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What is a Brain Injury Case Worth? Episode 2

Brain injury comes in many shapes and sizes. The proverbial “one size fits all” does not apply. Although there are many similar characteristics with most brain injuries they are not all the same. For instance, brain injury often results in short term memory loss and difficulty processing information. How that emerges between individuals varies but often it is seen at work and in social situations. Often the difficulty requires more energy for processing information and results in fatigue.

Depression is common both from the injury itself and psychologically as a result of the affects of the injury. This is especially true in cases of mild and moderate traumatic brain injury when those around you simply have difficulty believing you are suffering when you look otherwise normal. This adds to the frustration, anxiety and irritability.

If you have been in a traumatic event that caused a concussion and brain injury, you may wonder about the value of the legal case. A legal case value depends on many things other than the injury and its affects. Many people do not understand this. Sometimes an injury can be worse in one case but valued lower than another case with a lesser injury. On the other hand, too often cases with a higher value are settled for less because the person making the evaluation does not understand brain injury. Since traumatic brain injury typically results in difficulty making decisions, it is a good idea to have someone you trust help you find a lawyer.
Finding the right lawyer is critical to getting a proper verdict or settlement. Lawyers have different interests and talents. Long ago lawyers could be general practitioners handling wills, business matters, divorce and criminal matters. Today the law is very specialized. That is, what a lawyer spends most of his time doing is what he is best at. If your lawyer handles one or two brain injury cases a year, he is not a good choice to handle your injury. If your lawyer’s practice is devoted to over 90% brain injury cases, you’ll have a much better outcome.

The first thing to understand is all lawyers are not made the same. And just like other folks, if a lawyer untrained in brain injury does not see an injury on standard diagnostic tests or by simple observation, they are not likely to believe it exists. On the other hand, if your lawyer is versed in how mild and moderate traumatic brain injury affects victims, they will know where to look and how to maximize the value.

Traumatic Brain Injury typically has medical costs associated with care in the past and in the future. Determining what the future costs are likely to be is important in valuing the case. Likewise, past lost earnings from being out of work are simple enough to calculate, but what about the loss of future earning capacity? This is very tricky since a person with brain injury may be able to do a job but staying consistently employed is an entirely different matter. Again, unless your lawyer has extensive experience on how and why a brain injury can cause loss of future earning capacity, she may sell your case short.

There are many other things to consider when hiring a lawyer and that is why you should seek out assistance from someone you trust; your spouse, parent, child, relative, or good friend. You should not simply take the advice of someone who tells you about a lawyer they used in a case. That lawyer may be a very talented divorce lawyer but that is not what you need. Your friend’s lawyer may even be personal injury lawyer, but that does not automatically qualify her as a brain injury specialist. Personal injury lawyers rarely limit their practice and research to traumatic brain injury. You are entitled to hire a lawyer that does.

I wrote an article entitled a Guide to Selecting a Lawyer in a Traumatic Brain Injury Case. I attempt to guide non-lawyers in choosing a qualified lawyer to handle their case. Much of what I propose are simple questions that you have a right to ask. Lawyers who profess skill in handling traumatic brain injury cases typically have blogs they publish. For instance my blog is entitled Brain and Spine Injury Law Blog. You may want to research your lawyer’s web site as well.

With the help of a trusted companion, look up organizations like the Brain Injury Association of America (BIAA), www.biaa.org. Visit their site on the internet or call them and ask for a referral to a lawyer in your particular state. There are organizations whose purpose is to assist victims of brain injury. Consult them rather than simply relying on the recommendation of a friend who may mean well but does not understand the nuances of brain injury.

These organizations will also assist you in getting the right care and treatment in your area. Most hospital emergency rooms do not treat or even diagnose mild or moderate traumatic brain injury, so you will benefit by talking to folks who understand. Other groups include individual State Brain Injury Associations, and the North American Brain Injury Society (NABIS), www.nabis.org.

Not only will these organizations assist you in getting help, they provide literature and videos to help explain what you are experiencing and how treatment can help.
If you or someone you know has suffered traumatic brain injury, please accept my best wishes and prayers for a maximized recovery. I hope something I have shared here will assist you in your journey.

Timothy Titolo copyright 2010
 

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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:

http://www.biausa.org/policyissues.htm#library
 

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.
 

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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:

http://www.biausa.org/elements/policy/cognitive_rehabilitation_ndaa_letter.pdf

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One of the problems associated with TBI is the person's ability to drive and lack of insight as to that ability.  I came across this interesting article on the topic of evaluating driving following a TBI.  Keep in mind that statistics tell us that 10% of TBI's are severe or moderate.  80% are mild.  The following is a summary of the study.

 OBJECTIVE. We conducted a literature review of assessment tools predicting driving performance for people with traumatic brain injury (TBI).

METHOD. Data sources were Web of Science, EBSCOhost, PubMed, and recently published literature from experts and team members not yet catalogued in the databases. We used the American Academy of Neurology's classification criteria to extract data from 13 studies, and we assigned a class (I-IV, with I being the highest level of evidence) to each study. We grouped primary studies into categories of driving assessment (neuropsychological; simulator; off-road; self-report, other report, and postinjury disability status; and comprehensive driving evaluation) and synthesized the predictability of these tools as it relates to driving performance for people with TBI.

CONCLUSIONS. To assist clinicians and researchers in making decisions regarding testing the driving performance of people with TBI, we provide recommendations for neuropsychological tests; off-road tests; self-report, other report, and postinjury disability status; and comprehensive driving evaluation.
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Read the entire article with references here:  C; Charles Levy; Dennis McCarthy; William C Mann; Desiree Lanford; J Kay Waid-Ebbs. "Traumatic Brain Injury and Driving Assessment: An Evidence-Based Literature Review." The American Journal of Occupational Therapy. The American Occupational Therapy Assn, Inc. 2009. HighBeam Research. 29 Sep. 2009 <http://www.highbeam.com>.

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A New Study from  the University of Tulsa, published in the Journal of Clinical and Experimental Neuropsychology (Neuropsychological impairment and psychosis in mania. Journal of Clinical and Experimental Neuropsychology, 2009;31(5):523-532),  finds Deficits involving executive function, working memory, speed of information processing, and new learning Occur in many people with mania. Factors that predict impairment remain poorly understood, but there are indications that psychotic features may correspond with increased risk of neurocognitive dysfunction during manic episodes.

"The current study examined neuropsychological function in 40 inpatients with bipolar I mania, 24 of whom presented with psychotic features. Compared to a control group, the inpatients showed worse executive function, speed of information processing, new learning, and dexterity. Nonetheless, presence of psychotic features failed to distinguish the inpatients with mania. Thus, psychotic features do not appear to increase neurobehavioral morbidity in people with mania, but presence of mania clearly corresponded with neurobehavioral dysfunction," wrote M.R. Basso and colleagues, University of Tulsa.

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The International Brain Injury Association published an article entitled Overcoming Anomy: The Impact of Positive Rituals on Quality of Life issue 3 2008. 

Thomas E. Pomeranz, Ed.D., President, Universal LifeStiles, LLC, Research and Policy Fellow Minot State University, has this to say:

Quality of life can be elusive and complicated for all individuals and can be dramatically so for people with traumatic brain injury who are globally challenged. Physical prowess, cognitive functioning, family, friends, sexuality, employment and hope are among the markers of a quality of life that may be jeopardized or lost for many with TBI. These losses and/or perceived losses combined with a lowered threshold for mediating one’s emotional state, commonly give rise to demonstrations of anger and hostility. This article is intended to provide the reader with an alternative therapeutic strategy to address these behaviors which interfere with a quality of life. If my life has no meaning or value, then I will behave in a way to cause your life to be void of meaning and value as well. When this statement was first shared with me I was struck by its profound implication relative to a variety of quality of life issues affecting many people with TBI. It was immediately evident that for a significant percentage of people with TBI, especially those requiring pervasive supports, that their life lacks meaning – diminished of value.

Read the full article by clicking Overcoming Anomy: The Impact of Positive Rituals on Quality of Life.
 

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