Things You Need to Know About Brain Injury Litigation

1. IT IS CHALLENGING

Unless there is objective evidence of brain injury on MRI or CT Scan, the insurance companies assume the individual is faking their injuries or the person has psychological problems that pre-existed the accident. The first order of business is to “objectify” as best as possible our clients’ injuries. A patient’s condition will be the focal point of any case. We know that juries are sympathetic to brain injuries that can be proved. Also, know that in pursuing a brain injury claim, you will be opening up your entire life history to examination. Grade school records, medical records from childhood and anything else through the years that the insurance companies can obtain is open game. Psychological and psychiatric records are obtainable and will be obtained.

Remember that many of these difficulties can be overcome and dealt with by an experienced brain injury litigation attorney.

2. NEW TECHNOLOGIES CAN OBJECTIFY A BRAIN INJURY

In the past 20 years, we have learned a great deal about brain injury, especially that the brain is more vulnerable to injury than we previous thought. It was once thought that a person who did not lose consciousness could not have experienced a brain injury. We now know that this is not the case. Likewise, it was previously felt that no one with a normal MRI or CT Scan could have suffered a permanent brain injury. That is no longer true. However, proving a brain injury is the best and quickest route to winning or settling a brain injury case. In that regard, we are fortunate that startling new sophisticated technologies have come forth in the past ten years which are more sensitive than MRIs or CT Scans in showing objective brain injury.  These are:

  • MRI/DTI: This test done on a normal MRI machine with special software known as “Diffusion Tensor Imaging” and is particularly sensitive to damages in the white matter tracts of the brain. White matter is in the interior of the brain and serves as connection like telegraph wires which connect different parts or lobes of the brains gray matter. When these are injured, communication is diminished and impairment results. DTI tracks the movement of water molecules within white matter fibers. The results have been correlated to outcome, neuropsychological testing, and other factors consistent with known medical science.
  • MRI/SWI: Another version of the MRI is known as “susceptibility weighted imaging or SWI”. This allows the radiologist to see very tiny bleeds in the brain known as micro hemorrhages. These can arise when the brain is shaken and are not normally seen on plain MRIs. The SWI can visualize iron molecules left over from tiny brain bleeds after a trauma. After a high-speed collision there could be hundreds of these tiny micro hemorrhages in a client’s brain.
  • MRI/MRS: this technology known as “spectroscopy” looks at the balance and ratio of certain molecules in the brain matter. If the molecules are out of balance because of trauma, a MRS will pick up the imbalance.

3. RECOVERY CAN BE SLOW

Recovery from a traumatic brain injury can be straightforward or complicated.

A diagnosis of “mild traumatic brain injury” (loss of consciousness if any) is less than 30 minutes with limited amnesia with normal MRI or CT Scan.) It is generally thought that 80% of individuals who suffer this type of brain injury will make a full recovery within six weeks.  However, a person with a pre-existing brain injury, pre-existing psychological or psychiatric difficulties, or pre-existing learning difficulties may have a more difficult time recovering from even a mild traumatic brain injury. Others without these conditions also fail to recover. Persons with TBI often have what is known as a “lack of self-awareness.” This means the individual does not recognize their limitation and changes since the time of the accident and will often say “I’m fine.”  TBI victims discover problems handling the complex demands of the real world. The more intense and longer duration the rehabilitation, typically the better recovery. The window for effective rehabilitation closes six months after injury, so it needs to be taken care of quickly. In the cases of milder injuries, only the passage of time and keeping the mind as active as possible are effective, e.g. reading, interacting with people.  And if medically authorized, begin exercising as soon as humanly possible after the injury. Exercise is known to promote neurogeneration in the brain, the growing of new brain cells. A complex and enriched environment leads to neuroregeneration as well.  Cognition recovery (thinking) occurs primarily in the first year after trauma, but can continue for up to two years. Coping skills can continue to allow for improvement thereafter. Motor recovery (movement, reflexes) can continue for up to ten years.

Obtain Social Security Disability as Needed

In the case of moderate or severe TBI with objective brain injuries, families should consider applying for social security disability immediately. If the patient recovers to the point of not needing such assistance, it can be stopped. However, the system is backed up and the application needs to be put in as soon as possible to avoid long periods without medical funding. Please see the how to apply for social security disability page for detailed instructions.

Frontal Lobe Injuries Can Be Quietly Devastating

A frontal lobe is the most advanced part of our brain and is, unfortunately, the most vulnerable to injury. Often neurosurgeons and some neurologist do not look closely enough at patients to make the determination as to whether a frontal lobe injury has occurred thinking that if they are walking and talking, they are okay.  Frontal lobe injuries are subtle, but can be devastating. A person with this type of injury can experience “disinhibition”, which means any thought becomes speech regardless of content which exhibits itself as inappropriate comments in conversations.  Disinhibition can lead to increased addiction problems, violence or social awkwardness.  Someone’s IQ can be unaffected by a TBI, but other parts of the brain that “pilot” or guide one’s brainpower can be messed up.  Decision-making and complex social interactions can cause major problems in one’s life and career.  Divorce, addition, depression and anxiety rates are elevated with frontal lobe injuries.

Loss of Cognitive Reserve: A Future Made Darker

Cognitive reserve is simply the amount of brain matter that you go through life with which protects you against dementia or Alzheimer’s disease or symptoms of a future brain injury. If you lose brain cells, you lose cognitive reserve. Another type of cognitive reserve is found in persons who have a high IQ or high job status. If these are lost, then cognitive reserve against future dementia is lost as well. Traumatic brain injury can adversely affect cognitive reserve in both instances. A young person suffering a moderate to severe brain injury will face both types of lessening of cognitive reserve in their lifetime and therefore will be more likely to suffer dementia or Alzheimer’s and to suffer it at an earlier age.

 

Obtain Competent Medical Help for Your Injury

Many older physicians, even neurologists, were trained that people with normal MRIs and CT Scans who did not have a brain bleed are fine. They are not aware of the latest research or the latest tools to look at the brain. It is highly possible that they do not know anything about cognitive reserve or other new discoveries. Often, medical providers will not take your case if they know you were injured in a car accident. Those who will see you will be dismissive and will assume that you are trying to pull one over on someone for money.  These attitudes can have a devastating effect on your subsequent brain injury litigation. Poor reports, skepticism in a medical record or failures to make a proper referral to a specialist can all adversely affect your claim, through no fault of your own. If you are having any of these difficulties with your treating physicians, let your attorney know.

4. INSURANCE COMPANY TACTICS

During a recovery please, be aware that the insurance company will try to contact you and speak to you through the adjuster. They will likely have this conversation recorded. If there is a later claim for a brain injury, they will try to use this conversations as proof “that there was nothing wrong with the individual.” This is nonsense since most people with traumatic brain injury can speak and speak normally. The difficulties they are having is often not particularly manifested in speech.

Make sure you obtain photographs of the vehicle you were in if you were in a car accident. Also, make sure the vehicle will not be sold or crushed. The insurance companies will often have the vehicle taken from the lot and crushed in quick fashion. If there has been a blowout or other mechanical failure, it is extremely important that the object that failed be preserved.

Make sure you have plenty of “before/after” witnesses. These are generally people not from your own family, but who have known you before and after your injury and can testify that there have been changes in you over time. People from a church, business or school are best. These witnesses can often overcome ambiguities or difficulties found in a client’s medical records. Juries seem to believe honest before/after witnesses, often more than hired experts.

All social media engagement by you or your family (Facebook, Twitter, blog postings or other sites) will be examined by the insurance company. Any post-accident photos or postings contrary to your case will be used against you. So always be truthful.

5. FURTHER CONSIDERATIONS

Return to Work (or at least try)

Juries admire people who try hard, even if they fail. A person who sits at home for years awaiting trial, without even attempting to find work, is often punished by a jury. Of course, if the injury is severe, this may not be possible. Nothing is more effective than the testimony of a boss or co-worker describing the problems in the real world that led them to being fired. Working with rehab experts and/or worker’s compensation professionals can help with this sometimes difficult problem.

Get Started Quickly!

Evidence from an accident or fall can disappear, sometimes within hours. Despite the horrors of confronting a TBI, family members should seek legal counsel ASAP if the circumstances indicate fault. Video surveillance cameras, for example, are everywhere to capture incidents, but they are often erased after 30 days. Medical issues are also time sensitive.  Insurance coverage, PIP coverage and rehabilitation fights with the hospital are common problems in the first week after an injury.

If you have any questions about this article, please feel free to call me and I would be pleased to assist you.

Christopher Shenfield, Attorney at Law, Burlingame, California.  Telephone (650) 373-2054.  Email chris@shenfieldlaw.com 

Why Hire An Experienced Personal Injury Attorney?

SOMETIMES accident victims decide to settle their own personal injury cases. If you had very minor injuries, no significant medical expenses, and are confident that your injuries have completely healed, you may not need a personal injury lawyer. If you have a serious injury caused by the negligence of another person, however, you are more likely to lose money than to save money by handling the claim yourself.  Here’s why you should hire an experienced personal injury attorney:

1. Counter the tactics used by insurance adjusters

Whenever an accident occurs for which an insurance company might have to pay compensation, the company estimates the value of the claim and sets that money aside. The job performance of an adjuster is measured by how much of that money the company keeps for itself. Settling claims for less money than the company has reserved is bad for accident victims but good for the adjuster’s career. Claims adjusters use a variety of tactics to pay less. They tell you that you cannot prove the full extent of your damages. They will argue that you were partly or wholly at fault. They will insist that you be evaluated by the insurance company’s doctor, who will conclude that your injuries are less serious than your own treating doctors believe them to be. They will delay payment of claims in the hope of wearing you down. Personal injury lawyers are immune to these tactics.

2. Back up the threat to file a lawsuit

Insurance companies do not like to be sued. Lawsuits cost insurance companies money. If their insured is sued, the insurance company has to either hire a law firm or assign in-house lawyers in the county where the lawsuit was filed. Insurance adjusters know that if a victim is not represented by a lawyer, they won’t be sued. When a lawyer represents an accident victim, insurance adjusters know that the threat of a lawsuit is real. They are much more willing to settle cases for their true value.

3. Maximize recovery for medical expenses and earning loss

Medical expenses and wage loss due to an injury are not easy for a victim to compute, particularly where your health insurer has paid “discounted” amounts for medical expenses and where you’ll have future medical expenses. A personal injury lawyer knows how to prove these items.

4. Maximize recovery for Pain and Suffering

Compensation for pain and suffering is the largest component of a jury verdict. Adjusters insist that pain and suffering isn’t worth much. Accident victims pay a fee for the services of a personal injury lawyer, but only if the lawyer obtains compensation for them. In nearly every case, that fee is more than offset by the increased compensation that the lawyer negotiates for the victim’s pain and suffering. A 2011 study commissioned by the insurance industry revealed that injury victims with a lawyer get, on average, 3 ½ times more money that those who settled their claim on their own. In cases involving more serious injuries, the multiple was 10 times or more.

5. Find Additional Insurance Policies or Sources of Recovery

Insurance adjusters will represent that there is only a limited amount of money available under their insured’s policy. This may be true, or it may not. The person at fault may have more than one insurance policy against which you could make claims. You may also have your own insurance policy or polices which you can make claims against such as an “underinsured motorist” policy. The insurance company’s settlement offer may cut off the injured party’s ability to make claims against other policies.

Christopher Shenfield, Esq., Burlingame, California, March 22, 2018.

Statute of Limitations – California

WHAT IS “THE STATUTE OF LIMITATIONS”?

(P.S. It’s “Statute”, not “Statue”  )

Statute of Limitations - California

Deadline to File Your Lawsuit

Generally speaking, the statute of limitations is a specific law (or “statute”) that states when a lawsuit must be filed. It is a specific measurement of time (i.e., 1 year) that “limits” the length of time one has to file a lawsuit. Lawsuits filed after the passing of this specific amount of time can be challenged and dismissed merely because the time has passed. The amount of time allowed depends on the type of claim. For example, in California, you must file a lawsuit for any losses due to an automobile negligence claim within 2 years of the date you were injured. If you claim someone breached a written contract, you must bring your lawsuit within 4 years. If it was an oral contract, the time is 2 years.  Whatever the type of claim you may have, contact an experienced litigation and trial attorney at once to discuss your claim and the time limits that apply.

Many people are under the mistaken belief that they cannot be sued after the specific time period has expired. This is not entirely correct. You can be sued. And if you do nothing, you will lose and you will also lose the opportunity to assert the defense of an expired statute of limitations. That is, it is an absolute defense- But it Must be Asserted! The obligation to tell the court is your responsibility. The court will assume what is said in the lawsuit is valid if no one shows up to tell them otherwise.

WHEN DOES THE TIME START?

Sometimes this is very easy to spot (such as the date of an accident) and other times it can be difficult to determine exactly. As it pertains to debts, specifically say credit card debt, the creditor has 4 years from the date the written contract was “breached”. Typically the breach occurs when no payment is made. This why it is important to know when you made your last payment. Generally the creditor has a record of your payments, but they are not always reliable. Also remember that the date of your last payment is not your breach date. It is the next date that at payment is due and no payment is made. This is why many advise to not make a payment on an account when the statute of limitations is about to expire, as this may reset the clock and thereby allow the creditor more time to file a lawsuit.

OTHER CONSIDERATIONS

  • Multiple Defendants: When a plaintiff has cause to sue based on knowledge or suspicion of negligence, the statute starts to run as to all potential defendants, even if unidentified.
  • Government Defendants: Must first submit administrative claim within 6 months (tort claims) or 1 year (real property & contract claims) of “accrual” before filing suit.

PARTIAL CHART OF THE “STATUTE OF LIMITATIONS” IN CALIFORNIA

Description Statute
Contract (in writing), 4 years Cal. Civ. Proc. Code § 337
Contract (oral), 2 years Cal. Civ. Proc. Code § 339
False Imprisonment, 1 year Cal. Civ. Proc. Code § 340
Fraud, 3 years Cal. Civ. Proc. Code § 338
Enforcing Court Judgments, 10 years Cal. Civ. Proc. Code § 337.5
Legal Malpractice, 1 year Cal. Civ. Proc. Code § 340.6
Libel, 1 year Cal. Civ. Proc. Code § 340
Medical Malpractice, 1 or 3 years (Depending on when the victim “discovers” the injury) Cal. Civ. Proc. Code § 340.5
Personal Injury, 2 years Cal. Civ. Proc. Code § 335.1
Product Liability, 2 years Cal. Civ. Proc. Code § 335.1
Property Damage, 3 years Cal. Civ. Proc. Code § 338
Slander, 1 year Cal. Civ. Proc. Code § 340
Trespass, 3 years Cal. Civ. Proc. Code § 338
Wrongful Death, 2 years Cal. Civ. Proc. Code § 335.1

Partial List of Exceptions to Statute of Limitations

Tolling statutes, e.g. latent construction defects – 10 years

Defendant absent from state (exception does not apply to non-resident motorists, corporations, limited partnerships and certain others)

Minors – Statute does not start until minor turns age 18 or emanicapted (although exception does not apply in uninsured motorist cases, medical malpractice, certain sexual abuse cases, and government claims generally)

Bankruptcy – puts statute of limitations on “hold”

Voluntary Agreement – The statute of limitations may be extended by voluntary agreement of the parties.

Military service – puts statute of limitations on “hold” in certain circumstances

Delayed Discovery Rule – suspends (delays, lengthens) by not starting the time period until plaintiff should reasonably have discovered the harm and wrongdoing

Interference – Defendant’s conduct contributed to plaintiff’s delay in filing suit.

Insurance Company Non-Disclosure – Insurance company fails to notify plaintiff who is not represented by an attorney.

Christopher Shenfield, Attorney at Law, Burlingame, May 11, 2017.  Questions?  Email or call me to discuss your case!!  Email: chris@shenfieldlaw.com  Tel: (650) 373-2054