Brain Injury Association of America Legislative Update June 2014

The Brain Injury Association of America notes the following legislative updates: Access to Inpatient Rehabilitation Therapy Act of 2014 Congressman Glenn Thompson (R-PA) and Congressman Butterfield (D-NC) introduced H.R. 4755, "Access to Inpatient Rehabilitation Therapy Act of 2014'' on May 29, 2014.The bill allows Inpatient Rehab Facilities (IRFs) to count recreational therapy services toward satisfaction of the "three hour rule," giving physicians practicing in inpatient hospital rehabilitation settings greater flexibility to prescribe and provide the mix of therapies in the IRF setting that best meets each patient's needs, including individuals with brain injuries. BIAA played a major role in tailoring this legislation to better improve the care individuals with brain injury receive at IRFs. The bill was referred to the Committee on Ways and Means. Please call your Representative and ask him or her to co-sponsor HR 4755 today! To find your Representatives contact information click here. Enter your zip code in the upper right hand corner and click "GO". This will take you to your Representatives contact information. Disability Advocates Call for Senate Action on Treaty Following Supreme Court Ruling in Bond Case On Monday, June 2, the United States Supreme Court issued its ruling in the case of Bond v. United States. The unanimous judgment supports what disability advocates and legal scholars had long contended: that the Bond case is not an obstacle to ratifying the Disability Treaty. The coalition of over 800 disability, veteran, and faith organizations working in support of the Treaty today call on the Senate to proceed promptly to ratification of the Disability Treaty. Opponents of the Disability Treaty have claimed that the Senate should not take up ratification until the Supreme Court had announced a decision in the Bond case. "The Supreme Court has spoken. Bond is no impediment to ratification of the Disability Treaty, and the Chief Justice has given the Senate a clear blueprint on how to ratify a treaty while preserving existing states' rights," said Marca Bristo, President of the U.S. International Council on Disabilities. "It's now time to restore American leadership on disability rights by moving forward immediately with ratification of the Disability Treaty. One billion people worldwide with disabilities have waited long enough." The Bond case involved a challenge to a federal statute implementing the Chemical Weapons Convention, which was enacted after that Convention was ratified. However, the disability treaty is modeled on the Americans with Disabilities Act, which was passed by Congress long before the Disability Treaty was even ratified, and no new legislation is necessary for the US to comply with the treaty. This was confirmed in a declaration the Senate Foreign Relations Committee inserted into its proposed resolution of advice and consent in 2012, which states, "The Senate declares that, in view of the reservations to be included in the instrument of ratification, current United States law fulfills or exceeds the obligations of the Convention for the United States of America." In a November 2013 hearing on the disability treaty in the Senate Foreign Relations Committee, former Attorney General Dick Thornburgh and former White House Counsel Boyden Gray, testified that maintain the Federal-State balance could be addressed through appropriate Senate reservations. Also conservative international law scholars, Timothy Meyer of the University of Georgia and Curtis A. Bradley of Duke Law School agreed that appropriate reservations, understandings and declarations (RUDs) to the Treaty could achieve this goal. Such RUDs have been adopted for treaties ratified by Presidents of both parties throughout history and have never been challenged. The Supreme Court's Bond opinion highlights that when Congress is silent regarding the Federal - State balance, Federal Courts will resolve any ambiguities by assuming that the statute does not intrude upon traditional state jurisdiction - including a statute that implements a treaty. For the CRPD, the Senate will explicitly enact a reservation that maintains the Federal-State balance, which will reinforce this principle. It is obvious from today's decision that such a reservation will have the binding force of law and will be upheld by the Courts. The Senate can take this Supreme Court decision, and confidently draft Reservations that will uphold (as the Court put it) the "basic principles of federalism embodied in the Constitution." Call your Senators today to say it is time to pass the disability treaty! To find the contact information for your Senators click here. In the upper right hand corner click on the drop box function under "Find Your Senators" and click "GO". This will take you to your Senators contact information. To learn more about the disability treaty click here.

Colorado's Brain Injury Alliance Event

Gavin Atwood has asked me to forward this Brain Injury Event on to my readers.  I have participated with the Brain Injury Alliance of Colorado previously and recommend this event.

Summit County Conference Registration is Open

Lunch keynote speaker
Kevin Pearce, 'Love your Brain'
Click here to Register

Gavin Attwood
Executive Director


April 23rd Pueblo Conference
Space is Limited

Click here to Register Now.

Our mission is to improve the quality of life for people with brain injuries by connecting survivors with resources to help navigate the path of rehabilitation.

My friend, Gavin Atwood, asked me to share this event with my readers.  I have known Gavin for several years and am familiar with his work at the Colorado Brain Injury Alliance.

Space is Limited!
Pueblo Conference Presenters
Government Resources & Caregiver Support – Bill Levis, family member
ABC's of Behavior Management – Cheryl Catsoulis, CBIST 
Assisting Brain Injury Survivors to Navigate the New Legal Landscape - Brian Matise, Esq.
Collaborative Treatment for Vision Rehabilitation – Dr. Tom Wilson, OD & Terri Cassidy, OT

Click below to register

I look forward to seeing you in Pueblo!

Gavin Attwood


Our mission is to improve the quality of life for people with brain injuries by connecting survivors with resources to help navigate the path of rehabilitation.

The Crash Reel

The Brain Injury Alliance of Oregon has asked me to forward the event below to my readers.  I have participated and taught in programs for this group previously and recommend this event.


The Crash Reel

Crash Reel: The Ride of a Lifetime


Crash Reel:  The Ride of a Lifetime
The Kevin Pearce Story

Training to compete at the 2010 Winter Olympics, Kevin suffered severe traumatic brain injury from a 2009 accident in Park City, Utah. His tight-knit Vermont family flew to his side, and together they began an intensive process of trying to rehabilitate him and help him rebuild his permanently damaged life. Kevin's determination and the tireless support of family and friends kept him focused on recovery. But when he insisted he wanted to return to the sport he loved, his family objected. As an elite athlete, Kevin was a professional risk taker, but as a brain-injury survivor, his skills were now impaired, and even a small blow to the head could kill him.


Limited number of tickets  can be purchased here.

April 26th, 7 pm

5th Ave Cinema

510 SW Hall St.

Portland, OR 97201

"It's all part of the perplexing question: what if the thing you love the most may kill you?"


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Brain Injury Alliance of Oregon


Craig Hospital Award

Craig Hospital again made the News.

Craig Hospital in Denver, Colorado is a world-renowned rehabilitation hospital that exclusively specializes in the neuro-rehabilitation and research of patients with spinal cord injury (SCI) and traumatic brain injury (TBI). Craig is a not-for-profit, free-standing, national center of excellence that has treated nearly 30,000 patients with SCI and TBI since 1956.

Craig Hospital has received the American Nursing Association's top honor in the rehabilitation hospital category for the third time in four years. Craig is among six hospitals that received the NDNQI Award for Outstanding Nursing Quality® at the American Nurses Association's (ANA) Nursing Quality Conference™ Wednesday, February 5, in Phoenix, AZ. The award winners participated in ANA's National Database of Nursing Quality Indicators® (NDNQI®), the nation's most comprehensive database of nursing performance measures.


North American Brain Injury Society

The North American Brain Injury Society is pleased to announce that the 27th Annual Conference on Legal Issues in Brain Injury will be held March 20-22, 2014, in conjunction with the International Brain Injury Association's Tenth World Congress on Brain Injury. The conference will take place at the Hyatt Embarcadero Hotel, San Francisco, California. This conference has a long history of educating participants in various fields about Brain Injury issues. The speakers are of the highest caliber in the country. Click on NABIS to learn more.

12th Annual Northwest Brain Injury Conference

12th Pacific Northwest Regional Brain Injury Conference 2014
Hosted by BIAOR and BIAWA

 Registration is now open for the 12th Annual Pacific Northwest Regional Conference 2014! Early bird pricing (available until March 1) for Professional members will be $475 for all three days, $100 for Thursday, March 13, only (8.5 CEUs), $350 for Friday and Saturday (15.5 CEUs).

Who should attend?

  • Attorney's - Win More Cases-Help More Clients
  • Medical Professionals - Increase your understanding and strengthen you skills dealing with individuals with brain injury
  • Case Managers - Learn about the newest and latest resources while increasing your understanding and strengthening you skills dealing with individuals with brain injury
  • Vocational Rehabilitation Counselors, Special Education Teachers, Youth Transition specialists- learn strategies in dealing with consumers and students that have varying degrees of difficulty, increasing positive outcomes
  • Adult Foster Home Providers, Caregivers, Family Members - learning strategies in dealing with difficult behaviors helping survivors reach the highest level of functioning possible


When I come Home from the Hospital will focus on effective ways working with individuals with brain injury and best practices being used. This is an interactive day long workshop that includes lecture, demonstrations and a round table question and answer session with the experts--bring your questions. Intended audience are case managers, trauma nurses, foster care providers, nursing home staff, family caregivers and all other interested attendees.

Keynote Speakers will be:
Life After Concussion: Dr. James Chesnutt, MD and Jenna Sneva

Oregon Governor's Task Force On Traumatic Brain Injury - an interactive presentation round table discussion with the Oregon TBI Task Force and attendees

Concussion Laws in the United States - Are We Making a Difference - Richard Adler, JD

Journey for Thought - 4200 Miles Later
Jeff Rawley and Chris Hart will discuss their 4200 bike ride across the country to raise awareness for brain injury

Throughout the three days, we will highlighting The Talent Within Us featuring the works of survivors as they display the arts and crafts that they are doing including painting, quilting, and handcraft's, many for sale, with interactive demonstrations over working lunches.

Register Now! 

TBI Act Reauthorization of 2013

The TBI Act Reauthorization of 2013, H.R. 1098, was approved by voice vote in the House Energy and Commerce Committee markup on Wednesday, December 11, 2013. The Energy and Commerce Subcommittee on Health passed the bill in markup on Tuesday, December 10, 2013 with the following changes:
• Inserted authorization levels for the TBI Act programs based on current appropriations.
• Removed Health Resources and Services Administration (HRSA) giving the discretion to the Health and Human Services (HHS) Secretary to elevate the TBI state grant programs and the Protection and Advocacy (P&A) programs within HHS.
H.R. 1098 will be debated on the House floor early next year. Please contact your member of Congress and ask him or her to cosponsor H.R. 1098.

National Center for Victims of Crime Bar Association Presentation

The National Center for Victims of Crime Bar Association and Jeff Dion asked me to give a presentation to over 150 practitioners.  My topic was Foreseeability, Inadequate Security, and holding third party hotel liable for crimes of others. The conference was in Phoenix, Arizona.

I was very impressed with the Compassion Fund Initiative which will ensure that money donated for victims of crime GOES to the victim of crime and not the administration costs of profit and not-for-profit entities.  Such entities usually take the role of middle man to distribute funds.  In the process the funds get used up.

There were 10 simultaneous tracks for over 600 attendees to attend.  I had at least 150 attend my presentation.  This group is very important for victims of crime who are often left without compensation for injuries incurred by the crime of another.

Kathleen Wilbur, Event Manager, thanked everyone who contributed their time and work.

I wanted to first take a moment to thank you! It was such a pleasure working with you, and the National Center was so lucky to have you speak at this year’s conference! We have been receiving wonderful feedback about the sessions, and people were very impressed with the training and information they received, so for that, I sincerely thank you!!...

...Once again, thank you so much for all you have done. I really can’t tell you how wonderful it is to work with such an incredible group of professionals from the field!!



Traumatic Brain Injury and Suicide in Military

Blast Injury has come a long way from Shell Shock

People in the military who suffer more than one mild traumatic brain injury face a significantly higher risk of suicide. Veterans and deployed military used to be thought of as having sustained "shell shock" as a result of hearing or being near blasts.  Today we know much more.

For instance, we now know that People in the military who suffer more than one mild traumatic brain injury face a significantly higher risk of suicide.  Why you may ask?

Research by the National Center for Veterans Studies at the University of Utah revealed that of 161 military personnel who were stationed in Iraq and evaluated for a possible traumatic brain injury -- also known as TBI -- showed the risk for suicidal thoughts or behaviors increased not only in the short term, as measured during the past 12 months, but during the individual's lifetime.

This is sobering.  What was once considered "shell shock," a treatable psychological disorder now referred to more accurately as Post Traumatic Stress Disorder, can be associated with actual Traumatic Brain Injury, which is injury to the brain itself.  Multiple or combined injuries increase the probability of suicidal ideation and suicide.

This has to be added to the already high toll wars take and the costs associated with them.

Why TBI is of Concern for Military Personnel

As defined by the Centers for Disease Control and Prevention, a traumatic brain injury is caused by a bump, blow or jolt to the head, or a penetrating head injury that disrupts the normal function of the brain. Effects can be mild to severe. The majority of Traumatic Brain Injuries that occur each year are concussions or other mild forms.

Traumatic Brain Injury is considered a "signature injury" of the Iraq and Afghanistan conflicts and is of particular concern because of the frequency of concussive injuries from explosions and other combat-related incidents. Estimated prevalence of Traumatic Brain Injury  for those deployed in these two countries ranges from 8 percent to 20 percent, according to a 2008 study.

In addition, according to studies by the RAND Corp., suicide is the second-leading cause of death among U.S. military personnel, and the rate has risen steadily since the conflicts began in Iraq and Afghanistan. Prevalence of Post Traumatic Stress Disorder, depression and substance abuse have risen as well, especially among those in combat, and each has been shown to increase risk for suicidal behaviors. 

Traumatic Brain Injury Act Reauthorization 2013

The impact of legislation regarding Traumatic Brain Injury (TBI) is of interest to my readers.  Therefore I present the following by the Brain Injury Association of America.

TBI Act Reauthorization 2013

On Wednesday, March 13, 2013, the TBI Act, H.R. 1098, was introduced by Reps. Pascrell and Rooney, co-chairs of the Congressional Brain Injury Task Force. This bill will reauthorize the current programs relating to TBI and also will move the state grant and protection and advocacy grant programs from the Maternal and Child Health Bureau to another agency with the U.S. Department of Health and Human Services. The move acknowledges the impact of TBI across the age span, including older adults and returning service members/veterans. The Congressional Brain Injury Task Force recommends relocating the program to better coordinate with federal agencies regarding long-term services and supports available to individuals with other disabilities, particularly the long-term services and supports provision of the Affordable Care Act. BIAA thanks Reps. Pascrell and Rooney for introducing this important legislation. Please call your Member of Congress and ask them to co-sponsor H.R. 1098 today!

FY 2014 Appropriations

This week, BIAA submitted FY2014 written testimony to the Senate Appropriations Subcommittee on Labor Health and Human Services and Related Agencies. In March, BIAA submitted FY2014 written testimony to the House Appropriations Subcommittee on Labor Health and Human Services and Related Agencies. Both letters proposed funding increases for TBI Act programs and the TBI Model Systems of Care Program. To read BIAA's testimony please clickhere.

North American Brain Injury Society Conference

The North American Brain Injury Society (NABIS) is having their 11th Annual Conference on Brain Injury at the Intercontinental Hotel in New Orleans, Louisiana.  The conference will be held on September 18-21, 2013.  NABIS is requesting Abstracts for the Conference.  To learn more click NABIS.

March is Brain Injury Awareness Month

The Centers for Disease Control and Prevention announce that March is Brain Injury Awareness Month. The CDC states the following: 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. Every year, at least 1.7 million TBIs occur either as an isolated injury or along with other injuries.1 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.

11th Annual Pacific Northwest Brain Injury Conference

The Brain Injury Alliance of Oregon and the Brain Injury Association of Washington are sponsoring the March 2013 Brain Injury Conference.  Here is the information I received today.


30th Annual Brain Injury Conference


Living With Brain Injury: Focusing on the Future


11th Annual Pacific Northwest Brain Injury Conference






Join Us March 7-9!


Come join us for the 11th Annual Northwest Brain Injury Conference and the 30th Annual BIAOR Conference


The highlight of this year's conference is our 30th Anniversary Dinner, March 8. The featured Keynote at the Dinner will be Gary Busey, a film and stage actor, and artist. He has appeared in a variety of films, including Lethal Weapon, Point Break, and Under Siege. He was nominated for an Academy Award for Best Actor in 1978 for his role in The Buddy Holly Story. On December 4, 1988, Gary Busey was severely injured in a motorcycle accident in which he was not wearing a helmet. His skull was fractured, and doctors feared he suffered permanent brain damage. Gary will talk about how his brain injury has impacted his life.

Master of Ceremony will be local news anchor, Ken Boddie.   BIAOR is honored to present awards for exceptional work on behalf of people living with brain injuries over that last thirty years. These will include an Lifetime Achievement Award to Dr. Muriel D. Lezak for the numerous books she has written on brain injury; Outstanding Advocacy Awards to Commissioner Tootie Smith, David Kracke,JD, James Chesnutt, MD, Senator Bill Morrisette, Representative Vic Gilliam, Max and Ralph Conradt without their hard work we would not have passed our sports concussion legislation which has been picked up as the model for the National Legislation; Only Medical Doctor Specializing Exclusively Treating Individuals with Brain Injury: Danielle Erb, MD, who is the only medical doctor exclusively treating individuals with brain injury; Nationally Recognized Leader in Academic & Clinical Research: McKay MooreSohlberg, PhD, is a nationally recognized leader in the field of TBI and has worked as a clinician, researcher, and administrator in the development of programs to assist those with brain injury; 1st Neuro-Optometrist: Dr. Bruce Wojciechowski, OD, is a neuro-optometrists working to help people with brain injury for over 20 years; Karen Campbell, who established the first foster home in the state of Oregon for people with disabilities, 32 years ago;1st Community Rehabilitation: Jan Johnson, who established the first community rehabilitation program for people with brain injury nineteen years ago; Media Awareness: Elizabeth Hovde, a brain injury survivor, for building the awareness of brain injury in her columns in the Oregonian; amd Exceptional Partner: Brain Injury Association of Washington, Deborah Crowley

The Pre-Conference, March 7, will focus on the matter in which music, art and physical therapists take an individualized approach when working with clients who are living with a brain injury. The creative arts therapies can be used to improve associated symptoms through interactive art-making experiences designed and adapted to emphasize each client's strengths. Sensory stimulation through the arts promotes increased attention, while the creation of a story or a song can be used to memorize and recall personal information. Neurologic Music Therapy techniques are utilized to promote rehabilitation of speech and motor abilities through active instrument play, singing and movement to music such as in the case of Congresswoman Giffords. Therapists will demonstrate and discuss, in group sessions throughout the day, how providing music, drama, martial arts and art therapy can improve positive outcomes. Therapists will take a collaborative approach and conduct sessions with speech therapists, occupational therapists and physical therapists in a co-treatment model.  

Friday and Saturday will focus on the latest technology and treatment available for brain injury. These presentations will include: 

Keynote Speakers Friday, March 8:

Look where we have come in 30 years--what is in the future? - Dr. Muriel D. Lezak 

Breakthrough practical applications of brain plasticity principles in the recovery from Traumatic Brain Injury - Anat Baniel, clinical psychologist, dancer and leader in the field of NeuroMovement  

Keynote Speakers Saturday, March 9:

Music and the Brain - Larry Sherman, PhD. Senior Scientist, ONPRC, OHSU Brain Institute, Professor, Department of Cell and Developmental Biology, Portland, Oregon  

The Returning Veterans - What they need, what are they going through: Cultural, social, organizational sources of hindrance and support for returning veterans - Eddie Black, Oregon National Guard Resiliency Program Manager  


Break-out Presentations will include:  


Brain Injury and the Returning Military 101- Bronwyn G. Pughe, MA, MFA, TBI Program Education Specialist, Administrator Traumatic Brain Injury Program, Madigan Healthcare System    


When War Comes Home: The Emotional Trauma of Caregiving - Marilyn Lash, M.S.W.   


 The Psychology Behind TBI and the Behaviors That May Be Present- Nancy Irey Holmes, PhD   


Conducting Mental Status Examinations with a Traumatic Brain Injury Patient - John DenBoer, PhD, Clinical Neuropsychologist/Psychologist, Casa Colina Centers for Rehabilitation


Advances in Stroke Recovery - Dr. Paul Cordo


Technology - Tomorrow & Today - Jonathan Gray    


Stroke - What is it--Will I recover - John DenBoer, PhD, Clinical Neuropsychologist/Psychologist, Casa Colina Centers for Rehabilitation    

Training Assistive Technology in the Environment -Laurie Ehlhardt Powell, PhD  


 Assistive technology - low to high assistive devices to live life to the fullest with brain injury -Susan Powell, MS/P, OTR/L, ATP Madigan   


Legal pitfalls of presenting a TBI Case - Arthur Lertiz, JD   


Defuse Tensor Imaging and Other Medical Advances to Identify Brain Injury and Win Your Case - Dr. Aaron DeShaw, JD   


Hope and Recovery Principles in the Treatment of ABI - Jacek A. Haciak, PsyD   

Cognitive Curbcuts: Visual Scheduling, Video Modeling, and Personal Wellness supports for Self-Management - Dr. Tom Keating    


Acupuncture and Complementary Medicine in the Management of Traumatic Brain Injury - Douglas Wingate, MAcOM, Lac

What I Wish I Had Known ... The Positive Brain Injury Support group of Portland 


Brain Injury and Hidden Vision Problems - Dr. Bruce Wojciechowski, OD  


Brain Tumors-Why We Should Care -- Edward Allen Neuwelt, M.D., Professor of Neurology, Oregon Health  

The Role of Music Therapy in Rehabilitation - Lillieth Grand, MS, MT-BC  

Using Improv/Theatre Activities with BI Survivors - Ruth Jenkins, MS, CCC-SLP     

The Future of Prosthetic Cognition - Kathy Moeller  

Using Martial Arts for Physical Therapy - Ben Luskin and Tony Ellis   

Brain Injury: Voices of a Silent Epidemic - Cindy Daniel, BRAVE Publications, Andy Palumbo, Outside the Lab, Harvey E. Jacobs, Ph.D. 


Two Stories of Survival - Dr. James Meade and Gordon Viggiano


The biggest benefit of attending a conference is connecting with kindred spirits, folks whose work you admire and which inspires you. Conferences have a way of renewing the passion that brings like-minded people together, and being part of collaboration is a privilege that you can truly value. Attending a conference provides an opportunity to learn from experts, share ideas with others, and identify new knowledge and techniques in your field. Given the knowledge explosion in the current information-rich era, attending this conference is a great way to keep abreast of emerging themes and technology and, perhaps most importantly, network.

 Register now.  



Learn More.







Sheraton Hotel Accomodations


Hotel Rooms


Hotel rooms are available at discounted rates. Use the code BIAOR2013 and reserve your room today by calling 503-281-2500.  Discounted rooms are limited.


Sponsored By:

Brain Injury Alliance of Oregon

Brain Injury Association of Washington

3 day VIP Pass Including Dinner with 21.25 CEUs








Thursday March 7 -
Saturday March 9, 2013




Sheraton Portland Airport Hotel

8235 NE Airport Way

Portland OR 97220





An awesome event that you won't want to miss out on! View More Info



Quick Links



An entire day with experts devoted to demonstrating the benefits of music, art and physical therapy to maximize independence and positive outcomes.  Music, art and physical therapy sessions  incorporated throughout conference.  Interactive activities and survivors demonstrating their accomplishments. 





Friday 30th Anniversary Dinner

A special celebration & awards dinner with music for the 30th Annual BIAOR Conference at the 2013 Conference, Friday, March 8, at the Sheraton Portland Airport Hotel. Friday evening, join us Wine Tasting 5 -6:30pm, Dinner begins at 6:45pm, with music following.Join us for the celebration


Seating Limited-Register for Dinner  Now





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Las Vegas Brain Center Getting NIH Grant to Study Alzheimer's

The Cleveland Clinic Lou Ruvo Center for Brain Health will be significantly involved in testing Alzheimer's patients.  The National Institutes of Health has approximately $55 million in funding over the next 5 years for a variety of participating centers.

Alzheimer's disease, which causes dramatic problems with memory, thinking and behavior, is the sixth-leading cause of death in the United States.  It is the only one, of the top 10, without an identified way to cure, prevent or even slow its progression.

Researchers say that without medical advances, the number of Americans living with the disease is expected to jump from 5.4 million to 16 million in less than 40 years ---- with costs of care projected to rise from $200 billion today to $1.1 trillion in 2050.

The testing will involve the use of Positron Emission Tomography (PET) to measure levels of amyloid accumulation that are generally a precursor to Alzheimer's disease.

The Center will examine whether controlled aerobic exercise can influence cognitive decline, slowing brain atrophy and Alzheimer's symptoms in older adults with mild cognitive impairment, a condition that often leads to Alzheimer's, Reporter Paul Harasim of the Review Journal states.

We will stay tuned on how the testing transpires.

Congratulations President Obama

 Congratulations to President Obama on his successful campaign for re-election. President Obama successfully passed the Patient Protection and Affordable Care Act (PPACA) otherwise known as "Obamacare" in his first term and the Brain Injury Alliance of Nevada (BIAN) looks forward to supporting the Obama Administration to implement PPACA in the states.


Brain Injury Alliance of Nevada strongly supports the Patient Protection and Affordable Care Act because the mandatory benefit categories and non-discrimination provisions assured all Americans, including individuals who sustain brain injuries, would have access to high quality, comprehensive, affordable health care, regardless of their state of residency.


Brain Injury Alliance of Nevada sincerely appreciates the work of Obama's administration and that of Mrs. Obama and Dr. Biden on behalf of our wounded warriors. We should all continue to work with the Obama administration to ensure the hundreds of thousands of servicemen and women deployed to Iraq and Afghanistan that return with a traumatic brain injury receive the care they deserve.


We can also congratulate the Champions in the Senate where Democrats remain in the majority. The Brain Injury Alliance of Nevada also looks forward to continue to support advocacy efforts in the House of Representatives with the leadership from the Congressional Brain Injury Task Force (CBITF) and Congressman Bill Pascrell, Jr, Chair of the CBITF. The House of Representatives majority remains Republican.


Congress reconvenes on Tuesday, November 13, 2012 for the lame duck session.


Neuroscience and Neurolaw at Tulane University Law School

Law Students Get Law School Training in Brain Injury Law

I was recently contacted by Tulane University Law School Professor Francis Shen.  Professor Shen is authoring the first law school text book dealing exclusively with neuroscience and neurolaw.  I was asked to be interviewed for substance on the chapter dealing with traumatic brain injury.

This is the first effort of its kind:  putting the topics of brain injury, law, medicine and science into the minds of law students.  I applaud this effort.  If I had been offered a course like this in law school I would definitely have signed up.  As it was you only got a year of tort law (personal injury) required in the first year and then optional electives including Trial Practice, Remedies.  

My experience with law school 27 years ago is that students enter law school with ideas of what they would like to do when they are done -  type of practice or employment.  They then modify those ideas as they experience law school.  If you get great grades (top 10%) and make Law Review editor- University's legal publication - then you are offered high paying jobs with large firms and you tend to go for the better pay instead of the practice you initially thought you were attracted to.  If once you wanted to run a legal aid clinic or help people in a public defender's office - not high paying jobs - and then get offers from high paying firms, priorities tend to change.  And likewise if you dreamed of working for a large law firm with fancy conference rooms and all the trappings and high pay and get poor or average grades, you will not get high pay job offers; rather you end up working in the public defenders' office or something similar.

I always wanted to practice tort or personal injury trial law.  At first I worked for a large (by Las Vegas standards) firm that defended insurance companies.  After gaining over a year of practical experience I started my solo practice fighting insurance companies and representing injury victims.  

A few years later I discovered the niche of neurolaw and neuroscience.  That is why I am so supportive of Professor Shen's efforts with the law school text.  In the interview I shared my perspectives on:

  • preparing a case for trial,
  • what experts to use, and
  • how to present evidence at trial. 

I have been asked to offer comments on the text by reading rough drafts.  I am excited about making a contribution to this effort.

 The Brain Injury Association of America asked me to post their legislative update for my readers.

TBI Act Reauthorization 2012

The Traumatic Brain Injury (TBI) Act, H.R. 4238 was introduced by Representative Bill Pascrell, Jr. (D-NJ) and Representative Todd Russell Platts (R-PA) on Wednesday, March 21, 2012 in the House of Representatives. Please call your Representative today to ask him or her to co-sponsor H.R. 4238. Specifically, BIAA would like constituents of the following members to call or email their Representative to ask them to cosponsor the bill. The Representatives listed below are members of the House Committee on Energy and Commerce, Subcommittee on Health.

Rep. Shimkus (IL-19-R)
Rep. Myrick (NC-9-R)
Rep. Murphy (PA-18-R)
Rep. McMorris Rogers (WA-5-R)
Rep. Capps (CA-23-D)
Rep. Ross (AR-4-D)
Rep. Bono Mack (CA-45-R)
Rep. DeGette (CO-1-D)
Rep. Doyle (PA-14-D)
Rep. Eshoo (CA-14-D)

Congressional FY 2013 Budget Update

Last week, the U.S. Senate voted on five different versions of a FY 2013 federal budget without passing one of them, effectively ending the FY 2013 federal budget process for this year.

The House budget resolution provides $3.5 trillion in budget authority in fiscal 2013 and calls for limiting discretionary appropriations to $1.028 trillion. The plan is $19 billion below the $1.047 trillion spending cap set in the debt limit deal last year. The vote was very close with all Democrats and 10 Republicans voted against the measure but the legislation passed the House in the end.

In February, the President released his FY2013 budget that included programs authorized by the TBI Act, including the HRSA Federal TBI Program and the CDC’s important TBI work that were both recommended to receive level funding found in FY11 final and FY12 CR appropriations bills, $10 million for HRSA and just under $7 million for CDC. In the current fiscal climate this is good news for TBI advocates. This would indicate TBI funding is not on the chopping block when the government is looking to cut a trillion and a half dollars in federal spending.

BIAA will continue to work to ensure that legislators understand the importance of TBI programs and how they affect the 1.7 million people across the United States with brain injury.

Legislative Update June 2012

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

Appropriations Update

The Senate Appropriations Committee provides $9,760,000 for the Traumatic Brain Injury program. This amount is the same as the fiscal year 2012 comparable level and the budget request.

The program supports implementation and planning grants to States for coordination and improvement of services to individuals and families with traumatic brain injuries. Such services can include: pre-hospital care, emergency department care, hospital care, rehabilitation, transitional services, education, employment, long-term support, and protection and advocacy services. The Committee includes no less than the fiscal year 2012 funding level for protection and advocacy services, as authorized under section 1305 of Public Law 106–310.

Policy Summit on Brain Injury and Juvenile Justice

BIAA’s Director of Government Affairs, Amy Colberg, attended the Virginia Collaborative Policy Summit on Brain Injury and Juvenile Justice this week in Richmond, VA. The event was organized by the BIA of Virginia and the Virginia Department of Rehabilitative Services. The policy summit was funded in part by a Federal Traumatic Brain Injury Implementation Partnership Grant from the Health Resources and Services Administration (HRSA).

Representatives from Minnesota, Nebraska, Utah, and Texas attended the Policy Summit to share their work with youth with brain injury in the juvenile justice system. The goal of the Policy Summit is to develop a systematic, empirically-based process for reliably indentifying brain injury; implement staff training programs; and identify effective intervention strategies and techniques. Results of the Policy Summit will be released in the fall of 2012.

TBI Act Reauthorization 2012

The Traumatic Brain Injury (TBI) Act, H.R. 4238 was introduced by Representative Bill Pascrell, Jr. (D-NJ) and Representative Todd Russell Platts (R-PA) on Wednesday, March 21, 2012 in the House of Representatives. Please call your Representative today to ask him or her to co-sponsor H.R. 4238. Specifically, BIAA would like constituents of the following members to call or email their Representative to ask them to cosponsor the bill. The Representatives listed below are members of the House Committee on Energy and Commerce, Subcommittee on Health.

Rep. Shimkus (IL-19-R)
Rep. Myrick (NC-9-R)
Rep. Murphy (PA-18-R)
Rep. McMorris Rogers (WA-5-R)
Rep. Capps (CA-23-D)
Rep. Ross (AR-4-D)
Rep. Bono Mack (CA-45-R)
Rep. DeGette (CO-1-D)
Rep. Doyle (PA-14-D)
Rep. Eshoo (CA-14-D)

TBI Act Reauthorization 2012

The Brain Injury Association Grassroots has asked me to forward this TBI Act Reauthorization. 

TBI Act Reauthorization 2012

 The Traumatic Brain Injury (TBI) Act, H.R. 4238 was introduced by Representative Bill Pascrell, Jr. (D-NJ) and Representative Todd Russell Platts (R-PA) on Wednesday, March 21, 2012 in the House of Representatives. Please call your Representative today to ask him or her to co-sponsor H.R. 4238. Specifically, BIAA would like constituents of the following members to call or email their Representative to ask them to cosponsor the bill. The Representatives listed below are members of the House Committee on Energy and Commerce, Subcommittee on Health.

 Rep. Shimkus (IL-19-R)

Rep. Myrick (NC-9-R)

Rep. Murphy (PA-18-R)

Rep. McMorris Rogers (WA-5-R)

Rep. Capps (CA-23-D)

Rep. Ross (AR-4-D)

Rep. Bono Mack (CA-45-R)

Rep. DeGette (CO-1-D)

Rep. Doyle (PA-14-D)

Rep. Eshoo (CA-14-D)

 Appropriations Update

 The House Appropriations Committee approved spending allocations this week for its 12 appropriation bills which are aligned with a $1.028 trillion target for total discretionary spending set by the House’s fiscal 2013 budget resolution H Con Res 112. The figure is $19 billion less than what the Senate set for its discretionary spending limits. The House Appropriations Committee agreed to the following allocations for base discretionary budget authority for Labor-HHS-Education at $150 billion. This is $7.7 billion dollars less than the Senate budget for Labor-HHS-Education.

 Last week the discretionary spending limits were set for the Senate’s FY 2013 Appropriations bills at $1.047 trillion, the limit established under the law PL 112-25, the Budget Control Act. The appropriators agreed to the following discretionary allocations of $157.7 billion for Labor-HHS-Education.

 BIAA and NASHIA worked with the Congressional Brain Injury Task Force to issue a letter of support to appropriators urging them to preserve funding for both programs authorized by the TBI Act and the TBI Model Systems of Care Program.


Using Video to Enhance Case Value- Part 4

I am presenting Recovering Full Value with a Settlement Documentary on June 30, 2012, sponsored by Law Review CLE.  The seminar will be at the Venetian in Las Vegas.  The address is:

The Venetian
3355 Las Vegas Boulevard South
Las Vegas, Nevada 89109

Today we continue with the series entitled Using Video to Enhance Case Value- Part 4


Obviously, it is critical that you team up with a video writer/producer who not only understands all the subtleties of video production, but also has vast knowledge and experience working with the unique needs of plaintiff attorneys.

Avoid trying to bring in your usual deposition videographer as she may not have experience beyond videotaping a deposition. Likewise, do not hire the crew who videotaped your last run of TV commercials. They may be able to craft flashy tidbits, but they don’t know any of the mechanics of a plaintiff case.

Ask your colleagues who they like to use. When you find a video producer, ask to see examples of her work. Does the video communicate the story, and is the quality that with which you are comfortable? Remember, the editing and pacing of the final product should be comparable to what you would see on prime time television, but this time with a legal motif.


The process of compiling the various elements you have collected into a polished presentation is a time consuming one. You didn’t gather the materials overnight, and your producer will not be able to sort through them overnight.

The producer will begin by determining the needs of the audience, in this case the adjuster. What does the adjuster need to know in order to make an informed decision to resolve the case?

First, obviously, the liability must be communicated. The producer will bring all the disparate elements of your case together into a brief, easy to watch overview. Only the most compelling parts – the golden nuggets - of your documents, your experts, and the depositions you’ve so carefully thought to videotape will come into perfect alignment to explain why the defendant is responsible for causing your TBI case.

If the liability is relatively uncontested, be brief and move on to the damages. The adjuster needs to have a clear understanding of how you will present your case at trial: who the witnesses will be, how they come across, their testimony, and, if appropriate, the Day-In-The-Life (DITL) footage you will show the jury. On a moderate to severe TBI case, the DITL excerpts show your client in physical, occupational, and speech therapy. We see the morning routine, and why your client is likely to need care, perhaps 24-hours per day, for the remainder of his life. In a mild TBI case, we see everyday examples of problems your client has with balance, taste, smell, sight, short-term memory, personality, and the myriad of other symptoms with which he will be burdened permanently.

The final video will be a layering of information that serves as a microcosm of your trial presentation. Consider this:

A) The video will begin with a tapestry of deposition excerpts and written reports which convincingly explain the defendant’s role in the case;

B) We continue with excerpts from the treating neuropsychologist’s deposition or video statement explaining the severity and permanence of the TBI;

C) Next, at the root level, we watch the DITL presentation you will show to the jury;

D) While the adjuster is watching the DITL, he hears statements from family and friends we have weaved in about how the TBI has changed the plaintiff’s life;

E) After the DITL video, the family and friends clearly and concisely describe the plaintiff’s pre-morbid condition – his activities, family life, breadwinner status, etc.;

F) Snapshots and home videos then illustrate these points to further show the plaintiff’s quality of life prior to the TBI, narrated in the words of those who know him best;

G) Finally, the plaintiff’s grim future, and how his life is not going to improve.

The producer will need to know if you will be showing the finished video on a standard TV monitor or a widescreen 16x9 display so that the video can be edited with the proper aspect ratio.
Keep in mind that professional DVD authoring allows for creative flexibility in additional soundtracks, subtitles, chapter points, and so forth.

You will need to decide if you will send the video to the adjuster two to four weeks in advance, or use it as part of your presentation at ADR. There are pros and cons to each. Arguably, forcing an adjuster or lawyer to watch the DVD with a mediator and in your presence is a successful approach. You may want to start negotiations before the viewing to get a feel for the opposition’s valuation. Or, you may choose to view the DVD prior to negotiations to visually substantiate your client’s offer to compromise.

If you decide to show it at mediation, you need to consider what equipment you will use for playback. Be certain you have tested the DVD in the player, and have successfully played it from beginning to end prior to the mediation.


DVD is the current technology that is stable and reliable. It is an excellent format for making the defense visually understand your case. The objective is not to bring the adjuster or defense lawyer to tears but to make them understand that the jury will be brought to tears. Finally, the extensive preparation during
discovery will aid your theme and development of evidence for trial.





1 FRCP 30(b)(2-3)…(2) The party taking the deposition shall state in the notice the method by which the testimony shall be recorded. Unless the court orders otherwise, it may be recorded by sound, sound-and-visual, or stenographic means, and the party taking the deposition shall bear the cost of the recording. Any party may arrange for a transcription to be made from the recording of a deposition taken by nonstenographic means.
(3) With prior notice to the deponent and other parties, any party may designate another method to record the deponent's testimony in addition to the method specified by the person taking the deposition. The additional record or transcript shall be made at that party's expense unless the court otherwise orders.


Tim Titolo is a neurolawyer in Las Vegas, Nevada. He represents people with mild, moderate and severe brain injury, spinal injury, other serious injury, and death cases. Titolo Law Office 1930 Village Center Circle, Las Vegas, Nevada 89134 PHONE 702.869.5100 FAX 702.869.5111
URL email

Dave Fulton is Founder and President of Image Resources, Inc., a nationally recognized, full service video production company based outside Indianapolis, Indiana, which has specialized in producing settlement documentaries since 1994 --

Using Video to Enhance Case Value- Part 3

Now we continue the series entitled Using Video to Enhance Case Value- Part 3



Preparation starts at the beginning. If you are planning on creating a DVD, or even thinking you might, you must capture moments in video (preferably digitally). As you plan discovery, plan to have depositions videotaped.

• Do not be afraid to videotape defense experts or witnesses. It is amazing what you will memorialize on tape to watch later and use to make your case.

• Be sure to video your own experts since they will be very effective in explaining your client’s injury or the defendant’s liability.

• Videotape your witnesses, including before and after witnesses.

• And finally, videotape officers, paramedics and other officials and be sure to have them attend in uniform.
The cost of videotaping a one-hour deposition varies but often is around $250. This is in addition to the court reporter, and any expert fees. But the effort is only one part of a bigger end. Consider that many videographers’ charges include the setting up and bringing digital equipment to the deposition.

Three considerations:

• Have the videographers arrive early enough to set up, especially when you are taking a defense expert’s deposition and paying a fee;

• Try to schedule multiple depositions at one set up;

• Always hold any demonstrative evidence up for the camera to see;

• And be sure to use a digital video camera.

Since you will be on video, be sure to specifically prepare the questions and plan the sequencing of information you wish to elicit. Court reporting technology like Livenote allows for the immediate flagging of portions of a deposition and can be useful to bookmark “golden nuggets” that come out during the deposition. Do not let defense counsel rattle you; maintain your composure. This is your show, literally.

In many jurisdictions, and under the Federal Rules, videotaping depositions is a matter of right. Check local rules to see if you are required to give notice to opposing party (see FRCP 30).1


Opposing experts do not like to be videotaped. It is easier to push a deception in a transcript than it is on video. No doubt the expert will have moments, many of them, when she looks impenetrable. But that is how they will look at trial. You can capitalize on the moments of vulnerability. Remember the whole videotape will not be used in the final product, just golden nuggets from it.
The defense expert has probably written a report that, if believed, requires

that most of what plaintiff’s experts have said be completely wrong. A video deposition will help to reveal the error in that thinking. Using the simple approaches that work look great on video. Getting the expert to admit she has not reviewed or been provided with a complete file or specific information is powerful. Typically the expert will attempt to dismiss the unreviewed information as unimportant and those attempts look better on video then on

You should videotape your own expert. Insurance adjusters are typically told about plaintiff’s experts in letters from defense counsel. Now they can see them on the big screen. Let the adjuster assess the impact of the expert. Sending the videotape to defense counsel with a second copy and a letter directing that it be sent to the insurance company sends a message. The cost of the extra videotape is nominal. Sending it says “here, look at my case for yourself.”
Another reason to videotape your own expert is to tempt the defense

lawyer to drone on with annoying questions. If, at trial, the defense attempts to

use the deposition to discredit plaintiff’s expert, taking the opportunity to let the jury view the entire deposition, regardless of length, and hearing the droning defense lawyer is almost comical. The video deposition of plaintiff’s expert will also give video to the presentation of plaintiff’s case in the DVD. This is a vast improvement over using voiceovers while showing a deposition transcript or report.


Do not be afraid to videotape defense or eye witnesses. Again the golden nugget you may miss is worth more than the cost of video. Witnesses for the defense are not professional witnesses, like experts, and can reveal facial expressions and tonal qualities that do not make it into the written transcript. These are hugely powerful for the final compilation.
Witnesses are not familiar with being asked questions under oath, let

alone, while being videotaped. Capitalize on their vulnerability. The truth comes

out nicely when a witness is honest, deceit doesn’t.


Having a uniformed police officer videotaped is huge. In cases where there are multiple officers, each one appearing in the final compilation will lend a great deal of impact to the viewer. Police officers tend to be very rigid on videotape but that plays out perfectly for our purposes. Let their stoic, skeptical personality radiate. This, in turn, can come across to a viewer like a very independent opinion. Do not miss the opportunity.

Similarly, paramedics should be deposed in uniform. This lends credibility to the level of their knowledge and experience in such matters and builds confidence in what they say.


Never think that you have too much video or that you have videotaped enough witnesses. Again, when the camera is not on and a golden nugget occurs, you'll wish you had the camera running.

You may have a lot of material when you begin compiling the presentation according to your case theme as it has developed, but, as they say, you can always cut more hair off, but you can’t glue it back on. So have more than enough. Know that you will not use the vast majority of what you have. And know that a lot of work must go into edit and finding the many golden nuggets you found along the way.


Video depositions are essential to the final product. But do not stop there. What else is there? Admissible at trial or not, can it help explain damages or liability, or, dare we mention, sympathy? Crash photos, coroner reports and photos, pre-injury awards, medical records and reports are some ideas. The use of B-roll: the hospital entrance, the wreck, the path of travel, anything that makes the message more compelling. The producer should be able to conduct additional interviews of people not deposed, or overlooked by the defense, and capture powerful Day-In-The-Life video, among other things.


Read Part 4 of Enhancing Case Value with Depositions next week.

Using Video to Enhance Case Value- Part 2

I will present "Recovering Full Value with  Settlement Documentary at the Venetian in Las Vegas on June 30, 2012.  Co-presenter Dave Fulton of Image Resources will also present.

Using Video to Enhance Case Value- Part 2.


Before you ever contact a digital media production company, you must conduct a thorough investigation of the case. It is both a waste of a client’s money and the attorney’s time to invest is such a project without having made the appropriate considerations, not to mention the embarrassment of presenting your project if it is inaccurate or premature.

One way to approach the decision is to ask yourself if investing $5,000 to $10,000, or more, is likely to increase the settlement value by several times that amount. If the answer is “yes” then you are doing a service to your client and the case to move forward. Likewise if you believe the value of the case can increase by $100,000 to several hundred thousand, the investment is very modest.
Some cases are very suited to digital production and the decision is easy. Other times cases are not so well suited but can still be candidates for production. An otherwise mediocre case can get a better then mediocre result if presented dynamically. If the liability is weak, digital media can assist in clarifying the defendant’s presumptions and misconceptions. If damages are questionable, digital media is an opportunity to present your client and the physicians. Ultimately the production should explain the case clearly.

As trials become more expensive and uncertain, plaintiffs should be willing to consider utilizing ADR and specifically mediation. Defendants are also facing uncertain trials and are willing to sit through a presentation. The best time, ideally, would be before litigation costs mount. However, reality is that cases resolve much closer to trial and hence the timing of mediation usually coincides with the impending trial. Preparing for the mediation with a DVD presentation can be an excellent trial preparation effort if done properly. Additionally, depending on the content of the production, parts of the production can be used for trial depending on the jurisdiction.


Read More next week as this series continues on Enhancing Case Value with DVD and VIdeo

Using Video to Enhance Case Value

 I have been asked to do a presentation in Las Vegas in a Seminar entitled "Use of DVD and Video to Enhance Case Value."  The conference is scheduled for June 30, 2012 and more information on where and how you can attend will be forthcoming.

Meanwhile I thought it would be timely to run a series on that issue in my blog.  So this week we will take a look at how DVD and video can enhance the value of your case and how your attorney can make that happen.  Here is part one of an article I c-wrote with Dave Fulton, a professional videographer:


By Tim Titolo, Esq. and Dave Fulton


The use of media at trial is certainly more the norm than the exception. In fact, jury surveys indicate that plaintiff’s use of media does not offend, as one might think, or make jurors believe plaintiff’s attorney is being excessive. Rather jurors expect the use of technology and view it as responsible when used by either

The same can be said for preempting the need for a trial altogether by putting together the strongest possible presentation for ADR and mediation, with the goal of prompting a settlement.
What does a video bring to the table? Simply, there is no other medium that will effectively communicate the non-economic damages of your case like the emotional sledgehammer of a well-produced DVD documentary. While the rule of thumb for evaluating a case may be a multiple of 3.5 of the economic damages, a documentary can boost this value as much as tenfold or more by clearly communicating the contrast in the plaintiff’s life. By tapping into the non- economic damages with a thoughtful DVD documentary, you will find yourself leaping closer to recovering the elusive full value of your TBI cases.

Remember, at ADR the goal is not to bring the adjuster to tears, but to convince the adjuster that you can bring a jury to tears. The use of video is your best opportunity to accomplish this.
Videotape has traditionally been the media of choice in presenting brochures or Day-In-The-Life. Today, however, DVD is becoming widely used. A few years ago, one ran into compatibility issues with CD versus DVD and CD-R, DVD-R versus CD-RW and DVD-RW. Even when a disc was used to record, playback became an issue as some formats work on computers and others on home DVD players. The maze certainly brought many would-be users back to the

safety of traditional videotape, along with its fast-forward and rewind delays and snafus.
The TBI case, complex by nature, is conducive to presentation by DVD at trial and mediation (or other ADR). This article attempts to unravel the mystery of using DVD. Additionally, we will offer simple solutions and methods for producing the TBI case DVD. Rather then focusing on admissibility issues at trial, we will focus on the actual aforethought that might accompany a production for Mediation. The effort will assist you significantly for trial. Finally, we will explore how to make damages more compelling with digital media.


For years, videotape came in every imaginable shape and size – BetaMax, BetaCam, U-Matic ¾”, 1-inch, BetaCamSP, VHS, VHS-C, SVHS, 8mm, Hi8, Digital8 – and that’s just the tip of the iceberg.
The next step in the digital revolution was CD-ROMs. While this storage format was simple enough, the confusion arose when a dozen or more video file formats started competing, led by MPG, AVI, and MOV. Each required its own player application on the computer to replay the file.
Then DVD started to catch on. It provided far superior audio (better than

an audio CD) and video. A demand was created to burn small quantities of the discs, so the manufacturers went into overdrive as they smelled the profits JVC had reaped on the VHS format. The requirements of the file system of the DVD was the same throughout, but the nature of the actual storage disk characteristics changed. We had DVD-R, DVD+R, DVD-RAM, DVD-ROM, plus the “RW” versions. Even the nerdish of techies were running into the streets screaming.
Sadly, it’s not over, not by a long shot. With the advent of High Definition, (HD-DVD) formats of Blu-Ray and AOD (Advanced Optical Disk) we will all soon have a whole new vocabulary of alphabet soup on our hands.

Here is all you need to know about DVD formats:

1) Use DVD-R for everything. The disks are only about fifty cents each and it’s the most universal format around. You should find that it plays back on just about any tabletop player or computer drive.

2) Ignore HD-DVD formats for the time being. Honestly, if you want higher quality, just invest in a DVD player that “upconverts” to a component, HDMI or DVI output. The picture from a contemporary store-bought DVD disk is beautiful on a high-def TV with one of these players. Let the dust settle for a couple of years before you take the plunge in this new format.


Before you ever contact a digital media production company, you must conduct a thorough investigation of the case. It is both a waste of a client’s money and the attorney’s time to invest is such a project without having made the appropriate considerations, not to mention the embarrassment of presenting your project if it is inaccurate or premature.

One way to approach the decision is to ask yourself if investing $5,000 to $10,000, or more, is likely to increase the settlement value by several times that amount. If the answer is “yes” then you are doing a service to your client and the case to move forward. Likewise if you believe the value of the case can increase by $100,000 to several hundred thousand, the investment is very modest.
Some cases are very suited to digital production and the decision is easy. Other times cases are not so well suited but can still be candidates for production. An otherwise mediocre case can get a better then mediocre result if presented dynamically. If the liability is weak, digital media can assist in clarifying the defendant’s presumptions and misconceptions. If damages are questionable, digital media is an opportunity to present your client and the physicians. Ultimately the production should explain the case clearly.

As trials become more expensive and uncertain, plaintiffs should be willing to consider utilizing ADR and specifically mediation. Defendants are also facing uncertain trials and are willing to sit through a presentation. The best time, ideally, would be before litigation costs mount. However, reality is that cases resolve much closer to trial and hence the timing of mediation usually coincides with the impending trial. Preparing for the mediation with a DVD presentation can be an excellent trial preparation effort if done properly. Additionally, depending on the content of the production, parts of the production can be used for trial depending on the jurisdiction.


Read more in Part 2 next week.

Legislation Update April 2012

 TBI Act Reauthorization 2012

The Traumatic Brain Injury (TBI) Act, H.R. 4238 was introduced by Representative Bill Pascrell, Jr. (D-NJ) and Representative Todd Russell Platts (R-PA) on Wednesday, March 21, 2012 in the House of Representatives. Please call your Representative today to ask him or her to co-sponsor H.R. 4238. Specifically, BIAA would like constituents of the following members to call or email their Representative to ask them to cosponsor the bill. The Representatives listed below are members of the House Committee on Energy and Commerce, Subcommittee on Health.

Rep. Shimkus (IL-19-R)
Rep. Myrick (NC-9-R)
Rep. Murphy (PA-18-R)
Rep. McMorris Rogers (WA-5-R)
Rep. Capps (CA-23-D)
Rep. Ross (AR-4-D)
Rep. Bono Mack (CA-45-R)
Rep. DeGette (CO-1-D)
Rep. Doyle (PA-14-D)
Rep. Eshoo (CA-14-D)

The following is from the Grassroots notification of the Brain Injury Association of America:

Appropriations Update

On April 12, 2012, BIAA submitted FY13 written testimony to both the Senate and House Appropriations Subcommittees on Labor Health and Human Services and Related Agencies. Both letters proposed the following funding increases for TBI Act programs and the TBI Model Systems of Care Program.
$10 million (+ $4 million) for the Centers for Disease Control and Prevention TBI Registries and Surveillance, Brain Injury Acute Care Guidelines, Prevention and National Public Education/Awareness
$8 million (+ $1 million) for the Health Resources and Services Administration (HRSA) Federal TBI State Grant Program
$4 million (+ $1 million) for the HRSA Federal TBI Protection & Advocacy (P&A) Systems Grant Program
$11 million (+ $1.5 million) for the TBI Model Systems of Care Program, and line item status within the broader NIDRR budget

Channel 3 Las Vegas Post Traumatic Stress Disorder Series

 Post Traumatic Stress Disorder

It came to my attention last week that while I was blogging a series about Post Traumatic Stress Disorder during the month of February, there was something similar going on.  Dan Ball of Channel 3 News in Las Vegas (KSNV) was running a series on Post Traumatic Stress Disorder for soldiers returning from war.

You can see part 2 of his series on the Channel 3 website.  

The series concluded with a discussion of a Las Vegas District Court Judge's son, a career veteran, taking his own life due to the stress of the war and post trauma.  It is sad but worth taking the time to view since it demonstrates just how real this problem is.

March 2012 Is Brain Injury Awareness Month

Brain Injury Awareness Month

With all the news about the soldier in Afghanistan who suffered from traumatic brain injury which lead to his committing horrific murders please remember that March is Brain Injury Awareness Month.

March is Brain Injury Awareness Month – Give Brain Injury a Voice

This March, in recognition of Brain Injury Awareness Month, CDC and our partners are working together to spread the word and raise awareness about traumatic brain injury (TBI) prevention, recognition, and response to help address this important public health problem. CDC estimates that 1.7 million Americans sustain a TBI, including concussions, each year.

Learn more about Traumatic Brain Injury.

President Obama's Proposed Traumatic Brain Injury Funding

This is just in from the Brain Injury Association of Nevada. 

President Obama's Proposed FY2013 Budget and TBI Funding

 After analyzing President Barack Obama’s proposed FY2013 budget, BIAA is pleased to report that programs authorized by the TBI Act, including the HRSA Federal TBI Program and the CDC’s important TBI work have both been recommended to receive level funding found in FY11 final and FY12 CR appropriations bills, $10 million for HRSA and just under $7 million for CDC. In the current fiscal climate this is good news for TBI advocates. This would indicate TBI funding is not on the chopping block when the government is looking to cut a trillion and a half dollars in federal spending.

 The CDC collects data, links both military and civilian populations with TBI services, increases public awareness, and conducts public health research. The HRSA Federal TBI Program funds 21 states to improve systems coordination and access to care for people with brain injury.

 On another note, the budget recommends reducing funds for the National Institute on Disability and Rehabilitation Research (NIDRR) of the U.S. Department of Education. In FY 2012, NIDRR was funded at $109 million with FY 2013 funding to be decreased to $107 million.

 NIDRR administers grants to the TBI Model Systems, which is a collection of research centers located across the United States that conduct disability and rehabilitation research. The TBI Model Systems are the only source of non-proprietary longitudinal data on what happens to people with brain injury. The TBI Model Systems are a key source of evidence-based medicine, and serve as a “proving ground” for future researchers.

 The funding decrease was to the overall budget of NIDRR, not the TBI Model Systems. BIAA will address the issue with both the House and Senate Appropriations Committees to ensure that Congress is aware of the importance of full funding for NIDRR.

 BIAA will continue to work to ensure that legislators understand the importance of these programs and how they affect the 1.7 million people across the United States with brain injury. Grassroots advocates should be ready for appropriations alerts to drive home this vital message this spring.

Brain Injury Association

 Senate Health, Education, Labor, and Pensions Committee Hearing on Accessible Technology

On Tuesday, February 7, 2012, the Senate Health, Education, Labor, and Pensions (HELP) Committee held a hearing on accessible technology. Chairman Harkin (D-IA) spoke about how America is at a critical juncture in technological development related to education. Technology can either be used in the classroom to keep all students, including students who have sustained a TBI, on equal ground or to segregate those with disabilities by not developing accessible technology. Click here to link to the HELP Committee’s website to read testimony from the hearing.

Brain Injury Awareness Day 2012

This year, brain injury awareness day on Capitol Hill will be held on Wednesday, March 21, 2012. As in years past, there will be an awareness fair, briefing and reception. The full schedule for the day is as follows:

10:00 AM - 1:00 PM: Brain Injury Awareness Fair
First Floor Foyer of the Rayburn House Office Building

1:00 PM – 2:30 PM “Anytime, Anyone, Any Age: the Impact on Brain Injury”
Congressional Briefing; Capitol Visitor Center

5:30 PM - 7:30 PM Reception Celebrating Brain Injury Awareness Month
Location to be Announced

BIAA is committed to helping the Congressional Brain Injury Task Force plan a successful event. Stay tuned for more details including a list of speakers for the briefing.

TBI Act Reauthorization 2012

This week, BIAA’s director of government affairs, NASHIA’s lobbyist and staff representing the National Disability Rights Network met with Senator Harkin and Senator Hatch’s staff to discuss TBI Act reauthorization in 2012. BIAA will continue to work closely with other stakeholders as the reauthorization of the TBI Act moves forward.

Brain Injury Conference in Portland

 The 10th Annual Pacific Northwest Brain Injury Conference 2012.  Living with Brain/Spinal Cord Injury & Disease: Striving for Excellence.

The Brain Injury Alliance of Oregon is sponsoring  a conference on March 1 to 3, 2012 at the Sheraton Portland Airport Hotel.

I have been involved with this conference and recommend it to those who can attend.

Brain Injury Business Practice College 2012

 The Brain Injury Association is conducting its 2012 Brain Injury Business Practice College in Las Vegas, Nevada.

Registration is now open for the Brain Injury Association of America's (BIAA's) 2012 Brain Injury Business Practice College.  The 2012 conference will offer sessions on the following hot topics, among others:  

  • Business Practices and Metrics 
  • Change and Influence 
  • Business Ethics 
  • Legislative and Regulatory Advocacy 
  • Brain Injury as a Disease 
  • Health Care Reform Updates 
  • Working with Third-Party Payors

Those who attend the Business Practice College include CEOs, CFOs, COOs, sales and marketing, and human resource executives from the nation's foremost brain injury treatment, rehabilitation and community service providers.

Attendees have said:

  • "This is the #1 conference I attend all year - very helpful because of the sharing nature of the conference."
  • "Very topical info - what's new in brain injury, rehab, healthcare, Congress, CARF and more." 

Register today!

Registration for the 2012 Brain Injury Business Practice College is available through our Marketplace.  Simply click "Refine Results" at the top of the page and choose "Brain Injury Business Practice College."

The Platinum Hotel and Spa
Platinum Hotel and Spa
Las Vegas, Nevada
February 21-24, 2012

To make reservations at the Platinum, dial  the reservation office at 877-211-9211 and request the

BIAA 2012 Brain Injury Business Practice College group.

BIAA New Logo Blue and Black2012 Business College Logo 

Brain Injury Conference at Craig Hospital

I came across this announcement while reviewing upcoming conferences.  I have worked with the excellent physicians at Craig Hospital.

Craig Hospital 2012 Brain Injury Summit

A Meeting of the Minds
January 9-11, 2012
Beaver Creek, Colorado

Craig Hospital invites you to join us in one of North America’s most popular winter venues for a state-of-the-art continuing education experience designed for professionals committed to enhancing the lives of persons with brain injury and their families. Please visit the official conference website at:

Center for Disease Control and National Football League Joint Course on Athletic Injury in Youth

The Center for Disease Control, with the support of the National Football League, has created a FREE program online for health care professionals.  The course teaches what these professionals need to know about concussion among young athletes.  The intent to is educate professionals in recognizing, diagnosing and treating head injures from sports activities.  This important information has become a hot button issue in primary and secondary education as well as in professional sports.

An overview of the course content is to:

• Examine current research on what may be happening to the brain after a concussion
• Understand why young people are at increased risk
• Explore acute concussion assessment and individualized management of young athletes to help prepare for diagnosing and managing concussions
• Learn about the 5-Step Return to Play progression and helping athletes safely return to school and play
• Focus on prevention and preparedness to help keep athletes safe season-to-season
• Receive continuing education credits through the American College of Sports Medicine

To view the course or for more information, visit:

Brain Injury Association of America Position on Definition of Traumatic Brain Injury

The Brain Injury Association of America published its position paper on the definition of traumatic brain injury entitled Conceptualizing Brain Injury as a Chronic Disease.  The organization tasked with providing legislation and lobbying for victims of traumatic brain injury, published its paper in 2009.

The gist of the paper is that traumatic brain injury is not an event but a process


The American Heritage Dictionary defines an event as “the final result; the outcome.” The
Webster’s New World Dictionary defines an injury as “harm or damage.” Traumatic damage to the brain was therefore seen by the industry as an “event.” A broken brain was the equivalent of a broken bone—the final outcome to an insult in an isolated body system. Once it was fixed and given some therapy, no further treatment would be necessary in the near or distant future, and certainly, there would be no effect on other organs of the body.
The purpose of this paper is to encourage the classification of a TBI not as an event, not as the final outcome, but rather as the beginning of a disease process. The paper presents the scientific data supporting the fact that neither an acute TBI nor a chronic TBI is a static process—that a TBI impacts multiple organ systems, is disease causative and disease accelerative, and as such, should be paid for and managed on a par with other diseases.
  • MORTALITY - The paper states that individuals with a TBI were twice as likely to die as a similar non-brain injured cohort and had a life expectancy reduction of seven years.
  • ETIOLOGY - There is an indirect effect on other organs from traumatic brain injury.
  • MORBIDITY - Individuals with a TBI are 1.5-17 times (depending on the severity of the TBI) more likely than the general population to develop seizures.  Chances of getting epilepsy after traumatic brain injury increase and account for 5% of all epilepsy in the general population.


Attorney Titolo on Shrinking Las Vegas

 On Monday, October 3, 2011, I was invited for an interview on KLAV radio.  The program, Shrinking Las Vegas, is an hour long show sponsored by local neuropsychiatrist, Norton Roitman, M.D.

On Monday's show he covered the topic of traumatic brain injury.  Also invited was the president of the Brain Injury Association of Nevada, Jodi Sabal, Vice president, Donna, and a brain injury survivor named James.

Dr. Roitman and his wife, Tammy, also a psychologist for Clark County Public Schools, did the interview.  First we heard from James, the survivor, whose presentation itself made the injury residuals pretty obvious.  But James was upbeat and excited about continuing to improve while at the same time realizing that his life has forever changed.  James was involved in a car accident involving alcohol.

Jodi, the Brain Injury Association of Nevada president, described the association and what she envisioned for the Nevada local chapter of the the national organization.  Donna also discussed plans for the association.

My contributions involved getting compensation for injury victims and the reality that costs far outweigh benefits in many cases.  It is very hard to prove brain injury especially when it is mild or even moderate.

I had a lot of fun.  You can listen to the show here. 

Brain Injury Association of Nevada

 The Brain Injury Association of Nevada has recently opened a local chapter of the national organization with representation in Southern and Northern Nevada.  It has a new website which is currently expanding to serve the needs of members and the public.

The organization is looking to fill a void in Nevada for Brain Injury survivors and those also affected by the disease.  Family, spouses and friends of survivors share dramatic changes in their lives when someone they know or love gets brain injury.  They have to learn to make adjustments.

I have been asked to chair the committee on Education.  Over the next year I am planning on putting on a multi-day conference for professionals in the the brain injury field.  It will be geared to caregivers, insurers, therapists, medical and legal professionals.  And of course survivors and others may attend.  I think one of the things lacking in Nevada, Reno and Las Vegas is the specific understanding of how traumatic brain injury impacts society and those it touches personally.

Meanwhile the organization is recruiting members.  Membership fees are reasonable and will go toward creating brain injury awareness in the local communities.  You can contact me here by leaving a comment or signing on to the website.

We will be creating member benefits such as a newsletter and topical meetings soon.  The first walkathon has already been scheduled and we need walkers.  If you have any interest in contributing time or money to this cause please contact us.  Our president is Jodi Sabal from Nevada Community Enrichment Program (NCEP).

Las Vegas Medical Center Azheimer's Study


The Lou Ruvo Las Vegas Medical Center, part of the Cleveland Clinic, will participate in a multi-center Alzheimer's Study.  

The study will be to advance early detection and treatment for Alzheimer's.  Dr. Kate Zhong, the senior director of clinical research and development at the Cleveland Clinic Lou Ruvo Center for Brain Health, will direct a clinical trial aimed at finding an inexpensive blood test to detect Alzheimer's disease.

 The Las Vegas Review Journal revealed:

 The first multi-site clinical trial in the United States aimed at trying to identify Alzheimer's disease through an inexpensive blood test will be directed by researchers at the Cleveland Clinic Lou Ruvo Center for Brain Health.

Currently the only definitive way to diagnose the disease is by direct examination of brain tissue after the patient dies.   This obviously does little to prevent the disease from advancing while the patient is alive.

Some experts have put the cost of a blood test at $200. Current sophisticated brain imaging costs $2,000 or more.


Last month, Robert Nagele, a professor at the University of Medicine and Dentistry of New Jersey School of Osteopathic Medicine, said he developed a blood test that is more than 90 percent accurate at identifying antibodies in the blood specific to the disease.

Dementia is a loss of brain function that occurs with certain diseases. Alzheimer's disease (AD), is one form of dementia that gradually gets worse over time. It affects memory, thinking, and behavior.

Memory impairment, as well as problems with language, decision-making ability, judgment, and personality, are necessary features for the diagnosis.

 Las Vegas Nevada Receives Attention as Serious Medical Research and Treatment Center

Since establishing the Cleveland Clinic Lou Ruvo Brain Injury Center in Las Vegas, the city is a viable contender with other national brain specialty centers.  Cleveland Clinic's Lou Ruvo Center for Brain Health (CCLRCBH) provides state-of-the-art care for cognitive disorders and for the family members of those who suffer from them. The physicians and staff at the CCLRCBH are working towards:

  • Early diagnosis
  • Providing excellent care to patients
  • Offering care for the caregivers
  • Development of new, powerful treatment options

Another recent advance in brain health in Las Vegas is the union of Stanford University and St. Rose Hospital in the neurosurgery field.  This year , U.S. News & World Report named Stanford Hospital and Clinics one of the top 17 hospitals in America.

 Another Las Vegas Review Journal piece quotes Maureen Peckman's views on the new neurosurgery center:

Maureen Peckman, chief emerging business officer for the Cleveland Clinic, which oversees the operations and development of the Lou Ruvo Center for Brain Health, welcomed the partnership.

"I think that any time our community can attract top-level medical partners in the valley, it's a boon for patient care, boon for raising quality, a boon for everyone engaged in health care in the community," she said.

It is wonderful to see Las Vegas diversifying itself as the great recession continues to swell.  The addition of quality medical facility alliances may be the silver lining to the City's failed reliance on the one industry it historically relied on.  This may be especially true for brain health.

Brain Injury Association of Nevada

The Brain Injury Association of Nevada, a fully affiliated chapter of the Brain Injury Association of America, is up and running.

Jodi Sabal, Nevada Community Enrichment Program (NCEP) Director, is President.  NCEP is part of Nevada's Aging & Disability Services and Traumatic Brain Injury Rehabilitation. Her efforts in getting the affiliation completed should be applauded.  I know from experience compliance with the parent organization involves many detailed steps.

In my many years of involvement with the Brain Injury Association of America and affiliated State Organizations, invitations to speak at Medical-Legal Conferences around the country, steering planning committees, and other contributions, I noted that Nevada was one of the only states without a Brain Injury Association Chapter.  I am personally excited that we now have one.  I intend to be involved.

The web site for the Brain Injury Association of Nevada can be accessed by clicking the link

The Mission of the BIANV is:

The mission of the Brain Injury Association of America, as well as BIAN, is to be the voice of brain injury. Through advocacy, education and research, we bring help, hope and healing to millions of individuals living with brain injury, their families and the professionals who serve them.


2011 American Association of Justice Convention in New York City

Educating lawyers to better represent their clients.

I returned last week from a seven day convention. The 2011 American Association of Justice Convention in New York City.  The annual event consisted of solid educational seminars put on by the brightest and most successful lawyers across the country and in Canada.

On Saturday, the Interstate Trucking Litigation Group sponsored an all day presentation by excellent experts in law and trucking.  The rules that affect litigation and legislative changes were discussed.  The group hopes to back higher insurance mandates for trucking companies and more regulation under the North American Free Trade Agreement (NAFTA) to deal with Mexico's influx of trucks on American roads near the borders.

I am on the executive board of the Traumatic Brain Injury Litigation Group, and the all day seminar featuring traumatic brain injury issues on Sunday was terrific.  

An article I wrote with Dr. Howard Friedman entitled Bearing Witness was featured in the Traumatic Brain Injury Litigation Group Newsletter.

I attended many board meetings and group meetings in which I participate such as the Inadequate Security Litigation Group, Motorcycle Litigation Group, and Products Liability Group.

I also got to visit with old and new friends from around the country who practice law, consult, offer needed legal services and more.  Of note was my dinner with Louis Siracusano, Dan Buttafuco, Ken Goldblatt and his lovely wife, Antonio Romanucci.  Many others were there too.

I also dined with Dorothy Clay Sims, and David Ball.  I had the pleasure of bringing to-go boxes ofDorothy Clay Sims and Tim Titolo gourmet Italian food from Patsy's, in Manhattan, to two homeless men Dorothy and I found on the street.  Dorothy Clay Sims, had just received the verdict for her client Casey Anthony the day before in Florida.

I also enjoyed a meal on Arthur Avenue with the folks from the Trucking Litigation Group on Monday Night.  This group never fails to have over the top dinners with great company and food.


And of course a visit to Central Park was a must-do.  I am originally from Long Island, NY and I poke fun at myself for never having been to the Statute of Liberty.  I always took it for granted.  Maybe someday with the kids.  But I had not been to Central Park in the summer in years.  It was beautiful.

The next meeting is in Phoenix in February, a little closer to my home in Las Vegas, and I am already looking forward to a great time.

Motorcycle Helmet Repeal is Bad Idea

Since I received a flurry of comments on my Motorcycle Helmet Blog of recent, see Nevada Helmet Law Repeal and comments at , I thought I would forward a tweet by fellow blogger Steve Gursten.  Steve is a great Michigan Personal Injury Trial Attorney.

The title of the article EDITORIAL: Helmet law repeal is a horrible idea  is

Nevada Governor Sandoval Signs Head Injury Bill into Law

Governor Sandoval signed Assembly Bill 455 into law. School Districts and the Nevada Interscholastic Activities Association are required to set policy for handling head injuries by student athletes. Those policies must mandate students be removed immediately from competitive sports if they suffer a concussion or head injury and not be able to return to play until they are examined and cleared by a doctor.

Brain Injury Association Legislative Update March 2011

The Brain Injury Association of America has asked me to send this update along to my readers.

Appropriations Update

 On Thursday, March 17, 2011, the Senate cleared a sixth stopgap measure set to expire on April 8, 2011. Going forward, House and Senate leaders will engage in talks to negotiate government funding for the rest of the fiscal year. BIAA is monitoring the situation closely and will alert grassroots advocates if any action becomes necessary.


This week, BIAA met with Senate Appropriations staff to advocate for increased funding for programs authorized through the TBI Act in 2012. BIAA will continue to follow up on this request as well as meet with the House Appropriations staff in the near future.


Sports and Concussion


On March 16, 2011, U.S. Representatives Bill Pascrell, Jr. and Todd Russell Platts, as well as U.S. Senator Tom Udall introduced bipartisan legislation aimed at protecting youth athletes from the dangers of sports-related traumatic brain injuries. BIAA endorsed the legislation and provided technical assistance during the writing of the bill.


The Children’s Sports Athletic Equipment Safety Act would ensure that new and reconditioned football helmets for high school and younger players meet safety standards that address concussion risk and the needs of youth athletes. The bill also increases potential penalties for using false injury prevention claims to sell helmets and other sports equipment.

Brain Injury Association Appropriations Update March 2011

The Brain Injury Association of America and the Center for Neuro Skills and Lakeview Neurorehabilitation Centers & Specialty Hospital, request I forward this update. 

Appropriations Update

On Friday, March 11, 2011, the House Appropriations Committee will unveil a three-week continuing resolution (CR) that will extend FY10 funding through April 8, 2011. The current CR is set to expire on March 18, 2011. The bill would make some relatively non-controversial spending cuts, totaling about $6 billion dollars in savings.

BIAA is monitoring the situation closely and working with the Congressional Brain Injury Task Force to make sure that FY2011 appropriations will look favorably on brain injury programs. BIAA is also engaging with both Senate and House Appropriations Committees in preparation for FY2012 appropriations work.

Brain Injury Awareness Day 2011

This year, brain injury awareness day on Capitol Hill will be held on Wednesday, March 16, 2011. As in years past, there will be an awareness fair, briefing and reception. The full schedule for the day is as follows:

10:00 am – 1:00 pm Brain Injury Awareness Fair,
First Floor Foyer of the Rayburn House Office Building

1:30 pm – 3:30 pm Briefing: Brain Injury Rehabilitation and Re-Entry: Lessons Learned and the Road Ahead
Rayburn Gold Room
5:00 pm – 7:00 pm Reception Celebrating Brain Injury Awareness Month
First Floor Foyer of the Rayburn House Office Building

For those who are attending, please stop by BIAA’s exhibit in the Rayburn foyer to pick up leave-behind materials for your Congressional visits!

Gabrielle Giffords Getting Care Not Typically Offered By Insurance

One of the most disconcerting realities of Traumatic Brain Injury is getting the care covered by most insurance.  What we as a nation are seeing for Congresswoman Gabrielle Giffords is not what normally occurs.

ABC did a piece on how insurance companies deny coverage for treatiment of traumatic brain injury.  Check it out here.

While Giffords is getting top-flight care at a facility that specializes in rehabilitation after major brain injuries, many patients get nothing close to it. The fine print in many health plans -- including Medicare and Tricare, which serves U.S. military members -- excludes coverage of certain types or even complete rehabilitation for thousands of patients with traumatic brain injuries, or TBIs.

...the Brain Injury Association of America, a non-profit group that advocates on behalf of people with brain injuries, says studies have shown that cognitive rehab is very effective.

Brain Injury Association Legislative Update March 2011

This is the latest from the Brain Injury Association of America: 

BIAA Unveils 2011 Legislative Fact Sheets

This week, BIAA released it 2011 legislative fact sheets highlighting critical public policy issues for people with brain injury including access to care, research, TBI Act appropriations and reauthorization, military, and membership in the Congressional Brain Injury Task Force. BIAA is excited to move forward these priorities in the 112th Congress!

Appropriations Update

On Wednesday, March 2, 2011, President Obama avoided a government shutdown by signing into law a two week extension of the current continuing resolution that was set to expire today. The measure keeps the government running through March 18, 2011.

Today, March 4, 2011, Senate Democrats released a proposal for a $6.5 billion cut from current spending levels, a modest reduction compared with the before released Republican proposal. The Senate is expected to hold a series of test votes next week on both Democratic and Republican spending plans.

BIAA will continue to monitor the situation closely and alert grassroots advocates if 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. As in years past, there will be an awareness fair, briefing and reception. The full schedule for the day is as follows:


10:00 am – 1:00 pm   Brain Injury Awareness Fair,

                                       First Floor Foyer of the Rayburn House Office Building


1:30 pm – 3:30 pm     Briefing: Brain Injury Rehabilitation and Re-Entry: Lessons Learned  and the Road Ahead

Location to be Determined

5:00 pm – 7:00 pm     Reception Celebrating Brain Injury Awareness Month

                                       First Floor Foyer of the Rayburn House Office Building


BIAA is committed to helping the Congressional Brain Injury Task Force plan a successful event around the importance of rehabilitation in recovery. Look for a special edition of Policy Corner early next week detailing the speaker list for the briefing. 

Pacific Northwest Brain Injury Conference 2011

 I have been asked to circulate this latest event.


9th Annual Pacific Northwest Brain Injury Conference 2011

Living with Brain Injury: Thriving in Changing Times

Conference March 4-5, 2011

CBIST Certification Training March 3, 2011

Sheraton Portland Airport Hotel, Portland, Oregon



Traumatic Brain Injury (TBI) is the leading killer and cause of disability in children and young adults. More than two million head injuries occur each year, and the highest rate of injury occurs in young men between the ages of 15 and 24. Hundreds of thousands of military and civilians have sustained TBIʼs due to the current war. TBI (often caused by traumas such as auto accidents, falls, assaults and violence or sports injuries), is an impairment of brain functioning that is physically or psychologically verifiable. Most survivors of TBI will have their lives severely impacted in all areas.

BIAOR, in partnership with The Brain Injury Association of Washington and the Western States Brain Injury Alliance, is hosting this two day conference to address questions regarding what is being done about the increasing incidence of TBI, the new treatments and therapies, legislative measures, services and products available, and what supports are available for teachers, veterans, professionals, family members and survivors. Over 70 renowned experts in the field of brain injury will be presenting.

A pre-conference March 3 will provide CBIST Certification and workshop.

Continuing Education Credits: CME, CRCC, CDMC, SLP, CLE, OT, SLP. 21.5 total CEUs, March 4-5: 14.5


Sheraton Portland Airport Hotel


8235 North East Airport Way

Portland, Oregon 97220



Discount rate is $121 per room per night

Discount good until Feb. 25, 2011

Rooms are limited









Contact Information


Check online for the schedule and register at or by calling Sherry Stock at BIAOR 800-544-5243.


Join Our Mailing List

Save $75

Register early and save $75 

Offer Expires: February 28, 2011

Brain Injury Association Update

 The Brain Injury Association requested that I send this to my readers:

After analyzing the President’s proposed FY2012 budget, we are pleased to report that programs authorized by the TBI Act, including the HRSA Federal TBI Program and the CDC’s important TBI work have both been recommended to receive at least the same funding found in FY10 final and FY11 CR appropriations bills, $10 million for HRSA and just under $7 million for CDC.


The CDC collects data, links both military and civilian populations with TBI services, increases public awareness, and conducts public health research. The HRSA Federal TBI Program funds 18 states to improve systems coordination access to care for people with brain injury.


On another note, the budget recommends reducing the TBI Model Systems of Care Program from 16 centers to 14 centers. BIAA will address the issue with both the House and Senate Appropriations Committees to ensure that Congress is aware of the importance of each center and encourage full funding for all 16 centers.

The TBI Model Systems is a collection of research centers located across the United States that conduct disability and rehabilitation research under grants administered by the National Institute on Disability and Rehabilitation Research of the U.S. Department of Education. They are the only source of non-proprietary longitudinal data on what happens to people with brain injury. The TBI Model Systems are a key source of evidence-based medicine, and serve as a “proving ground” for future researchers.

Brain Injury Association Update

 This is the latest from the Traumatic Brain Injury Association Legislative Update:


This week House Republicans previewed a spending measure that would cut $74 billion in non-security spending from President Obama’s 2011 budget request. In addition, appropriators are trying to find billions more in spending cuts, as leaders work to put together a bill that will meet conservative demands.

Programmatic funding information is not yet available, but BIAA will analyze the data when it is released next week. Currently, the summary information available does not point to any cuts for TBI programs and in order to avoild calling attention to the line item, we ask that grassroots take action next week only if it becomes necessary. BIAA will alert grassroots advocates if mobilization is needed.   

In the Senate, Democratic leaders called the proposed House cuts “extreme” and warned that a series of stopgap funding measures may be needed in the weeks ahead to avert a government shutdown. As many of you know, the current continuing resolution (CR) is set to expire on March 4, 2011.

Look for a special edition of Policy Corner early next week that will include an analysis of the House programmatic FY11 funding and an analysis of the President’s 2012 budget that is expected to be released early in the week.

Cognitive Rehabilitation Update

On Monday, February 7, 2011, BIAA participated in a day-long public workshop involving the Institutes of Medicine (IOM) Committee on Cognitive Rehabilitation Therapy for Traumatic Brain Injury. The meeting included several speakers including the charge to the Committee by TRICARE Management Activities.

BIAA is optimistic that IOM will reinforce in this new study that cognitive rehabilitation is an effective and medically necessary intervention for service members with traumatic brain injury and therefore should be a covered benefit under the TRICARE program.

Brain Injury Awareness Day 2011

This year, brain injury awareness day on Capitol Hill will be held on Wednesday, March 16, 2011. As in years past, there will be an awareness fair, briefing and reception. The full schedule for the day is as follows:


10:00 am – 1:30 pm   Brain Injury Awareness Fair,

                                       First Floor Foyer of the Rayburn House Office Building


1:30 pm – 3:30 pm     Briefing: Brain Injury Rehabilitation and Re-Entry: Lessons Learned and the Road Ahead

                                       Location to be Determined

5:00 pm – 7:00 pm     Reception Celebrating Brain Injury Awareness Month

                                       First Floor Foyer of the Rayburn House Office Building


Legislative Update January 2011

 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.

Health Care Reform Update from Brain Injury Association of America

 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.

Health Care Reform, The Affordable Care Act, and Making You Eat Broccoli

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.


Medical Errors in Hospitals Worse Than Previously Estimated

Medical Malpractice - Consumer Reports

The Office of the Inspector General, Consumers Union, the nonprofit publisher of Consumer Reports, published results of a study that looked at the number of injuries to patients while in hospital care.  The findings are disturbing.

A hospital is where people go when they need care.  They certainly do not expect to get worse while they are there.  And the other disturbing news is that most hospital errors are never reported.  One sure way to hear about them is when lawyers, fighting for consumers, file lawsuits against hospitals for negligence that causes injury to patients.

This sounds, as conservatives would say, "anti-american."  Suing hosptials is, afterall, what drives up insurance rates for the rest of us.  Not true!  The cost of health care is what drives up insurance rates.  Get your facts straight. 

Profit for medical providers, including hospitals, is what drives rates up.  But I digress...

Number of Patients Injured in Hospitals

The OIG calculated that Medicare patients harmed during that month required an additional $324 million in hospital care. The study estimated the annual cost for these events in hospital care alone at $4.4 billion.

According to the OIG, an estimated 15,000 Medicare patients experienced medical errors in the hospital that contributed to their deaths each month. That amounts to about 180,000 patients annually.

No Reporting Requirements

And amazingly, 25 states and the District of Columbia collect data from hospitals on the incidence of certain medical errors. But only six states have disclosed hospital-specific medical error information to the public. Even worse, half of all states do not have any medical error reporting requirements in place.

Electronic Health Records

And lets all watch how Electronic Health Records contribute to medical malpractice.  Designed to make information more accessible, are the users, doctors and nurses, competent in their usage?  Health information technology (health IT) makes it possible for health care providers to better manage patient care through secure use and sharing of health information.

Health care providers, policymakers, patients, and payers share the vision of a health care system powered by information technology. The Health Information Technology for Economic and Clinical Health (HITECH) Act of 2009 authorizes grants and incentives totaling an estimated $14 billion to $27 billion to promote “meaningful use” of electronic health records (EHRs) by providers.1,2 In the excitement over health information technology, some of the potential risks associated with it have received less attention, such as the possible effects of this technology on medical malpractice liability. Yet even now, the potential for EHRs to ameliorate some sources of stress related to liability while reinforcing others is apparent.

So think about that next time life puts you or a loved one in the hospital.




Brain Injury Conferences and Events in 2011

For those of us interested in upcoming truamatic brain injury conferences, I obtained this information.

  • Brain Injury Association of America

The Brain Injury Association of America launches its new web site at Check out the latest information on developments and advancements in the brain injury field.

Visit the site today to find information on available support services, upcoming training and education opportunities, participate in new online forums and much more!

  • International Brain Injury Association

The International Brain Injury Association is pleased to announce that the Ninth World Congress on Brain Injury will be held March 21-25, 2012, in Edinburgh, Scotland.

  •  Interagency Conference on Traumatic Brain Injury (TBI)

The Third Interagency Conference on Traumatic Brain Injury (TBI) will be held on June 13-15, 2011, in Washington DC at the Washington Hilton.

The first Federal Interagency Conference was held in 1999, and the second in 2006. Attendance at these conferences far exceeded expectations of the planning committee and was way beyond the capacity of the hotel. Feedback from attendees indicated that the conferences were highly successful educational events for the attendees and many requested that the conference continue to be offered in the future. As a result of this enthusiasm, the continued focus of TBI in the media and the need for researchers, clinicians and policy makers to “get out” the “latest and greatest” advances in TBI research and clinical care, a third conference is to be sponsored by a consortium of Federal Agencies. For the first time, this consortium brings together civilian and military research efforts.

Click here for more Brain Injury related conferences and events.

Truck Driver Safety - Should I be Concerned?

Truck Driver Safety - Should I be Concerned?

We All Use the Road

Imagine driving along your city’s interstate in traffic. Rolling by next to you are cars on each side. One is front and one is behind. What feeling do you get when the car in front or next to you starts to swerve into your lane or the one next to you?  One reaction might be, “I want to get away from this person because they are either drunk or simply not paying attention and could wreck.”

Then, while you pass to distance yourself from that driver, you notice they have a cell phone wedged between their ear and shoulder, lips moving, and sipping coffee! All while driving in excess of 60 miles per hour on the interstate! Bad scenario begging for a bad ending.

Truckers Use the Road Too

Now imagine you are driving on the same interstate and this time you are surrounded by semi tractor trailers that you can neither see past or around. Same thing happens. Truck in front, to your left or right, starts weaving. Holy cow! No way! In order to drive these big trucks you have to have a special license and training you think. They couldn’t be drunk. But could they be fatigued? Have they been up too many hours driving trying to get a load delivered “on time?” You wonder.

 As you attempt to clear yourself from this wondering trucker, you are shocked seeing a cell phone wedged between his ear and shoulder and lips moving. Okay, you think, there are laws being enforced prohibiting cell phone usage and texting while driving. And for good reason. New young drivers lack the wisdom to appreciate why multi-tasking and driving are a bad combination – so outlaw it. Adult drivers apparently lack the same insight – so outlaw it. But truck driver’s should not lack that insight and should have a higher level of driver training than most non-commercial drivers. How could they lower their own standards? When they do they leave non-truck drivers worrying about being killed by these beasts of burden.

New Anti-Distracted Driving Regulations

U.S. Transportation Secretary, Ray LaHood, announced new Anti-Distracted Driving regulations in a recent 2010 summit. These apply to commercial drivers of hazardous materials, commercial truck and bus drivers, and rail operators. Dubbed “Phone in hand, Ticket in the Other.” Is this something we all should be concerned about? Yes. In 2009, about 5,500 people died and 500,000 were injured in crashes involving a distracted driver.

In test states where law enforcement has been specifically stepped up almost 500 tickets have been issued for cell phone use while driving. The National Highway Traffic Safety Administration (NHSTA) has found that cell phone use while driving has decreased 68% and 42% in Hartford and Syracuse respectively. People need to understand that driving and cell phone use and texting are dangerous and wrong. Instead, put down the phone and focus on the road.

Enforcement of these regulations will allow us all to travel more safely on our highways.

Las Vegas Truck Collision Conference

Truck Collision Cases Require Special Knowledge

Most collisions involving trucks are very serious.  The severity of injury and damage increases due to the size and weight of semi tractor trailers or other big trucks.  In order to properly represent folks who are in these types of wrecks, attorneys need special education and knowledge relating specifically to the trucking industry.  Too many lawyers treat truck collision cases like any other car accident case and they should not.

American Association for Justice Trucking Collision Conference in Las Vegas

The AAJ Trucking Collision Conference I previously blogged about was, according to attenders, an overwhelming success.  Over 100 people registered.  I moderated the second day and was honored to introduce outstanding lawyers and experts.  We even had a live truck inspection by RGK Consultants in the parking lot at Caesar's Palace.

Prior to the official conference, the Interstate Trucking Litigation Group had their Members Only meeting on Thursday.  It was also a success.  Joining us at my invitation was former Chief Justice of the Nevada Supreme Court William Maupin.  Justice Maupin was part of a panel of of Judges from around the country discussing their perspectives on trials involving truck collision cases.

I presented on the issue of Independent Contractor Defense and Statutory Employment pursuant to the Federal Motor Carrier Safety Regulations.  I was joined by excellent speakers discussing topics pertinent to the issues in truck cases.

I was complimented on my presentations and appreciated the comments:

Tim: Thank you for your presentation at the recent seminar and the copy of the brief.

Mike Malkiewicz


 I very much enjoyed your talk in Las Vegas last week. Are you sharing your Ind. Contractor Brief? If so I would love to get a copy.


Michael Wright
Simmonds & Wright LLP
881 Madison Ave
Mankato, MN 56001
Fx 507-345-8494

Larry Simon, Robert Collins, Michael Liezerman, Morgan Adams, and Joe Fried, to name a few, made the events an educational great time with great socializing and networking dinners.

Chief Justice Bill Maupin and and Tim Titolo at Caesar's in Las Vegas



Larry Simon and Tim Titolo at the Las Vegas Truck Collision Seminar October 2010.


Trisha of Medivisuals, Robert Collins, and attorneys from across the country teach and learn about issues in Truck cases.


Inadequate Security at Hotel

Security at Hotels

When we check in to a hotel, we expect that criminals will not be allowed to roam the property looking to harm us.  When they do who can we look to for compensation?  The criminal usually has no resources.  But the hotel that allowed the situation to arise does.  Hotels are supposed to protect its guests from being harmed by trespassers. 

Inadequate Security

Inadequate Security claims arise when a hotel does not provide proper protection and injury results.  How do you determine if security is proper.  The Hotel will always argue that an injury causing event happened so fast (usually in less than a minute) that "no amount of security could have prevented it."  However this is not so in many cases.

Foreseeability is key.  Prior similar events or reasonable expectation based on the type of business is the law in Nevada.  Whether a quick attack was foreseeable is the standard; not whether the particular attack was actually prevented.

Nevada's Inadequate Security Law

Harrah's Laughlin was sued regarding an event in 2004 where two rival biker gangs came to the resort town for a scheduled biker event.  When a riotous feud broke out, hotel guests were injured during a literal cross fire of bullets and mayhem.  The guests were injured and brought suit against Harrah's alleging Harrah's knew or should have known that such a mayhem could break out and that it failed to advise or protect its guests.

In November 2010, a jury returned a verdict stating Harrah's was liable for the injury to its guests.  This ruling is a great victory for consumers and will assist victims of injury at hotels. 

To read more about the facts from the Las Vegas Legal News click here.

Mild Traumatic Brain Injury Long Term Consequences

Las Vegas Brain Injury Blog

The result published in a Cambridge University Press article (2010) entitled Long Term Cognitive and Emotional Consequences of Mild Traumatic Brain Injury  reveals Mild TBI

"individuals had significant impairments in all cognitive domains compared to the healthy control subjects. The sizes of cognitive deficits were medium to large, and could not be accounted for by self-perceived deficits, depression, compensation claims or negative response bias. BDI scores were significantly higher in the patient group, and three patients fulfilled DSM-IV criteria for a mild episode of major depression.

 Conclusions. Primarily, well-recovered individuals who had sustained a minor trauma more than half a decade ago continue to have long-term cognitive and emotional sequelae relevant for everyday social and professional life. mTBI may lead to a lasting disruption of neurofunctional circuits not detectable by standard structural MRI and needs to be taken seriously in clinical and forensic evaluations."

The NY Times published an article about a writer who sustained an otherwise "mild" traumatic brain injury and suffered long term consequences.  Read the article A Brain Injury Discovered by clicking here.

"It didn’t occur to me to connect my symptoms with a minor accident I’d had in May, when I fell off my bike onto the grass, crunching my helmet. (At my checkup, the doctor and I had discussed this and another fall I’d taken, noting the curiosity that when you’re young you “fall,” but when you’re older you “have a fall.”)

But when there’s something wrong with your head, I’ve discovered, you may have no way of knowing there is something wrong with your head. And that Catch-22 can prove fatal.

Why Long Term Consequences of Traumatic Brain Injury Are Serious

 Even if you feel like a trauma leaves you in a state of confusion which may go away, it is important to consider long term consequences.  Many people in car accidents feel they are flustered or in shock when they really have symptoms related to traumatic brain injury.

If you find after discharge from the Emergency Room that your fogginess or confusion does not subside quickly, you should consult a personal injury attorney who specializes in understanding and representing brain injured clients to advise you of your options.  You should be directed to appropriate health providers who can evaluate your condition and decide if additional tests or therapy are required.

Trucking Injury Compensation

Rear End Truck Collision

A jury awarded $9,000,000 to two people injured in early 2008.  A refrigerator truck made an unsafe lane change that forever changed the lives of driver's of two other cars.

Susan Lutz, 51, of Fresno,was awarded nearly $2 million in damages.  Lutz suffered a brain injury in the April 2008 collision and has vertigo for the rest of her life.

The panel awarded $7.3 million to Clarice Brewer, 56, also of Fresno. Brewer can no longer walk because of the collision and uses a wheelchair.

Read more:

Tractor Trailer Rear End Collision

Anita Gibbs was one of four Kansas City women who died in 2006 while on their way to celebrate a family wedding anniversary. While they were stopped for another accident east of Columbia, a tractor-trailer rig slammed into the rear of their car.
The truck driver, Albright, was tried in 2008 on four counts of second-degree manslaughter and found not guilty.

But at the civil trial, attorneys argued that Albright was tired as he drove and that he falsified his trucking logs to indicate that he’d rested an adequate amount.


Clark County Sports Concussion Awareness

Following up on the recent post on this blog about traumatic brain injury in sports and repetitive injury, the Las Vegas Review Journal devoted a lengthy article on what Clark County Public Schools are doing to protect its athletes.

All too often, student athletes are put back into play with an unresolved concussion.  This becomes a repetitive injury situation where pugilistic Parkinson's develops later in life.  Emphasis in professional sport brain injury in boxing and football has trickled down into the high school and college setting.

 "The school district's procedure issued in August 2008 expanded rules for head injury management that were already in place. The procedure states that an athlete who has suffered a concussion cannot return to practice or competition until having clearance from a physician, an approved score on a computerized neurocognitive test called ImPACT..."

"Schools around the country have begun using the ImPACT assessment to help gauge an athlete's recovery from a concussion. Clark County athletic trainers said the test is invaluable."...


"Freshmen athletes in the school district are charged a $5 fee to take the test. The initial exam is called a "baseline test" because results are compared to a later test the athlete takes after they have suffered a concussion.

The test consists of six components: word memory, design memory, X's and O's matching, matching shapes to numbers, matching colors and counting backwards from 25 to 1 while remembering letters."  These tests are similar, on a summary level,  to full battery neuropsychological testing done by experts in that field.

Congress voted to set Federal Guidelines for managing concussions in student athletes.  The bill, known as Concussion Treatment and Care Tools Act, requires a government organized conference within two years for medical and athletic officials to set the guidelines.

University of Nevada Las Vegas is also making concussion awareness a priority.  

"In April, the NCAA Executive Committee adopted a policy requiring schools to have a concussion management plan that required the removal of an athlete who showed any signs of a concussion in practice or an event.

UNLV, meanwhile, is in its fourth year of administering a neurocognitive test to its athletes similar to the one used in local high schools, said Kyle Wilson, UNLV's director of athletics training.

'One of the big problems is, if someone has a head injury, you can't see that,' Wilson said. 'That's why we've incorporated some of the 'baseline' testing.'

Comparison of baseline with post injury status is the key to understanding when and when not to put a player back into play.  This is true of all brain injury however is not always available.  In other words, in known risk activity such as contact sports, blast injury, getting baseline cognitive testing is a somewhat prophylactic effort.  But in cases of car accident, fall and other less risky activity, likely brain injury is not expected and no baseline neurocognitive testing is available.

Local neuropsychologists, Thomas Kinsora, Ph.D. and Staci Ross, Ph.D., helped develop the ImPACT test used in high schools and run Sports Concussion Specialists of Nevada.  They believe the baseline testing is crucial because of the variability of symptoms in brain injury. 


Football, War and Traumatic Brain Injury

The New England Journal of Medicine published a Perspective on Traumatic Brain Injury called "Traumatic Brain Injury - Football, Warfare, and Long-Term Effects."

In late July, the National Football League introduced a new poster to be hung in league locker rooms, warning players of possible long-term effects of concussions.  Public awareness of the pathological consequences of traumatic brain injury has been elevated not only by the recognition of the potential clinical significance of repetitive head injuries in such high-contact sports as American football and boxing, but also by the prevalence of vehicular crashes and efforts to improve passenger safety features, and by modern warfare, especially blast injuries.

The article, by Dekosky et al., N Engl J Med 2010; 363:1293-1296, Sept. 30, 2010, goes on to contrast immediate consequences of traumatic brain injury and how long they last with delayed consequences of traumatic brain injury.

Many complications of traumatic brain injury are evident immediately or soon after injury....Seemingly mild closed-head injuries (i.e., those without skull fracture) may lead to diverse and sometimes disabling symptoms, such as chronic headaches, dizziness and vertigo, difficulty concentrating, word-finding problems, depression, irritability, and impulsiveness. The duration of such symptoms varies but can be months. Post-traumatic stress disorder frequently accompanies traumatic brain injury, though the relationship is poorly understood.

However, "Causal relationships between traumatic brain injury and delayed sequelae have been less studied because of the variable latency period before overt neurologic dysfunction."  However that does not mean relationships do not exist.  We know of certain repetitive mild brain injury (boxers); pugilistic parkinsonism.

 "Neurocognitive effects of repetitive mild head injury were initially recognized in boxers, with a syndrome that was distinct from the clinical and pathological sequelae of single-incident severe traumatic brain injury." Now other contact sports and blast injuries are also known to impact the brain.  In severe cases, as soon as two hours after the injury, scientists have discovered a protein, also seen in Alzheimer's patients, that causes cellular degeneration in the brain.  However in "mild brain injuries" the protein plaque is not evident. 

Further studies will help us understand why.  Currently precursers of the protein are seen in "mild brain injury" studies.  And, repetitive injury is replete with evidence of pugilistic parkinsonism


Truck Collision Seminar Las Vegas

This year the Interstate Trucking Litigation Group of the American Association of Justice is meeting at Caesars Palace in Las Vegas, Nevada.  Several top notch trucking lawyers will be giving presentations on issues and new information concerning the Federal Motor Carrier Safety Regulations and CSA.  It promises to be exciting.

To my honor, I am invited to make a presentation at the conference regarding statutory employment and independent contractor defenses.  I have also been instrumental in arranging for Nevada's former Supreme Court Chief Justice, Honorable William Maupin, to particpate in a Judge's panel discussion on Best Practice and Damages at the conference.

At AAJ Education’s Litigating Truck Collision Cases Seminar,  will be the latest strategies and industry updates to help you successfully manage every stage ofa client's case. The faculty of experienced plaintiff trial lawyers will help  builda case from intake and jury selection to verdict or settlement. This substantive program features emerging topics in trucking litigation as well as the nuts and bolts of a trucking case. 

The event is for those lawyers interested in enhancing their knowledge, skill and experience representing people in cases involving truck collisions.  The rules are specific and different than car and motorcyle collision cases.

While I am still working on video podcasts on this blog, you can click to my website,, to see a short video on trucking regulations -

National Truck Driver Appreciation Week is September 19-25. During this week, America takes the time to honor all professional truck drivers for their hard work and commitment in tackling one of our economy’s most demanding and important jobs.

Join us in celebrating the men and women across the country who work hard every day to deliver Life's Essentials.


Brain Injury Business Practice College 2011 Brain Injury Association of America

Traumatic Brain Injury 2011 Business Practice College

Brain Injury Association of America authorizes me to post the following upcoming event:

Register Now for BIAA's 2011 Brain Injury Business Practice College

The Brain Injury Association of America will present 2011 Brain Injury Business Practice College at The Menger Hotel in San Antonio, TX on February 22-24, 2011.

Sessions especially designed for: CEOs, COOs, Human Services & Sales/Marketing Professionals

Learn exemplary strategies to ensure access to quality health care.

The 2011 Brain Injury Business Practice College offers sessions on:

  • Process Improvement and Customer Service
  • Business Ethics
  • An Update on Health Care Reform
  • Ever-popular Case Studies

Round-Table Discussions Including:

  • Territory Management
  • Cost and Risk Management
  • Staff Development and Succession Planning

Last year's attendees said:

  • "This year's conference was terrific! Truly met (and exceeded) my expectations."
  • "I thoroughly enjoyed and learned from the Brain Injury Business Practice College. I feel that all of the information was useful and important. Networking with the competitors is so important."
  • "Great conference. Good sessions. It was fabulous."

Click here for more information.

Headline News Brain and Spine Injury Law Blog Commentary September 2010

Political Commentary

First let me disclaim what I am about to write by asserting my apolitical views on politics. Second, I am not without opinion, but feel they are similar to AHs and everybody has one. But I do get caught up in the media, who can’t? So here I go.


Why are some conservative (Republicans and Tea Partiers) still claiming our President is somehow not American because his dad was from Indonesia and returned shortly after Obama’s birth? My father’s parents were both from Italy but my father is both a taxpaying, card-carrying American. (Who also collects a tidy pension from the State of New York as a retired policeman, disability for a condition that does not stop him from enjoying his retirement, and social security). DISTRACTION.

Was FDR castrated when he developed socialized retirement care? Taking from a younger working, income producing group, to pay for the non-working, non-income producing group? Did change happen overnight? How is that not the “socialism” decried by conservatives.

And I just got back from Canada. Only so much health care to go around and that is how they keep costs down. It means you may have to wait longer to get an MRI – unless it is an emergency. It actually sounds like a conservatives dream: deprive benefits in the name of cost savings. Canada has a surplus and law against carrying a deficit. Instead U.S. conservatives want to keep their “choice” of physicians as the hold card when health care reform is proposed.

Give Obama a fair shake. It took Clinton several years to balance the budget and put us in a surplus! Does one year of getting policy in place really give President Obama a fair amount of time? No.

We now know that the conservative movement happily gave over the economic tragedy former President Bush created with, among many other things, an incomprehensibly expensive war. Where were the conservative cheers to “cut spending” then? Is the effort to democratize other countries a social agenda? Or are we ready to admit it was about securing dirty energy – oil? 

So Obama steps into a Wall Street Market and Real Estate meltdown and Bush leaves with a goodbye “stimulus” that lacked effective oversight. 

Does anyone remember that? Has the past year wiped out all memories? We’re riding a new horse; we should not switch midstream. Let it play out I say. And if tax cuts to the rich means those making more than $200,000 to $250,000, that may be good for me but not the country I profess allegiance to. But the “let me keep what I earn” argument really slaps down those who can be helped. And the argument about “letting me choose where my charity dollars go, rather then the Federal or State Government,” is a bit lame.   And yes, if Wallstreet bankers make billions of dollars using the same commonwealth as other New Yorkers, Chicagoans, and other big city residents earning much less, they should pay more for that commonwealth, or higher taxes. Trickle Down/Reaganomics is not the saving grace conservatives espouse.

Frankly, I like getting my mail, going to the library, driving on resurfaced streets and I am willing to pay for those American qualities of life. But I do not like giving money to foreign countries, whether to destroy or build up, while at the same time denying and not contributing to the disrepair in this country.

Democrats want to pay (Republican’s frame it as “tax and spend”) for things to bolster this country and this economy. But you do not accomplish that with a war with no clear purpose other than the knee-jerk reaction of 9/11.

My idea (although not really my hope) is that if the Republican or Tea Party Movement takes over congress in the coming election, they inherit the same lackluster economy President Bush left to President Obama. We now know that conservatives were giddy that a democratic president could be their fall guy when things did not change in one year. Won’t it be interesting if the Republican congress becomes the fall guys/gals for a too slowly recovering economy?

Angle v Reid

This to me is a no brainer. Let’s compare apples to apples. Lets for a moment accept that both Sharon Angle and Harry Reid are both good for the State of Nevada – all things being equal. Reid is the Senate Majority Leader. SENATE MAJORITY LEADER! He has the ear of the president and the entire Senate. Whatever your political slant, why replace this coveted, most high, position with a freshman Senator with no proven record. This, I have been told by more than one educated person, would be “bad for Washington.”

Now let’s take sides. More of an apples and oranges approach. Why can’t folks allow a party to have control in the name of getting things done? I mean how bad can it really get? If democrats continue implementing their theories on health care, tort reform, marriage, religious tolerance (not to mention the polarizing issue of abortion), what is the worst that can happen? Alternatively, if Republicans regain control of congress, democrats may draw the line in the sand like republicans have done this past year with filibusters. End result, nothing gets done. Compromises are viewed with suspicion and we go nowhere. 

So let the process work. I personally hope democrats or liberal republicans are put in place to keep the policy change coming. And let’s remember none of us are totally on one side or the other and that means compromise. We are “bi-conceptual.” For example, I agree with some conservative ideas and some democratic ideas. Some ideas I reject all together; from either side. Point is I am bi-conceptual as to issues – not a blind party line voter.

Vote for Reid, whatever you may dislike, get over it; he will be able to rally change with the president and Angle will not.


And remember the power of the media, its hypnotizing, and trance inducing power. You make important decisions regarding your representatives. And so much of our information and decisions are based on our own deep seated biases. Karl Rove was very good at getting into the deep seated biases and causing people to act the way he wanted. That is indeed a talent, one I experience as a lawyer every day.

But who owns the studios that bring you the news. How much of it supports one side or the other? Do you even have a clue? There must be so many back deal discussions and events that we, the weary public, have no insight to. And sometimes there are leaks, but I would wager not nearly as often as you might think. Here again, Obama ran on the promise of a transparent government. But be realistic, we just do not know much. And if we did it would most certainly guide our choices for representatives.

Instead we have smear campaigns. I am most familiar with the trash between Angle and Reid. And that contributes so much to our decisions.   God, force or human nature, help us.  And so it goes.

Legislative Update September 2010

The Brain Injury Association of America authorizes this update:

Appropriations Update

This week Congress weighed the possibility of utilizing a stopgap funding measure to keep much of the government running in the new fiscal year, which starts Oct. 1. However, it is not yet clear if Congress will opt to approve a stand-alone continuing resolution (CR), or to attach the measure to one of the regular spending bills.

BIAA will monitor the situation closely and continue to advocate for increased funding for brain injury programs in Fiscal Year 2011.

Health Care Reform Update

On August 27, 2010, BIAA, as part of the Consortium for Citizens with Disabilities (CCD), submitted comments to the Department of Health and Human Services and the Department of Labor regarding the health care reform law implementation of Preexisting Condition Exclusions, Lifetime and Annual Limits, Rescissions, and Patient Protections, (otherwise known as the Patients’ Bill of Rights). 

CCD detailed support of the many patient protections outlined in the proposed regulation and also suggested some language that would strengthen patients’ rights further. For full viewing, a copy of the document can be found on our Web site.

Veterans’ Traumatic Brain Injury Rehabilitative Services Improvements Act

On September 17, 2010, BIAA officially endorsed The Veterans’ Traumatic Brain Injury Rehabilitative Services Improvements Act of 2010 (HR6123) which was introduced by Congressman Tim Walz and includes Congressman Bill Pascrell, Jr., co-chairman of the Congressional Brain Injury Task Force, as a co-signer. The bill ensures wounded warriors suffering from traumatic brain injury (TBI) receive a more comprehensive and holistic rehabilitation plan that is focused not only on physical restoration but also on mental health, independence, and quality of life.  

Additionally, the legislation would aid veterans in maintaining the gains they have made in rehabilitation programs by requiring the VA to develop rehabilitation plans that stress restoration and maintenance of functioning rather than simply restoration. Both BIAA and our partners at the Wounded Warrior Project as well as several other veterans’ groups have endorsed the measure and BIAA is advocating for additional co-sponsors and consideration by the Veterans’ Affairs Committee this fall.



On September 8, 2010, the House Energy and Commerce Committee, Subcommittee on Health held a field hearing regarding the ConTACT Act (HR 1347) in Newark, NJ entitled “Protecting School-aged Athletes from Sports-related Concussion Injury.” The Brain Injury Association of New Jersey (BIANJ) testified on BIAA’s behalf about their experiences in New Jersey including their proposed state legislation, opinions on how the ConTACT Act could be modified to reflect the current situation in states across the country, and why it is important to continue the push towards protecting student athletes from second impact syndrome.


On September 16, 2010, the Health Subcommittee of the Energy and Commerce Committee voted to approve the ConTACT Act and send it on to full committee consideration. The subcommittee adopted several changes to the legislation suggested by BIAA including ensuring that the measure works in concert with state legislative efforts, providing that any type of cognitive tests, not just computerized tests, be eligible to receive state grants under the baseline testing provision, and encouraging the Department of Health and Human Services (HHS) to work with BIA state affiliates and other relevant organizations during the law’s implementation period.


BIAA continues to work alongside the House Energy and Commerce Committee, the House Education Committee and both Congressman Pascrell and Platts to move the ConTACT Act and its companions through the full committees and on to the House floor. Full Energy and Commerce Committee consideration is expected to take place next week. BIAA will monitor the situation closely and alert grassroots advocates if action becomes necessary.



State Medicaid Funding



In August, Congress approved a $26.1 billion state-aid package (HR 1586) that extends enhanced federal Medicaid funding to states through June, 2011. The enhanced funding was originally authorized by the economic stimulus law and, as a result, bolstered the Federal Medical Assistance Percentage (FMAP) through Dec. 31, 2010.


Because December is halfway through the fiscal year for states and a discontinuation in December would cause serious state budget shortfalls, BIAA, its chartered state affiliates, BIAA’s grassroots network and the National Association of State Head Injury Administrators (NASHIA) advocated strongly to ensure that the enhanced funding would be extended through June, 2011. The extension is a major victory for the brain injury community as Congress struggled for several months to find a way to procure funding offsets in order to approve this measure.



Health Resources and Services Administration (HRSA) Long-term Plan


During the August recess, as a follow up to a meeting held on June 15, 2010, representatives from HRSA and various TBI stakeholders held a teleconference to plan work on a long-term plan for the Federal TBI Program and also to discuss possible changes to the TBI Act come reauthorization in 2012. 


HRSA, BIAA and the National Association of State Head Injury Administrators (NASHIA) have begun to assemble an advisory board to work on the long-term plan and to also manage and incorporate public comment and transparency. BIAA is encouraged by the partnership forged between TBI stakeholders and HRSA and is looking forward to elevating the Federal TBI Program within HRSA and to advocating for increased funding for the program by leveraging agency cooperation in program improvement and efficiency on Capitol Hill.

All this for a Punch?

A local Las Vegas news story was published in the Review Journal entitled “Man arrested for punching a man who later died of a brain injury.” While the sad fact that the man who got punched died of severe brain injury, the reality of how actions we typically do not relate to serious injury or death happen every day.

Basically, a man and his girlfriend were taking the dog for a walk when another man started publicly urinating. When the first man asked the urinating man to cover up, the urinating man challenged him to a fight. That is when the walking man punched urinating man which, as a result, caused urinating man to get wobbly knees, fall to the ground and hit his head. Urinating man died of severe brain damage a few days later.

And the walking man said to police while being arrested on suspicion of murder, “All this for a Punch?”

Reducing Golf Injury

Over the years, golf has become an increasingly popular sport, attracting new players of almost all ages and socioeconomic groups. Golf is practiced by up to 10 to 20% of the overall adult population in many countries. Beyond the enjoyment of the sport itself, the health-related benefits of the exercise involved in walking up to 10km and of relaxing in a pleasant natural environment are often reported to be the main motives for adhering to this activity by recreational golfers. Golf Injuries: An Overview Sports Medicine, Volume 26, Number 1, July 1998 , pp. 43-57(15).

Although golf is becoming more popular, there is a lack of reliable epidemiological data on golf injuries and overuse syndromes, especially regarding their severity.  Now a new study attempts to determine how to reduce injury from Golf.

Although golf has not been recognized as a sport associated with injuries, epidemiological studies document that back and elbow injuries are most common in male amateur golfers. Lower back and wrist injuries occur in the male golf professional while female professional golfers are more likely to suffer injuries to the wrist and lower back, respectively.  See, The frequency of golf injuries, McCarrol.

 In an effort to reduce golf injuries, many of which are treated by orthopedic surgeons, the AAOS American Association of Orthopedic Surgeons, recommends the following golf injury-prevention tips:

- Dress for comfort and make sure to wear the appropriate golf shoes; short cleats are best on the course.

- Do not hunch your neck or shoulders over the ball; it may predispose you to neck strain and rotator cuff tendinitis.

- To avoid golfer's elbow, caused by a strain of the muscles in the inside of the forearm -- perform wrist and forearm stretching exercises and try not to overemphasize your wrists when swinging.

- To avoid lower back pain caused by a poor swing -- try rowing and/or pull down exercises to improve flexibility and muscle strength. 

To return to golf after hip or knee replacement, the AAOS suggests the following safety guidelines below:

- Always warm up and stretch well before playing, but avoid undue strain on your replaced joint.

- Get back into the game slowly. Begin with chipping and putting before hitting irons and then woods. Also, it is best to play just nine holes initially; once this can be done comfortably you can try a full 18.

- Use a riding cart initially. Those who like to walk while playing should wait until they can play comfortably with a cart and then try walking. It's best to use a pull cart rather than carrying your bag.

- Be aware of weather conditions; wet weather can predispose you to falls, especially when the legs are still weak.

- Use "soft spikes" (required by most courses now) or even tennis shoes (if ground is not wet). This will reduce torque on the hip and knee.

- Don't get frustrated when you resume playing. You may not hit the ball as far as you did prior to surgery because the leg will be weak; this will get better as strength returns.

- Be careful about squatting down to line up a putt. This can put too much pressure on the knee and could possibly cause a dislocation of a hip prosthesis.

- Continue a regular exercise program to maintain as much strength in the leg as possible. 

 According to the U.S. Consumer Product Safety Commission (CPSC), more than 115,000 Americans were treated for golf-related injuries in 2009.   Be careful and enjoy the sport longer.

FMCSA Releases Safety Measurement System to Motor Carriers

The U. S. Department of Transportation’s Federal Motor Carrier Safety Administration (FMCSA) is pleased to announce the next step in the rollout of Comprehensive Safety Analysis 2010 (CSA 2010).

CSA 2010 Data Preview
Commercial motor vehicle carriers may now view their individual safety assessments on the Data Preview Website. This updated Website provides motor carriers with information on where they stand in each Behavior Analysis and Safety Improvement Category (BASIC) based on roadside data and investigation findings. Each motor carrier’s BASIC assessments are visible only to them (and to enforcement staff) until December of 2010. In December, assessments will be made available to the public. Also, enforcement agencies will use these assessments to prioritize the Agency’s enforcement and compliance assistance workload. By providing carriers with this information now, FMCSA’s approach gives carriers the earliest possible opportunity to improve compliance.

FMCSA is providing motor carriers with this early look at the new Safety Measurement System (SMS) so they can see their performance data, can address safety compliance issues right away and can update and verify their data online. Release of this safety performance information underscores FMCSA’s commitment to data integrity and the motor carrier industry’s responsibility for ensuring commercial vehicle safety. This important step is designed to allow motor carriers to identify and address unsafe behaviors that can lead to crashes. What can motor carriers do now to prepare for the new system? Motor carriers should look at their assessment on the Data Preview Website, identify any data mistakes, verify and update their motor carrier census data, in particular power units (PU) and vehicle miles travelled (VMT) on the MCS-150 form, and take the necessary steps to correct unsafe driver and/or company safety practices.

Last year I handled a case where one motor carrier failed to review another hired motor carrier's Safe Stat scores which hovered around a 97 which put it in the bottom 3%.  This type of negligent, even reckless. behavior may be reduced with new procedures like the new regulations being tested and passed. 

Conservative Republicans scream "no government regulation" until one of their own is critically injured in a crash with a semi tractor trailer.  Without regulation, truck corporations are governed by only one thing - profit.

More Information
Complete details on the Data Preview are available through Data Preview Guidance (FAQs), the new SMS Methodology Version 2.0 and SMS Changes Explanation. FMCSA has responded to field test results and stakeholder feedback to improve SMS.

Psychology, Statistics and Preschool Children

What do preschoolers, psychology and statistics have in common?  Well a new study published in Psychological Science, a journal of the Association for Psychological Science, finds that children figure out another person's preferences by using a topic you'd think they don't encounter until college: statistics.

Before exposure to the bell shaped curve or standard deviation, the preshcooler has entered the realm of statistical analysis.

Children are natural psychologists. By the time they’re in preschool, they understand that other people have desires, preferences, beliefs, and emotions.

The Squirrel puppet experiments reveals that children are able to distinguish which toys make others happy.  A child picks a blue flower from a container of red circles and blue flowers when the child is conditioned to understand the squirrel likes to play with blue flowers.  Four and Five year olds make this determination in the study.  The conditioning is achieved by the child watching a puppet show where the squirrel is given a blue flower and enjoys playing with it.

Of course, statistical information isn’t the only way children learn about the preferences of other people. Emotion and verbalization are also important.

Read the full article and test results.

Headline News Brain and Spine Injury Law Blog August 2010

 We are almost through August and more than half way through Summer 2010. Parents, children and kids are preparing for the return to school in the next couple of weeks. In Nevada, public schools start August 30.

Meanwhile Nevada, and particularly Las Vegas, continues to muddle through the recession which for Southern Nevada has been a novel experience. The unemployment rate is close to 15% as I write.  The city many thought was immune from economic storms has seen itself hardest hit. Hopefully things will improve.

We face a heated election where the Tea Party candidate, Sharon Angle, accuses Democrat incumbent, Harry Reid, for the current state of plummeted home values while Reid criticizes Angle for not making job creation a part of her job!

The Station Casino’s recent resurface from Bankruptcy with owners, Frank and Lorenzo Fertitta, manning the helm, may be a boost. Of course some creditors had to write off $4,000,000,000 – four billion dollars! But maybe the massive adjustment will re establish the local casino group and have a positive impact on Las Vegas. 

Today’s report of the M Resort, opening just over a year ago, being put up for sale may result in an interesting bid; especially if Boyd gets back into the picture. Boyd’s recent failed effort to take over Station properties may be a prelude to an M resort bid.  Although my sources tell me that Station may make a bid to buy M resort now that they have shaken off 4 billion in debt.

I am reporting on 2 separate topics relating to Brain and Spine Injury issues. First is a look at the Cleveland Clinic’s Las Vegas Lou Ruvo Center. Second is the recent revelation concerning veterans. 

Lou Ruvo Brain Center

Nevada, and specifically Las Vegas, may be on its way to becoming the "go-to" place in the country for Brain Health.  The Cleveland Clinic Lou Ruvo Center for Brain Health (CCLRCBH) provides state-of-the-art care for cognitive disorders and for the family members of those who suffer from them.

 For persons with mild cognitive impairment such as early stage dementia and Alzheimer’s disease, the center offers the most up-to-date and technologically advanced diagnostic imaging services, including 3-Tesla MR, performed by one of the leading neuroimaging academic centers in the world. The CCLRCBH also offers a multimodal treatment program for persons with mild cognitive disorders, including physical exercise, cognitive rehabilitation, and cognitive enhancing medications.

Recently named to head up the Center, leading researcher and neurologist Jeffery L. Cummings, MD, will be the Director of the Cleveland Clinic Lou Ruvo Center for Brain Health.

Prior to joining Cleveland Clinic, Dr. Cummings was the director of the Mary S. Easton Center for Alzheimer’s Disease Research and a professor of Neurology and Psychiatry and Biobehavioral Sciences at David Geffen School of Medicine at UCLA.

He is past president of the Behavioral Neurology Society and of the American Neuropsychiatric Association. Dr. Cummings has authored or edited 30 books and published more than 600 peer-reviewed papers.

Misdiagnosis Hurt U.S. Soldiers

We now know that during the height of the Iraq war, the Army routinely misdiagnosed hundreds of soldiers with “personality disorder.” In doing this, the Army was categorizing veterans being dismissed from duty, with a pre-existing condition. Pre existing conditions are not covered by the military health care for veterans.

Leaving wounded veterans ineligible for military health care and with a stigma attached to mental weakness, advocates for veterans, congress and the public actively pushed for re-evaluation of veterans conditions. The Nation, published an article exposing the practice and caused the Defense Department to change its policy. 

All soldiers diagnosed with Personality disorder prior to 2008 are being re-evaluated. Before 2008, over 1000 soldiers were dismissed based on personality disorder. In 2009 only 260 were dismissed for personality disorder.   By 2008, 14,000 soldiers were diagnosed with brain injury or post traumatic stress disorder.   The number of personality disorder cases dropped 75%. Watch this You Tube video.

The significance for those men and women that serve the country in the military is staggering. Could you imagine sacrificing life and limb only to have the U.S. government tell you that you suffered a pre-existing personality disorder? Why, you might ask, did the Army, for example, not make that determination until after my sacrifice of life and limb? How convenient for the Army to take advantage of the sacrifice and not pay the veteran when they can no longer make the sacrifice.

We now know about PTSD as it relates to war, something the Vietnam veterans did not benefit from. We also know, unlike Vietnam, that more soldiers stay alive after blast and concussion trauma due to the enhanced protective gear.

I really hope that the U.S. will be proactive in caring for its military. I think we should all support brain injury groups like the Brain Injury Association of America who are on the front lines, so to speak, in getting legislation for brain injured survivors.

Federal Motor Carrier Safety Regulations

The Federal Motor Carrier Safety Administration was created in 1980 to regulate big rig, tractor and trailer trucks. These regulations spell out the responsibilities of drivers and expectations of the public who drive on the roads with these trucks. An attorney must be not only familiar with these regulations but fluent in them.

The trend of trucking deregulation that started over 20 years ago has not materially changed original regulatory schemes governing required insurance and financial responsibility. Motor carriers operating under federal permits and intrastate carriers operating under state authority must still secure liability coverage in order to maintain an operating permit or otherwise provide proof of ability to self insure. Typically statutory coverage of this nature is implemented through a two-part process which involves a public filing and an endorsement. Motor carriers or their insurers will make a filing with the appropriate agency as proof that insurance coverage has been issued conforming to the applicable regulation or statute. The endorsement conforms the motor carrier's coverage to the relevant requirements of the law governing the truckers' operations. In this manner, the insurance is extended to protect the public from accidents or negligent operations.

Examining the Mystery of the Brain on ABC

You may not want to miss this.  ABC News announces a new primetime series, “Nightline Prime,” which premieres Thursday, August 19 examining the mystery and science of the brain.

Each installment will focus on a different research areas, including emotion's impact on the brain, medical emergencies involving the brain, violence and the brain, and food and the brain.

The four installments of Secrets of Your Mind begin airing Thursday, August 19 at 10:00pm ET/PT and continue on the three subsequent Thursdays:
Here is a rundown of each of the shows:

 Thursday, August 19: “Nightline” co-anchor Cynthia McFadden explores the brain in love. She follows a remarkable story of love lost and found again after a traumatic brain injury. McFadden also talks to a man who is literally paralyzed by love—a peculiar brain condition that causes his body to shut down when he experiences feelings of love for his wife.

Thursday, August 26: Martin Bashir takes a journey inside the mind of a psychopath. Bashir examines evil’s origin in the brain and whether people can be born with a tendency for evil or violent behavior and if it can be detected in childhood. In his reporting, Bashir visits death row for a close-up look at two of the country’s most notorious serial killers. He also speaks exclusively to the distraught father of Chris Benoit, the pro-wrestler who murdered his family then himself.

 Thursday, September 2: “Nightline” co-anchor Terry Moran embeds with Dr. Bailes for a first-hand look at life-and-death drama inside the operating room. It’s a race against time as cameras capture an aneurism bursting on the operating table and Dr. Bailes and his team have only seconds to react.

ReThinking Lou Gehrig's Disease

Read this article featured in Discover about Lou Gehrig and the disease that bears his name:

That may seem a strange question, akin to asking who’s buried in Grant’s tomb. But a new study proposes that some athletes diagnosed with Lou Gehrig’s disease may in fact have a different fatal disease that is set off by concussions.

Researchers have previously investigated the link between athletes and this neurodegenerative disease, more technically known as amyotrophic lateral sclerosis (ALS). A recent study examined what seemed to be a higher than usual incidence of Lou Gehrig’s disease among soccer players, and, of course, the disease bears the name of a New York Yankee who was famously undaunted by the hard knocks of his sport. Though it’s impossible to determine now whether Lou Gehrig suffered from ALS or a different condition (Gehrig was cremated), the study’s lead author speculates that Lou Gehrig’s disease might be a misnomer:

Depression Following Traumatic Brain Injury

Researchers found patients with traumatic brain injury suffered from major depression for a year after the injury.  A new study conducted by scientists at the University of Washington School of Medicine in Seattle revealed that traumatic brain injury may lead to major depression.
Other studies have documented the relationship between traumatic brain injury and depression.  Many involved smaller samples sizes.  However this study involved 559 patients.
Interestingly, the severity of the brain injury did not suggest greater depression.  Rather it was the age of the patient. People in the the peak of their prime from 30 to 44 years old - noticed the impact of their injury greater than other age groups.  These people rated their functioning and health as particularly affected.
The study concluded that  routine screening for depression in the months following traumatic brain injury may be critical.  I always counsel my clients to get care as close in time to their injury as possible.  It is generally accepted that spontaneous recovery occurs most during the 12 months following injury.  And the more rehabilitation one can get closest to the time of injury, the better the potential outcome.
Unfortunately, the people I counsel often do not have resources to obtain treatment during that initial 12 month period.  Often they lose their jobs and insurance and are left to navigate the medical system alone.  This is impeded by organic depression which in turn creates more depression: situational and otherwise.
My clients are often seen by hospital emergency room physicians initially.  The most obvious injuries are attended to as life or death situations.  After they are patched up, they are sent home with instructions to return if necessay.  Then they get a bill that shocks them.  Returning to the hospital because they have constant headache or dizziness does not seem economical.  That is why I usually end up managing care by getting the client to appropriate health care providers for follow up and follow through.
The results of the study appeared in the May 18 issue of the Journal of the American Medical Association (JAMA).


Stigma of Youth over Treatment for Mental Disorder

A recent study was funded by the National Institute of Mental Health entitled "Stigma Experience Among Adolescents Taking Psychiatric Medications."  This breaks open the issue of stigma in patients treated for mental illness as it applies to teenagers.

Teenagers reimagine the way people think about adolescents. No longer society's scourge and scapegoat, the teenager emerges from David Bainbridge's fascinating study as an awe-inspiring natural phenomenon that evokes reverence and wonder. Bainbridge, an anatomist, suggests that the second decade is the most important in the human lifecycle. In lively prose, he explains the science behind the changes that occur both on the surface of the teenage body and deep within the teenage brain, from lanky limbs and bad skin to falling in love, sleeping till noon, and the irresistible allure of sex, drugs, and rock‘n’roll. Observed through a scientific lens, these bizarre biological transformations and behavioral anomalies snap into focus, as not only a beautifully choreographed sequence of steps on the path to adulthood, but also as a key evolutionary factor in the success of the species.

Teenagers have their own special place in the study of development and brain science. 

The study evaluated boys and girls between the ages of 12 and 17 who are taking medications. Researchers found that at least 90 percent of the study's participants reported experiencing some form of stigma. It has led to shame, secrecy and limiting social interactions.

While the stigma associated with wounded veterans, soldiers and adults is relatively known, this data suggests young people are burdened as well.  Individuals, young and old, with mental illnesses suffer from public and self-stigmas. The researchers were concerned about how the youth internalized the public discrimination, or stereotyping of their illnesses, and if these stigmas experienced at a young age might impact the individuals as adults.

1 in 6 adults and almost 1 in 10 children suffer from a diagnosable mental illness. Yet, for many, the stigma associated with the illness, can be as great a challenge as the disease itself. This is where the misconceptions stop. This is where bias comes to an end.

Here are some interesting Fact versus Fiction data I found on the internet. 

FICTION: People with a mental illness are often violent.

 FACT: Actually, the vast majority of people with mental health conditions are no more violent than anyone else. People with mental illness are much more likely to be the victims of crime.

 FICTION: Mental illness is a sign of weakness.

 FACT: A mental illness is not caused by personal weakness—nor can it be cured by positive thinking or willpower - proper treatment is needed.

 FICTION: Only military personnel who have been in combat can suffer from PTSD.

 FACT: While PTSD is prevalent in men and women who have seen combat, experiencing or witnessing a traumatic event can trigger PTSD, including violent personal assaults such as rape or robbery, natural or human-caused disasters, or accidents.

 FICTION: People with a mental illness will never get better.

 FACT: For some people, a mental illness may be a lifelong condition, like diabetes. But as with diabetes, proper treatment enables many people with a mental illness to lead fulfilling and productive lives.

 FICTION: Children don’t suffer from mental illness.

 FACT: Millions of children are affected by depression, anxiety and other mental illnesses. As a matter of fact, 1 in 10 children suffer from a diagnosable mental illness. Getting treatment is essential.

 FICTION: “Mental illness can’t affect me!”

 FACT: Mental illness can affect anyone. While some illnesses have a genetic risk, mental illness can affect people of all ages, races and income levels, whether or not there is a family history. 

I also ran across a cool blog on Facebook called bringchange2mind. Check it out.

Health Care Reform in Nevada

Nevada Senator Harry Reid has helped the President accomplish the greatest social overhaul since President Roosevelt.  In July, Heath Care begins to reshape this country by providing benefits to those who were previously denied access to health care.  As with the creation of social security, more Americans can live with the security of health care.

As provided for in the Patient Protection and Affordable Care Act, on July 1, 2010, the Department of Health and Human Services launched the website to make accessing and choosing health insurance easier. By providing consumers with many informative health resources, this website will allow you to take control when making decisions regarding your health care coverage.

 How Health Insurance Reform Is Benefitting You

Pre-Existing Condition Insurance Plan – Nevada residents who are uninsured and have been denied coverage because of a pre-existing condition can apply for the Pre-Existing Condition Insurance Plan (PCIP) created by the Patient Protection and Affordable Care Act. PCIP will cover a broad range of health benefits, including primary and specialty care, hospital care, and prescription drugs. All covered benefits are available, even to treat a pre-existing condition. To learn more about the PCIP program and apply please visit

Early Retiree Reinsurance Program – The rise of health insurance costs have made it difficult for some employers to continue to provide health insurance for their retirees. At the same time, Nevada’s early retirees who are not yet eligible for Medicare face serious difficulties in obtaining coverage in the individual market. In order to enable employers who are offering retiree coverage to continue to do so in these tough times, the Patient Protection and Affordable Care Act provides assistance for employers starting this year. To learn more about this program and to download the application please visit

Money for Rate Review - Under the Patient Protection and Affordable Care Act, the Secretary of Health and Human Services will work in conjunction with state insurance commissioners across the country to place additional oversight on health insurance companies so that people are assured of value for the premiums they pay. While the new law will take over time, PPACA provided $250 million in funding to states from 2010-2014 to ensure they have the resources they need to review insurance premium increases. With this money, states can review premiums, and take action if insurance companies are not able to justify increases. This funding will provide the participating states the tools they need to work with consumers when examining health insurance premiums while we transition to a reformed health system. 

Attention Subscribers: Need to Re-Subscribe

The Brain and Spine Injury Law Blog is about to celebrate a birthday. Over the past few years we have covered important issues to Brain and Spine Injury Advocates, victims and much, much more.

We are proud to say that our readers include board members, caregivers, prominent community leaders, governmental officials, industry professionals, local and national media representatives as well as licensed community association managers in Nevada and elsewhere.

Please Note: The host of this site is making some technological improvements, but that means you will need to re-subscribe to receive future updates. You will receive an email inviting you to re-subscribe. Subscribing is as easy as typing your email address on the link provided in the email.

Don't miss out - we have a lot more information to share with our readers. In fact, we are expanding the scope of our coverage in 2010 to include even more information about the brain and spine, its processes and much more.   Be on the lookout for additional authors, videos, newsfeeds and more. Of course, we will provide a detailed analysis of legislative activities and will include posts direct from the capital as items are considered.

Stay up-to-date by re-subscribing! Subscribing is as easy as typing your email address on the link provided in the email.

Latest Update from BIAA

This is the latest as reported by the Brain Injury Association of America:

Federal TBI Program Update

On June 15, 2010, BIAA and other TBI stakeholders met with Mary Wakefield, the Administrator of Health and Human Service’s (HHS) Health Resources and Services Administration (HRSA) to discuss the future of the federal TBI program, one of the programs funded through the TBI Act. The federal TBI program provides grants to states to improve access to care for people with brain injury. 


The meeting was very positive and both the TBI stakeholders and HRSA are committed to working together to bring the attention needed to the program in order to grow the program and receive more funding for the TBI population in each state. HRSA has committed to working with stakeholders going forward to craft a strategic plan for the program and solicit public comment from appropriate entities such as BIAA state affiliates and state lead agencies in order to ensure that elevation of the program is successful.


BIAA is encouraged by the partnership forged between TBI stakeholders and HRSA and will continue to pass on important information as efforts progress.


FMAP Update

Last week, Senate Democrats came four votes short of invoking cloture on the tax extenders bill that includes the extension of increased federal Medicaid monies through June, 2011. After passing a Medicare physicians’ payment bill on its own instead of as a part of the larger extender package, Senator Max Baucus is encouraged that the larger bill still has the support and momentum needed for approval. The bill is expected to be considered in the Senate this week. 


BIAA will continue to monitor the situation closely. If you haven’t taken action on this alert, it’s not too late!


Health Care Reform Update


Last week, the Health and Human Services (HHS) department asked for public comments regarding their draft strategic framework on multiple chronic conditions (MCC). The framework addresses approaches to improving the health of individuals with concurrent MCC by providing options for HHS to strengthen coordination of its efforts internally and collaboration with stakeholders externally.


BIAA submitted a document detailing the concern that the draft framework does not include TBI in the list of conditions that constitute concurrent multiple chronic conditions. BIAA argued that because brain injury has been linked to epilepsy, Parkinson’s and Alzheimer’s disease and that individuals with brain injury manifest neurologic, neuroendocrine and psychiatric disorders as well as cardiovascular, musculoskeletal, gastrointestinal, urologic and sexual dysfunction it absolutely should be addressed in the framework.

UMC Las Vegas Hospital Sued for Billing Patients

UMC is a teaching hospital in Las Vegas.  A teaching hospital allows medical students, interns, residents and teaching physicans to interact and promote medical education.


UMC has had some bad press over the years relating to bad asset management, misuse of privacy, informationfirings of top Administrators, and more.


Patient privacy scandal at UMC goes from rumor to indictment (4-29-2010)

UMC breach surfaces with theft of computer hard drives (3-5-2010)

UMC faces criticism from within medical field (12-23-2009)

At UMC, audits show privacy lapses are not new(11-24-2009)


On June 14, 2010 the Las Vegas Sun reported a class-action lawsuit that claims  the hospital continually designated patients as "trauma patients" in order to overcharge them. "For years, UMC unlawfully billed and collected from emergency room patients millions of dollars in 'trauma' charges when the patients were not trauma patient," the lawsuit states.


Red the article




Teenage Alcohol Abuse Causes Brain Injury

Alcohol abuse by teenagers is similar to drug abuse on brain development.  There are two major periods of mental development: The first three years of life and adolescence.  Hopefully by the early 20s the brain is fully developed.

During adolescence the brain has difficulty handling emotions, seeks high excitement/low effort activities, and has poor planning and judgment skills. You can either think back to your own teenage angst or look at your kids or grandkids.  That combination leads to a cycle in which impulsive decisions to consume reduce inhibitions more and lead to increased impulsiveness and risk taking.

It’s also attractive to teens because consumption begins a short period of feeling good with no effort expended.  Unfortunately this many times sets the stage for adult behavior as well.

The AMA reports, additionly, adolescent females who drink alcohol have a greater risk of benign breast disease than do their non-drinking counterparts, according to new research.

The 2010 statement indicates that the brain's frontal lobes, essential for functions such as emotional regulation, planning and organization, continue to develop through adolescence and young adulthood. At this stage, the brain is more vulnerable to the toxic and addictive actions of alcohol and other drugs.  The developmental interruption is the concern.

Alcohol is the most commonly used and abused drug among youth in the U.S., according to the Centers for Disease Control and Prevention.

Nearly three-quarters of students (72%) consumed alcohol by the end of high school, according to the 2008 Monitoring the Future study, which is funded by the National Institute on Drug Abuse. Each year, the study surveys a total of about 50,000 students in eighth, 10th, and 12th grades. In 2008, 55% of 12th graders and 18% of eighth-graders reported having been drunk at least once.

 The American Academy of Pediatrics has published an updated policy statement on alcohol use by youth and adolescents. The AAP recommends that physicians take the following steps to help prevent and reduce underage drinking:

  • Become knowledgeable about adolescent alcohol, tobacco and other substance use through training programs or continuing medical education.
  • Obtain a complete family medical and social history at prenatal and child wellness visits to explore potential genetic and family influences regarding alcohol and other substance use.
  • Recognize risk factors for adolescent alcohol use and be aware of mental health problems that might occur in this age group.
  • Use validated methods to screen regularly for alcohol and other drug use.
  • Assess patients whose screening results are positive for alcohol use to determine the appropriate level of intervention.
  • Use brief intervention and motivational interviewing techniques to work with patients who use alcohol but do not meet criteria for immediate referral.
  • Discuss the hazards of alcohol and other substance use with patients.
  • Strongly advise teen patients against the use of alcohol, tobacco and other illicit drugs.
  • Encourage parents to be good role models for healthy life choices.
  • Be familiar with local resources to which young patients can be referred for treatment.
  • Support continuation of 21 as the minimum legal drinking age.
  • Support further research into prevention, evidence-based screening and identification, brief intervention, and management and treatment of alcohol and other substance use by adolescents.

Source: American Academy of Pediatrics, "Policy Statement Alcohol Use by Youth and Adolescents: A Pediatric Concern," Pediatrics, published online April 12 .

The Brain Injury Association of America posts the following update:

Tell your Senators to Extend Extra Medicaid Funding Through June 2011!

It is important that all grassroots advocates unite to support the extension of the current elevated Federal Medicaid Assistance Percentage (FMAP) that is currently being debated in the Senate and will be very important to states come the end of this year!

Originally, both the House and the Senate acted to extend the extra match through June 2011, the end of the fiscal year for states. However, the offsets that were supposed to pay for this extension went instead to help pay for the health care reform legislation. Without an extension, the money will run out Dec. 31, 2010, and many states will be forced to make drastic cuts to the federal-state program. The 2009 federal stimulus package provided $87 billion to increase the federal share of the program through December (it included a 6.2% increase of the federal medical assistance percentage (FMAP) under Medicaid).

Last week, House Democrats debated HR 4213, the vehicle for this extension and chose to remove the provision extending extra federal Medicaid funding. With states in fiscal peril due to the recession and unemployment, it is vital that the extra federal funding continues in order to keep health care accessible for many brain injury patients and caregivers!

No Alzheimer's Prevention

New Evidence that prevention will not cure Alzheimer's.  Here is some news that will turn your head around.  Just when you thought you might be doing everything right, you find out you might be wrong.  This reminds me of how much cigarette smoking is condoned Europe.  If you have ever been on an elevator in Italy or France you can not help but notice (and ingest) second hand smoke from the habitual smokers.  Now why is that?  Did Woody Allen's prediction in Sleeper come true?  Are cigarettes really good for you!?  And now the following.

An independent panel of experts meeting in the US concluded there is no evidence that you can prevent or slow down Alzheimer's, a progressive and fatal brain disease, even if you keep yourself active with exercise, social interaction, brain puzzles, or take fish oil, other supplements, or medication.  That is exactly the opposite of what we have been told.

The National Institutes of Health determined that the value of these strategies for delaying the onset and/or reducing the severity of decline or disease hasn't been demonstrated in rigorous studies.  Interestingly, the panel's assessment of the available evidence revealed that progress to understand how the onset of these conditions might be delayed or prevented is limited by inconsistent definitions of what constitutes Alzheimer's disease and cognitive decline. Other factors include incomplete understanding of the natural history of the disease and limited understanding of the aging process in general. The panel recommended that the research community and clinicians collaborate to develop, test, and uniformly adopt objective measures of baseline cognitive function and changes over time.

Alzheimer's Disease and Cognitive Decline, Structured Abstract. April 2010. Agency for Healthcare Research and Quality, Rockville, MD. actually concludes:

The current research on the list of putative risk or protective factors is largely inadequate to confidently assess their association with AD or cognitive decline. Further research that addresses the limitations of existing studies is needed prior to be able to make recommendations on interventions.

 But the initial ramifications may make us all rethink taking up smoking!  If you have not seen it, watch Woody Allen explain it in this short video.


Legislative Update May 21 2010

BIAA continues providing updates at the legislative level.

CDC Forms Disability and Health Work Group


Largely due to the advocacy of the Disability and Rehabilitation Research Coalition (DRRC), the Centers for Disease Control and Prevention (CDC) has announced that they will form the first Disability and Health Work Group to advance the health of people with disabilities.  With cross-agency representation, the work group will focus on incorporating disability status into CDC surveys, showcasing best practices, and ensuring relevant issues for people with disabilities are reflected in CDC programs and policies.


BIAA is pleased that these issues will be elevated within the CDC and will offer any assistance needed to further the group’s efforts.


 House Education and Labor Committee Holds Sports and Concussion Hearing


On May 20, 2010, The House Education and Labor Committee held a hearing to investigate the impact of concussions on student athletes and their academic performance. BIAA was contacted by the Committee early in the planning stages for general guidance of the issue including expertise regarding appropriate witnesses.


In conjunction with the hearing, a Government Accountability Office (GAO) report was released finding that concussions in high school athletes are widely unreported and under-diagnosed suggesting a gross underestimate of the overall national occurrence of concussion in high school sports.

Dementia and Driving

When my grandmother got old enough to officially be considered "blind" we decided it was time to take away her car and driving ability.  First off, I bought her the car a few years ago and so she spent her last years driving a new sporty car as opposed to the 20 year old Toyota her late husband left her.  And second, I moved her in with me to help make up for the transportation burden.  We drive her wherever she needs to go.  But a responsible decision needed to be made to get her less than safe driving skills off the road.  For her sake, our sake, and most importantly, for the sake of other drivers and passengers including little babies.

But taking away an elder's ability, or right, to drive is a dire move.  It supports the reality that as we age, more and more is taken away from us.

Dementia from normal aging also requires difficult decisions regarding driving.  Dementia is a loss of brain function that occurs with certain diseases. It affects memory, thinking, language, judgment, and behavior.And since, statistically, those who suffer brain injury are more likely than not to develop dementia, driving may be an issue for those with mild and moderate brain injury. blogs "As a general rule, individuals with early stage or mild dementia who wish to continue driving should have their driving skills evaluated immediately (see “Arrange for an Independent Driving Evaluation” below). Individuals with moderate or severe dementia should not drive."

Insurance Company studies state Yes, there is enough small-scale research to tell us that over time, driving and dementia don't mix. The harder question is exactly when driving skills deteriorate? This question is harder to answer and the research is not clear enough to give a simple answer. That is why we recommend an approach that includes observation of driving skills right from the point of diagnosis and planning ahead for the time when the person must stop driving.

The American Academy of Neurology has issued a new guideline to help determine when people with Alzheimer's disease or another type of dementia should stop driving. The guideline is published in the April 12, 2010, online issue of Neurology®, the medical journal of the American Academy of Neurology.

Dementia reveals itself in many ways.  For example Dementia symptoms include difficulty with many areas of mental function, including:

Emotional behavior or personality
Cognitive skills (such as calculation, abstract thinking, or judgment)

 The guidelines also found that caregivers should trust their instincts. A study found that caregivers who rate a patient's driving as "marginal" or "unsafe" were often proven correct when the patient took an on-road driving test. On the other hand, patients who deemed their own driving as "safe" were not necessarily accurate in their own assessments.

Caregivers and family members play a role in identifying warning signs from unsafe drivers with dementia. These include:

Decreased miles being driven


Moving violations

Avoiding certain driving situations, such as driving at night or in the rain

Aggressive or impulsive personality traits.

Read the full report and guidelines at

Trial Law Promotes Car Safety


 Click on this link for the entire report and illustrations The impact of litigation on car safety.

 The impact of litigation on car safety.

Beginning in the 1960s and ranging from gas tanks, side-impact design, air bags, seat belts, and power windows, the civil justice system has worked hand-in-hand with regulation to protect Americans while spurring generations of safety innovations.

This report marks the beginning of renewed efforts to not just defend, but promote the importance of the civil justice system and the important work trial attorneys do every day.

The American Association of Justice, the national group of plaintiff trial lawyers, compiled the following data and produced a report outlining the safety impact trial and litigation has had on corporate promotion of profit over safety to consumers.  The last century has seen safer cars and corrected consumer safety issues.

BIAA Legislative Update May 2010

BIAA reports the following"

BIAA Endorses the Christopher Bryski Student Loan Protection Act

This week, BIAA joined Congressman John Adler in support of a bill that would ensure a method be in place when applying for Federal or Private student loans to designate who will make decisions on your behalf regarding all medical, financial, and legal matters in the event you are catastrophically ill, catastrophically injured, temporarily disabled, permanently disabled or deceased. 

On June 17, 2004, 23 year old Christopher Bryski fell forty five feet to the ground in a recreational accident. He sustained a severe Traumatic Brain Injury and was in a coma for approximately 4 weeks. After emerging from the coma Christopher remained in a persistent vegetative state for almost two years before passing away on July 16, 2006.

At the time of Christopher’s accident, he was in his third year of academic study at Rutgers University and needed to supplement his federal student loans with a private alternative education loan through a private lender, in which his father was a co-signer and is still liable after his death for the amount of the loan.

The bill introduced by Congressman Adler would address this important issue for parents and caregivers in the following ways:

Any private educational lender (i.e Citibank, Wells Fargo, Chase, PNC, etc.) shall:

·         Discuss with the student and the cosigner of the loan the benefits of creating a power of attorney, in the event of the death of incapacity of the student or cosigner


·         Define clearly and concisely the obligations of the cosigner, including the effect of death or incapacity of the student or cosigner


·         Discuss with the student and the cosigner the benefit of credit insurance in connection with the loan, however the private educational lender may not require credit insurance or deny a loan on the basis that the borrower or any cosigner has not obtained credit insurance


·         Gives power to the Federal Reserve to define death or incapacity in conjunction with the Secretary of Education and institute standards regarding the borrower’s or cosigner’s obligation if the borrower or cosigner were to die or become incapacitated


·         Federal PLUS Loans and Federal Consolidation Loans:


·         Discuss with the prospective borrower the uses and benefits of creating a durable power of attorney in the event of the death or incapacity of the borrower or the student on whose behalf the loan is borrowed by the parent borrower


·         Amends Entrance Counseling requirements for Federal Loans:


·         Provide information during entrance counseling that describes the loan discharge rules in the case of death of disability, and the possibility that private loans may not be discharged upon death or disability


·         Provide information with respect to creating a durable power of attorney and its benefits and uses


BIAA applauds Representative Adler for his commitment to this important issue and will continue to monitor the status of the bill and advocate on its behalf.

Largest Nevada Verdict

In following up my last post on the Endoscopy trial, a jury has awarded a historic $500,000,000 -Five Hundred Million - punitive damage award.  The original compensatory damage award was a combined $5,100,000 for both plaintiff's husband and wife for husband's contracting Hepatitis while a patient at the Endoscopy Clinic.

This verdict makes the last Nevada award against a pharmaceutical company pale at only $99,000,000 against Wyeth in 2005.

I predict, as set out in my first commentary on the trial, that appeals and post trial motions will be pending for some time.

Today's Las Vegas Review Journal set out many of the details of the trial including an initial offer to settle for $1,700,000 by plaintiffs; and  one of the drug company is Israeli based.  The award, says attorney Robert Eglet, is one of the largest in the United States.

Drug Companies Found Liable For Man's Condition

Endoscopy Clinic-Hepatitis Trial results in $5.1 million award.  Punitive Damages have been approved and will be disclosed soon.

The Las Vegas Review Journal reported the following.

LAS VEGAS -- A Clark County jury will debate punitive damages Thursday in the case of two drug companies found liable for a Las Vegas man contracting hepatitis C at a southern Nevada endoscopy clinic. The jurors on Wednesday ruled in favor of Henry Chanin, awarding him $3.2 million, and awarding his wife, Lorraine, $1.8 million. Chanin’s attorney had argued for an $8.5 million reward.

Chanin sued Teva Parenteral Medicines and Baxter Healthcare, accusing the companies of intentionally selling excessive vials of the drug propofol to the clinic.

His attorney argued the company's actions led clinic employees to inject him with five times the amount of propofol needed during his treatments, increasing his chances of exposure to hepatitis.

The jury found the companies liable on a count of failure to warn and a count of breach of implied warranty of fitness for a particular purpose.

A total of 106 people were infected and thousands more were tested in the two years following the first reported case in December 2007, according to the Southern Nevada Health District.

I commented on the trial previously.

Hockey Can Cause Brain Injury Too

As I have previously stated in past posts, sporting events like boxing, martial arts and football can lead to brain Injuries.

In Roman times gladiators fought to the death (and sometimes not) for sport.  Have we really become less sadistic in watching "athletes" give eachother brain damage for the sport of it?

Well recently posted was a story that brings Hockey to the forefront of the brain injury causing sports.    Boston Bruins assistant captain Patrice Bergeron's Bruins teammate Marc Savard is slowly recovering from a Grade 2 concussion he suffered March 7 in Pittsburgh, the result of a blindside hit by the Penguins' Matt Cooke. The Bruins have come to the realization that they will be without their top playmaker for the remainder of the season, which is a crushing blow to a team fighting for a postseason berth.

Savard remains at home, and the only moving around he's been doing is going to the hospital for examinations; according to coach Claude Julien, Savard has made little progress.

Patrice Bergeron knows firsthand what it's like to suffer a head injury.

His career was in question after he suffered a Grade 3 concussion on an Oct. 27, 2007, hit by the Philadelphia Flyers' Randy Jones that cost him the last 72 games of the season. Fortunately Bergeron recovered, returning to the ice last season, and is completely back to form now.

Any time Bergeron sees or hears about a hockey player suffering a head or neck injury, the news hits close to home for the 24-year-old.

Reggie Fleming, a defenseman and left wing known for fighting as much as scoring in a long career from 1959 to 1974, was found by Boston University researchers to have chronic traumatic encephalopathy, a neurodegenerative disease known to cause cognitive decline, behavioral abnormalities and ultimately dementia. Fleming died in July at age 73 and was the first hockey player known to have been tested for the disease.


Which Way Home for War Weary Troops?

The way home for war weary troops is a revolving door between the States, Iraq and Afghanistan.  MSNBC recently reported the tragedy of Major Jeff Hall's and Joe Callan's multiple deployments to war torn zones with brief breaks at home in the United StatesFor many U.S. vets, life becomes a revolving door of war, home, then back to combat — where they again face the same dangers and stresses.

Nearly 300,000 troops have served, three, four or more tours of duty in Afghanistan or Iraq.  The signs, symptoms and consequences of multiple blast injuries to the brain and PTSD show up when soldiers come home and too often are misunderstood and neglected.

With two long wars — Afghanistan is in its ninth year and Iraq just entered its eighth — the U.S. military finds itself straining to maintain a steady flow of troops. More than 2 million men and women have been deployed to serve in both conflicts, and more than 40 percent of them have served at least two tours, according to military records.

Nearly 300,000 troops have served three, four or more times. And, records show, more than half of those currently at war are at least on their second tour. (The vast majority of deployments last more than six months.)

For these men and women, life becomes a revolving door of war, home, then back to combat — sometimes within months — as they face the same dangers, the same stresses and the same agonizing separation from family. Some soldiers are gone so often, they're more comfortable being away.

The article looks deeper into the issues surrounding these military men and women.

Legislative Update April 2010

The Brain Injury Association of America continues to update us:

On Thursday, April 22, 2010, the Senate cleared an omnibus veterans’ health care measure that provides important assistance to both veterans and caregivers. S. 1963, as modified by the House, includes nearly $1.6 billion in authorizations for programs designed to aid caregivers of eligible veterans.


The measure, which now goes to the White House for President Obama’s signature, is intended to strengthen the health care support system for veterans and to expand services in rural areas. The measure will also expand caregiver programs, making them eligible for training and education assistance.


The bill also authorizes VA hospitals to contract with non-VA providers, as stated in the bill:

“The Secretary may contract with appropriate entities to provide specialized residential care and rehabilitation services to a veteran of Operation Enduring Freedom or Operation Iraqi Freedom who the Secretary determines suffers from a traumatic brain injury…”


Both BIAA and the Wounded Warrior Project have long advocated for approval of this measure and yesterday’s final passage signified a great victory for service members who suffer from TBI and their families.


Health Care Reform Update

After several weeks of delving into the final text of the health care reform bill, our partners at Powers, Pyles, Sutter & Verville, PC, sponsored by BIAA’s Business and Professional Council, have prepared an analysis of the major provisions that impact our community.

Endoscopy Center and Drug Manufacturer Trial Commentary

The first trial involving injured patients of Las Vegas Endoscopy Center began with Opening Statements this past Monday after a full week of Jury Selection. The plaintiff is represented by one of Las Vegas’ preeminent lawyers, Robert Eglet, who has amassed many multimillion dollar verdicts during his career. And to do what plaintiffs are doing in this case takes a Robert Eglet to pull off. Mr. Eglet has carefully and certainly orchestrated his evidence and witnesses and planned the destruction of the defendants’ evidence and witness. He has also made other subtle arrangements to upgrade his chances of winning big.

I make two points:

1.       Malpractice Caps are wrong and Result in Going Around.

2.      Leaking Settlements by other Defendants to the Jury May keep the Round Going.

This case, has been headline and news fodder for the past few years. Dr. Desai was paraded around the News Networks claiming he was not mentally competent to assist his counsel and otherwise villain-ized in the media. The Endoscopy Center was immortalized as a place of contaminating disease ridden practices. Nurses were subject to new regulations not allowing them to administer injections without a medical doctor present.

The past few years have created a public distrust and, I would say, outright hate of the Endoscopy Center, its physicians and Dr. Desai; Perhaps not for bad reason. I just point this out because it will only be useful for plaintiffs in this case. The more the jury dislikes one side the more apt they are to consider giving to the other side.

The interesting and potentially problematic issues are that the jury knows the “other parties” (Dr. Desai) settled.  Given public knowledge that Nevada adopted Medical Malpractice limits of $350,000, the jury pretty much knows about how much the plaintiff got. Simple math, combined with sympathy (which plaintiff here deserves) may cause a jury to award the difference between what plaintiff got and what they should get against the only parties left in the lawsuit: the drug company that makes the vials of the drug that was reused.

The theory goes like this: since the drug company could have and actually did make smaller 10ml vials they should not have sold 50ml vials to the Endoscopy Center since it would tempt medical workers to reuse used vials and spread disease. This is all caused by the drug company’s loss of profits producing 10ml vials when it could force all users to buy more expensive 50ml vials. In fact that is exactly what the drug company did, thus boosting its financial reports. This enhanced financial picture allowed the drug company to sell itself at a higher price thus enriching the owners and directors of the company. Hence the catch phrase, profits over consumer safety.

And herein is my first rub with the Medical Malpractice Cap of $350,000. Creative lawyers are left to their creativity. You can only get so much for a client injured by medical malpractice. And since lawyers spend so much of their time and money pursuing recovery for those clients, it makes little sense to champion these causes when the client may get little or nothing even if she wins. Mr. Eglet has tried to recoup the difference between what his client got out of the malpractice cap against Dr. Desai and the Endoscopy Center by suing the nearest deep pocket. 

"For full justice for what has happened to him, $10 million is the right number," Eglet said.

The theory? Well, that the company made vials that had too much medicine in them. This in turn “tempted medical workers to reuse vials among patients rather than throwing them away.” LVRJ, April 20, 2010.

Despite going against every medical principle known to the medical profession, intentionally contaminating patients, the temptation being too great for the medical workers is what the jurors will have to agree with to pay these injured plaintiff’s more than the small amount they got.  But since their temptation was only worth $350,000 Mr. Eglet, one of the few attorneys capable to do so in the state and maybe the country, will make that argument. But the insurance capping made it this way.

 And then of course the legislature can get campaign financing from anyone, including corporations. And corporations, according to the Supreme Court, derive the same rights as individuals.

In summary, the “going around” is the need to get around the malpractice caps.

My second point is; once the whole world (and the jury) found out that the “other defendants” settled out as reported on every local news network and paper, the jury will surmise,  whether the drug company was intentionally manipulative or not, the only way to pay these poor people will be to give them compensation from the remaining defendants. Typically, this so-called “empty chair” is not explained to a jury: where a defendant settles out before trial and another defendant does not. And no party can argue it was the defendant that settled out’s fault. Then an offset applies, by the Judge, after the jury makes its award without consideration of the other settlement. 

Here that empty chair is screaming “we already settled!” The fact that the jury hears that may give grounds to the losing party to appeal. And an appeal will take years. An appeal may result in another trial.

And so, the going round keeps going.

Implications Of 'Intelligent Design' For Human Behavior

What is Inteligent Design and What is Random?  I recently came across a statement by Wasserman and Blumberg in the May-June issue of American Scientist that I want to share.

Do not take this too seriously...or do.

Although evolutionists and creationists strongly disagree about the role that intelligent design plays in the origins of bodies and brains, they curiously agree about the role that intelligent design plays in the origins of human inventiveness. However, both camps would do well to focus less on perceived foresight and purpose and more on the actual origins of behavior.

Contemporary evolutionists such as Richard Dawkins should move beyond the arcane argument over where to draw the line between things that "really are designed" and "things that only appear to be designed." By doing so, Wasserman and Blumber note, we will better appreciate the actual forces that unite the processes of change across both evolutionary and developmental timescales.
And that I like:  appreciating the actual forces that unite the processes of change across both evolutionary and developmental timescales.  Is your language science?  Is it theology or philosophy?  Do you call it God, Jesus, Mohammad, or simply "the force?"  I believe something is there, what ever you want to call it.

ICD Heart Regulator Improves Thought Process

Interestingly, devices similar to pacemakers that regulate blood flow through heart control, promote good neuropsychological health.  A March 2010 study confirms.

A standard test of the implantable cardioverter defibrillator (ICD) is linked to significant thought-processing problems that improve for most patients within a year after the device is inserted, according to research reported in Circulation: Arrhythmia and Electrophysiology, a journal of the American Heart Association.

 Conclusions—ICD implantation is associated with neuropsychological impairment which dissipates for the majority of recipients after 12 months. Short-term memory function and attention are particularly vulnerable to changes in oxygen during ICD testing. Although, anxiety and depression are prevalent, there is little evidence for the direct impact of mood on cognition, and deficits appear not to be associated with reduced quality of life. These results provide evidence for longitudinal outcomes of ICD surgery and have implications for patient rehabilitation and adjustment.

Insurance Company Sued Raising Insurance Rates

The Los Angeles Times and the Associated Press  report  health insurance rate increases by Anthem Blue Cross resulted in lawsuits by policy holders.

The suit, which could gain class-action status, alleges that Anthem has violated "state law by closing certain policies to new members while illegally offering remaining customers alternative plans with fewer benefits at higher rates."

Meanwhile, the Kansas Health Institute has a package of stories about a malpractice case being considered by the Kansas Supreme Court in which the justices could determine if the state's caps on medical malpractice awards are constitutional.  The case involves a woman whose doctor removed the wrong ovary resulting in an award that was reduced based on the State's cap on medical malpractice lawsuits.

There is no argument that medical care costs have to be curtailed and are out of control.  Insurance companies are gouging  consumers by increasing rates to unattainable levels leaving people and businesses without insurance.

At the same time that medical negligence caps are unfairly limiting consumers rights to recover for genuine mistakes their doctors make.

And the legislature continues to mull over health care reform while the democractic majority leader, Harry Reid, suffer's personal set back relating to his wife and daughter's injury when a semi tractor rearended the car they were in. 


The New Deal for 2010!

FDR's New Deal gets a facelift in 2010.  Health Care reform has arrived.  And in the words of the Vice President, It is "a big f------g deal!"

The Brain Injury Association of America posts the following:


·         Prohibits private health insurance exclusions for pre-existing conditions.

·         Eliminates annual and lifetime insurance limits or "caps" in private insurance policies.

·         Restricts the consideration of health status in setting premiums.


·         Ensures that minimum covered benefits include products and services that enable people with brain injury to maintain and improve function, such as rehabilitation and habilitative services and devices. BIAA, along with our Business and Professional Council, and assisted by Powers, Pyles, Sutter & Verville, PC was the driving force in ensuring that rehabilitation was listed as a minimum benefit in this bill. Originally, when the bill was made public, rehabilitation was not listed as a minimum benefit.

Long Term Services and Supports

  • The Community Living Assistance Services and Supports (CLASS) Act creates a national long term services insurance program which assists eligible individuals and their families to meet long term needs with a cash benefit and without forcing them into poverty to receive Medicaid benefits.
  • The Community First Choice Option helps to eliminate institutional bias by encouraging  states to cover personal attendant services under the state’s optional service plan instead of through the waiver system by offering a 6% increase in the federal share of Medicaid for these services.

It is also important to note that, as part of the debate, Congressman Bill Pascrell, Jr., co-chairman of the Congressional Brain Injury Task Force, submitted a statement for the record detailing his understanding of the intent of the bill with regards to coverage of the treatment continuum for people with brain injury. BIAA thanks him for his hard work and dedication to this important issue.

Along with passing the Senate bill, House Democrats also approved a reconciliation bill that reflects negotiations reached by congressional Democrats and the White House to modify the version earlier passed by the Senate. This would be a “fix” that would eliminate the special deals given to certain states in return for Senate votes as the bill was passed by the Senate in December.

The Senate is expected to take up the bill as early as Tuesday under special budget reconciliation rules that will shield it from filibusters. BIAA will continue to monitor the situation closely as consideration concludes. 


Finally, BIAA would like to recognize the grassroots advocates that have truly made a difference in advocating for this historic legislation. Thank you to everyone who invested so much of their time to push this forward!

Malpractice Caps Unconstitutional

The American Justice Association reports Georgia's Malpractice caps are unconstitutional.

Georgia High Court strikes down cap on medical malpractice awards.

The Atlanta Journal-Constitution (3/23, Rankin) reports, "A unanimous Georgia Supreme Court on Monday struck down limits on jury awards in medical malpractice cases," ruling that the $350,000 cap on noneconomic damages violates the right to a jury trial guaranteed by the Georgia Constitution, as the cap "'clearly nullifies the jury's findings of fact regarding damages and thereby undermines the jury's basic function,' Chief Justice Carol Hunstein wrote for the court."


        The AP (3/23, Bluestein) reports that the ruling "will likely herald a flurry of new litigation, as the court said the ruling applied retroactively to all other pending medical-malpractice cases, including those that are now in the appeals process." In the case before the court, Betsy Nestlehutt "was awarded $1.15 million in non-economic damages -- including $900,000 in pain and suffering -- by a Fulton County jury after she was permanently disfigured after a botched facelift."


        The New York Times (3/23, A19, Brown) reports, "The ruling was praised by victims' rights groups and plaintiffs' lawyers and was condemned by doctors and Republican lawmakers."


        The Fulton County Daily Report (3/23, Palmer) reports, "Atlanta lawyer R. Adams 'Adam' Malone of Malone Law, who represents the plaintiffs in Monday's case, expressed gratitude for the unanimous nature of the ruling."

More Commercial Truck and Bus Drivers Using Safety Belts in 2009

I was pleasantly surprised by findings of a 2009 survey recently published by the Federal Motor Carrier Safety Administation. 

As a short prelude to the findings, I always wondered why the law could enforce seatbelt usage and buses rarely even came equipped with them.  Well, at least not for passengers.

Although the regulations distinguish school buses from other passenger carrying buses, do we want our kids buckled up on their way to and from school?  What do you think about that?

New data from the U.S. Department of Transportation's Federal Motor Carrier Safety Administration show 74 percent of commercial truck and bus drivers are now using their safety belts. Only 65 percent of drivers were using safety belts in 2007.

A total of 20,818 commercial drivers operating medium- to heavy-duty trucks and buses were observed at 827 roadside sites nationwide for the survey. Key findings include:

  • Safety belt use for both commercial drivers and their occupants was higher at 78 percent in states where law enforcement may stop drivers for not wearing a safety belt, versus 67 percent in states with weaker belt use laws.
  • Commercial drivers for regional or national fleets showed higher safety belt use at 78 percent, versus 64 percent for independent owner-operators.
  • Safety belt use rates for commercial drivers and their occupants were highest at 79 percent in the West, compared with 75 percent in the South, 68 percent in the Midwest, and 64 percent in the Northeast.

The executive summary for the Safety Belt Usage by Commercial Motor Vehicle Drivers Survey and other safety belt educational materials may be found at

Heath Care Reform

We are down to the wire on Health Care.  The Brain Injury Association of America again prompts action.  I have written my representative to support the health care bill.

Brain Injury Awareness Day, 2010

Thank you to everyone that made this year’s Brain Injury Awareness Day on Capitol Hill a huge success! With record attendance at both the brain injury fair and briefing, hundreds of community members, survivors and state affiliates met with various lawmakers to advocate for increased brain injury appropriations, access to brain injury care, caregiver assistance, and other important issues.  Congratulations to all for a very successful day!

Health Care Reform Update

This week, both President Obama and Speaker Pelosi lobbied to win passage of their health care reform package. However, it is still unclear whether the two have procured the 216 votes needed to win the House vote that is projected to happen this Sunday. 

Now is the time for grassroots to act! I have copied below the action alert that was sent out earlier this week. If you have not yet called your representative, please do so as soon as possible!


Call Your Representative NOW – The House will Vote on Health Care Reform this Week!


The House of Representatives is set to vote on the Senate health care reform bill at the end of this week. If the measure fails, the hope of health care reform will likely vanish for this year and maybe even for years to come.

Even though the House and Senate have both passed their versions of health care reform, the only way forward for the bill is for the House to approve the Senate version.

Your voice matters now more than ever. Call TOLL FREE 1-888-876-6242, if you don’t know who your representative is, click here.

Urgent Brain Injury Health Care Reform

Brain Injury Association of America notes The House of Representatives is set to vote on the Senate health care reform bill at the end of this week.

Call Your Representative NOW – The House will Vote on Health Care Reform this Week!


The House of Representatives is set to vote on the Senate health care reform bill at the end of this week. If the measure fails, the hope of health care reform will likely vanish for this year and maybe even for years to come.


Even though the House and Senate have both passed their versions of health care reform, the only way forward for the bill is for the House to approve the Senate version.


Your voice matters now more than ever. Call TOLL FREE 1-888-876-6242, if you don’t know who your representative is, click here.


Tell your representative that you are a constituent that is concerned about health care reform.  Specifically, people that have sustained brain injuries need health care reform because:

  • Millions with health insurance are now at the mercy of insurance companies that charge premiums beyond affordability.  The legislation would limit these increases.
  • Many with insurance find that it won't cover them when they get sick - even after they have paid premiums for years.  The legislation will ban denials based on pre-existing conditions in children and adults.
  • Patients who reach their lifetime insurance cap after a catastrophic injury or illness will be able to continue treatment in order to regain functionality and have a better chance of returning to work or school.  The bill will eliminate lifetime insurance limits.



Investing money now will save the government millions of dollars later when the private insurance companies are required to take responsibility for the premiums they collect instead of turning individuals facing catastrophic injury or illness away to rely on public plans and ultimately, the American taxpayers.


Some representatives in the House are debating on whether to vote for or against the bill. Regardless of how they voted in the past, many are still waying their options.  This measure is vital to the brain injury community, and we need your help to ensure that people with brain injury gain access to the care that they need and deserve!  CALL NOW!

Back, Neck and Spine Injury Diagnosis

As a back and neck injury lawyer in Las Vegas, Nevada, I encounter untreated or undiagnosed spine injury often.  Even though back pain can affect people of any age, it is significantly more common among adults aged between 35 and 55 years.

Experts say that back pain is associated with the way our bones, muscles and ligaments in our backs work together.  

There are several diagnostic tests to assist physicians in detecting and treating back and neck conditions.

An interesting review entitled "Physical examination for lumbar radiculopathy due to disc herniation in patients with low-back pain" (Van der Windt DAWM, et al. Cochrane Database of Systematic Reviews 2010) reveals that diagnosing back pain is not a simple matter. I read the findings.


While lower back pain ranks as a common cause of disability in the United States, determining what causes a person's back pain is often challenging. A new review on diagnosing back pain finds that no single diagnostic test is good at discriminating between patients who have a herniated disc and patients who do not.


Lawrence Kurz M.D., an orthopedic spinal surgeon at Beaumont Hospital in Royal Oak, Mich., agreed with the results of this review: No one test is specific and sensitive enough to be used as the sole guide for making an accurate diagnosis of disc herniation as the cause of sciatica.

Healthy discs are spongy cushions of cartilage that fill the spaces between vertebrae in the spine. They act as shock absorbers for the spine and allow flexibility. A herniated disc can occur when a disc incurs damage because of trauma or stress and bulges outside of its normal position to press on a nerve. This can result in pain that radiates down to the lower leg - also called sciatica.

In other conditions, including osteoporosis and similar aging disorders, bony structures could press on nerves, causing pain.


Representing injured people with back and neck pain complaints requries diverse diagnositic testing.  Insurance company representative all too often point to one test to either deny or rule out a condition.



Nevada Senator Harry Reid's Family Misfortune

The Washington Post is keeping us apprised of the very serious semi-tractor trailer crash with Nevada Senator Harry Reid's wife and daughter's van this week.

Police said the Reids' van was rear-ended and crushed by a fully loaded tractor-trailer while driving in heavy Virginia traffic.

Luckily, given the severity of the impact and variables making the crash especially dangerous, the outcome appears to be positive.  The tractor-trailer hit the Reids from behind pushing them into the car ahead of them and that car, inturn, into the car ahead of it.  The injuries were reported as a "broken back and broken neck!"

The Senator and his family will continue to receive the hopes and prayers of my family.


Brain Injury Association of America Legislative Update

BIAA Unveils 2010 Legislative Fact Sheets

On March 3, 2010, BIAA made available its 2010 legislative fact sheets. The fact sheets outline the agenda for this year including, access to care for both civilian and military populations, TBI Act and research funding, TBI Act reauthorization, caregiver assistance, and support for the Congressional Brain Injury Task Force is now available on our home page!

Brain Injury Awareness Day 2010

Don’t forget that this year’s Brain Injury Awareness Day on Capitol Hill is set to take place on March, 17, 2010. 

Below is the schedule of events for the day:

10:00 AM – 1:00 PM - Brain Injury Awareness Fair, First Floor Foyer of the Rayburn House Office Building

2:30 PM – 4:00 PM - Briefing: “From the Playground to the Pros: A Heads-Up on

Concussion”, Capitol Visitors Center – Congressional Meeting Room South

5:30 PM – 7:30 PM - Reception Celebrating Brain Injury Awareness Month, First Floor Foyer of the Rayburn House Office Building

Hope to see you there!

Health Care Reform Update

House leaders this week prepared a schedule to bring health care reform to a vote before Congress adjourns for its two-week spring recess, which begins on March 26, 2010. BIAA continues to advocate for provisions important to the brain injury community and will alert grassroots advocates if action is necessary.

Skier CR Johnson killed at Squaw Valley

Skiing accident claims another life joing the ranks of celebrities Natasha Richardson and Sonny Bono.  Sadly, a skier who previously suffered brain injury, was again injured despite wearing protective gear and helmet.

Squaw Valley, home of the Oympics, is a popular ski resort near Lake Tahoe, California.  It is also close to Lake Tahoe, Nevada.  Lake Tahoe is partly in California and partly in Nevada.  You can stand with one foot in California and one in Nevada in the town of Southshore, about 45 minutes from Squaw Valley.  The Nevada side has hotels and casinos which abruptly stop on the California side.

ESPN reporter Micah Abrams:

Twenty-six-year-old C.R. Johnson was killed Wednesday while skiing at Squaw Valley, Calif. According to a statement issued by the resort, the Lake Tahoe native caught an edge on exposed rocks while entering the Light Towers area above the Cornice II lift. He fell through rocks before coming to a rest several hundred yards below the entry. Ski Patrol were on the scene within minutes, but efforts to revive Johnson failed. He was reportedly wearing a helmet.

Johnson was known in recent years for his inspiring return to skiing after a traumatic brain injury that he suffered in December of 2005. The injury, sustained when another skier accidentally landed on him during a run, left him in a coma for 10 days. He spent 34 days in the hospital and several months in rehab, but was back on snow by the end of that winter. He made steady progress in recent seasons and this winter finished third in the prestigious Red Bull Linecatcher event in the French Alps.

The ongoing injury and particulary brain injury that permeates so many sporting events, warrants the repeating..."Wear a helmet and protective gear."

BIAA Health Care Reform Update

The Brain Injury Assocation of America posted this Health Care Reform Update.  Yesterday, President Obama and members of Congress and the Senate, Republican and Democrat, met to hash out a Health Care Reform Bill.  American Association of Justice President, Anthony Tarricone, appeared on Anderson Cooper 360:

Health Care Reform Update

On February 22, 2010, in the wake of the legislative hold put on Congress after the recent Massachusetts election, the White House released an 11-page health care overhaul proposal that would extend coverage to more than 31 million people, at a 10-year cost of $950 billion. The White House says that the cost would be offset by spending reductions and tax increases, resulting in $100 billion of deficit reduction. CQ

Also this week, a bipartisan summit convened to discuss the administration’s health care plan. The White House facilitated the six-hour summit to focus on controlling costs, overhauling insurance regulations, reducing the deficit and expanding health coverage. 

The group of 40 representatives and senators agreed on a new set of baseline insurance regulations but were still at odds about things like the cost of insurance premiums, patient choice issues, and deficit calculations. 

BIAA is monitoring the situation closely and will continue to advocate for a health care reform plan that will provide people with brain injury access to the full continuum of care that they need and deserve.


Brain Injury Awareness Month

As most of you already know, March is brain injury awareness month! BIAA will be unveiling its 2010 legislative agenda on Tuesday, March 2, 2010. Fact sheets outlining the agenda for this year including, access to care for both civilian and military populations, TBI Act and research funding, TBI Act reauthorization, caregiver assistance, and support for the Congressional Brain Injury Task Force will be available on our website starting Tuesday!


Does the Recession Devalue Brain Injury?

This article I found today suggests, thank goodness, that while the economy may tank, the perceived "value" of brain injury and its consequences does not tank as well.  Today's post is a reprint of Barbara L. Jones article on February 24, 2010 for Finance and Commerce entitled "Economy’s down, but value of brain-injury cases isn’t."

Lawyers finding juries are more sympathetic during hard times

It’s a truism that juries, and hence insurance companies, become tight-fisted with damages arising from personal injury lawsuits during a recession, but that isn’t necessarily accurate when it comes to catastrophic injuries, such as traumatic brain damage. Some attorneys who handle such cases have found that if anything, the recession has encouraged them.

“The high-end cases are still high-end,” said Woodbury attorney William Harper, who recently settled two brain injury cases for the policy limits of $1 million. “The only reason they settled is that they were worth a lot more.”

Ever since the 1983 Supreme Court case of Short v. Dairyland, the law has been clear that an insurer can be liable for excess damages if the court finds a bad-faith failure to settle the case.

Defense attorneys agree that the economic climate has not diminished the value of brain-injury cases.

All personal injury cases with real objective damages that strike a chord with jurors still have the potential for high damage awards, according to defense attorney Mark G. Pryor of Minneapolis.

St. Paul defense attorney Terry Votel agreed, adding that catastrophic injuries are particularly invulnerable to the ups and downs of the economy.

There are several reasons the damages in brain injury cases remain high, attorneys say.

One is the skyrocketing costs of medical care. In fact, Harper said, the legal system’s method of awarding damages cannot keep up with the cost of lifelong medical care because jurors are instructed to reduce the verdict to a present value amount. But medical costs don’t “reduce,” Harper said.

Neither do the costs of caring for the injured person in the home. “My goal is always to bring the client home. That is a cost that should be borne by the (party found to have committed the tort),” said Anoka attorney Fred Soucie.

Another reason is that brain injury cases are readily demonstrable, both by medical evidence and through changes in the plaintiff’s behavior and moods. A traumatic brain injury will affect the person’s personality, judgment and concentration — which in turn affect the person’s ability to earn a living.

When the injury is catastrophic, the damages usually are self-evident. “I have had jaded insurance company lawyers say that the person has no pain and suffering because they are [so injured that they are] oblivious. That’s immoral and tactically stupid,” Soucie said. If jurors feel that the injured person is aware and suffering, they will punish the defense lawyer who appears callous in the extreme, he explained.

But even a “mild” injury can be proven, Soucie continued.  In fact, calling the injury “mild” can be a misnomer. Technically, the term “mild” is defined by the period of post-injury amnesia or loss of consciousness but the effects can be severe. The person may change dramatically, and friends, family and co-workers can explain the difference, he said.

Emotional value for juries

Additionally, the injuries are very compelling to jurors, Soucie said. “There’s always some juror skepticism but their hearts and minds are easily wrapped around these injuries,” he said.

The injuries are also capable of medical demonstration, said Minneapolis attorney Peter Riley, who recently settled a $3.4 million case involving multiple skull fractures among other injuries. Often the injury will show up as a bleed on a CAT scan or on an MRI, he said. “The defense [then] has a hard time saying the injury is due to something else,” Riley said.

Additionally, neuropsychometric testing can test for memory and brain functioning, showing exactly where the brain is damaged, and the test results can be matched to the patient’s symptoms, Riley said.

The neuropsychometric testing also can reveal any compensatory measures the brain has taken to make up for the injury, Riley said. In those cases, the jury has to be educated about the test results. If his recent case had called for it, Riley said he would have “backloaded” the plaintiff’s testimony by educating the jury beforehand so they would not have an opportunity to form an inaccurate opinion about the brain damage.

Not all head injuries are the result of trauma that reveals itself physically. Bloomington attorney Richard Ruohonen recently received a $128,000 verdict for a man who received an electric shock. The defendant, the city of Glencoe, had offered $50,000. The man was injured when he touched a pole the city had installed in his yard, but which was connected to a power line. He received five to 10 seconds of electric shock.

An electrical injury is more diffuse than an injury to a lobe of the brain, explained Ruohonen. His client’s injuries included loss of attention and concentration, memory impairment, pain and headaches. He also had a sleep disorder caused by injury to the brain stem, Ruohonen said.

This was a case of a skeptical insurance company. “They basically were saying it was all in his head,” Ruohonen said.

Actually, the case would have been more valuable but the client had a subsequent workers’ compensation injury to his neck. “That was the day the city got lucky,” Ruohonen said. The case might have been worth as much as $250,000 without the second injury, he explained. However, he is pleased with the result.

It would be speculating to say that the economy played role in the size of the verdict, Ruohonen said. It could also be that people in rural communicates are more conservative or that there were a lot of younger jurors (under age 35), he said.

The personal injury business can actually pick up during a recession, Ruohonen said. He noted that he is getting more calls from people whose injuries are two or three years old, and thinks perhaps they are now more hesitant to pursue their own claims. Besides, he added, “people down on their luck can be more sympathetic plaintiffs.”

And jurors don’t have a lot of sympathy for corporate or commercial defendants right now, he added.

“You’ve got a lot better chance if you’re going against corporations or insurance companies because people are upset with them. Those are great cases to try right now,” Ruohonen said.

Florida Student Suffers Brain Injury in Truck Accident

Truck driving safety is provided in the Federal Motor Carrier Safety Regulations published by the Federal Motor Carrier Safety Administration.  There are specific limitations on the number of hours a driver can be on duty.  Violation to these limits is unsafe and can create liability for a trucking company and its driver.  Fatigued drivers make highways and roads dangerous places for all of us.

A college student in Florida alleged that the tractor-trailer driver violated federal motor carrier safety rules by failing to take the required off-duty time after working a 24-hour shift as a county firefighter. Lymon v. Bohn No. 53-2007-CA-7728 (Fla., Polk Co. Cir. Mar. 20, 2009).

Kendra Lymon, 19, was driving through an intersection on a green light when Robert Bohn, driving a tractor-trailer truck, made a left turn into the intersection even though his view was obscured by another truck in the opposite turn lane. Bohn’s tractor-trailer T-boned Lymon’s car on the driver’s side, crushing the vehicle and sending it spinning off the highway.

Her injuries included brain damage that resulted in a motor speech disorder, difficulty swallowing, mild left hemiparesis, bowel and bladder incontinence, cognitive defects, and seizures. She also sustained a fractured left scapula.

Lymon’s mother, Vanessa, on her behalf, sued Bohn and his employer, Bynum Transport, Inc. Vanessa Lymon alleged that the trucking company had provided no ongoing safety training or defensive driver program for its drivers and that it failed to enforce federal motor carrier safety rules about driving hours and rest periods.

The plaintiff alleged that Bohn began his shift without taking the mandatory 10 hours of off-duty time after working a 24-hour shift as a battalion chief for the county fire services, a violation of federal rules. Furthermore, the plaintiff claimed, he violated basic traffic safety rules by turning without waiting for a clear view.

The jury awarded the plaintiff $65 million. The defendants have appealed.

Traumatic Brain Injury Takes Boxer Yamaki

The  controversy over injury and sporting events including football and boxing gets a new "hit."

Boxer Hirokazu Yamaki died at a hospital recently after sustaining a traumatic brain injury during a bout in Tokyo, the Japan Boxing Commission said.

Yamaki, 26, suffered an acute subdural hematoma in his eighth-round knockout loss against Toshimasa Ouchi.

He remained unconscious after the fight and underwent emergency surgery at a Tokyo hospital to repair the brain damage.  Yamaki made his pro boxing debut in October 2003.

He was ranked 11th in the latest rankings in the Japanese flyweight division with a 7-9 record, including five knockouts.

In Nevada, we grapple with who pays for the costs of caring for the injury sustained by boxers since the Sponsors of boxers are only required to insure them for $50,000.  Care can easily exceed that amount and the costs are passed on to the hospital and ultimately the taxpayers of Nevada.

Brain Injury, Psychiatry, Faith and Religion

In a new book titled "Religion and Psychiatry: Beyond Boundaries," the author considers why and how, when and where religion (and spirituality) are at stake in the life of psychiatric patients.  The interface between psychiatry and religion is explored at different levels, varying from daily clinical practice to conceptual fieldwork.

Religion is one subject that many people around the world feel extremely passionate about, either feeling strongly in their belief of a certain religion, or being against religions generally or specifically. Other people do not engage with religion at all. These choices represent a part of who we are, and as such it is essential for psychiatrists to understand and be able to relate to their patients' decisions and beliefs in this area.

Religion and Psychiatry is recommended reading for residents in psychiatry, postgraduates in theology, psychology and psychology of religion, researchers in psychiatric epidemiology and trans-cultural psychiatry, as well as professionals in theology, psychiatry and psychology of religion.

Religion (and spirituality) is very much alive and shapes the cultural values and aspirations of psychiatrist and patient alike, as does the choice of not identifying with a particular faith.  Patients bring their beliefs and convictions into the doctor-patient relationship.  The challenge for mental health professionals, whatever their own world view, is to develop and refine their vocabularies such that they truly understand what is communicated to them by their patients.

"The boundary between religious belief and the practice of psychiatry is becoming increasingly porous," say the editors in the Preface to Religion and Psychiatry: Beyond Boundaries. "No longer can psychiatrists in a multi-faith, multi-cultural globalized world hide behind the dismissal of religious belief as pathological, or behind a biomedical scientism, as they are more frequently confronted by distressed patients for whom religious belief may determine their choice of symptoms and their compliance with treatment."

Published on behalf of the World Psychiatric Association, Religion and Psychiatry: Beyond Boundaries, addresses the impact that religion and spirituality have on shaping cultural values, as well as the choice of not identifying with a particular faith. With this book, Peter Verhagen and colleagues provide a framework to understand the importance of these factors in mental well-being, and how to develop and refine their vocabularies to ensure they truly understand what their patients are telling them.

This is the first time that so many psychiatrists, psychologists, and theologians from all parts of the world and from so many different religious and spiritual backgrounds have worked together to produce a book addressing these important issues.

The book discusses what religious traditions can learn from each other to assist the patient, as well as the neurological basis of religious experiences. It describes training programmes that successfully incorporate aspects of religion and demonstrates how different religious and spiritual traditions can be brought together to improve psychiatric training and daily practice.

In the Foreword to Religion and Psychiatry Mario Maj, President of the World Psychiatric Association, states "The WPA welcomes this comprehensive and multifaceted volume, produced by one of its most active Scientific Sectors, hoping that the effort will continue to clarify the issue and stimulate further reflection and research."

Revising the Diagnostic and Statistical Manual

I am following the revision process of the DSM-V from my past blog postsThe New York Times published an article about the Revised Diagnostic and Statistical Manual 5th edition which is slated for publication in 2013.  It has been over a decade since the manual was revised. 

These are a few of the changes proposed by doctors charged with revising psychiatry’s encyclopedia of mental disorders, the guidebook that largely determines where society draws the line between normal and not normal, between eccentricity and illness, between self-indulgence and self-destruction — and, by extension, when and how patients should be treated.

Far fewer children would get a diagnosis of bipolar disorder. “Binge eating disorder” and “hypersexuality” might become part of the everyday language. (think sex rehabilitation - Tiger Woods, Charlie Sheen, David Letterman, David Duchovny)  And the way many mental disorders are diagnosed and treated would be sharply revised.


For months they have been the subject of intense speculation and lobbying by advocacy groups, and some proposed changes have already been widely discussed — including folding the diagnosis of Asperger’s syndrome into a broader category, autism spectrum disorder.

But others, including a proposed alternative for bipolar disorder in many children, were recently released. Experts said the recommendations, posted online at for public comment, could bring rapid change in several areas.

The article states:

One significant change would be adding a childhood disorder called temper dysregulation disorder with dysphoria, a recommendation that grew out of recent findings that many wildly aggressive, irritable children who have been given a diagnosis of bipolar disorder do not have it.  Temper dysregulation disorder with dysphoria is a syndrome that in recent years has been labeled childhood bipolar disorder and is actually NOT bipolar disorder. Instead, a new disorder category was created: Temper Dysregulation Disorder with Dysphoria (TDD).

Nestor Lopez-Duran PhD contributes to significant political debate in the media and the blogosphere in his blog

The misdiagnosis led many children to be given powerful antipsychotic drugs, which have serious side effects, including metabolic changes.  Antipsychotic drugs are a class of medicines used to treat psychosis and other mental and emotional conditions.

Some diagnoses of bipolar disorder have been in children as young as 2, and there have been widespread reports that doctors promoting the diagnosis received consulting and speaking fees from the makers of the drugs.

Experts gave the American Psychiatric Association, which publishes the manual, predictably mixed reviews. Some were relieved that the task force working on the manual — which includes neurologists and psychologists as well as psychiatrists — had revised the previous version rather than trying to rewrite it.

Others criticized the authors, saying many diagnoses in the manual would still lack a rigorous scientific basis.

Stanford Law School publishes an interesting blog on the DSM V.


Las Vegas Bus Company Hires Driver with Known Safety Problems

 I am representing a man who was hit by a bus making a left turn in Las Vegas. The man was in the crosswalk and the driver simply did not see him. The man was hospitalized with brain injury. The Bus Company with Las Vegas offices alleged the man was walking against the pedestrian traffic signal. Somehow, the Bus Co. feels, this gave the bus driver the right to run him over. And the police officer cited the man who got hit!

The police report listed two witnesses who provided statements in Spanish. Today, I took their depositions. The witnesses were fine Mexican-American individuals, legally in this country, who told us that the bus driver was at fault and that the man had the right of way according to the traffic signal. The police never spoke to the unconscious man, and obviously did not understand or ignored the independent witnesses’ accounts. Instead police took the bus driver’s version of traffic control violation of the pedestrian had and cited the pedestrian.

This is a blatant example of how the wrong picture is frequently painted based on pre-existing prejudice. The two Mexican-American witnesses were simply discounted out of hand. The sad part was that the pedestrian had his citation dismissed partially because the cop never showed up in court, yet the stigma remains. And the bus company may have gotten away with it.

The witnesses not only stated the traffic signal allowed the man to walk into the cross walk, but that the bus was attempting, in their opinion, to flee the scene. Can you imagine: A bus company that hires drivers who would flee the scene after hitting a pedestrian and knocking him to the ground unconscious? The amazing thing is that the bus company’s own camera installed on the bus actually showed the man walk into the crosswalk; The bus make its left turn while the radio is blasting; and then the sound of “thud” when the bus hit the pedestrian.

These are situations when all the tort reform rhetoric falls short. These things really happen and consumers need protection from faceless corporations driven solely by profit and self-preservation.

Overloaded Mississippi Gravel Truck Plows Through Intersection, Catastrophically Injuring Young Motorist


A number of years ago I was involved in representing plaintiffs against Las Vegas Paving in a lawsuit alleging the truck driver's loads were routinely in excess of limits.  During one such run, the trucker crashed into my client near a highschool.

Similarly, in Bryant v. APAC-Tennessee, No. CV2006-0261CD  (Miss., DeSoto Co. Cir. Nov. 18, 2009) a teen and his parents sued the paving company that hired the truck’s driver, alleging the company failed to monitor his loads and supervise his conduct. The plaintiffs offered evidence that the driver had made multiple trips on the company’s behalf, each with hauls that exceeded the state’s maximum weight limit.

Ethan Bryant, 16, was driving his pickup truck on a highway. When he entered a controlled intersection on a green light, a loaded gravel truck driven by Chad McCarty struck the driver’s side of the pickup at about 50 mph.

Bryant suffered severe brain injuries, and a 16-year-old passenger in his vehicle was killed. Bryant was comatose for eight months and developed a disorder that limits oxygen to his brain. He now suffers from quadriplegia and periodic seizures and will require 24-hour care for life.

 Local trucking companies all too frequently break the rules of the road.  They ignore safety protocol and all too often injure users of public roads.

Factors may effect which rules must be met.  For instance, Interstate Trucking, driving between states, and intrastate Trucking, driving within one state, are subject to different regualtions.  Although many rules bring about some responsibility for truck companies and their drivers, it is important to know the difference.  Likewise, the weight of trucks and loads may apply to different regulations and it is important to know the difference.

I have been working more closely with organizations advocating safety for public roads. 

Bankrupt Las Vegas Station Casino Lawyers Up

The Las Vegas Review Journal announced Station Casino (Fertitta family business) affiliate has been sued by partner GCR Gaming (Greenspun Family business).  Both families have lawyered up.

The lawsuit alleges "wrongdoing" and of flagrant and continuous breach of "contractual and fiduciary duties" in their joint-venture partnership of the Green Valley Ranch Resort.

The filing alleges Station Casinos executives breached those duties, in part, by directing high-stakes gamblers at Green Valley Ranch to other casinos that were owned solely by Station Casinos.

This comes after Station Casino's filed for bankruptcy as a partner of operations at Green Valley Ranch Resort.  Whenever a bankruptcy is filed or pending, any claims by creditors, including lawsuits against the bankrupt entity or person are stayed.  In other words, no lawsuits are allowed while bankruptcy is pending in most circumstances.  While protecting the bankrupt corporation, this leads to denied or delayed justice for those injured by the property management's negligence.

Station's parent company filed for Chapter 11 bankruptcy protection in 2009.  Chapter 11, unlike Chapter 7, is a reorganization or debt payments.  Station has been attempting to provide the Bankruptcy court with a plan to repay its debts but needs cooperation from creditors.

The long and short of it is that GVR Gaming's lawsuit will require lifting the stay by the Bankruptcy Judge to proceed.  A motion was filed yesterday.

My office currently has 1 lawsuit pending where Station Casino is  a defendant.  That matter is not subject to Station's parent company Chapter 11 bankruptcy.  However, last year, before the Station Casino filed bankruptcy as to its Green Valley Ranch Resort, another matter was resolved in my office.  Fortunate for my clients, they will not be denied or delayed justice because of the recent bankruptcy filing.

Ironically, President Obama is in Las Vegas today to address the public at Green Valley highschool.  Worthy of note is whether Las Vegas Mayor, Oscar Goodman, will welcome President Obama in light of the President's recent comment “You don’t blow a bunch of cash in Vegas when you’re trying to save for college.” The comment also drew the ire of Democratic Senator Harry Reid.  “Lay off Las Vegas,” Sen. Harry Reid said in a statement issued shortly after the remarks spread through the internet.  He later went on to support President Obama.

Continuing DSM Revisions

My ongoing investigation into the Diagnostic and Statistical Manual, anticipated 2013 release, reveals the following sources:

NPR: "Doctors use the DSM to diagnose patients, and insurance companies use it to decide on reimbursement, so it's incredibly important in the profession of psychiatry."

NPR reports on a change for children currently being diagnosed with bipolar disorder (also known as manic-depression): "The condition will be called temper dysregulation disorder, and it will be seen as a brain or biological dysfunction, but not as a necessarily lifelong condition like bipolar. ... By adding this new entry, the American Psychiatric Association is trying to use the considerable institutional power of the DSM to curb use of the pediatric bipolar label" (Spiegel, 2/10).

The Associated Press: The American Psychiatric Association "is seeking feedback via the Internet from both psychiatrists and the general public about whether the changes will be helpful before finalizing them. ... Sure to generate debate, the draft also proposes diagnosing people as being at high risk of developing some serious mental disorders -- such as dementia or schizophrenia -- based on early symptoms, even though there's no way to know who will worsen into full-blown illness" (Neergaard, 2/10).

USA Today reports on efforts to classify illness like autism as broader illnesses rather than a specific subtype: "DSM-5 proposes replacing diagnoses for autism, Asperger's, childhood disintegrative and pervasive developmental disorders with a single diagnosis, 'autism spectrum disorders,' based on deficits in social interaction and communication and the presence of repetitive behaviors and interests" (Rubin, 2/9).

To follow my other posts on proposed changes to DSM see

Social Security to Add Early Onset Alzheimer's Benefit

All to often people who suffer from disease are unable to get care due to insurance company limitations and policies, lack of insurance or finances to cover expenses.  Sometimes folks are left with Social Security Benefit applications for their care.

In its effort to improve and expedite the disability determination process, the Social Security Administration (SSA) has announced that it will add early-onset Alzheimer's disease to its Compassionate Allowances Initiative. The initiative identifies debilitating diseases and medical conditions that meet the SSA's disability standards for Social Security Disability Income (SSDI) or Supplemental Security Income (SSI). 

Social Security is launching this expedited decision process with a total of 50 conditions.  Over time, more diseases and conditions will be added.  A list of the first 50 impairments -- 25 rare diseases and 25 cancers -- can be found at

This recent development will lead to increased care more quickly for those who could not otherwise afford it.

Since 2003, the Alzheimer's Association has been advocating on behalf of individuals with early-onset Alzheimer's as they navigate the Social Security disability determinations process and welcomes the SSA's decision. Until now, individuals with early-onset Alzheimer's disease have faced a myriad of challenges when applying for SSDI or SSI, including a long decision process, initial denials, and multiple appeals.

Today's decision will simplify and streamline the SSDI/SSI application process and decrease the wait time for benefits, which for some has lasted as long as three years. There are currently an estimated 5.3 million Americans with Alzheimer's disease. Although the majority of Alzheimer cases are individuals age 65 and older, a significant number of people under age 65 are also affected by this fatal disease and have few financial options other than the Social Security disability program. 

This good news comes at a time when politics has brought the issue of universal health care to a stand still.  It always intrigues me that certain folks think the "right" to choose a doctor, hence stumping public/social or universal health care, exists.  While, at the same time, those folks shun the idea that anyone has a "right" to not be subject to Rendition based on suspicion, or the "right" of due process.

What ever your reflection on the matter, the recent Compassionate Allowances Initiative moves us in the right direction.

New Website Designed to Help with Mental Illness

I came across a new website directed at assisting with mental illness. Step Up on Second.

Step Up on Second announces the launch of its newly enhanced Web 2.0 site. Step Up on Second is a California non-profit organization providing support services for adults affected by severe and persistent mental illness, and young adults experiencing the initial symptoms of a mental illness and their families.

The interactive site provides resources for loved ones, clients, and family members in search of an organization that can provide help, hope, and a home to individuals affected by mental illness.

Step Up on Second provides help through comprehensive, integrated clinical programs for relapse prevention; hope through the embrace of community, opportunities for inclusion, advocacy, and empowerment; and permanent supportive home units for stability achieving self-determined goals.

Recently Actress Glenn Close posted on their blog.

Cigarette and Alcohol Use Contribute to Alzheimer's

Most interesting news pegging the tobacco-industry.

A UCSF analysis of published studies on the relationship between Alzheimer's disease and smoking indicates that smoking cigarettes is a significant risk factor for the disease. After controlling for study design, quality of the journals, time of publication, and tobacco industry affiliation of the authors, the UCSF research team also found an association between tobacco industry affiliation and the conclusions of individual studies. Industry-affiliated studies indicated that smoking protects against the development of Alzheimer's Disease, while independent studies showed that smoking increased the risk of developing the disease.

Study findings were published online in the January issue (19:2) of the Journal of Alzheimer's Disease.  

Alcohol Use Found in Cognitive Decline

Studies of alcohol use and cognition among the elderly are rare and have mixed results. A study of drinking among the elderly in Brazil has found that heavy alcohol use is associated with more memory and cognitive problems than mild-to-moderate alcohol use, especially among women.

Results will be published in the April 2010 issue of Alcoholism: Clinical & Experimental Research .


Illinois Supreme Court strikes down medical malpractice caps

 The Illinois Supreme Court recently struck down limits on jury awards in medical malpractice cases passed by the Legislature four years ago amid spiking liability costs for medical providers.

The court ruled that the caps on pain and suffering and other non-economic damages — $500,000 per case for doctors and $1 million for hospitals — are unconstitutional.


The court’s opinion upholds a 2007 ruling by a Cook County Circuit Court judge determining that the law violated the Illinois Constitution’s “separation of powers” clause, essentially finding that lawmakers interfered with the right of juries to determine fair damages.

It’s the third time the state’s high court has quashed limits on medical malpractice awards, having tossed out similar laws in 1976 and 1997.


The ruling is a blow to physicians, hospitals and malpractice insurers, who successfully argued in 2005 that frivolous lawsuits and runaway jury verdicts were driving up insurance rates and forcing physicians to leave the state.


The court’s ruling stems from a malpractice lawsuit filed in 2006 by the family of a girl who suffered brain damage during her delivery at Gottlieb Memorial Hospital in Melrose Park. Illinois’ trial bar selected the suit as its “test case” to challenge the law.


Liability insurance rates for Illinois doctors generally have held steady or dipped slightly since the caps took effect in August 2005, according to survey data from Medical Liability Monitor, an Oak Park-based trade publication. That’s roughly in line with national trends.  Mike Colias reports.


 The Wall Street Journal (2/5, Koppel) reports that the measure was initially intended to rein in increasing medical-liability insurance costs. Tort reform advocates saw the ruling as a setback, arguing that medical-malpractice suits play a large role in increasing healthcare costs.

        Reuters (2/4) reported that Dr. James Rohack, president of the American Medical Association, said the "decision threatens to undo all that Illinois patients and physicians have gained under the cap, including greater access to health care, lower medical liability rates and increased competition among medical liability insurers." But the Chicago Tribune (2/4, Japsen, Sachdev) reported, "Consumer groups and insurance industry officials say the fact that rates have stabilized" has "more to do with insurance market cycles."

        Crain's Chicago Business (2/4, Colias) reported, "In declaring the jury-award caps unconstitutional, the court's decision also scraps several other insurance reforms included in the original law that both sides have said helped ease liability costs." One such reform is "a provision that forced" the state's largest malpractice insurer "to disclose the data it uses to set rates."

        "Lawyers and other opponents of caps say those price controls were the real reason that malpractice insurance rates have gone down, rather than the presence of caps," the St. Louis Post-Dispatch (2/5, McDermott) reports. The AP (2/4) also covered the story.

More on High Blood Pressure

Since I recently posted on the topic linking high blood pressure to dementia, I came across my doctor's newsletter on Blood Pressure.  I reprint it here for those interested.

The leading cause of death and disability in the United States is from cardiovascular diseases, and the most common disease is high blood pressure.  High blood pressure, also known as
hypertension, usually does not have any symptoms – hence, the nickname “silent killer.”

Unfortunately, one-third of those who have high blood pressure do not realize it and are not aware of their risk for heart disease. Therefore, many people live years without treatment, possibly damaging their heart, blood vessels, and kidneys.

Lifestyle choices (e.g., weight control, tobacco use, proper nutrition, regular exercise) can help
prevent and/or control high blood pressure. The following are common questions and answers about blood pressure.

What is blood pressure?

It is the force of blood against the walls of arteries. Systolic pressure (the top number) is the force as the heart beats. Diastolic pressure (the bottom number) is the force as the heart relaxes.

A blood pressure reading of 120/80 mmHg is articulated as “120 over 80.”

What is the meaning of the numbers?

A systolic pressure of 120 or less is considered normal. Diastolic pressure of 80 or less is considered normal. Therefore, 120/80 or less is a normal blood pressure. The chart below shows normal blood pressure levels, as well as the levels of high blood pressure.

What are the dangers of high blood pressure?

High blood pressure places an additional strain on the circulatory system (i.e., heart and blood vessels).  This strain results in arteries becoming thicker, narrower, and weaker, sometimes causing an obstruction.  A completely obstructed artery often leads to heart attacks, strokes, kidney disease, and dementia.

Is low blood pressure a health problem?

The training effect of regular exercise, especially when working out rigorously, is a lower blood pressure. At times, an individual who does not exercise may experience regular low blood pressure. If symptoms do not accompany the low pressure, it usually is not serious. However, if
blood pressure suddenly drops, it may indicate an underlying problem causing inadequate blood flow to the heart, brain, and other vital organs. Symptoms may include dizziness or lightheadedness.

What are some tips to prevent/control high blood pressure?

Healthy living is at the heart of preventing and controlling high blood pressure. Are you:
 Maintaining a healthy weight?
 Engaging in regular physical activity (fi ve 30-minute sessions of aerobic exercise and two
30-minute strength training sessions per week)?
 Eating a low-fat, high-nutrient diet (fruits, vegetables, low-fat dairy foods, low sodium)?
 Limiting alcohol consumption?

1. NIH – National Heart, Lung, Blood
2. American Heart Association,
3. Blood Pressure Association (United
Exceptional Doctors. Exceptional Care. Exceptional Results.
The Link Between Heart Health and Blood Pressure
February 2010

Dementia and Hypertension Linked Again

 Another study has found that hypertension may contribute to increased risk of dementia, this time with evidence of actual brain abnormalities. I previously wrote about the link between Hypertension and Alzheimer's disease.

This is especially relevant to those who are not controlling their blood pressure. Blood pressure is not something one feels is high or low. Specific medical evaluation, blood pressure test, is necessary. 

Data from an offshoot of the Women's Health Initiative found that participants' baseline blood pressure was strongly correlated with volume of lesions in their brains' white matter, according to Lewis Kuller, MD, DrPH, of the University of Pittsburgh, and colleagues.

Along with earlier studies linking blood pressure to clinical dementia, the evidence "supports tight control of blood pressure levels, especially beginning at younger and middle age as a possible and perhaps only way to prevent dementia," Kuller and colleagues concluded online in the Journal of Clinical Hypertension.

Treating hypertension in the elderly appears to protect against dementia and cognitive decline.  Uncontrolled hypertension in older patients increases the risk of cognitive impairment. Hypertensive patients had a 70% greater risk of non-amnestic mild cognitive impairment compared with nonhypertensive patients according to Christiane Reitz, M.D., Ph.D., of Columbia University in New York. (C Reitz et al. "Hypertension and the risk of mild cognitive impairment." International Society of Vascular Behavioral and Cognitive Disorders meeting, July 11-14, San Antonio. Final program and abstract book. Abstract O-6)


For each year an individual took medication to lower blood pressure, the risk of dementia decreased by about 3%, found Rita Peila, Ph.D., an epidemiologist at the National Institute on Aging and a scientist at the Pacific Health Research Institute in Honolulu.

My question is whether a person who controls their blood pressure and hypertension with medicine can decrease their risk of dementia to that of someone without hypertension.  I predict that other risk factors would need to be accounted for but, other things being equal, can a person with controlled high blood pressure eliminate the risk of dementia?

The Health Care in Jeopardy

The Brain Injury Association of America reports the following legislative update.


Over the past week, you may have seen news reports suggesting that health care reform is in serious jeopardy. WE MUST INSIST THAT CONGRESS COMPLETE HEALTH CARE REFORM NOW!

Too many Americans with disabilities and chronic conditions are not well served by the current system and will make tremendous gains through enactment of health care reform.
Take action NOW! Starting TODAY and continuing until the final votes on legislation, call your members of Congress and tell them NOT TO GIVE UP ON AMERICANS WITH DISABILITIES AND CHRONIC CONDITIONS! TELL THEM THAT YOU WANT THEM TO CONTINUE FIGHTING FOR HEALTH CARE REFORM!!!

•Health care reform will end discrimination based on health status in the private market - discrimination that currently leaves millions of vulnerable Americans uninsured
•Health care reform will include new, affordable voluntary long term care insurance coverage—the CLASS Act—and expand Medicaid coverage for home and community based services
•Health care reform will expand Medicaid eligibility and provide subsidies in the private market, creating more affordable coverage for people with disabilities
•Health care reform will prohibit annual and lifetime limits on coverage so that individuals with serious conditions will not be forced into medical bankruptcy

CALL THE CAPITOL SWITCHBOARD AT 800-828-0498. (If you can't get through on the 800 number, call the Capitol switchboard (202-224-3121) or your member's district office.)

 Tell your Senators and Representatives that NOW is the time for Congress to complete meaningful health care reform that prevents discrimination against people with pre-existing conditions, includes the CLASS Act and expands coverage of Medicaid home and community based services.

 People with disabilities and their families cannot wait any longer for relief!

U.S. bans truckers & bus drivers from texting while driving

I ran across this timely article in the Washington Post written by Ashley Halsey III on January 27, 2010.  It speaks to the dangers arising from behaviors of truck and drivers.

On Tuesday, the federal government formally barred truckers and bus drivers from sending text messages while behind the wheel, putting its imprimatur on a prohibition embraced by many large trucking and transportation companies.

"We want the drivers of big rigs and buses and those who share the roads with them to be safe," said U.S. Transportation Secretary Ray LaHood. "This is an important safety step, and we will be taking more to eliminate the threat of distracted driving."

LaHood has made the effort to curtail driver distractions a centerpiece of his tenure as the nation's top transportation official. Some saw his announcement as a step that might ultimately fuel a push to ban cellphone use by all drivers.

LaHood's announcement followed a study released in July by Virginia Tech's Transportation Institute that found that when truckers text, they are 23 times as likely to be involved in a crash or close call.

Also Tuesday, a group of senators unveiled legislation that seeks to bar all texting while driving.

"This is a giant step forward for safety on our roads, but we must do more," Sen. Charles E. Schumer (D-N.Y.) said of LaHood's action. "We need the administration to support our ban, which does the same thing for cars and mass transit that they are now doing for trucks and buses."

Although both houses of Congress are considering bills restricting texting and 19 states have banned the practice, LaHood said that existing rules on truckers and bus drivers give him the authority to issue the prohibition. LaHood said drivers of commercial vehicles caught texting could be fined up to $2,750.

Enforcement of LaHood's ban is so problematic, however, that it might prove more symbolic than practical.

"The enforcement problem here is enormous," said Russ Rader of the Insurance Institute for Highway Safety. "It's not clear this is going to make any difference on the road in terms of crashes."

Last year, President Obama banned federal employees from texting while driving government vehicles and from texting in their own cars if they use government-issued phones or are on official business.

With LaHood leading the effort, supported by mounting evidence of the dangers, Adkins said that an effort to ban cellphone use by all drivers could be proposed this year.

"At some point, we'll have to address that issue," Adkins said. "We think 2010 will be the year when we do something about distracted driving. We can't remember a secretary ever taking the issue of highway safety so seriously."

In announcing the ban, LaHood mentioned data compiled last year by the Federal Motor Carrier Safety Administration. The agency said that texting drivers take their eyes off the road for an average of 4.6 out of every six seconds. At 55 mph, he said, that means a texting driver travels the length of a football field, including the end zones, without looking at the road.

I intend to monitor trucking issues, changes to safety monitoring and regulations as part of my interest in trucking law.

What Now for Health Care?

Frankly, I am not one of those bleeding heart plaintiff lawyers.  I absolutely believe in compensation for preventable injuries, too often mislabeled "accidents."  But I also believe in accountability and reasonable expectation of risk assumption when engaging in many of life's activities.  In essence I believe the pendulum swings both ways - too far one way is no good nor too far the other.

My biggest upset about the Massachusette's election of a Republican Senator to replace long time Democrat Senator Kennedy is not the "shift in power."  Rather it is the amount of time, money and energy that went into crafting health care bills in the House and Senate which, by many accounts, will all be for naught.  That is a shame.  Health Care reform could have failed, but it was never given a chance.  What has failed is the time, money and energy that was expended and wasted by one election.

Politics suck.

That said, here is the latest from the Wallstreet Journal:

 JANUARY 25, 2010, 9:19 A.M. ET

Democrats Focus on Key Elements of Health Bill


WASHINGTON—The White House, with its health-care initiative in doubt, on Sunday zeroed in on several elements it hoped would survive, including measures to extend the life of Medicare, lower prescription drug costs for seniors and cap consumers' out-of-pocket medical expenses.

As Democrats regroup on plans to overhaul the health-care system after a Republican win in last week's Massachusetts Senate election, comments Sunday indicated that any revamped legislation would likely focus on the least-controversial elements of earlier proposals.

White House officials notably didn't emphasize that any revised legislation should include a major expansion of health insurance. Expanding coverage to the uninsured was the key plank of the separate health bills passed by the House and Senate last year, but such efforts largely accounted for the about $1 trillion cost of the bills, and Republicans decried them as too costly.

President Barack Obama spoke with congressional leaders over the weekend to determine how to move forward on the issue. Now that the Democrats no longer have a filibuster-proof 60-vote majority in the Senate, they are likely to need Republican support to pass any new legislation, something they weren't able to win last year. Officials stressed that discussions were still going on, and Democrats are also looking at ways to salvage the current legislation.

White House adviser David Axelrod, appearing on ABC News's "This Week," said the president didn't want to abandon several elements of the current bills. These include extending the life of the Medicare insurance program for the elderly, which the bills propose to do through payment cuts to health providers, and issuing tax breaks to help small employers provide insurance. Medicare will become insolvent by 2017 without more funding or payment cuts.

Mr. Axelrod also cited assistance to help seniors pay for prescription drugs. The bills would help close a gap in Medicare Part D insurance that forces some seniors to pay thousands of dollars a year for medicine. He also said the overhaul should help people with pre-existing health conditions buy insurance and cap out-of-pocket medical costs. He didn't discuss how these measures would be paid for.

A White House aide said Sunday those were just some of the provisions, among others, that the administration hoped to include in a final package.

Republicans agree that Medicare needs to become more sustainable, but argue that the Democrats' proposed payment cuts are the wrong way to do it. Some Democrats also fear they are too deep.

While Republicans have also emphasized helping small businesses and lowering consumers' out-of-pocket costs, their approaches have been different.

Senate Minority Leader Mitch McConnell (R., Ky.) said Sunday that Republicans wanted to start over and craft a plan that did more to lower the growth of health costs.

Mr. McConnell, speaking on NBC's "Meet the Press," said the plan should change the tax code to allow individuals who buy policies without the help of an employer to get the same tax break that companies get. He said the overhaul should also reduce the number of medical malpractice lawsuits and allow insurers to sell policies across state lines.
The Democrats' bills contain no substantive changes to the malpractice system and they don't make insurance tax-free for individuals, as is the case for companies.

Malpractice is one area where Democrats could show more flexibility in any revamped legislation. Reducing unnecessary lawsuits is an area that resonates with voters, regardless of party affiliation, and Democratic leaders have already added some malpractice provisions into the current bills, though they remain largely symbolic.
Mr. Obama signaled shortly after the Massachusetts election that he might be willing to sign a scaled-down version of the House and Senate measures. In addition to the provisions Mr. Axelrod outlined, revamped legislation could include new restrictions on insurance companies, such as limits on the amount they can reap in profit and a revocation of their decades-old antitrust exemption.

Congressional Democrats are also weighing several options aimed at salvaging the current bills. One idea is to make a series of modifications to the Senate bill, aimed at addressing House Democrats' concerns. Changes likely would include minimizing a tax on high-value insurance plans and stripping out sweeteners aimed at winning Senate votes, such as a deal to fund Nebraska's Medicaid expansion, Democrats have indicated.
The Senate would need fewer votes to pass the changes—a simple majority compared with the 60 they would need to block a filibuster—and the House could pass the package of modifications with the Senate bill.

But many Democrats consider that a complicated scenario that would be difficult to pull off.
Democrats are also still considering some mechanisms to expand insurance coverage, such as by broadening the Medicaid federal-state insurance program for the poor, and by allowing young adults to stay on their parents' insurance policies until they reach their late 20s.

Write to Janet Adamy at

Health Care Update

The BIAA has posted this Health Care Update:

On December 24, 2009, the Senate advanced its version of health care reform, opening the doors for negotiation with the House to reconcile differences between the two bills.
This week, negotiators worked to arrive at an agreement in principle to meld the bills, in the hope that a product be brought to the House floor this month. (CQ)
BIAA continues to fight to preserve several provisions from the House bill that are important for people with brain injury. Specifically, BIAA is working to ensure that insurance rating based on health status or pre-existing conditions and annual or lifetime limits on medical spending are prohibited. Also, BIAA is advocating to keep important consumer protections, including internal and external appeal requirements, provider network adequacy requirements, and greater transparency by insurance companies, in the final product.

Economic Collapse Hitting Judicial System

It's finally here.  While there are hopeful and positive signs of economic recovery beginning to emerge, the brunt of the economic collapse on the legal system is just beginning.

In a recent article in the New York Times, New York’s chief judge, Jonathan Lippman, compares hospital emergency rooms to the courtroom in terms of healing society's economically wounded.

For most court systems nationally, official tallies of cases filed since the 2008 economic collapse are not yet complete. But the New York data, compiled by state court officials after a request from The New York Times, provide an early measure of the wave of recession cases nationally.

Legal actions involving foreclosures are up 446% in Florida; one of the worst hit housing markets, evictions up 77%, domestic violence attached to loss of work scenarios, as well as other recession related lawsuits.

Here in Nevada, the housing market may still be declining.  The effects of the recent opening of the multi-billion dollar City Center creating a glut of more housing are still to be seen.  Meanwhile several condominium projects are trying to secure closings.

While Mayor Oscar Goodman pushes through his agenda to build Las Vegas a new City Hall on predictions of recovery, Governor Gibbons is the budget cutter for Nevada's education and employees.  Nationally, court administrators say budget pressures are forcing them to do more with less. Note: Nevada was recently found to be 6th highest in the nation for government salaries.  FIrefighters making $200,000 are the highest paid in the country.

Another interesting component affecting "society" and the judicial system is the insurance companies' response to resolving matters.  More resolution means less weight on the courts.  But the debt of the insurance industry resulting from taxpayer credit (think bailout) may inhibit resolution resulting in more court time.

A New York Judge compares the situation to a "train wreck" that will go on for years.


Shooting at Federal Court in Nevada

This story just broke about a double homicide at the Lloyd George Federal Courthouse in Las Vegas, Nevada.  The following are excerpts from the CNN website:

(CNN) -- Two federal personnel were shot, one fatally, Monday in the lobby of a federal courthouse building in Las Vegas, Nevada, federal officials said.

"A deputy U.S. marshal and court security officer were shot at the Lloyd D. George Federal Courthouse in Las Vegas this morning," said U.S. Marshals spokesman Jeff Carter.

"The gunman was shot by Marshals Service personnel and has been pronounced dead. The deputy U.S. Marshal is in stable condition at a local hospital. Unfortunately, the court security officer succumbed to his wounds and passed away."

The incident occurred about 8 a.m. PT, FBI Special Agent Joseph Dickey said.

Authorities were in the process of securing the building, Carter said.

"We do not know the motive for the shooting at this time, and the investigation into the shooting is still under way," he said.

No one else was in the lobby at the time of the incident, police spokeswoman Barbara Morgan said.

A nearby school was on lockdown, said Clark County School District spokeswoman Cynthia Sell.

Nevada Sens. Harry Reid and John Ensign both have offices in the federal building. Ensign spokeswoman Jennifer Cooper said the senator was not there, although the staff was evacuated. 


Reid, the Senate majority leader, issued a statement saying his thoughts were with the victims and their families.

"The law enforcement personnel who protect the courthouse put their lives at risk every day to keep the people who are inside safe and I greatly appreciate their service," the senator said.

Troy Saceal told CNN affiliate KNTV that he had just parked his car on the fourth floor of a garage nearby when he heard gunshots.

"I saw some people running out of the building and what looked like security," he said. "It was the marshals, and the whole firefight kind of opened up. It was just blast after blast with a gun."

Saceal said he saw a marshal shot at the corner of the building "and another marshal ran up and covered him up" as police officers began arriving at the scene.

"When the shots kind of subsided, I saw some officers run up and check on that marshal that was apparently hit," he said.

Over about two minutes, he said, he heard 30 to 40 shots.

"It was kind of surreal watching it because I didn't realize what was going on at the time," he said. "By the time I kind of realized what was going on, I just saw people coming out of the building shooting toward the street." He said a building blocked his view of what they were shooting at.

Shortly after the incident, a video was posted on YouTube that appeared to capture the scene and the sound outside the courthouse during the shooting. At least 45 gunshots are heard on the video, with many in rapid succession. The video lasts a minute and 13 seconds.

"Shooting outside of a Las Vegas courthouse," a voice says. "Unbelievable."

The video was posted to YouTube by a user with the name NickyFlips, who wrote on the Web site that he had just exited the courthouse after receiving a jury summons.

"Hell of a morning for jury duty," the voice adds.

Congress to Pass Non-Binding Arbitration

Prompted by the rape case of former KBR employee Jamie Leigh Jones, defense contractors will no longer be able force claimants into mandatory arbitration.  Typically defendant's like arbitration to keep cases away from juries that may award higher amounts.

The arbitrations applied to discrimination and sexual assault on contracts greater than $1,000,000.

The no-arbitration clause will have some minor exceptions, such as allowing arbitration if “it is necessary to avoid harm to national security interests of the United States.”  

Read more here.

North Carolina makes med-mal data available

In this time of withdrawing consumer rights regarding avoidable medical mistakes, would requiring disclosure and public dissemination of physician malpractice data be welcome?  Currently, in Nevada, there is no such disclosure.

How often do we see physicians who our friends say are "good doctors?"  Or when we go to the emergency room we are "referred" to the doctor on rotation?  Would it serve the patient's interest to be able research the doctor they are considering?  Well that is starting to happen in other states.

The Raleigh News & Observer (12/8, Garloch) reports, "For the first time, consumers can easily check whether North Carolina doctors have settled or lost medical malpractice claims or been convicted of crimes. The N.C. Medical Board announced Monday that it has expanded its Web site to include malpractice settlements or judgments and criminal records for its 35,000 licensed physicians and physician assistants. The expansion comes in response to a law passed by the General Assembly in 2007 that requires the board to publish malpractice payments, misdemeanor and felony convictions, hospital suspensions and discipline by medical boards in other states."

Brain Injury Settlement

The fact of repeated impacts to the brain causing brain damage made news.  A private university will pay $7.5 million to provide lifetime care to a former football player who suffered a severe brain injury in a 2005 game after an earlier concussion went untreated.

The family of Preston Plevretes, 23, of New Jersey, settled their lawsuit against La Salle University.

The settlement came as the NFL, the NCAA and other governing bodies review rules about when athletes should return to play following concussions, amid research that suggests returning too soon can lead to brain damage.


Read more:

AP Poll: Support for curbs on malpractice lawsuits

According to an AP poll 54% of Americans favor limiting their right to recover from doctors and hospitals for their mistakes.  Nevada passed the Keep Our Doctors in Nevada bill in 2004.

The AP poll found that 54 percent of Americans favor making it harder to sue doctors and hospitals for mistakes taking care of patients, while 32 percent are opposed. The rest are undecided or don't know.

Support for limits on malpractice lawsuits cuts across political lines, with 58 percent of independents and 61 percent of Republicans in favor. Democrats are more divided. Still, 47 percent said they favor making it harder to sue, while 37 percent are opposed.

The survey was conducted by Stanford University with the nonprofit Robert Wood Johnson Foundation.

This study can be seen here.

Key speech on medical errors

I met Congressman Braley last season in Washington DC.  He strikes me as a man to watch.  Issues like health care reform, tort reform, patient safety, consumer safety, are so media drenched it is hard to understand them.  Well here is what  Bruce Braley has to say.  And you might consider that the people who hate trial lawyers only do so until they need one!

In Case You Missed It:

Times Union (Albany)

Key speech on medical errors
Advocates seeking action on issue heartened by congressman's talk

By CATHLEEN F. CROWLEY, Staff writer
Monday, November 23, 2009

WASHINGTON – A short but fiery speech made on the floor of the House of Representatives has raised the hopes of patient safety advocates across the nation.

Rep. Bruce Braley, a second-term Democrat from Iowa, gave a speech about medical errors moments before the House voted on the health reform bill earlier this month.

Braley, 52, a trial lawyer who specializes in malpractice, said he had two minutes to prepare his speech. As he spoke, he was taunted by Republicans shouting "trial lawyer." But Braley impressed Helen Haskell, whose son died from a medical error.

"I was very pleased that somebody was standing up for patient safety. I thought the heckling was unbelievable," said Haskell, of South Carolina. Her son Lewis Blackman, 15, died in 2000 after a minor surgical procedure.

Haskell called Braley's office the next day to thank him.

Patient safety activists are cautiously optimistic that Braley may be the champion they need for their cause. "He's definitely an emerging leader and he seems to be very passionate about (patient safety)" said Lisa McGiffert, who heads Consumers Union's Safe Patient Project.

"Who will speak for the patients?" Braley said in his House speech. Referring to an Institute of Medicine report, Braley said "They told us the most significant way to reduce the cost of medical malpractice is to emphasize patient safety by reducing the number of preventable medical errors."

Consumers Union invited Braley to speak at its conference on patient safety in Washington, D.C., last week.

While some members of Congress have led efforts to increase the public reporting of hospital-acquired infections, few have embraced the larger issue of medical errors. Nearly 200,000 Americans die each year from errors made during their medical care and from infections acquired in the hospital. The lack of progress in reducing errors was the subject of a Hearst Newspapers series that can be read at

"I am so grateful to Hearst publications for their Dead by Mistake series to put the human face on the problems that bring you all here today," Braley said to the audience at the Consumers Union conference. Braley said he has passed the series to other members of Congress to bolster support for patient safety initiatives in the health reform bill.

Braley grew up on a small farm in Iowa. His father was seriously injured in a fall from a grain elevator and his mother went back to work as a teacher to support the family. His father eventually went into the insurance business, while Braley began working in his teens to help the family.

He was a successful lawyer in Waterloo, Iowa, when he ran for an open seat in the House of Representatives in 2006.

In his short political career, Braley has rapidly climbed the ladder of leadership in the House.

Braley founded and chairs the Populist Caucus, which is a congressional group devoted to economic issues of the middle class. He was named vice chairman of the Democratic Congressional Campaign Committee, the campaign arm for House Democrats. Braley leads the committee's "Red to Blue" effort to capture Republican House seats.

During his second term, Braley was appointed to the powerful House Energy and Commerce Committee.

He also is past president of the Iowa Trial Lawyers Association.

"When my colleagues chose to attack me by screaming 'trial lawyer, trial lawyer' it wasn't affecting me in the least," Braley told advocates last week at the Consumers Union conference. "I was thinking of people that need someone to stand up for them when it comes to important issues of patient safety."

Braley said he fought for an initiative in the House health reform bill that will require Medicare to revamp its reimbursement system from a fee-for-service model to a pay-for-performance model. He believes it will reduce errors and improve quality, and he said he hopes to sponsor more legislation to improve patient safety.

"Unless medical consumers know that they have a system that is going to protect them, that is going to give them access to information to make them informed consumers," Braley said, "we will have missed a great opportunity to transform our system of health care delivery."


BIAA Update November 20, 2009

Here is the latest from Sarah D'Orsie at the Brain Injury Association of America

Health Care Reform Update

This week, The Senate released and began debate on their Health Care Reform leadership measure. As many of you may know, originally, rehabilitation was not included in the Senate Finance bill as a minimum benefit. Due to the lobbying efforts of BIAA, largely supported and funded by our Business and Professional Council, we have been able to ensure that rehabilitation is a part of the minimum benefits package of the final product now being debated in the Senate.

Specifically, the Patient Protection and Affordable Care Act being considered would:
(Democratic leadership summary)

- Include immediate changes to the way health insurance companies do business to protect consumers from discriminatory practices and provide Americans with better preventive coverage and the information they need to make informed decisions about their health insurance.

-Uninsured Americans with a pre-existing condition will have access to an immediate insurance program to help them avoid medical bankruptcy and retirees will have greater certainty due to reinsurance provisions to help maintain coverage.

-New health insurance Exchanges will make coverage affordable and accessible for individuals and small businesses.

-Insurance companies will be barred from discriminating based on pre-existing conditions, health status, and gender.

-Expand eligibility for Medicaid to include all non-elderly Americans with income below 133 percent of the Federal Poverty Level (FPL), with substantial assistance to States for the cost of covering these individuals.

- Make long-term supports and services more affordable for millions of Americans by providing a lifetime cash benefit that will help people with severe disabilities remain in their homes and communities.

- Eliminate lifetime insurance limits in all new individual and group plans for plan years beginning 6 months after enactment.

Today, as the Senate opened a two-day debate on the bill, Congressional Quarterly reported that Majority Leader, Harry Reid is closing in on the 60 votes needed to overcome an anticipated filibuster and bring the measure to the floor. Reid has filed cloture the bill and the vote on the motion to proceed to the bill is expected to occur on Saturday at 8:00 pm.

BIAA will continue to monitor the bill's progress closely as debate continues. Also, documents relating to the Senate leadership bill can be found on BIAA's website under the Health Care Reform Library section:

Veteran's Health Omnibus Bill

On Thursday, November 19, 2009, The Senate voted to pass a package of veteran's bills (S1963) that included both S. 801 and S. 252, both important Veteran's health care measures supported by BIAA.

The bill would expand services in rural areas and ensure that veterans who are catastrophically disabled or who need emergency care in the community are not charged for those services. It would also authorize VA hospitals to contract with non-VA providers to ensure that our returning service members have access to the care that they so desperately need and deserve.

BIAA Health Care Reform Update

 The Brain Injury Association of America's Sarah D'Orsie reports:

Health Care Reform Update

On November 7, 2009, the House of Representatives approved their health care reform overhaul package by a vote of 220-215.  The bill includes the provisions below: (provided by Congressional Quarterly, CQ Today)

Coverage Requirements

Individual Mandate

* Requires nearly all individuals to obtain health care coverage beginning in 2013.
* Permits individuals to keep their current health plan as a "grandfathered" plan.
* Excludes from the mandate those exempt from filing income tax returns and others who receive a hardship waiver.
* Subjects those who do not obtain coverage to a penalty tax of 2.5 percent of adjusted gross income above a   threshold.

Employer Mandate
* Requires employers to offer their employees health care insurance, or make an insurance contribution on their behalf, starting in 2013.
* Exempts firms with payrolls of $500,000 or less.
* Subjects businesses that fail to provide coverage to penalties of up to 8 percent of their payroll.

Purchase of Coverage

Health Insurance Exchange
* Creates a federal exchange, to begin operation in 2013, that would allow individuals and small businesses to purchase health insurance from insurers participating in the exchange.
* Allows states to apply to operate their own state-based health insurance exchanges.

Public Option
* Requires the establishment of a public health insurance option within the insurance exchange by 2013.
* Directs the Health and Human Services Department to run the public option and negotiate with providers to determine rates.
* Requires those rates to be no lower than those under Medicare and no higher than the average for private plans.

Additional Options
* Authorizes loans to entities that want to create health insurance cooperatives.
* Permits states to enter into compacts that allow for the sale of insurance across state lines.


Individual Subsidies
* Provides affordability credits to individuals and families with incomes of up to 400 percent of the federal poverty level.
* Requires that subsidies would be used to reduce premiums and out-of-pocket costs.
Small Businesses
* Provides tax credits for certain small businesses that offer health insurance to their employees.

Requirements for Insurance Companies

Pre-Existing Conditions
* Bars insurance companies from denying or reducing coverage based on pre-existing medical conditions, beginning in 2013.
* Restricts how long insurers can continue to limit coverage for pre-existing conditions until the full ban takes effect.
* Prohibits companies from considering domestic violence a pre-existing condition.

Coverage Caps
* Prohibits annual or lifetime coverage limits.

* Limits variations on premiums based on the age of the beneficiary to a ratio of 2-to-1.
* Permits variations on premiums based on geography and family size.

Out-of-Pocket Expenses
* Limits annual out-of-pocket expenses to $5,000 for an individual and $10,000 for a family.
* Guarantees no out-of-pocket costs for preventive care.

Essential Benefits Package
* Requires all qualified health benefits plans to provide coverage that meets or exceeds the standards of an "essential benefits package."
* Requires an essential benefits package to, at a minimum, cover hospitalization, outpatient hospital and clinic services, professional services of physicians and other health professionals, prescription drugs, rehabilitative services; mental health and substance use disorder services; preventive services, maternity care, well-baby and well-child care, and medical equipment.
* Establishes a Health Benefits Advisory Committee, chaired by the surgeon general, to make recommendations to HHS regarding the details of covered health benefits included in the essential benefits plan.

Medicare and Medicaid

Medicaid Expansion
* Expands eligibility for Medicaid by allowing enrollment for those making up to 150 percent of the poverty level, beginning in 2013.
* Beginning in 2015, states would pay 9 percent of costs associated with the expanded coverage.
* Requires Medicaid to cover newborns during the first 60 days of life.

Medicare Advantage
* Reduces payments under the Medicare Advantage program over a three-year period beginning in 2011.
* Makes the rates for Medicare Advantage the same as those for traditional fee-for-service Medicare by 2014.
* Provides bonus payments to insurance plans in the program that offer high-quality insurance plans in low-cost areas.

As part of the debate, Congressman Bill Pascrell, Jr., Co-Chairman of the Congressional Brain Injury Task Force, offered a statement including BIAA's guiding principles for health care reform.  Also included in the statement, which can be viewed by clicking on the link below, was language regarding payment initiatives such as the bundling of services.  

The statement detailed BIAA's position that "post-acute payment systems must facilitate, not impede, improvements in functional status of individuals with brain injury and their ability to return to their homes and communities. BIAA supports a deliberative planning process and rigorous pilot testing."

Congressman Pascrell has been a true champion in the fight for securing access to care for persons with brain injury during the health care reform debate.  Please take a minute to click on the link below and thank him for his dedication to this important issue:  

It is also important to note that BIAA's Business and Professional Council was integral in creating the content of BIAA's health care reform guiding principles.

Now that the House has passed its measure, BIAA is monitoring Senate activity closely.  Senate Majority Leader Harry Reid has alluded to Senate action on their leadership bill as soon as next week. 

Five Myths About Medical Negligence

American Association of Justice published "Five Myths about Medical Malpractice Negligence."  I reprint it below.

It is especially interesting since the Nevada Supreme Court is currently considering whether to make the "Keep Our Doctor's in Nevada" bill, passed in 2004, retroactive.  A woman is suing her lawyer for taking 40% of her over $5,000,000 award for a lawsuit she retained him for in 1999.  She is arguing that the attorney fee limits should apply retroactively and the attorney's fees be reduced.  Interestingly she is not arguing that her recovery be limited retroactively to the current ceiling on medical malpractice cases of $350,000.

Those opposed to real health care reform are flailing to come up with real, alternative solutions to our current crisis. With all the talk of death panels, government takeovers, and rationing of care, now tort reform has been thrown into the mix.

Yet it will do practically nothing to lower health care costs, and certainly will not fix our broken health care system. However, it will most definitely hurt patients injured through no fault of their own. Seemingly, the effects of legislation on real people have somehow evaporated from the discussion.

To break through all the hyperbole, lies, and distortions, the American Association for Justice today released a new report, "Five Myths About Medical Negligence." The next time a cable news pundit or opponent of health care reform starts talking about tort law changes, chances are this manual will rebut their claims.

As the health care debate moves forward, here are the key myths and facts:

Myth #1: There are too many "frivolous" malpractice lawsuits.
Fact: There's an epidemic of medical negligence, not lawsuits. Only one in eight people injured by medical negligence ever file suit. Civil filings have declined eight percent over the last decade, and are less than one percent of the whole civil docket. A 2006 Harvard study found that 97 percent of claims were meritorious, stating, "portraits of a malpractice system that is stricken with frivolous litigation are overblown."

Myth #2: Malpractice claims drive up health care costs.
Fact: According to the National Association of Insurance Commissioners, the total spent defending claims and compensating victims of medical negligence was just 0.3% of health care costs, and the Congressional Budget Office and Government Accountability Office have made similar findings.

Myth #3: Doctors are fleeing.
Fact: Then where are they going? According to the American Medical Association's own data, the number of practicing physicians in the United States has been growing steadily for decades. Not only are there more doctors, but the number of doctors is increasing faster than population growth. Despite the cries of physicians fleeing multiple states, the number of physicians increased in every state, and only four states saw growth slower than population growth; these four states all have medical malpractice caps.

Myth #4: Malpractice claims drive up doctors' premiums.
Fact: Empirical research has found that there is little correlation between malpractice payouts and malpractice premiums paid by doctors. A study of the leading medical malpractice insurance companies' financial statements by former Missouri Insurance Commissioner Jay Angoff found that these insurers artificially raised doctors' premiums and misled the public about the nature of medical negligence claims. A previous AAJ report on malpractice insurers found they had earnings higher than 99% of Fortune 500 companies.

Myth #5: Tort reform will lower insurance rates.
Fact: Tort reforms are passed under the guise that they will lower physicians' liability premiums. This does not happen. While insurers do pay out less money when damages awards are capped, they do not pass the savings along to doctors by lowering premiums. Even the most ardent tort reformers have been caught stating that tort reform will have no effect on insurance rates.

Over 98,000 people die every year from preventable medical errors. That's like two 737s crashing every day for a whole year. Instead of focusing on tort law changes that won't fix health care, let's make sure people aren't injured in the first place. Not only will that lower costs, but most importantly, will improve health care for everyone.

Read more at:

You can view AAJ President Anthony Tarricone’s article on the Huffington Post and link to the article by clicking here.

Malpractice Tort Reform Update

President Obama continues his quest to appease skeptics of his health care reform:

Since President Obama proposed using $25 million to test new ways to handle malpractice lawsuits, suitors have been lining up, the The Associated Press reports. One leading idea is to appoint expert panels to sort fact from fiction in malpractice claims. The "American Hospital Association has been shopping a new plan to lawmakers," and malpractice reform advocates are expected to propose another strategy for a pilot program at a Health and Human Services hearing next week. Doctors say they perform extra tests on patients because they fear lawsuits.

Read More Here.

Summary of Other Brain Injury Blogs

Atlanta Personal Injury Lawyer
By Michael L. Neff
Atlanta personal injury lawyer blog Monday, October 26, 2009. Brain Implants May Awaken Paralyzed Limbs for Spine Injury Victims. In the next year, 130000 people will suffer spinal cord injuries (most of them occurring in auto ...
Michael Neff's Blog -

DRUNK DRIVING TEEN LEAVES ANOTHER TEEN BRAIN DEAD :: Chicago Accident and Injury Lawyer Blog. ... CHEERLEADING INJURIES ON THE RISE: CHICAGO SPORTS INJURY ATTORNEY URGES IMPROVEMENTS IN SAFETY MEASURES AND TRAINING Spinal cord trauma, paralysis, concussion, traumatic brain injury, headaches and... October 19, 2009 3:22 PM 7-YEAR OLD'S LEG RAN OVER BY SCHOOL BUS A 7-year old student's leg was run over this morning... October 16, 2009 2:11 PM ...
Chicago Accident and Injury Lawyer Blog -

Coping With the Effects of Traumatic Brain Injuries| Personal ...
By Legal: Personal Injury Articles from EzineArtic...
Though injury to any organs or body parts may interfere with these processes, the most far-reaching consequences are apt to occur when an injury compromises the health of a person's spinal cord or brain function. ...
Personal Injury Lawyer -

Health Care Reform Update

Sarah D'Orsie of the BIAA advises as follows:

Health Care Reform Update

This week  the Senate worked towards combining two health care reform drafts, one from the Health, Education, Labor and Pensions (HELP) committee and the other from the Finance Committee, into one final version.  BIAA, as a part of the Consortium for Citizens with Disabilities (CCD) coalition, submitted a letter to Senate leadership asking to ensure that several provisions important to the brain injury community are included in this final version of the bill.

The letter outlines several priorities such as the need for private insurance reform, improvements to Medicaid and long terms services and supports, and clarifications to the Medicare program.  For further reading, the full text of the letter can be found on our web site:

As the Senate works to combine its measures into one bill, BIAA will monitor the progress and alert grassroots advocates if action becomes necessary. 

Tort Reform Experimentation

President Barack Obama can look to a variety of models as he seeks to fulfill a pledge to fund state tort reform experiments, a longtime wish-list item for physicians, the New York Times reports. States have so far tried a few approaches, with mixed results, and considered more.

They include, a cap on non-economic damages supported by the American Medical Association; medical screening panels that "attempt to weed out frivolous suits;" "apology statutes" that ban physicians admission of error from being used as evidence in court; early compensation offers by physicians and hospitals that preclude law suits; safe harbor systems that protect doctors from law suits when they follow practice guidelines; birth funds that compensate families for childbirth injuries and are financed by physician surcharges; and, special medical courts that would approach malpractice cases with more specialized expertise (Underwood, 10/13).

This information was reprinted from with kind permission from the Henry J. Kaiser Family Foundation. You can view the entire Kaiser Daily Health Policy Report, search the archives and sign up for email delivery at

Halloween Safety

The American Academy of Orthopaedic Surgeons published these safety tips for Halloween:

 Trick-or-treating, wearing costumes, and carving pumpkins are all part of the Halloween fun for kids of all ages. However, many of these activities also offer potential for injury, the American Academy of Orthopaedic Surgeons (AAOS) suggests that Halloween-goers take the following steps to stay safe.

Potential injuries:

-- Ill-fitting masks and costumes, as well as walking in unfamiliar areas in the dark, can lead to fractures , dislocations, sprains, contusions, abrasions and head trauma from trips and falls.

-- Pumpkin-carving can result in serious lacerations to the hand and also injuries to bones and tendons, if certain precautions are not taken.

"When children get excited about a holiday that involves candy, they may be less cautious than usual," says orthopaedic surgeon Charles Blitzer, MD, spokesperson for the AAOS. "Also, Halloween tends to encourage unruly behavior, so parents and other caregivers need to be especially vigilant to ensure that kids follow basic safety guidelines whether they are pumpkin carving or trick-or-treating."

The AAOS offers the following tips to help ensure an injury-free Halloween:


-- When carving pumpkins, use specifically designed carving knives, no kitchen knives.

- Carving knives are less likely to get stuck in the thick pumpkin tissue. (Injuries can occur when a carver tries to yank the stuck knife out.)

-- Never let children carve pumpkins.

- Adults carving pumpkins should remember to always cut in small, controlled strokes, away from themselves.

 - Carving knives should be kept in a clean, dry, well-lit area.

 - Any moisture on the tools, hands, or table can cause the knife to slip, leading to injuries.

-- Should an individual cut a fingertip or hand while carving pumpkins, elevate the hand above the heart and apply direct pressure to the wound with a clean cloth to stop the bleeding.

- If continuous pressure does not slow or stop the bleeding after 15 minutes, an emergency room visit may be necessary.

- If there is any numbness in the fingers and or there is an inability to move the fingers, then the individual should go to the emergency room.


-- Halloween costumes should be light and bright, so children are clearly visible to motorists and other pedestrians.

- Trim costumes and bags with reflective tape.

-- Make sure children wear flame-resistant costumes that fit properly.

- Costumes that are too long may cause kids to trip and fall.

-- Children should wear sturdy, comfortable and slip-resistant shoes.

-- Masks and hats can impair a child's vision, so secure hats well and consider using face makeup instead of masks.


-- When trick-or-treating, children should stay in familiar neighborhoods and be accompanied by an adult at all times.

-- Children must walk on sidewalks and never cut across yards or driveways.

- They should also obey all traffic signals and remain in designated crosswalks when crossing the street.

-- Trick-or-treaters should only approach houses that are well lit.

- Both children and parents should carry flashlights to see and be seen.

-- Consider skipping the door-to-door trick-or-treating and attend a neighborhood Halloween party instead.

-- Examine all treats for tampering or other unsafe conditions before allowing the children to eat them.

Legislative Update

Sarah D'Orsie of the Brain Injury Association of America has asked me to post this latest legislative update:


On Wednesday, October 7, 2009, the House and Senate Armed Services Committees announced that they had reached an agreement on a conference report to H.R. 2647, the Fiscal Year 2010 National Defense Authorization Act. 

In a major victory for the brain injury community, the report included an amendment that authorizes the Secretary of Defense to carry out a pilot program for providing cognitive rehabilitation therapy services under TRICARE.  BIAA worked with the Congressional Brain Injury Task Force to preserve its status as part of the final conference report.  We are thrilled to have contributed to this important step towards providing better access to care for returning service members.

A link to the full text of the amendment can be found below:  

Health Care Reform Update

This week the Congressional Budget Office (CBO) delivered their estimate of the Senate Finance Committee health care reform package.  The bill scored under the $900 billion goal and would reduce the deficit by more than expected while covering millions more of the uninsured. (CQ)

With this news providing momentum, the Senate Finance Committee is expected to vote on October 13, 2009 to clear the bill.  A final vote in the Finance Committee will open the door for negotiations to begin on melding that draft with the one previously approved by the Senate Health, Education, Labor and Pensions (HELP) Committee.  Once that process has been completed, the final bill may be considered by the full Senate as early as the week of October 19, 2009. 

Legislative Update from BIAA October 2009

Here are the latest updates from the Brain Injury Association of America.

Health Care Reform Update

This week the Senate finance committee wrapped up debate on its version of a health care reform package.  The committee now has finished debating the more than one hundred amendments offered to the bill.  A final vote is possible next week, although the finance committee cautiously waits to hear the cost estimate of the measure from the congressional budget office.

BIAA will continue to monitor the situation as the legislation progresses.

Appropriations Update

Last week, Congress considered a measure, known as a continuing resolution (CR), that would keep the government funded into the 2010 fiscal year, which began on October 1, 2009.  TBI related programs will be funded at FY2009 levels until the spending bills for next year have been approved.

The full Senate has yet to consider the Fiscal Year 2010 Labor, Health and Human Services and Education spending bill that will provide the funding allocation for programs authorized through the TBI Act and for NIDRR's TBI-related research programs, including TBI Model Systems of Care.

BIAA will alert grassroots advocates when action is needed.

National Defense Authorization Update

As reported in a previous edition of Policy Corner, the Senate version of this year's National Defense Authorization bill includes an amendment that authorizes the Secretary of Defense to carry out a pilot program for providing cognitive rehabilitation therapy services under TRICARE. 

As the House and Senate meet to debate the differences in the two versions in order to craft a final bill, BIAA has increased awareness among House members serving on the Armed Services Committee of the amendment and its importance to returning service members sufferring from TBI.

This week, Congressman Bill Pascrell, Jr. and Congressman Todd Platts, co-chairs of the Congressional Brain Injury Task Force, sent a letter to members of both the House and Senate Armed Services Committee members urging their support in preserving this amendment in the final bill.  A copy of the letter can be viewed on our web site, or by clicking the link below:

24 Million Illinois Verdict

Five years ago, Andrzej Chraca, now 38, was driving south on Wright Boulevard near the intersection of South Frontage Road in the northeast Illinois town of Schaumburg.

At the same time, Steve Miles, a driver for the state's Department of Transportation, was driving eastbound on South Frontage Road, and they collided in the middle of the intersection.

Both drivers claimed that they entered the intersection on a green light and filed lawsuits against each other. The suits were consolidated at trial.
As a result of the collision, Chraca was rendered an incomplete paraplegic. He is unable to walk without leg braces and requires the use of a walker or wheelchair.

Miles suffered a cervical vertebrae fracture and partial paralysis to the right side of his body. He also suffered a mild traumatic brain injury.

In the largest verdict of its kind in the history of Cook County, Ill., Miles was left unable to walk following the 2004 crash has been awarded $24 million.

Plaintiffs' attorney Martin Healy Jr. represented Miles.

Read more J. "Illinois man awarded $24M in car crash suit." Lawyers USA. Dolan Media Company. 2009. HighBeam Research. 29 Sep. 2009 <>.

Trial Lawyers Try to Educate

"The American Association for Justice announced today it is launching what it called the first phase of a nationwide ad campaign 'to educate lawmakers about the epidemic of preventable medical errors and how tort law changes won't lower costs or cover the uninsured,'" The Boston Globe reports. "The ads, running in Washington publications and on online news sites, say the estimated 98,000 deaths from preventable medical errors is 'like two 737s crashing every day for a whole year.' But the ad concludes: 'Would we blame the passengers or the airlines?'" (Rhee, 9/22).

The New York Times also reports on medical malpractice. Economic Scene columnist David Leonhardt notes that while there is a great partisan divide on the issue, there is also "a lot of research by economists and others with no vested interest," who have drawn factual conclusions. "The direct costs of malpractice lawsuits - jury awards, settlements and the like - are such a minuscule part of health spending that they barely merit discussion, economists say. But that doesn't mean the malpractice system is working." In addition, "[t]he fear of lawsuits among doctors does seem to lead to a noticeable amount of wasteful treatment," estimated to be about "$60 billion a year or about 3 percent of overall medical spending." But researchers have also estimated that few errors lead to action: "only 2 to 3 percent of cases of medical negligence lead to a malpractice claim." The malpractice system may therefore be "expensive in all the wrong ways" (Leonhardt, 9/22).

Funds to benefit clean energy producers, weatherization programs and state energy program

Senator Reid announces funds are on their way to Nevada. Read the whole article here.

WASHINGTON, D.C. — Following efforts by Nevada Sen. Harry Reid,Senator Max Baucus revealed his updated health insurance reform proposal with major improvements for Nevada.  The state will receive a full 100 percent match for those added pursuant to the Medicaid expansions for five years.  Furthermore, federal funding for Medicaid increases by 30 percent while Nevada will only have to increase funding 1.6 by percent.

“I thank Chairman Baucus for recognizing the unique challenges that we face in Nevada and working with me to address them,” Reid said. “I promised the people of Nevada that I wouldn’t support any health insurance reform proposal that wasn’t good for our state and I meant it. This latest proposal is a major improvement to the chairman’s original proposal.”

BIAA September 11, 2009 Update

The Brain Injury Association of America asks me to pass this update on.

*BIAA would like to take a moment to remember Senator Ted Kennedy and the profound influence he had on the brain injury community, by acting as the sponsor and champion of the TBI Act for many years. He will be missed.

Health Care Reform Update

President Obama made it clear Wednesday evening in a joint session speech that he is demanding health care reform action this year. With the spark given by the President's address, Democrats are enthusiastically working to find a way past their differences over such issues as inclusion of a public insurance option.

This week, the Senate Finance Committee released an outline of their proposal that is set to be made public next week. BIAA has some concerns about the proposal and is contacting members of the committee to ensure comprehensive coverage in the full proposal. The Committee plans to mark up a bill the week of Sept. 21, 2009.

The House may vote on its bill in the coming weeks, though debate continues over what kind of public option it will contain.

Stay tuned for action alerts as legislation progresses!

Brain Injury Survivor Advocacy Program

In August, BIAA launched a pilot program dedicated to encouraging area brain injury survivors to become more effective self-advocates. The program included identifying likely targets, making appointments, participating in a day of meetings in Capitol Hill, and following up and maintaining relationships with Congressional staffters.

Due to the success of the program, BIAA will continue to offer the opportunity on a quarterly basis to survivors who would like to learn more about advocacy. Space is limited, so if you would like to participate and you live in the Washington, DC area, please send me an email so that I can begin assembling the next advocacy group.

Appropriations Update

With energy legislation delayed and the future of a health care overhaul uncertain, Senate appropriators will try to take advantage of a window of opportunity to pass and clear as many spending bills as possible in September. (CQ)

If Congress is unable complete all 12 fiscal 2010 bills before the next fiscal year begins Oct. 1, 2009, lawmakers will have to pass a continuing resolution later this month to keep money flowing to the government.

Lou Ruvo Center for Brain Health

This announcement from the Lou Ruvo Center for Brain Health is available on the web.  This incredible addition to the Las Vegas Community will be know nationwide for its contributions to the science and care of brain health.

Cleveland Clinic, in collaboration with Keep Memory Alive and the Lou Ruvo Brain Institute, has created a highly specialized clinical center to advance the research, early detection and treatment of patients with neurocognitive disorders that result from neurological diseases including Alzheimer’s, Huntington’s, Parkinson’s, and Amyotrophic Lateral Sclerosis (ALS). Newly name the Lou Ruvo Center for Brain Health, the goal is to prevent the disabling symptoms of chronic brain diseases and to prolong healthy, vital aging in people at risk for dementia or cognitive disorders.

The Lou Ruvo Center for Brain Health provides state-of-the-art care for these disorders and for the family members of those who suffer from them. The physicians and staff at the LRCBH will work towards the development of early diagnosis and the advancement of knowledge concerning mild cognitive disorders, which could one day allow us to delay or prevent their onset.

For persons with mild cognitive impairment (mci) such as early stage dementia and Alzheimer’s disease, the Lou Ruvo Center for Brain Health offers the most up-to-date and technologically advanced diagnostic services, including 3 Tesla MR and PET-CT, performed by one of the leading neuroimaging academic centers in the world. The LRCBH also offers a multimodal treatment program for persons with milder syndromes, including physical exercise, cognitive rehabilitation, and cognitive enhancing medications.

Patients will receive expert diagnosis and treatment at Cleveland Clinic Lou Ruvo Center for Brain Health, which offers a multidisciplinary patient-focused approach to diagnosis and treatment, promoting collaboration across all care providers, offering patients a complete continuum of care and infusing education and research into all that we do.

Senator Ensign: "I did Nothing Wrong

This just in from the Associated Press:

Nevada Sen. John Ensign says his affair with a friend's wife was different from former President Bill Clinton's affair because Clinton committed a felony when he lied about it to a grand jury.

The Nevada Republican told The Associated Press on Wednesday: "I haven't done anything legally wrong."

Ensign made the remarks before he was introduced to a standing ovation from about 100 people at a Chamber of Commerce luncheon in rural Fernley. He opened his speech by acknowledging what called a "distraction." He says he made a big mistake, is sorry and intends to work hard to win back the trust of Nevadans.

It was Ensign's first public appearance in the state since acknowledging in June that he had a monthslong extramarital with former campaign aide Cynthia Hampton.

(Copyright 2009 by The Associated Press. All Rights Reserved.)

Hospital Cleared in Deportation of Brain Damaged Man

DEBORAH SONTAG of the  The New York Times reports "In a benchmark case dealing with the obligations of hospitals toward uninsured illegal immigrants, a jury in Stuart, Fla., decided Monday that Martin Memorial Medical Center did not act unreasonably when it chartered a plane and repatriated a severely brain-injured Guatemalan patient against the will of his guardian."

The Hospital prevailed and the man was sent via chartered plane back to Guatemala.  You can read the entire article by clicking here.

July 31 Legislative Update

The Brain Injury Association of America continues its grassroot effort to move and shake the bills presented in  Congress.

Note:  The House will recess for the month of August today and the Senate will follow suit next week.  There will be no Policy Corner until business resumes in September.  However, if any legislative advances do surface during the month of August, BIAA will alert grassroots advocates through alerts and news flashes.

Most Valuable Advocates (MVAs)

In a year that has been bursting at the seams with important policy making and legislation affecting the brain injury community, BIAA would like to take a step back and thank our grassroots for the heavy lifting they have done in the past six months! 

We would like to specifically recognize the most active members of our community.  The twenty people listed below have sent the most messages to Capitol Hill in response to BIAA action alerts since their subscribership to Policy Corner.  Thanks to these individuals and the entire grassroots community for making this year a successful policy year so far for BIAA.  Keep up the good work!

Ashley Weiss, Steven Cash, Robert Edwards, Sherry Stock, Cozette Carlisle, Paula Daoutis, Denae Mcelliott, Pat Britz, Freda Arender, Phillip Clarkson, Harold Ellison, Donna Lewis, Denman Jarvis, JoAnne OBoy, Scott Gee, Roberta Jereb, Carrie Lear, Geofrey Lauer, Caroline Feller and Paul Folkert

Appropriations Update

On Thursday, July 30, 2009, the Senate Appropriations Committee approved its fiscal 2010 spending bill for Health, Education and Labor programs. 

Currently, further details regarding TBI Act and TBI Model Systems of Care funding have not been released, however, BIAA will continue to monitor the appropriations process closely and will be sure to distribute grassroots action instructions when the bill is scheduled for Senate floor consideration.

Health Care Reform Update

Health Care Reform remains in a holding pattern as Senate Finance Chairman Max Baucus announced this week that his Committee would not formally consider health care legislation until after the August recess.

In tandem, the House has also alluded to the fact that their bill will be postponed until September as moderates and liberals from the Energy and Commerce Committee continue to work towards a compromise.

BIAA will continue to monitor new information throughout the August recess.

FY10 National Defense Authorization Act (S. 1390)

On Thursday, July 23, 2009, the Senate passed its version of the FY10 National Defense Authorization Act.   During debate, Senator John McCain for Senator Graham offered an amendment that authorizes the Secretary of Defense to carry out a pilot program for providing cognitive rehabilitation therapy services under TRICARE.  Both BIAA and the Wounded Warrior Project have worked tirelessly to advocate for the inclusion of this amendment.  To view the amendment, click on the link below:

The amendment requires the Department of Defense to consult the Department of Veterans Affairs, The Defense Centers of Excellence for Psychological Health and Traumatic Brain Injury and relevant national organizations with experience in treating traumatic brain injury.  It also requires the Secretary of Defense to submit a report to congress evaluating the effectiveness of the program and making recommendations of the appropriateness of including cognitive rehabilitation as a benefit under the TRICARE program.  

In response to the adoption by unanimous consent of this amendment into S. 1390, a representative from the Congressional Budget Office reached out to BIAA to ask advice regarding the cost and duration of cognitive rehabilitation therapy in order to formulate a cost estimate for the pilot program.  BIAA authored the following comments in response:

Currently, the Senate is gearing up for a conference with the House to agree on final language. The informal process began this week even though house conferees have yet to be named.  With hope that finalization will happen in early September, be on the lookout for BIAA action alerts to urge congress to retain this important amendment as part of the final package.

In conclusion, BIAA is thrilled to have the opportunity to work on this important inclusion in S. 1390 and believes that this is a much needed step forward in providing access to brain injury care for returning service members. 

Veterans Health Care Authorization Act of 2009 (S. 252)

After being favorably reported out of the Senate Veterans Affairs committee last week, the full Senate plans to consider  S. 252, the Veterans Health Care Authorization Act of 2009 in the coming days.

Among other things, the legislation authorizes the Department of Veterans Affairs (VA) to provide care to veterans with traumatic brain injury through contracts with non-VA providers when necessary. 

BIAA strongly supports this legislation as it is vital to ensuring our returning service members suffering from traumatic brain injury get access to the care that they so desperately need and deserve.

If you have not taken action on this issue and would like to get involved, click on the link below for action alert instructions.


Final NIDRR RRCT Priorities Released

As reported in an earlier edition of Policy Corner, BIAA submitted comments to the National Institute on Disability and Rehabilitation Research (NIDRR) in June specifically regarding the fourth priority included in the proposed plan for the Rehabilitation Research and Training Centers (RRTCs) entitled, "Developing Strategies to Foster Community Integration and Participation for Individuals with Traumatic Brain Injury." 

BIAA expressed strong support for the inclusion of a brain injury related research priority.  However, BIAA also detailed some concerns related to the strategies used in the priority to foster community integration and participation for affected individuals. As proposed, this priority would develop a classification system based on symptoms experienced by individuals with TBI who are living in the community.

BIAA explained that no two brains are alike and each and every individual presents with different symptoms, and each injury results in different challenges. Therefore, trying to categorize these injuries could be counterproductive to the priority's goal.

In response to BIAA and other stakeholders who also submitted concerns, NIDRR has revised some of its proposed priority to reflect the suggestions that were offered.  The discussion and changes made by NIDRR in response to the stakeholder comments are:

Discussion: "NIDRR agrees that there is a great need for community integration and participation (CIP) interventions in TBI. Our reading of the research literature suggests that better characterization of symptom variations within research samples might contribute substantially to improved accumulation of knowledge regarding the effectiveness of interventions. In response to the concerns of  commenters that it would be difficult for one RRTC both to develop and test interventions and to develop a TBI classification system, we reordered the priority requirements to emphasize the testing of interventions and we eliminated some of the prescriptive requirements related to the development of a TBI classification system. Although we reduced the number of requirements for the development of a TBI classification system, we expect applicants to propose and justify the steps they will take to accomplish this task. The peer review process will determine the merits of each proposal."
Changes: "We have revised the priority by reordering the priority requirements, eliminating the requirement for expert input into the classification system, and eliminating the requirement for the development of a manual for use of the classification system. Also, in response to this comment and related comments, discussed below in greater detail, we have revised the priority by decoupling the testing of interventions from the classification system, eliminating the
numerous examples of symptoms, eliminating the requirement for a short version of the classification system, and eliminating the requirement for a literature review."

BIAA is thrilled to see these changes implemented and will continue to monitor the process going forward.  For further reading click on the link below:

July Legislative Update

The Brain Injury Association continues to keep us apprised of legislative matters.

Appropriations Update



On Friday, July 24, 2009 the House of Representatives passed a $730.5 billion bill to fund health, education and labor programs in fiscal 2010.  The bill (HR 3293) allocates $10 million to the HRSA state grant and protection and advocacy programs.  The accompanying committee report states:

"The Committee provides $10 million for the Traumatic Brain Injury (TBI) program. This is $123,000 above the fiscal year 2009 funding level and the budget request. The TBI program funds the development and implementation of statewide systems to ensure access to care, including pre-hospital care, emergency department care, hospital care, rehabilitation, transitional services, education and employment, and long-term community supports. Grants also go to State protection and advocacy systems. In fiscal year 2009, 16 States will receive TBI awards, and 57 State and territorial protection and advocacy sy