VIRGINIA COMMONWEALTH UNIVERSITY

NATIONAL RESOURCE CENTER
FOR TRAUMATIC BRAIN INJURY

Neuropsychology and Rehabilitation Psychology Division Department of Physical Medicine and Rehabilitation.

Legal

QUESTION:
Since my sister’s accident, my family has been working with a personal injury attorney on her behalf. We hope to obtain a judgment against the individuals responsible for the accident, which left my sister severely disabled. My sister sustained a closed head injury; however, the attorney has no particular expertise with this type of injury. Is it important to have an attorney with experience handling cases with traumatic brain injury, specifically, or is a personal injury attorney OK?

ANSWER

It is extremely important to have an attorney with experience handling cases involving traumatic brain injury. Persons who sustain traumatic brain injury often face a myriad of medical, legal and financial issues which are quite different from the "typical" personal injury claimant. Since many TBI patients look perfectly fine, but suffer from serious physical, cognitive or emotional problems, they have been described in the medical literature as "The Walking Wounded." Consequently, attorneys in TBI cases must carefully prepare and present their cases in order to adequately convey the true injuries to the jury. This involves a unique set of challenges best handled by an attorney with experience in such cases.

The best way to find an experienced attorney is to seek referrals from those individuals in a position to know. Typical referral sources may include other attorneys, other TBI patients, health care providers, state Brain Injury Associations and related groups. The Brain Injury Association (national) publishes an annual "National Directory of Brain Injury Rehabilitation Services," which includes a select listing of attorneys throughout the United States, with a summary of their experience in TBI cases. Many state Brain Injury Associations also provide lists of attorneys in their area with experience in TBI cases.

QUESTION:
I have been offered a $100,000 settlement from the insurance company of the negligent party responsible for causing my brain trauma. Should I accept this settlement or seek a different outcome?

ANSWER
Never accept a settlement and release the negligent party without first consulting with an attorney experienced in handling traumatic brain injury cases. There may exist a multitude of reasons why you should not accept the insurance carrier’s quick, out-of-court settlement. Once a release is signed by the injured party, discharging the negligent party from further liability, the injured party cannot reopen the case.

Most insurance adjusters vastly undervalue brain injury cases. In a properly handled case, a jury may award several times more than what an adjuster offers in a TBI case. Of course, the potential value of a case depends on numerous factors unique to that case. A few of these factors are the nature of the accident, the extent of the injury suffered by the claimant, the venue where the case will be tried, the evidence developed to prove the claimant’s case, and the amount of insurance coverage available to the defendant. It is therefore crucial to consult with an experienced attorney as soon as possible after an accident to discuss these and other issues which arise in almost every TBI case.

In the hypothetical situation described above, if the insurance company has $1,000,000 in coverage and the injured person has a strong case with a significant injury, it would be quite foolish to accept the $100,000 offer and release the negligent party.

QUESTION:
I had a concussion type injury in a car accident several months ago. The good part is, the other driver got a ticket. The bad part is, I can’t do my job and I’m not sure I’ll ever be the same. The doctors said that my CT scan was OK, not to worry, and eventually I’ll be all right. My dad told me to call our family’s attorney. He seems like a nice guy, but I’m not sure he takes me seriously. He just wants to talk about my car which was totaled. When I told him about my memory problems, like forgetting phone numbers and where I leave my keys, he just laughed and said he had memory problems, too. I’m not sure he’s a good attorney, but my dad gets upset if I talk to anyone else. What should I do?

ANSWER
It is important when hiring an attorney to represent someone with a traumatic brain injury (TBI), that you choose an attorney who has specialized knowledge in handling traumatic brain injury cases. Just as someone with a brain injury would not be treated by a general medical practitioner, such an individual should not be represented by a lawyer who is a general practitioner. It is important when hiring an attorney to represent you, that you hire an attorney who has handled traumatic brain injury cases in the past, is familiar with the TBI literature, and understands the specialized problems that individuals with TBI experience. In selecting an attorney, you want to find out whether the attorney is board certified by either one’s State Bar or Supreme Court or by the National Board of Trial Advocacy. You should also check the National Directory of Brain Injury Rehabilitation Services published by the national Brain Injury Association as well as with your own state BIA.

When you meet with the lawyer at the initial conference, you should inquire whether that attorney has ever handled brain injury cases and learn whether that attorney has published or lectured in the field of traumatic brain injury. Most importantly, you must ask yourself the question, "Does this attorney understand the problems that I am having and the seriousness of my injuries?".

If the attorney you have already chosen does not have the expertise that is required to handle your case, you should retain another attorney. In nearly all instances, attorneys on personal injury cases are paid on a contingency-fee basis. That means that the attorney is paid a percentage of the recovery, and is only paid if a recovery is made. If you are dissatisfied with your attorney, you should go and retain someone else. The new attorney will probably charge you the same contingency fee, and that attorney will make arrangements to pay your former attorney a portion of the fee that is ultimately earned. Therefore, in obtaining a new attorney, you should not be required to pay the old attorney at that time for the work that has been performed.

Finally, you also want to know what experts the attorney intends to retain to properly prepare your case and whether the attorney has the financial resources to properly prepare and try your case. To be successful, TBI cases require the best doctors. Accordingly, TBI cases require a substantial commitment of time and money which many attorneys cannot provide.

QUESTION:
Two years ago I got hit by a truck while walking and got a bad head injury. I hired an attorney who seemed nice enough and promised to help me. Now, he just doesn’t seem interested in my case. When I call him, I can never get through. He never calls me back. Sometimes his secretary or assistant calls to ask me questions but they won’t say why. I was supposed to meet with him twice. The first time his secretary canceled. The second time, I showed up at his office. One of his associates met with me and he didn’t seem to know anything about my case. We’re supposed to go to court in 6 months or so, but I think I hired the wrong attorney. I don’t know what is going on in my case. Should I try to get someone else?

ANSWER
The number one complaint from clients is a lack of communication with their attorney. It is important to remember that you are the client and have a legal right to know what is happening with your case. You have a right to review your file, you have a right to be kept up to date, and you have the right to speak with your attorney. It is also important that you have confidence in your attorney. Your attorney is your advocate and the person who will be fighting for you to obtain compensation for your injuries.

During the course of the litigation, there are many events which occur which do not require the expertise of the attorney; they can be easily handled by the attorney’s associate or sometimes a paralegal. It is important from the outset, when you retain an attorney, to understand the course that the litigation will take, what work will be performed personally by the attorney, and what work will be delegated to others in the office. It is important that you make your expectations known to the attorney so that your attorney understands your needs.

If there has been a breakdown in the communication between you and your attorney, you should schedule an appointment to meet with your attorney. Sit down and discuss your concerns, your frustration and your expectations. If you are not satisfied at the end of your meeting, you should seek another attorney immediately. You must always remember that the personal injury case is your case. You get only one trial to make sure that all your past losses and all your future needs are taken care of, and your attorney must understand this.

QUESTION:
Three years ago I suffered a traumatic brain injury as a result of a motor vehicle accident. I was treated by many doctors including neurologists, neuropsychologists, and psychologists. Over the course of the three years of my treatment and recovery, I divulged personal information to these doctors. Following the accident, I hired an attorney to represent me. My attorney has filed a lawsuit on my behalf. I recently learned that my insurance company, the defendant’s insurance company, and the defendant’s attorney are requesting copies of my medical records, including my psychologist’s and neuropsychologist’s records. There is personal and private information in those records, to which I do not think the insurance companies or attorneys are entitled. Must these records be disclosed? Can I keep this information private? What can I do?

ANSWER
One of the most disturbing events for a plaintiff in a personal injury action is the intrusion into one’s privacy by defense attorneys and insurance adjusters. This intrusion is even worse for the person with a traumatic brain injury who institutes a lawsuit for compensation. To defend these cases, defense attorneys are being taught that they must delve into a plaintiff’s past to uncover information containing any type of pre-existing injury or complaint to which the plaintiff’s present condition can be related. This invasion of one’s privacy, while intrusive and understandably upsetting, is nevertheless permissible under most state statutes and case law interpretations. It is important that a person with a traumatic brain injury and his/her family understand this intrusion from the beginning of the litigation process.

Under most state statutes when a person brings a personal injury claim for injuries sustained, that person waives the physician-patient privilege, allowing the defense to access all relevant medical records. This statute was designed to continue the policy which allowed disclosure of a patient’s medical records when relevant to a person’s claim of injury.

However, the courts have drawn a distinction between the physician treating a disease and a psychologist endeavoring to cure an emotional or mental problem. The courts have held that the nature of psychotherapy justifies a greater degree of confidentiality and protection than is generally afforded medical treatment for a physical condition or symptom. Yet, when a person asserts a mental or emotional problem as part or all of a personal injury claim, the courts have held that the psychotherapist-patient privilege is waived.

Unfortunately, our courts have failed to recognize the distinction between a psychological condition and an organic one (such as traumatic brain injury). It is also usual for a person who has sustained a traumatic brain injury to suffer some psychological sequelae as a result of the injury. When one brings a claim of traumatic brain injury, one’s entire medical history, both physical and emotional, becomes subject to discovery and review by defense counsel and the insurance company.

In order to obtain this discovery, defense counsel is permitted to issue subpoenas or forward medical authorizations to the plaintiff to obtain medical records. Many state court rules require that when a subpoena is issued, a copy must be served on plaintiff’s counsel. A party is not obligated to sign blank authorizations. When served with a copy of a subpoena or request for medical authorizations, plaintiff’s counsel must demand that when medical records are obtained, copies be forwarded, at a reasonable cost, to plaintiff’s counsel. Where prior psychiatric or psychological records contain information that counsel feels is not relevant to the claim, a motion should be filed requesting that the court review those medical records to determine if they must be released.

Because discovery in a traumatic brain injury case can often leave the injured individual feeling like the accused, it is important that the client understands the full nature of discovery from the beginning and what can be expected during the course of the litigation. Where the plaintiff has received prior medical care, it is imperative that these records be obtained by his or her own attorney to evaluate and prepare for how they will be used by the defense. While litigation can be a stressful process for a person with traumatic brain injury, a full understanding of the process can minimize this anxiety.

QUESTION:
A member of my family recently suffered a brain injury as a result of an accident. Should I consult with an attorney to discuss pursuing legal action? Are there time limits which govern how long one has to take such action?

ANSWER
Individuals with brain injury, their families and/or their representatives should consult with an attorney whenever an injury results from a traumatic event. Consulting with a lawyer is especially important when the factual circumstances indicate that another person, company, corporation or entity may be legally responsible for causing the accident or injury.

For example, many brain injuries result from: (1) the negligent or intentional acts or omissions of another (e.g., motor vehicle accidents, falls, recreational accidents, violence, etc.); (2) on-the-job accidents; or (3) the use of defective products. Under such circumstances, attorneys may offer guidance about pursuing legal claims based upon (1) personal injury (tort), (2) workers’ compensation, or (3) product liability, respectively.

However, strict time constraints -- called statutes of limitations -- generally apply to legal actions. Therefore, assistance and advice from an attorney must be sought as soon after the occurrence of the accident as possible. Failure to assert a timely legal claim will result in a bar to recovering financial compensation for the brain injury.

QUESTION:
As my wife and I grow older, we are increasingly aware of the need to provide for our son in the future. He has severe brain damage and cannot live alone. I have heard of the benefits of establishing a "special needs trust." What is this? Is it for us? If not, what should we consider to secure our son’s future?

ANSWER
A "special needs trust" (SNT) is a legal instrument under which money, stocks, bonds or other assets are placed in the hands of a trustee to be administered to meet the special needs of a beneficiary (e.g., child with brain injury) which are over and above the needs met through government benefit programs like Social Security benefits. Parents who establish such trusts commonly have four objectives in mind: (1) they want money to be available to assure a high quality of life for their child; (2) they do no want the presence of trust assets to affect their child’s opportunity to receive government benefits; (3) they want to protect trust assets from cost-of-care claims which may be asserted by the government; and (4) they want the trustee to have the ability to use trust proceeds to pay for future care in the event problems arise in placing the child in government-funded facilities or if such facilities later prove to be inappropriate for their child. However, SNT’s are not for everyone. Parents interested in learning more about these trusts should consult with an attorney and/or certified financial planner.

QUESTION:
While my daughter remains hospitalized due to a severe brain injury, I have been advised to seek legal assistance. She is not competent to make decisions and may be permanently impaired in this regard. She is a legal adult. Should I obtain guardianship? What would this involve and require of me once established? Are there alternatives to guardianship that I should consider?

ANSWER
When an adult is permanently impaired as a result of brain injury and is unable to deal appropriately with financial and/or health care decisions, family members or significant others should consider petitioning the probate court for an order appointing a guardian or conservator for the incapacitated adult. Since the legal aspects of this appointment vary from state to state, in most instances an attorney who is familiar with these procedures should be consulted. Under some circumstances - e.g., when only Social Security benefits are involved - the appointment of a guardian or conservator may not be necessary and family members may only need to have someone named by the Social Security Administration to serve as the "representative payee" of those benefits. However, a representative payee is not permitted to make health care decisions for an incapacitated adult. When medical decisions are involved a guardian or conservator should be appointed.

QUESTION:
My son is a legal adult, but he is not able to make decisions for himself due to a severe brain injury. He will be discharged from the hospital within a few weeks and will need someone to act as his decision-maker. As his parent, would I become his guardian automatically, or would that designation go to his wife? Is this something we will have to go to court to establish?

ANSWER
Neither a spouse nor a parent automatically becomes the guardian of an incapacitated adult. Rather, in most instances, appointment of a guardian can only be made by the appropriate probate court. Under most circumstances, courts favor appointment of a competent spouse to this position. Only rarely, and under exceptional circumstances, would the court likely consider naming a parent to serve as the guardian of an adult who is both incapacitated and married.

QUESTION:
I am considering consulting with an attorney about a brain injury case. What qualifications should an attorney possess in order to provide me with good legal counsel?

ANSWER

Lawyers who provide legal counsel and representation in brain injury cases should be familiar with the nuances of brain injury and should be competent in the area of practice which deals with the factual circumstances presented by the case. For example, if the brain injury resulted from a traumatic event for which another person or entity may be legally accountable, then an attorney specializing in personal injury (tort) cases should be consulted. If the injury arose from an on-the-job accident, then a workers’ compensation specialist should be consulted. Of course, there are numerous other circumstances which may lead to the involvement of an attorney. Since the practice of law has become specialized, specialists familiar with the laws applicable to specific factual circumstances should be consulted.

Bar associations, trial lawyer groups, brain injury advocacy organizations, health care providers, this data base and others familiar with the medicolegal aspects of brain injury may provide referral to appropriate attorneys.

QUESTION:
I am considering hiring an attorney to provide legal representation in a brain injury case. What are the financial arrangements which must be made in order to pay for those legal services?

ANSWER
Generally, attorneys who provide representation in brain injury cases are paid either on an hourly fee or contingency fee basis. When the attorney brings an action (e.g., personal injury, workers’ compensation, social security, etc.) which is designed to produce financial recovery for the client, he or she works under a contingency fee arrangement whereby a percentage of the money recovered is used to pay attorneys’ fees and litigation expenses. However, if the product of a lawyer’s work is not a financial recovery for the client, then attorneys base their fees on an hourly rate. The percentages allocated to the attorney under a contingency fee contract, like the specific amount of an hourly rate, vary widely depending upon the type of case presented. Prior to hiring a lawyer, the client must obtain a clear understanding of how fees and expenses will be billed, and the attorney-client relationship (including financial arrangements) should be reflected in a written agreement (i.e., attorney-client contract).

No comments (Add your own)

Add a New Comment


code
 

Comment Guidelines: No HTML is allowed. Off-topic or inappropriate comments will be edited or deleted. Thanks.

JOIN OUR MAILING LIST

As a mailing list subscriber, you will receive e-mails of interest about once a month. You will also receive an electronic copy of our newsletter, TBI Today.

Name:

*

Email Address:

*