Episode 3 - What is a Personal Injury Claim?
What is a Personal Injury Claim?
The first step to understanding the American Justice System as it may apply to your claim for injury is determining the remedy sought. The first level of Justice separates criminal and civil Actions.
A criminal action seeks to incarcerate or limit an individual’s freedom. Hence, trial results in a person paying a fine and possibly going to jail. These claims are typically initiated by a government body - city, state or Federal - asserting its interest on behalf of the public, to force or prohibit certain acts of a person. Criminal actions are not typically brought by an individual who has been wronged by another’s particular act. However. many criminal actions have civil components to them. As in the OJ Simpson case, a criminal jury acquitted (found no fault) OJ, and a civil jury found Mr. Simpson liable for a specific amount of money to the family of the dead defendant.
A civil action is typically initiated by a wronged individual against another individual or business. This trial results in money remedy for the plaintiff or potential costs of the lawsuit for a defendant if plaintiff loses. Jail or other limitations of freedom are typically not included.
A civil claim begins when one party seeks compensation from another party. Those parties are “plaintiff” and “defendant.” There are many types of civil actions. Contract and property disputes including employment, real estate, patents and many others fall under a category which takes up the greatest portion of legal dockets. These disputes can involve individual consumers against other individuals or large corporations against other large corporations. Corporate litigation uses a lot of court resources and often gets special treatment when it involves a particularly large specific issue.
Civil claims include family law, divorce, and a host of other areas. Personal injury law is another area of civil, rather than criminal, law. Here, individual versus other individual, as in car accident cases, are pursued. Individual consumer versus business is also a common claim. Think of the Louisiana fishermen claims against British Petroleum regarding the 2010 oil spill. Civil personal injury claims involve a plaintiff suing a defendant for money damages.
However personal injury law has been further subdivided over the years since American Jurisprudence began to include categories like 18 Wheeler Truck Injury, Traumatic Brain Injury, Medical Malpractice, Defamation, and others. The reason for these subdivisions is the level of subspecialty involved.
For example 18 wheeler, or semi tractor and trailer Truck injuries involve an entire set Federal regulations specifically created in response to the industry’s propensity to lack safety protocol. These regulations are constantly being updated.
Traumatic Brain Injury cases involve very particular scientific and medical knowledge which is also being updated regularly as technology and medical science progress.
Medical Malpractice is interesting since many states have attempted to regulate a consumer’s ability to access justice for those injuries by setting limits on how claims are made. Knowing how to maneuver the legal path in these case often requires ever changing rules.
Many consumers of the justice system seek criminal type penalties against people or businesses that they perceive were responsible for injuring them. This, however, is the job of the state or other government body whose interest is stopping criminal behavior. Still, in personal injury (civil cases) this differentiation is lost. The Burden of Proof for a criminal case is higher than for a civil case – and for good reason.
When a Judge takes away a person’s freedom of movement by putting them in jail, a jury must be very sure the evidence supports that result beyond a reasonable doubt – close to 100%. However when a jury in a civil case finds money damages for one party, it does so under a preponderance of the evidence standard – more than 50%, or more likely than not.
So if a jury finds a person 51% likely to have committed a crime – it should not find against that person criminally – no jail time. But if a jury finds a person 51% likely to have been negligent, or at fault, even if by accident, it should find against him and in favor the plaintiff.
I have been practicing personal injury civil law for over 20 years. Sometimes there is a criminal component to personal injury cases. When there is, a prosecuting (government) attorney pursues it. While its outcome may be of great importance to the injury (civil) claim, it is a separate matter. On the other hand, not all personal injury claims have criminal components as when a party does not intend for an injury to happen. As they say, “sometimes accidents happen.” However even in those unintended incidents, for example a car crash, someone’s error caused it.
If you or someone you know has been injured due to someone else’s fault, you do not want to rely only on the criminal lawyer who works for the government to represent your personal interest. They simply do not. You should speak to an attorney you select since he or she will protect your best interests as to your personal claims.
Episode 1 - About Tim Titolo
Hi. My name is Tim Titolo. I am an attorney in Las Vegas, Nevada. I’d like to tell you a little about myself and a podcast I am creating.
I graduated from Hofstra University, New York in 1983 with a degree in accounting. I went to work for an international accounting firm in Tulsa, Oklahoma during the booming oil days of the 1980s. I later enrolled at Tulsa University Law School and graduated in 1988.
I moved to Las Vegas, Nevada and started work with a large insurance defense firm. After a couple of years I ventured out on my own representing plaintiffs in personal injury cases. Very soon afterwards I developed a specific interest in representing victims of traumatic brain injury and spine injury.
I successfully handled many cases involving amounts exceeding a million and several million dollars. I learned about the special suffering traumatic brain injury brings to its victims. And not only the victims but the families as well.
I have served on various Brain Injury Associations and as Board Member of the Traumatic Brain Injury Litigation Group of the American Association for Justice. I have been invited numerous times to lecture and present to groups of doctors, lawyers, rehabilitation providers and others around the country on topics relating to brain injury.
I am also active in the American Association of Justice Motorcycle, Motor Vehicle, Premises, Inadequate Security, and Trucking Litigation Groups. I participate with the North American Brain Injury Society and Brain Injury Association of America on planning committees and conferences.
I started the Brain and Spine Injury Law Blog several years ago to address topics relating to science, medicine and law. I began a podcast in 2010 to compliment the blog. I hope that the blog and podcast will be interesting and useful to readers.
Spinal Treatment Questioned
The New York Times reported:
Patients who received a bioengineered protein during spinal fusion procedures to correct neck pain had far more complications than patients who did not get it, according to a study released Tuesday.
The study, published Tuesday in The Journal of the American Medical Association, reinforces previous concerns about the use of the proteins in fusion procedures to treat upper spine, or cervical, pain.
Read more by clicking here.
TBI Facts Primer
Traumatic brain injury (TBI) is a serious public health problem in the United States. Each year, traumatic brain injuries contribute to a substantial number of deaths and cases of permanent disability. Recent data shows that, on average, approximately 1.4 million people sustain a traumatic brain injury annually. A TBI is caused by a bump, blow or jolt to the head or a penetrating head injury that disrupts the normal function of the brain. Not all blows or jolts to the head result in a TBI. The severity of a TBI may range from “mild,” i.e., a brief change in mental status or consciousness to “severe,” i.e., an extended period of unconsciousness or amnesia after the injury. The majority of TBIs that occur each year are concussions or other forms of mild TBI. CDC’s research and programs work to prevent TBI and help people better recognize, respond, and recover if a TBI occurs.
Go to the CDC (Centers for Disease Control) to access the following facts sheets. Click here.
Concussion in Sports
An estimated 1.6 to 3.8 million sports- and recreation-related concussions occur in the United States each year. This fact sheet provides an overview of concussion in sports and recreation and steps to take to help prevent these injuries.
Facts about Traumatic Brain Injury
This fact sheet was developed by CDC in collaboration with ten national organizations. It contains up-to-date information about the incidence, causes, risk factors, and cost associated with TBI in the United States.
Facts about Traumatic Brain Injury (Spanish) Datos sobre lesiones traumáticas del cerebro
Esta hoja informativa contiene la información más reciente sobre incidencia, causas, factores de riesgo y costos relacionados con lesiones traumáticas del cerebro.
Traumatic Brain Injury: A Guide for Criminal Justice Professionals
This guide provides an overview of TBI, information on the extent of TBI and related problems within the criminal justice system, and how these problem can be addressed.
Traumatic Brain Injury in Prisons and Jails: An Unrecognized Problem
This guide provides information for TBI professionals about what is known about individuals with TBI in prisons and jails, how TBI-related problems affect them and others while they are incarcerated, and what is needed to address these problems.
Victimization of Persons with Traumatic Brain Injury or Other Disabilities: A Fact Sheet for Professionals
This fact sheet was developed for professionals and provides an overview of the topic of victimization of persons with TBI or other disabilities.
Victimization of Persons with Traumatic Brain Injury or Other Disabilities: A Fact Sheet for Friends and Families
This fact sheet provides a general overview of victimization and risks to people with TBI or other disabilities.
* Links to non-Federal organizations found at this site are provided solely as a service to our users. These links do not constitute an endorsement of these organizations or their programs by CDC or the Federal Government, and none should be inferred. CDC is not responsible for the content of the individual organization Web pages found at these links.
Brain Injury Lawyer and Attorney
Timothy R. Titolo resides in Las Vegas. His practice is exclusively personal injury cases. He holds specific interest in cases involving traumatic brain injury (TBI), spine and spinal cord injury (SCI) and auto, motorcycle and truck accidents. He is a member of the Million Dollar Advocates Forum.
Because of his experience handling brain, spine and other injury cases, Tim has been invited to lecture at over 50 attorney & medical conferences around the country. He has lectured for:
American Association of Justice
North American Brain Injury Society
Brain Injury Association of America
International Brain Injury Association
National Business Institute
Pacific Northwest Brain Injury Association
Oregon Brain Injury Association
Washington Brain Injury Association
Los Angeles County Bar Association
Utah Trial Lawyers Assocation
Utah Brain Injury Association
Nevada Brain Injury Association
Michigan Brain Injury Association
other brain injury affiliated groups
Tim Is a Fellow with AAJ's National College of Advocacy and is recognized for completion of the Advanced Studies of Trial Advocacy Program.
The Sad Untold Story
A tremendously important story has gone virtually untold by the media, ignored by our political leaders and unknown to the American public. Despite the extraordinarily high price they have paid, America's severely wounded veterans are enduring humiliating financial hardships of epic proportions. Home evictions, utility shutoffs, car repossessions and foreclosures are 
commonplace.
Spouses have to give up their jobs to become caregivers, cutting family incomes by up to 50 percent or more. Most disabled vets receive much less in compensation and benefits than they did while on active duty, reducing incomes even further. Many are too dysfunctional to hold a meaningful job, if any, because of the devastating effects of post-traumatic stress syndrome (PTSD) and traumatic brain injury (TBI).
Rick Amato of the Washington Press. Rick Amato is a radio talk-show host in San Diego and with Washington Times Radio News. Amato Strategic Communications provides consulting services to nonprofit organizations, including veterans causes.
There is a great deal of information out there on PTSD and the military, and this may largely be due to the origins of the PTSD diagnosis.
Post traumatic stress disorder (PTSD) can be considered a "young" diagnosis. It was not until 1980 that the diagnosis of PTSD as we know it today came to be. However, throughout history, people have recognized that exposure to combat situations can have a profound negative impact on the minds and bodies of those involved in these situations.
In fact, the diagnosis of PTSD originates from observations of the effect of combat on soldiers. The grouping of symptoms that we now refer to as PTSD has previously been described in the past as "combat fatigue," "shell shock," or "war neurosis."
It is not surprising that high rates of PTSD have been found among soldiers from World War II, the Vietnam War, the Persian Gulf War, and the war in Iraq.
Rick's perspectives include getting congress to put soldier and veterans disability right to top of the stimulus packages being authorized of late. He quotes President Reagan "Until our politicians feel the heat, they won't see the light."
Read the whole article in the Washington Press including a specific case of a military couple struggling to endure.
Dr. Helen Mayberg For the Defense - Again!
It's nearly impossible to tell if a former soldier convicted of killing an Iraqi family has brain damage because of the method used to scan his brain, a neurologist testified Tuesday.
Dr. Helen Mayberg, a professor at Emory University in Atlanta, said the wrong protocols were used during an MRI of former Pfc. Steven Dale Green. Instead of what amounted to a complete scan of Green's brain, his MRI included pauses between each scan, Mayberg said.
I first ran into Dr. Mayberg in a brain injury case I tried before a jury in the early 1990s. She adamantly
said that Positron Emission Tomography (PET) was not useful for corroborating diagnosis of brain injury caused by trauma. Dr. Joseph Wu of UC Irvine said it was one tool used among the others available. The PET scan Dr. Wu performed was allowed into evidence by the court.
It is very interesting to note that so-called experts hired by defense lawyer firms come up with the same type of testimony in virtually every case. What ever the treating or plaintiff's expert says is "wrong."
While hired in a criminal case:
Prosecutors called Mayberg to the stand to rebut the May 12 testimony of Ruben Gur, director of neuropsychology at the University of Pennsylvania School of Medicine.
Gur, called by the defense, reviewed a 2008 MRI and found Green has brain damage. He made the diagnosis after comparing Green's MRI to scans from 41 other men of roughly the same age without brain injuries. People with such injuries have "major difficulties" restraining their impulses, he said.
Defense attorneys have argued that Green's lack of impulse control was a factor in him taking part in the slayings of the al-Janabi family.
Defense attorney Scott Wendelsdorf, while questioning Mayberg, said MRI's don't necessarily tell the entire story of what is happening in someone's brain.
"A normal MRI doesn't mean nothing is wrong with a brain, does it?" Wendelsdorf asked.
"That's a very true statement," Mayberg said.
Dr. Mayberg has made a good living testifying against plaintiffs and criminal defendants. Read about the case by clicking here.
Soldier with Mild TBI Dies of Drug Overdose
Indiana National Guard Sgt. Gerald "G.J." Cassidy, who served his country in Bosnia and Iraq, died alone and ignored in a barracks at Fort Knox from an accidental drug overdose. His fate left a legacy that has changed the lives of thousands of wounded soldiers, Army officials say.
Cassidy began experiencing migraine headaches after a roadside bomb exploded about 11 feet from his Humvee in Iraq in August 2006. With diagnoses of post traumatic stress disorder and mild traumatic brain injury.
One Fort Knox soldier told investigators, "The staff at the WTU did not keep accountability of soldiers and were not making any checks on the welfare of soldiers" with PTSD and brain injury.
On the day Cassidy died, his platoon sergeant reported him at formation when he actually hadn't seen him for two days.
After repeated calls from Melissa Cassidy after she had not heard from him in a couple of days, Sgt. Cassidy was found dead in his chair. A toxicology report from the Armed Forces Institute of Pathology ruled his death accidental, caused by "multi-drug toxicity," compounded by coronary artery disease.
Excerpted from Soldier's hospital death leads to changes as published in Associated Press. Information from: The Courier-Journal, http://www.courier-journal.com
Left & Right Side Brain Differences
I will never forgot the experience of deposing the coroner in a brain injury case. The deposition was at the morgue. Afterward, we, the attorneys for all parties and the court reporter, were treated to a tour. What amazed me most was how numbed the folks working there were to the noxious fumes that pushed their way into your olfactory center.
Then as a personal favor to me, I was permitted to hold brains that had been removed from bodies. I was able to get a never before view of the brain's structure, texture and size.
I recently came across an interesting article from someone having a similar experience. Discover Magazine contributor, Carl Zimmer, published "The Brain The Big Similarities & Quirky Differences Between Our Left and Right Brains," in the May 2009 issue. Brain lateralization is the cooperation of right and left brain. He states:
No matter how lateralized the brain can get, though, the two sides still work together. The pop psychology notion of a left brain and a right brain doesn’t capture their intimate working relationship. The left hemisphere specializes in picking out the sounds that form words and working out the syntax of the words, for example, but it does not have a monopoly on language processing. The right hemisphere is actually more sensitive to the emotional features of language, tuning in to the slow rhythms of speech that carry intonation and stress.
Neuroscientists know that the hemispheres work together and that they do so by communicating through the corpus callosum. But exactly how the hemispheres cooperate is not so clear. Perhaps paired regions take turns being dominant. That is known to happen in some animals. For instance, dolphins use this strategy to sleep and swim at the same time: One hemisphere remains active for hours, then fades while the other takes over. Bird brains switch as well. In order to sing, a songbird makes the two sides of its lungs open and close. The two hemispheres of the bird’s brain take turns controlling the song, each dominating for a hundredth of a second.
The intimate cooperation between the two hemispheres makes it all the more remarkable that a person can survive with just one—a sign that the brain is far more malleable than we once thought. After a hemisphere is forced to manage on its own, it can rewire itself to handle all the tasks of a full brain. In fact, two hemispheres can cause more trouble than one if they cannot talk clearly to each other. Neuroscientists have linked some mental disorders, including dyslexia and Alzheimer’s, with a breakdown in left-right communication.
The two sides of the brain may be a legacy that we inherited from our wormlike ancestors. But their delicate balance of symmetry and specialization is now woven into the very essence of human nature.
Read the full article here.
National Institutes of Health Research
Research is the key to understanding and dealing with Traumatic Brain injury.
National Institute of Neurological Disorders and Stroke (NINDS)conducts and supports research on Traumatic Brain Injury (TBI) to better understand the biological mechanisms of injury, to develop strategies and interventions to limit the primary and secondary brain damage that occur following TBI, and to devise effective treatment strategies to improve long-term recovery of function. NINDS areas of research include:
1. Assessment of posttraumatic brain function and pathology
2. Discovering mechanisms of brain injury and repair processes
3. Identification of therapeutic targets
4. Translational research for therapy development
5, Clinical trials to evaluate therapeutic efficacy
6. Current TBI clinical trials at NIH and other organizations
7. NINDS Clinical Research Overview
The NINDS publishes Traumatic Brain Injury: Hope through Research and NINDS Shaken Baby Syndrome Information Page. Click on either link to see more.
Medical Malpractice Reform
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The Nevada Assembly voted 26-15 on Monday to pass legislation that would remove a $350,000 cap on jury awards for non-economic damages in medical liability lawsuits, the Las Vegas Sun reports.
The cap was approved by voters in 2004 after concern was raised that higher medical malpractice insurance premiums were driving some doctors out of the state.
The bill would permit unlimited damages for instances of gross negligence and would give patients an additional 12 months to decide if they want to file a lawsuit (McGrath Schwartz, Las Vegas Sun, 4/20).
Lumbar Surgery and Litigation
The negligent performance of lumbar surgery may also give rise to litigation. Negligence in the actual performance of lumbar surgery, however, is infrequently documented in the medical
records and may be difficult to prove. On the other hand, such actions as performing a diskectomy or laminectomy at the incorrect level almost always falls below the applicable standard of care and can be independently proven.
Other examples of negligence during surgery include certain aspects of lumbar fusion surgery, iliac vein or aortic perforation, and the failure to repair a dural tear or leak when recognized.
Examples of intraoperative mishaps that rarely rise to the level of medical negligence include dural tears, cerebrospinal fluid leaks, excessive bleeding and inadvertent nerve root injury.
Overall, mishaps during the technical performance of lumbar surgery constitute the fewest instances of medical negligence.Finally, the failure to diagnose and treat a postoperative
complication may give rise to medical care that breaches the applicable standard of care.
Many post-operative complications following lumbar surgery involve either infection or neurological dysfunction. Infection following lumbar surgery, in and of itself, is usually not medical
negligence; the failure to diagnose and treat such an infection, however, may constitute medical negligence. The failure to diagnose and treat a post-operative disk space infection can
also constitute medical negligence. The presence of a postoperative neurological deficit, in and of itself, may not constitute medical negligence, but the failure to evaluate and treat such a
deficit may be medical negligence.
The failure to provide adequate post-operative follow-up care may constitute medical negligence. In
general, close followup of a patient following lumbar surgery is indicated, and the threshold for performing post-operative imaging including MRI scanning must be low for evaluating neurological dysfunction or infectious processes.
In summary, back pain and lumbar surgery are common medical entities and may be associated with medical negligence giving rise to litigation.
The actual performance of the surgical procedure may give rise to negligence but only in specific instances that may be independently proven.
More commonly, litigation arises from a failure to diagnose the disease entity prior to surgery or a failure to evaluate properly, diagnose and timely treat the patient in the post-operative
period. For these very reasons, an experienced expert witness is necessary to evaluate cases involving lumbar disease and surgical procedures.
California Hospitals Settle Patient-Dumping Allegations For $1.6 Million
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California-based College Hospitals has agreed to pay $1.6 million to settle charges that two of its campuses improperly discharged and transported about 150 psychiatric patients to homeless shelters in downtown Los Angeles, City Attorney Rocky Delgadillo's office announced on Wednesday, the AP/Kansas City Star reports (Tayefe Mohajer, AP/Kansas City Star, 4/8). City officials alleged the infractions, by College Hospitals' facilities in Costa Mesa and Cerritos, occurred between 2007 and 2008.
The Los Angeles Times reports that the process was discovered by state officials after Steven Davis -- who was diagnosed with schizophrenia, bipolar disorder and schizoaffective disorder -- was treated at the Costa Mesa campus and then taken in a hospital van more than 
40 miles to downtown Los Angeles and dropped off at a homeless shelter. Officials at the shelter complained to the hospital about its action. The van returned and dropped Davis off at a second shelter, but Davis "wandered away without ever entering," the Times reports. City prosecutors then uncovered what they described as the largest case of "homeless dumping" they have encountered, according to the Times (DiMassa/Winton, Los Angeles Times, 4/9).
Under the settlement, College Hospitals will give $1.2 million to charities that care for the mentally ill and homeless and pay $400,000 in civil penalties (AP/Kansas City Star, 4/8). College Hospitals also will have one year to establish written protocols for releasing patients, including locating resources to care for them and obtaining voluntary consent before patients are transported. The two facilities will be barred from taking patients to any homeless shelter within a "patient safety zone" set up in downtown L.A. Delgadillo said, "Dumping patients who are sick or mentally ill on the streets of Skid Row is an unconscionable act," adding, "It's illegal, it's immoral and it has to stop" (Perkes, Orange County Register, 4/8).
College Hospitals attorney Glenn Solomon said that the hospital denies any wrongdoing and that its actions never amounted to "homeless dumping." He added that the hospital agreed to the settlement to establish a workable policy for dealing with homeless patients in the future. "It's the policy of the hospital ... to discharge each and every patient appropriately," Solomon said (Los Angeles Times, 4/9). He added, "The hospital believes it's a good thing to be at the forefront of developing these protocols" (Orange County Register, 4/8).
Reprinted with kind permission from http://www.kaisernetwork.org. You can view the entire Kaiser Daily Health Policy Report, search the archives, or sign up for email delivery at http://www.kaisernetwork.org/dailyreports/healthpolicy. The Kaiser Daily Health Policy Report is published for kaisernetwork.org, a free service of The Henry J. Kaiser Family Foundation.
