A recent systematic literature review of eight research studies has shown that the rate of traumatic brain injury (TBI) is higher amongst homeless people than the general population. The results from this collection of information, which had never before been reviewed in a scientific study, will significantly affect those who are at risk of becoming, or who are, homeless.
Earlier this week I was contacted by a reader who discussed his recent experience with State Farm Insurance in an arbitration proceeding. You can read his comments, as well as another reader’s here. First, let me express my condolences for the bad outcome in your case. Please understand that it is difficult to respond specifically without having read your entire file. Dr. Lees-Haley and Dr. Fox are well known to me. I draw your attention to a recent article authored by Dorothy Sims, Esq. which was recently published in Brain Injury Professional, The Official Publication of the North American Brain Injury Society. In Ms. Sims article, quoting from a recent deposition of Dr. Lees-Haley, she quotes him as conceding:
1.His practice is “almost all defense.” His practice is so reliant upon defense referrals his template, or prewritten report, already indicates the defense hired him before he even receives the referral. 2.He treats no patients. 3.By the time the case in question comes to trial, his charges could exceed $25,000.00.
In a previous article I wrote some years ago entitled “Anticipating the Defense’s” I stressed the need for neurolawyers to be well versed concerning defense experts. As Ms. Sims points out, many of these defense experts come with preconceived biases and are hired because the insurance industry knows what it is getting before the referral is made. In your post, you indicate that Dr. Fox wrote a report without having ever evaluated you. I draw your attention to the ethics of the American Psychological Association which discusses this behavior. In retaining an attorney to represent someone who has an acquired traumatic brain injury, it is imperative to hire an attorney who has great experience in handling these types of cases. Finally, while you are correct that I do not practice law in the state of California, I am always happy to speak with individuals with acquired traumatic brain injury regardless of their location. If I cannot help them, I am more than willing to make an appropriate referral to an attorney who can. Thank you all for sharing you stories and questions. Please keep them coming!
I read a story in The Journal News which highlights a common occurrence in many personal injury cases, including those which involve a traumatic brain injury. After a debilitating injury, many people find themselves without pre-established provisions such as power of attorney designees or health care trustees. Injured individuals who are incapable of managing their healthcare or finances are then dependent on the courts to make that decision for them. One of my fellow shareholders, Steven Friedman dedicates his practice to assisting people in planning for their future. He is also an accredited estate planner. You can also read an earlier post regarding the need for estate planning for those who are currently the sole care provider for a younger person who has suffered a traumatic brain injury.
Question – I am presently represented by an attorney who doesn’t seem to understand my injury. When I retained him, he told me that he had handled cases for people with head injuries in the past. However, after two years of being represented by him, he doesn’t seem to understand the problems that I am experiencing. I would like to change lawyers. Is that still possible?
AnswerA client is always free to discharge his/her present attorney and retain new counsel. Obviously, the longer one waits the more difficult this becomes. Prior to filing a lawsuit, a plaintiff’s attorney has the ability to obtain past and present medical records, do a thorough investigation and have the client evaluated by independent medical specialists. In most states, a plaintiff has two years in which to file the lawsuit, thus stopping the running of the statute of limitations. Since each state has its own statute of limitations, one must check that state’s specific statute of limitations. Read More about Advice on seeking new counsel after your suit has been filed
Question – I am presently involved in a lawsuit stemming from a fall where I sustained a traumatic brain injury. It seems as if every week I am sent medical authorizations so that the insurance company and their lawyers can obtain not only the medical records from the doctors that are treating me, but from almost every other doctor I have ever seen. I feel like my privacy rights are being abused. Is there anything I can do to stop this?
Answer – When a patient treats with a doctor, there is a well-established physician-patient privilege and recent Federal law protects disclosure of your medical records. However, when you have been injured and assert a claim, your right to medical privacy has ended.
An insurance company and its attorneys have the right to obtain all of your prior medical records as well as your medical records from doctors who have treated your claim. This is done so that it can be determined whether the injuries you assert stem from your accident or maybe were preexisting.
In many states, prior to psychiatric or psychological records enjoy greater protection. However, since one of the hallmarks of traumatic brain injury is emotional (depression, anxiety, etc.) residuals or sequella, even those records are available for disclosure to the insurance company.
Question – I was recently involved in an automobile accident and suffered a brain injury. Do I need to hire an attorney? Answer – The short answer is yes. The issues following an auto accident are many and very complex. New Jersey, for example, is a no-fault state. That means, regardless of who is at fault for causing the car accident, a person’s own insurance company is responsible for paying their medical bills. Under our present law, all medical treatment must be pre-certified by your automobile insurance company. Examining the historic behavior of many New Jersey auto insurance companies, obtaining pre-certification or approval for simple procedures such as diagnostic tests (MRIs, CT scans, neuropsychological testing, etc) can become difficult and frustrating. A strong and competent advocate is needed to fight through all of the red tape in order to obtain needed treatment for a brain injured person. From a compensation standpoint, a layperson, especially someone who has suffered a brain injury and who is experiencing difficulties with attention and memory, needs an attorney who can negotiate on an equal standing with an insurance company.
Questions. When hiring a personal injury attorney to represent a person who has suffered a traumatic brain injury, is it necessary that the attorney have specialized knowledge of brain injuries?
Answer. Yes. The attorney you hire should have specialized knowledge and experience in the field of neurolaw and in handling traumatic brain injury cases. Just as a person with a brain injury would not be treated by a general medical practitioner, he or she should not be represented by a lawyer who is a general practitioner.
When you meet with a lawyer, inquire whether the attorney has handled brain injury cases, whether he or she has published or lectured in the field of traumatic brain injury, and most importantly, whether he or she understands the unique problems of a traumatic brain injury victim.
Determine the attorney’s qualifications, such as whether the lawyer is board certified by your state’s bar or Supreme Court or by the National Board of Trial Advocacy and whether the lawyer is listed in the National Directory of the Brain Injury Rehabilitation Services, published annually by the National Brain Injury Association.
