Brain Injury Law Blog : Head Injury : Coma : Personal Injury : Las Vegas Nevada Lawyer & Attorney Tim Titolo

What You Should Learn Initially From Your Lawyer About Court and Your Personal Injury Claim

Litigation versus Claim Counsel

For personal injury cases, with the exception of medical malpractice, the typical statute of limitation is 2 years in Nevada. That means one must file a lawsuit within 2 years from the date of the injury. So unless a claim is fast approaching the statute of limitation deadline, a lawyer will notify a potential defendant about a claim hoping to get the insurance company for the insured-defendant to fairly negotiate a resolution. However, in real life, fair negotiation never happens and lawsuits are filed close to the expiration of the statute date.

Insurance Companies know this and use it to their advantage. Some lawyers hire “trial counsel” to take the case over if they are unable to settle it prior to filing the lawsuit. This may be in the best interest of the client if the attorney does not have the resources or skill to bring the case to trial. Many lawyers make a practice of signing up clients knowing they will never try the case hoping they will settle it before the filing deadline.

This can have an adverse interest on the client who relies on the attorney to do the best she can to obtain the best result. What ends up happening is that if the attorney cannot settle it he “sells the case” to a trial lawyer for 1/3 of the fees obtained. If you stop and think about it, if the client hired the trial attorney to begin with, that attorney would be able to earn a full fee rather than splitting it with the non-trial attorney. The the old adage, “You get what you pay for.” Most certainly the trial attorney will still do his best to get his 2/3 fee BUT is it really fair to give the referring lawyer anything if his best effort was hiring someone you could have hired directly? Probably not.

Preparation for Trial

Further, even though insurance companies know which lawyers are prepared to take a case to trial by what they do to prepare it, bringing in the “big guns” later in the game sends a message to the insurance company that you are going to trial. Once they see this they realize their misevaluation is going to go up or risk a jury verdict.

Serious lawyers want to create and maintain a serious impression with defense lawyers, insurance companies and defendants that they are working toward a trial date. For me, that means filing a lawsuit as soon as preliminary investigation is complete. That should be within the first 2- 3 months. By then you should know the clients’ veracity, the medical, wage and loss of life values, as well as the probable future medicals, wage and life costs. And just as importantly, if you conduct meaningful investigation early on you will know the liability status of the case (who is at fault). All of this investigation costs money but is well spent.

Start the Wheels of Justice Early

The wheels of justice turn slow. My motto is to get them turning as quickly as ethically possible. At the same time waiting the permissible 2 years to file a lawsuit could not only waste time getting to a recovery but, worse, forever lose important evidence to lost witnesses and the like.

The statistics of whether you will have to step foot in a courtroom are fractional. Since more that 90% of all lawsuits settle before ever reaching the courthouse, you should ask the lawyer you are considering for representation about that. My answer is: I always prepare a case as if we are going to trial. That is the only way the other side will take anything we say seriously. That includes settlement discussions and any alternative dispute resolution that we may enter in to.

When you interview a prospective lawyer, make no mistake, you are interviewing her more than she is interviewing you. She is trying to decide if it makes business sense to take your case. How much can she make? You are evaluating her integrity; will she get into my suffering with me and help me though it? Getting you to the right care givers, truly listening and understanding what you are going though. You have the right to say “no” too. During these initial meetings you should ask what and how she is going to proceed; how long things will take; who pays for what and when will those payments begin and for what?

While you may never face the inside of a court room you may face formal proceedings like depositions or compulsory medical evaluations. You may have to disclose and answer questions about very personal things that do not appear relevant. Your lawyer needs to have enough time in her day to calmly and completely go over these matters with you in detail. And finally, establish in your initial meeting how often you can expect direct contact for an update on all documents, hearings, Orders and other significant matters. In my office I meet with each client at least 1 time every 2 months to go over detailed proceeding. This is in addition to communications that occur on an as needed basis.

Communication

I find this communication not only keeps me and the clients updated on their case, but clients look forward to getting all the documents to go over to see what activities are taking place. This results in far fewer questions when we talk. My goal is to give my client a sense of understanding and control of this part of their life. This is especially true when other parts of his life may be out of control.

I will talk more about the goings of being in court, but for now I meant to cover what you should learn initially from your lawyer about court and your personal injury claim.
 

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 I previously posted about local neuropsychologists working on educating players and coaches about brain injury.  Now the CDC is working with the NCAA.  Check this post if you or someone you know is involved in contact sports.

As you gear up for the big game, look for a new public service announcement (PSA) for concussion prevention airing at NCAA tournament sites.

CDC and NCAA teamed up to create the PSA and other concussion educational resources, including a video for student-athletes, posters for every NCAA sport, fact sheets, and concussion management plans for medical staff. 

You can read more about the CDC Resources on Concussion in Sports with this link.

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 According to the CDC:

Traumatic brain injury (TBI) is a serious public health problem in the United States. Each year, traumatic brain injuries contribute to a substantial number of deaths and cases of permanent disability. Recent data shows that, on average, approximately 1.7 million people sustain a traumatic brain injury annually.

A TBI is caused by a bump, blow or jolt to the head or a penetrating head injury that disrupts the normal function of the brain. Not all blows or jolts to the head result in a TBI. The severity of a TBI may range from “mild,” i.e., a brief change in mental status or consciousness to “severe,” i.e., an extended period of unconsciousness or amnesia after the injury. The majority of TBIs that occur each year are concussions or other forms of mild TBI.

CDC’s research and programs work to prevent TBI and help people better recognize, respond, and recover if a TBI occurs.

Join the Live Chat on Twitter Thursday January 27, 2011..  Click here.
 

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 The Brain Injury Association of America asked me to post this latest update:

CCD Annual Meeting

On Wednesday, January 19, 2011, BIAA attended the Consortium for Citizens with Disabilities (CCD) annual meeting to discuss 2010 accomplishments and to develop a strategic plan for 2011. CCD is a coalition of approximately 100 national disability organizations working together to advocate for national public policy benefiting children and adults with disabilities. BIAA will again serve on the Health, Veterans, and Long Term Services and Supports task forces this year.

Brain Injury Awareness Day 2011

This year, brain injury awareness day on Capitol Hill will be held on Wednesday, March 16, 2011. BIAA and other stakeholders are working with the Congressional Brain Injury Task Force to develop a schedule for the day as well as logistics and speaker details. The title of this year’s briefing is “Brain Injury Rehabilitation and Re-entry: Lessons Learned and the Road Ahead.” 

BIAA is committed to helping the Congressional Brain Injury Task Force plan a successful event around the importance of rehabilitation in recovery. Stay tuned for more details including a full schedule of the day’s events.
 

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 The Brain Injury Association of America asked me to post this update on this blog:

At the request of the Secretary of the Health and Human Services Department (HHS), the Institute of Medicine (IOM) is spearheading a study that will make recommendations on the criteria and methods for determining and updating the essential health benefits package, which was passed as part of the Affordable Care Act. This week, as part of the Consortium for Citizens with Disabilities (CCD), BIAA contributed to oral testimony delivered to IOM’s Committee of the Determination of Essential Health Benefits suggesting criteria and models for the design of the rehabilitative and habilitative benefits package.

In addition, BIAA submitted written testimony specific to brain injury that emphasized a continuum of care, including rehabilitation treatment provided in a variety of settings, as medically necessary to reach optimal recovery.

BIAA will continue to assist IOM, as they move through this process, to ensure appropriate access to care for people with brain injury is achieved as health care reform regulations take shape.

Research Appropriations Update

On January 13, 2011, The Congressional Brain Injury Task Force, with help from BIAA, Ohio State University and JFK-Johnson Rehabilitation Institute, issued a letter to the Office of Management and Budget (OMB) encouraging line-item status and increased funding for the TBI Model Systems of Care program within the soon-to-be released President’s budget.

As of now, the budget is set to be released during the week of February 14, 2011. At that time, BIAA will analyze funding levels and alert grassroots advocates when appropriations action becomes necessary.

Brain Injury Awareness Day 2011

This year, brain injury awareness day on Capitol Hill will be held on Wednesday, March 16, 2011. BIAA and other stakeholders are working with the Congressional Brain Injury Task Force to develop a schedule for the day and a theme for this year’s briefing.
 

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 The issue for Supreme Court Justices is whether police action " here, a knock on the door" that triggers a reaction on the other side, such as noise that suggests destruction of evidence, should justify a warrant-less entry.  The findings of a recent study show that early marijuana use is associated with poorer executive functioning, and that the younger a person starts, as well as the quantities used, may play a significant role in impairment.

Newly appointed Justice, Elena Kagan, worries that the court could make it too easy for police to avoid the time and effort of getting a warrant.  Police would then be able to justify warrant-less entry based on smelling "pot" and "hearing a noise."Justice Scalia on the other hand sees warrant-less entry based on smell and noise as consistent with the Constitution.   He views police "taking advantage of the stupidity of the criminals" as justification.

The better response to a knock on the door by police is to say, "Oh, heck, no, you can't come in, do you have a warrant."  Presumably this would trigger the necessity of getting a warrant before entering. Arguably this would give occupants time to flush or dispose of the marijuana.

The issue is before the Supreme Court based on a 2005 ruling in Kentucky.  The State Court said the police cannot rely on urgent circumstances they themselves create to enter a home without a warrant.Neurology Today reports in December 2010, that marijuana users who started smoking before age 16 scored consistently lower on cognitive tests than those who started smoking later in life and in healthy individuals who had never used the drug.  These findings add to a growing body of research indicating that heavy marijuana use be adolescents may have long-term consequences on cognitive development.  Read more by clicking on Neurology Today.

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Health Care Reform and Dementia were discussed in this blog last month.  Today we will examine the constitutionality of Health Care Reform and the Affordable Care Act.

 How merry the Holidays.  Food, fun, caring and sharing - and the occasional political debate.  This year the young college sophomore, my wife’s cousin’s son, exclaimed why insurance rates are so out of hand, “It’s all these outlandish lawsuits!”  Why he once heard of a $127 million dollar case against a doctor.  Of course, being a trial lawyer, I was aghast that a semi educated student would make such a statement and off the ground the debates went.  Medical malpractice lawsuits that are “frivolous” typically do not see the light of day in a court room, let alone proceed to a multimillion dollar verdict.  If they do they are deliberated by a jury which is the fairest way to make such decisions.

Health Care Reform, aka ACA or Affordable Care Act, was the topic of debate right next to the Christmas tree.  My conservative in-laws refused to be taxed or forced in to paying for health care premiums, period, end of story.   Typical conservative responses gave no credible sources of argument other than, “I heard someone said…”   I, a trial lawyer, tried to explain that having everyone insured would pass the cost of health care from the taxpayer to the insurance company.  Being asked to pay the price of insurance would avail everyone coverage so that when health care is received, as it is with or without insurance, the cost is not passed on to consumers in the form of taxes.  Paying a little sooner is better than paying a lot later.  Who pay when public hospitals are in the red?  They still have to provide care even if they do not get paid.  Who pays – the taxpayer!

So for my in-laws and the reading public I share an article I read in the New England Journal of Medicine December 2010.  The article points out reasons why the ACA is controversial.

Preserving the Health Insurance Industry

The two goals of the ACA are to provide affordable care to all Americans and preserve the health insurance industry.  The second portion is controversial.  Can an American consumer be required to purchase a product from the private sector?  If they can then why can’t the government require all Americans to buy a car in support of the Car Industry?  Good question.

But if, like in Bush v Gore, the Court can see this decision as a limiting one, it need not create precedent.  So when Florida’s Judge Vinson asked “If they decide everyone needs to eat broccoli,” can Congress require everyone to buy broccoli?  The Obama Administration correctly pointed out that the topic was health insurance, “it is not shoes, it is not cars, it is not broccoli.”  And it is not.

This would have been completely avoided if the government would have created government insurance, like Medicare, Medicaid or Veterans insurance.  Those insurances do not raise constitutional issues because they are government/tax funded benefit programs.  The Constitution specifically gives Government the right to tax and spend for general welfare.  But since conservative legislatures insisted on preserving the private sector insurance industry, those same conservatives are now arguing it is unconstitutional as a violation of the commerce clause, the regulation of commerce between states.

The Court’s interpretation of the Commerce Clause is the Issue

The government has authority to enact laws in support of National defense and to regulate interstate commerce.  However recent decisions make this decision open to interpretation.  Congress cannot prohibit handgun possession in school zones under the commerce clause.  U.S. v Lopez (1995) Congress can prohibit private marijuana cultivation of small amounts for medicinal purposes. Gonzalez v Raich (2005)

The broad and narrow interpretations make the court’s decision in the constitutionality of the ACA uncertain.  But we are not asking Congress to make us eat broccoli, we are asking Congress to get the cost of health care under control.  As my Canadian friends point out, the seriously ill get health care and the less seriously ill wait a few weeks.  Why is this so wrong?  Are we just afraid to admit that being socially responsible is being a socialist?  Social Security is a form of socialism.  And it is the right thing to do.  So is providing health care.

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Las Vegas Brain Injury Law Blog

THE HOLLYWOOD MYTH

We all accept the things we see in movies and on television.  That is the hope and intent of their creators.  However reality and fantasy, or at least make-believe, are not the same.  We need to be reminded that fact and fiction are not the same!

Traumatic Brain Injury

Traumatic brain injury will occur when the soft tissues of the brain are pushed against the boney structures of the skull in whiplash type, acceleration/deceleration movements. The inside of the skull is riddled with sharp ridges especially around the eyes.

The problem with most of us is we are desensitized to the impact of trauma and brain injury due to what we watch every day on television or in the movies. This is called the Hollywood Myth.

Most people’s knowledge and experience with the result of mild head injuries is largely the product of movie magic. Some of the funniest scenes in slap stick comedies and cartoons depict the character sustaining a single or multiple head injuries, looking dazed and then recovering immediately. In cowboy movies, detective and action stories, and boxing and kung fu films, seemingly serious head trauma is often inflicted by blows from guns and heavy objects, falls, motor vehicle injuries, fists, and kicks, all without lasting injury.

Our Experience

Our experience is minuscule compared to the thousands of simulated head injuries witnessed in the movies and on television. Because of the compelling mythology, the lawyers and physicians have a difficult job educating patients, their families, and others in the realities of mild head injuries. However, when one looks at examples of two successful boxers, Joe Lewis and Muhammad Ali, they have witnessed powerful punches resulting in dazed, disorientated boxers or knock outs. Memory loss and dementia have been a frequent finding in ex fighters.

Boxing and other Repetitive Injury

“Mild head injury typified by momentary amnesia, brief loss of consciousness, and persistent headache or mild neurological signs is more difficult to document than severe or moderate head injuries. In an analysis of 1,165 bouts: researchers found that 79% of boxers had momentary neurological signs, whereas 21% demonstrated deficits for at least 24 hours.”

And our favorite sports, football, hockey, baseball all involve serious, repetitive head injury which take their toll on athletes both now and later in life.

Television & Movies

Recall Laurel and Hardy, Abbott and Costello and the Three Stooges, all slapping each other and making us laugh. We laughed because we knew the injuries were fake; But not so in real life.

We all cheered James T. Kirk when he engaged in hand to hand combat either knocking his opponent out or being knocked out himself, only to return apparently healed and well in the next scene.

Today’s movies continue the tradition of distorting the truth about head and brain injury. And we are all caught up in it. We are conditioned to believe a little punch or two cannot really do any permanent damage. Then we see Natasha Richardson suffer a seemingly minor head injury while skiing, go on about her day, and die hours later from brain injury.

Education

Education is the key.  Occasionally, a documentary or science channel special runs a series or show on brain injury, but it is our responsibility as parents, and engagers of everyday risk to know the difference between fact and fiction.
 

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Is it Dementia or Heart Medication?

It may be time to consider guaging your forgetfulnes by the heart medication you take.  2010 generated interesting findings. 

Scientific American  reports Cholesterol-lowering statins such as Lipitor, Crestor and Zocor are the most widely prescribed medications in the world, and they are credited with saving the lives of many heart disease patients. But recently a small number of users have voiced concerns that the drugs cause unexpected cognitive side effects, such as memory loss, fuzzy thinking and learning difficulties.

While these side effects are reported in only a small number of cases, it is important to get proper diagnosis and care: especially if you have high cholesterol.

Is your Brain Fat?

Well...yes it is. Or at least it requires fat to operate well. Cholesterol is a waxy substance that, among other things, provides structure to the body’s cell membranes. It also clogs arteries and blood vessels.

Statins

Some studies report that statins improve memory in certain people by lowering the risk of dementia. But the fact that statins may be bad for others arises because of different biochemical pathways and genetic predispositions.

Statins may prevent the body from making cholesterol-based myelin which insulates axons and speeds neuron connections.

So if you are having difficulty making decisions, remembering things or being yourself, and you are taking statins, talk to your doctor. You can likely switch medicine and see improvement. Of course if you recently hit your head you should also tell your doctor as you may be suffering signs and symptoms of brain injury.

On the other hand, non-statin heart medication has been shown to promote brain health by reducing dementia.

In January 2010, Boston University scientists, reporting in the British Medical Journal, say a class of high blood pressure drugs called angiotensin receptor blockers is associated with a striking decrease in the risk of occurrence and progression of dementia.

The researchers, using information from a U.S. Department of Health System Veterans Affairs database of more than 5 million people, examined records of more than 800,000 predominantly male patients 65 or older.

The researchers compared the patients in groups that included those using an angiotensin receptor blocker (ARB); those using an ACE inhibitor called lisinopril (Prinivil, Zestril); and those using other blood pressure/heart disease medications (excluding statins). 

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