitation?
1) PRE-TRAUMA HISTORY
Do not take it for granted that those responsible for paying for the damages caused the victim will believe that the victim had a life that functioned without problems before the trauma occurred. They will try to prove the opposite. Proof should be found to provide both the level of functioning and the quality of life of the victim before accident. In the case of function, such as high school and college performance, function on the job, etc., actual proof by way of school transcripts, personnel files, etc. should be located as soon as possible to prove the pre-trauma level of functioning.
The quality of life issue can be of great importance in proving how the victim lived before the accident. This can be proven with witnesses, but that should not be the only way to prove it unless there is nothing else available. Photos of the victim alone and with friends and family are very useful. If the victim ever produced any craft items, had any hobbies that produced tangible results, received any awards, etc., find proof of it. Find ways to prove that the victim had a life, and a good life, before the trauma. To read more, download Pertinent PDF
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Proof of Damages
Brain Injury Law Office
1-800-992-9447
http://tbilaw.com/ProofDamagespage.html
Damages from a permanent brain injury, even one which does not involve a significant period of coma, will involve $100,000 in associated costs, and depending on the economic loss discussed below, beyond that. As with most personal injury cases, damages fall into primarily the following categories: Medical Bills, including past and future; Vocational Damages, including past and future lost earnings; Life Care Costs; Loss of Enjoyment of Life; and Pain and Suffering.
1) Medical Bills
If there was an extended hospital stay and rehab, medical bills will typically range above $100,000; and often approach 500,000. Getting medical bills paid is usually the financial issue that causes the most anxiety for the family members of the survivor. But don’t fall prey to the insurance adjuster who shows up within days of the injury, with the seemingly generous offer of taking care of the medical bills. Insurance adjusters are not to be trusted. They are your adversaries; think of them as the enemy. Such a promise comes at a cost; they will want you to waive your claim for other damages. Never sign anything without talking to an experienced brain injury attorney first.
In most situations, urgent and critical care must be provided to the survivor regardless of ability to pay, and medical insurance and medical assistance are there as primary sources of payment of medical bills.
One common mistake that is made with brain injuries that do not involve coma, is that people, including inexperienced plaintiff counsel, are fooled into thinking that because the short term medical bills are not substantial, that the damages are not either. Insurance adjusters like to multiply medical bills in valuing a case. Never do this, or let your lawyer do it, in a brain injury case. There is no relationship between the size of the medical bills and the extent of the disability and damages in a brain injury case. To read more, download Proof PDF
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Selecting an Attorney
A Lay Person's Guide To Selecting and Retaining The Most Qualified Attorney in Cases Involving Ttraumatic Brain Injury
By: Charles N. (Nick) Simkins,
M. Martha Simkins and Anne Craig.
Simkins & Simkins, P.C.
Attorneys at Law
200 North Center Street
Northville, MI. 48167
(810) 349-6030
PURPOSE
It is a very sad fact of life for many persons surviving traumatic brain injury that they did not receive, or will not receive, adequate compensation for their injuries. This happens because many lawyers do not have enough education, knowledge or experience to be able to analyze, understand, prepare, and present a legitimate claim for compensation on behalf of a traumatically brain injured person. Just as a person sustaining a traumatic brain injury needs specialized medical care and treatment, so also do they need specialized legal representation. In Michigan, and throughout the United States, and because of contingent fee agreements, every person can afford to hire the best and most qualified lawyer to handle their case involving traumatic brain injury, and any other type of personal injury.
The purpose of this article is to assist and empower persons surviving traumatic brain injury and their families to be able to select and, hire the most qualified attorney possible for these types of cases.
In most states, including Michigan injured persons have the ability to retain an attorney by the use of what is called a contingent fee agreement. This means that the attorney does not receive any fee or payment unless money is recovered on behalf of the injured person, and then the attorney fee is paid as a percentage of the amount recovered. In reality, this means that the injured person or their family members have the absolute ability to hire the best and most qualified attorney specializing in representing persons surviving traumatic brain injury. This is a crucial right that lay. People who are consumers of legal services all too often underestimate in making decisions about selecting good attorneys in cases involving injury, whether traumatic brain injury or otherwise.
Through the use of the contingent fee agreement, given that there are excellent attorneys around the United States willing to advance the expenses in connection with a personal injury case, and get reimbursed/paid at the conclusion of the case - injured persons in our society have the ability to hire the most qualified attorneys and need not settle for or accept unqualified, inexperienced or incapable attorneys for their injury cases.
Imagine in a baseball situation that one had the ability to send Mickey Mantle, Willie Mays or Al Kaline to the plate in a crucial situation, and that no money would be paid unless they performed successfully, and you have some idea of the position that an injured is in selecting and retaining the most qualified attorney in a case involving traumatic brain injury or other injury in our society.
As consumers, we all know how to evaluate and purchase things like cars. Refrigerators, houses, and the like, but when it comes to hiring professionals like lawyers, we are often at a loss.
What You Have The Right To Ask About
It is hoped that this article and the attached checklist will take some of the mystery out of hiring an attorney, making it easier for people to make this most important decision. As consumers of legal services, you have the absolute right, in the initial interview, to ask the attorney various questions about his or her background and work in the field of closed head injury. Remember, you are an employer, and you are doing the hiring, and you should not be afraid to ask questions.
Remember, the results of your lawsuit will probably have an important and long term impact on some aspects of the quality of your life and the more qualified your lawyer is, the better that your result is likely to be. It is suggested that at the initial interview with the attorney you take with you the attached sheet, and follow it in questioning the attorney about education, experience and competence in handling cases similar to yours. At the conclusion of the interview, you should have the attorney sign it acknowledging that the answers given are true. To read more, download Selecting an Attorney PDF
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Selecting Legal Representation
Guide to Selecting Legal Representation
for Brain Injury Cases
TBI Challenge!
By Mary S. Reitter, MS
http://www.biausa.org/
Introduction
Persons who sustain brain injury resulting from motor vehicle crashes, pedestrian injuries, falls, defective products, negligence and other causes often find it beneficial to consider consulting an attorney with experience in personal injury cases involving brain injury. Given the expensive and extensive need for medical, rehabilitation and long-term services people with traumatic brain injury and their families may face, any and all possible financial resources should be vigorously pursued.
In addition to a personal injury case, other issues which may require legal assistance after brain injury include competency and guardianship; determination of eligibility for federal and state entitlement programs and appeals, if necessary; estate planning; powers of attorney; separation and divorce; and criminal matters. Depending upon the complexity of the issues, the attorney you select to represent you in a personal injury case also may provide guidance in some or many of these areas, or help you find an attorney who specializes in the particular area of law required.
Personal Injury Cases and Brain Injury
Personal injury cases may afford a person whose brain injury resulted from the negligence of others the financial resources necessary to maximize recovery and/or provide for long-term care and support needs. Tort law, which includes personal injury cases, is intended to encourage safety and discourage wrongful acts which cause injury. It attempts to provide fair and full compensation for the losses of individuals who have been wrongfully injured or killed. Lost income is an obvious loss. Other damages including pain, suffering, loss of earning capacity and enjoyment of life, as well as medical and rehabilitation services also can be awarded compensation when a judgment is made or a settlement reached.
Consider an Attorney Soon After the Injury Occurs
Important evidence may be lost if an attorney is not involved in the early days following the injury. An attorney can investigate and prepare the case while the person with brain injury and family focus their energies on the process of recovery.
Many people are reluctant to involve an attorney because they feel they cannot afford one. In addition to the fee for service basis (an attorney is paid either hourly or through a negotiated retainer), personal injury attorneys frequently work on a contingent basis, which means that their fee depends upon obtaining a judgment or settlement for their client. The attorney and client usually negotiate the attorney's fee before beginning. Expenses necessary to investigate, prepare and resolve the case may be advanced by the attorney but are usually paid out of the consumer's portion of the total award. This allows individuals to have competent legal representation since they can select the attorney they feel is best qualified to represent them, provided the attorney agrees to accept their case.
To read more, download Selecting Legal Rep PDF.