I just finished reading this touching article about one family’s struggles with a young daughter who sustained a serious brain injury following a car accident:Bringing Andrea back from brain injury: a father’s story (http://todayhealth.today.msnbc.msn.com/_news/2012/06/12/12191609-bringing-andrea-back-from-brain-injury-a-fathers-story?lite). The upheaval from such an injury is tremendous. Families literally have to rethink the way that they live their lives when a loved one sustains traumatic brain injury. I have had the privilege of representing many families whose loved one suffered brain damage from an automobile accident or medical negligence. Their challenges are many.
The first and foremost challenge is to find comprehensive, skilled medical care. With prompt and careful acute and long-term care, victims of brain injury can see dramatic improvement. Services vary widely and can be surprisingly difficult to find. In fact, there is no dedicated brain injury rehabilitation facility in Ohio’s largest city, Cleveland. There are many specialists that are helpful in treating brain injury. An experienced attorney should know what resources are available.
The next challenge is how to pay for treatment. 44 millions Americans do not have health insurance, so they must look to other sources for payment of unexpected medical expenses. When an injury is caused by the negligence of another, a claim for medical malpractice or motor vehicle liability may exist, but these claims can take years to resolve. In the meantime, medical bills must be paid. A lawyer can help. Often, healthcare providers will forgo collection efforts if a lawyer makes a promise to pay them out of any recovery obtained on their client’s behalf from a settlement or verdict. Hospitals can provide some financial assistance on bills, if you ask. Likewise, some insurance policies provide medical payments benefits to cover medical bills under certain circumstances. Finally, there are government resources that may be available, such as Medicaid, Medicare and the Ohio Department of Health’s Bureau for Children with Medical Handicaps.
When an individual sustains brain injury and cannot work as a result, additional challenges exist. Social security disability and private short- and long-term disability plans are the first resort to make up for lost wages.
Finally, when a traumatic brain injury is caused by another’s negligence, legal challenges abound in getting fair compensation. Not uncommonly, patients do not recognize subtle cognitive deficits or behavioral changes that are common with brain injury. Even caregivers who may be focused on more obvious or acute issues can overlook significant brain injuries. Even mild changes can nonetheless severely impact an individual’s work and personal relationships. An experienced lawyer should carefully interview a client who has sustained a stroke or head injury and key family members to see if there have been changes in mentation.
To prove that a brain injury exists, lawyers rely on a cadre of medical specialists, including neurologists, psychologists, psychiatrists, neuropsychologists, neuropsychiatrists, physiatrists, physical therapists, occupational therapists and other medical specialists. Occasionally, I will consult with nationally known researchers to gain insight into the long-term impact of brain injury. It has been established that patients with brain damage from stroke or trauma are at increased risk of early onset dementia and related cognitive dysfunction. As one expert told me, “the brain is like a bank account, as you make withdrawals, its usefulness is permanently diminished.”
In addition to proving that a brain injury exists, to obtain full and fair compensation, a lawyer must assess the costs associated with the injury. In Ohio, caps on noneconomic damages may restrict an individual’s recovery. In order to obtain any semblance of justice in the face of these draconian caps, a lawyer must capture all of the economic costs associated with a brain injury. This requires a detailed assessment of lost wages and benefits, and medical expenses and other life care expenses. These damages can be proved in a variety of ways, but it is important to have them calculated by experienced, credible experts who follow an accepted professional methodology.
Since the costs associated with serious brain injuries can be monumental, it is important to find all available sources of insurance to pay for damages caused by another’s negligence. This includes both investigating the extent of a defendant’s insurance and also identifying all potential defendants, including those who are vicariously liable. Vicarious liability most commonly exists where an employer is held liable for those acts occurring within the course and scope of a negligent employee’s job duties. However, it can also exist in other situations, such as where a patient seeks care at a hospital and is injured by the negligence of a healthcare provider who is not employed by the hospital.
Finally, once a recovery is obtained, it is important to engage in long-term financial and legal planning to assure that any funds recovered are available to cover future expenses. Often this requires the involvement of additional legal experts to handle complicated probate, trust, tax and estate planning issues.
Brain injury litigation is among the most complicated types of personal injury or medical negligence cases. The financial resources required to fund one of these cases often reach $50,000 to $150,000. The lawyers at Mishkind Kulwicki Law take exceptional pride in offering those resources as well as experienced and compassionate legal representation to assist clients in making their way in this challenging new world.
