Chloe’s parents, Tom and Sharon, unexpectedly find themselves at Hughes Spalding Children’s Hospital in the intensive care unit. Chloe, age 10, and Tom were walking home from Piedmont Park, pushing their bicycles, when a speeding van ran a red light and struck Chloe in the crosswalk, throwing her twenty feet onto the pavement. Chloe sustained a skull fracture and is now being treated at Hughes Spalding for seizures. Her prognosis was at first unknown. After a week she has apparently recovered, and she is sent home with instructions to see her pediatrician as needed. When Chloe returns to school, this formerly gifted student gets into academic trouble. She is constantly exhausted. Instead of playing sports after school, she goes straight to bed. Tom and Sharon want to pursue a claim, but they don’t know where to start. They talked to their old friend Nick, a criminal defense lawyer, for advice on how to find the best lawyer for the injury case. She has not been referred to a neuropsychologist.
Kim is driving home from work in her Jeep Cherokee, when an elderly man runs a red light and broad-sides her top heavy Cherokee flipping it over. Her head strikes the windshield, and she briefly loses consciousness. She is taken to the emergency room, where she is examined. She is oriented times three. She knows who she is, where she is, the date, and she can name the president. She is sent home with no instructions, except a printed head injury form. After that she begins experiencing fatigue, problems with memory and concentration, headaches, gets lost and confused easily, has trouble organizing her daily tasks, and paying attention and concentrating on her job as a graphics designer. Her mood changes easily. Sometimes she becomes rageful, and other times she becomes sad, anxious, and listless. Her energy level is diminished, and she begins going to bed as soon as she gets home from work, just to have the energy to get up in the morning to get to work on time. She hires a lawyer for her “whiplash injury.”
Rose, an artist whose medium is acrylic painting, is rear-ended at an intersection. The seat back on her Chevrolet breaks at the scene and she feels dazed. An ambulance rushes to the scene, but she, feeling stiff and sore, turns it away and goes to work. Later that day, she develops a headache. In the following weeks she begins feeling fatigued. She has trouble thinking, acting, speaking, and reading. She has trouble finding the names for objects, and her speech pattern is more awkward as she struggles to find the right word to use. She feels tired all of the time and wakes up frequently during the night. She goes to bed earlier but wakes up exhausted anyway. She can not come up with a concept for and complete a painting anymore. She angers more easily and becomes sad and depressed more frequently. After three weeks, she sees her general practitioner, who tells her that she has probably sustained a concussion and that her symptoms will subside over time. She hires a lawyer to pursue her “whiplash claim.”
These scenarios are based upon real cases and are common fact patterns in the world of traumatic brain injury. It is the author’s opinion that thousands if not hundreds of thousands of traumatic brain injuries go undiagnosed every year in the United States. Emergency room doctors frequently fail to diagnose would-be moderate brain injuries. Even neurologists miss these diagnoses. Even in the cases where brain injuries are diagnosed, usually just as a concussion, the patient frequently does not know what medical follow-up care is needed, and the injury goes undiagnosed and untreated. Oftentimes the effects on the immediate family, friends, and co-workers are devastating as the personality of the injured person changes. Frequently, the spouse may feel like they are now married to a totally different person. Stresses and strains on marriages and relationships with significant others are strained and divorces frequently occur.
The lawyer, who has training and experience in the world of traumatic brain injury, sometimes called a “neuro-lawyer”, is a professional who can and should play a significant role as the case manager in helping to educate the client as to what can be expected with a traumatic brain injury, helping the client seek appropriate testing and treatment, and in the traditional lawyer’s role of assisting the client in obtaining a maximum recovery for his/her claim. In the author’s career, as I am sure in many other trial lawyers’ careers around the country, there are many cases which are presented to the attorney initially that appear to be a minor connective tissue injury case, whiplash and/or a concussion, but with proper diagnosis management, treatment, and aggressive representation, result in six and seven figure results for the clients after a traumatic brain injury is diagnosed. Surprisingly, the clients also frequently are tentatively diagnosed by the trial lawyer, not the emergency room or general practice doctor. The diagnosis is made after referral to a neuropsychologist.
The important question becomes, “How does an ordinary person who is injured know how to find and select the right attorney to represent him or her in a traumatic brain injury case?”
There are no lawyers who are taught the first thing about traumatic brain injury in law school. Training in the areas of caring, compassion, good listening skills, and for the most part even trial advocacy skills are completely lacking in law school. In our judicial system money is power. As a consequence of that bargain, not everybody can have the best lawyers that money can buy. Generally speaking, the lawyers that are turned out by the nation’s law schools, who are the smartest and the best students, go to work for insurance defense and corporate law firms. Some of these defense lawyers, after being fully trained, switch sides and become plaintiff’s lawyers. Some of them genuinely have had a change of heart and want to help ordinary people, but others simply switch sides because they feel they will make more money as plaintiff’s lawyers. The ordinary person who sets about the task of hiring a lawyer, tells his friends that he is going to sue and get justice. Likely, they will be disappointed, because they have no tools or information or knowledge about how to find a lawyer who has the heart, the knowledge, the skills, the tenacity, and the financial staying power to obtain full justice for them. When young college graduates go to law school, they are taught by the case method. Through this method they learn lots of fancy lawyer phrases and jargon, and to you as the client, they can come across as stiff, stilted, completely incomprehensible, and overly impressed with their own vocabulary. One thing you as the traumatic brain injury victim or consumer should understand is that you can almost always tell the truth when you hear it from your perspective lawyer. Do not be buffaloed or bamboozled by the fancy words and the fancy jargon. Ask direct questions and insist on direct, simple answers. After all, your case will ultimately be presented to a jury of people just like you. If a lawyer can not speak in terms understandable to you, he/she will not be able to do that for the jury either.
It is also important to understand that the only justice available to the brain injury victim is, in the end, money. This money in most circumstances is not even paid by the wrongdoer. The money is paid by an insurance company or a corporation. Many of these insurance companies and corporations are mammoth multi-national financial institutions. You, the traumatic brain injury victim, and your lawyer are at best, nothing but a tick on a dog’s back. Even a six or seven figure settlement or verdict for most of these financial entities is nothing but a sneeze in a tornado. The insurance corporation does not care about you, and in most cases they will not be afraid of your lawyer, even if he or she is a good one. To make matters worse, the insurance companies and the corporations are skilled and good at picking lawyers who understand traumatic brain injury, and seel to fight against and minimize the result which you are seeking with your lawyer. Because you have no experience or training in picking a trial lawyer with an excellent track record, the process is a mystery to you. Without some help and guidance, you do not even know the right questions to ask to ascertain the training, experience and track record of your lawyer, councillor, advocate, and champion.
It is the purpose of this paper to try to help you learn the questions to ask to get the best lawyer for you to obtain the best justice in the form of money for you that can be had under the circumstances of your case.
As I have stated, a lawyer does not graduate from law school knowing how to handle a traumatic brain injury case. Most lawyers graduate from law school with only a vague notion of wanting to “help people” or wanting to earn a living, or wanting to pay back their educational loans, or wanting to please mom and dad who wanted them to be a professional, or wanting to be respected in the community, or being able to afford nice cars and nice houses. These notions have nothing to do with getting you where you want to go as a traumatic brain injury victim.
The worthy young lawyer quickly learns that litigating traumatic brain injury cases is hard work. Largely the subject matter must be self taught. It would be wise to ask a prospective lawyer how he or she learned about traumatic brain injury. There are many books, which have been published on the subject. Some of them have been written for doctors, neuropsychologists, or neurologists. Others were written specifically for lawyers. As a first step, the client should ask the perspective lawyer what he or she has read about traumatic brain injury and insist that he or she explain in detail his/her journey in learning the subject matter of the brain injury. Ask the lawyer if he has any books or seminar materials on his shelves about traumatic brain injury and ask to see them. Ask if he or she owns an anatomical model or charts of the human brain.
Another very important criteria in selecting a lawyer, is to find one who exhibits intuitively and objectively the virtues of caring and compassion. You as the traumatic brain injury victim have many signs and symptoms which you are experiencing, which adversely affect your daily life. Your injury affects your job, family, marriage, relationships with significant others, recreation, and every aspect of your life. Your lawyer must have the patience, interest and compassion required to be willing to listen to and care about all of the areas of your life which have been impacted by your injury. You may not be at your diplomatic, interpersonal best. You may be volatile and irritable because of your injury, but the lawyer must be patient with you. If the lawyer is not interested enough or does not have the time to let you educate him/her about all of these areas of your life in which you have been adversely impacted, then he/she will not be able to present your case adequately to the insurance company adjuster, the insurance defense lawyer, or ultimately the judge or jury.
You as the client need to find out if the lawyer is too busy to give you the personal attention that you need and to which you are entitled. Ask the lawyer what his/her case load is. A case load of 20 to 25 cases, if the cases are catastrophic and substantial for the most part, would be a good number. A case load of 20 to 25 cases of soft tissue whiplash cases might not be a good number, because it might demonstrate that the lawyer has not had the opportunity to develop the expertise and track record to represent clients in “big cases”. A lawyer handling 2 or 3 hundred files is not able to give you the personal attention that you need. You need to find out if a lawyer will delegate your case to associate lawyers who are inexperienced or paralegals, or legal assistants. Ask a lawyer if you sign up with him/her as a client who you will be talking to. If you will not be talking to the lawyer, but primarily to assistants, this may not be the man or woman for the job. It is true that successful lawyers frequently are tied up taking depositions, attending mediations, and trying cases. Sometimes they have gone to attend professional seminars, hopefully some of them on the subject of traumatic brain injury. It is key that you are able to talk to the lawyer at the end of the day on a regular basis. Phone calls not returned within a day or two should not be tolerated.
It is important to ask the lawyer, what percentage of his past and present case load concern representation of clients in traumatic brain injury cases. If the number is very small, this might not be a good sign. The word gets out in the community as to who the lawyers are that are handling a number of traumatic brain injury cases, and these lawyers quickly develop a case load of traumatic brain injury cases because of their expertise and track record in such matters. Much of the education for the trial lawyer, who wants to successfully represent clients in brain injury cases, is in attending regional or national seminars on the subject. Ask the lawyer to specifically tell you what seminars that he/she has attended and when. Ask to see the seminar handouts or brochures. The seminar presenters will teach trial lawyers such things as brain anatomy and function, mechanics of traumatic brain injury, diagnostic techniques, post traumatic stress disorder, neuro physiological testing, imaging studies such as CAT scan, MRI, CT, TBI, sleep disorders, presenting traumatic brain injury cases at trial, special needs trusts, how to present opening statements in a brain injury case, how to conduct jury selection in a brain injury case, direct and cross examination of medical experts, seizure disorders following traumatic brain injury, life care planning, etc... Ask the lawyer what continuing legal education (CLE) credits he/she has obtained by virtue of attending traumatic brain injury seminars. Some lawyers are so interested in brain injury cases that they have authored articles from medical or legal publications, newsletters, and books. Others have developed web sites which deal with the subject matter of traumatic brain injury. Ask for the web site address. Ask if the lawyer has published anything about traumatic brain injury, be it articles, book chapters or seminar handouts.
Some attorneys have given speeches at medical or legal seminars on the subject of traumatic brain injury. Ask the lawyer if he/she has ever given a speech to professional organizations. A sure sign of a lawyer who is committed and dedicated to representing traumatic brain injury victims, is a lawyer who has made donations to brain injury organizations or has been involved in fund raising for the Brain Injury Association of Georgia or Brain Injury Association formally known as National Head Injury Foundation. Ask the lawyer if he/she has had any experience with traumatic brain injury among his/her family or friends. Frequently, this personal experience will lead to interest and compassion about the problems and plight of brain injury survivors.
When quizzing the lawyer about his knowledge of brain anatomy, it would not be a bad idea to ask the lawyer to briefly explain his or her knowledge about brain anatomy and the mechanics of traumatic brain injury. Lawyers should know that the brain is suspended in the skull and surrounded by cerebral spinal fluid. The brain is not firmly affixed to the skull but is floating in cerebral spinal fluid and is subject to being thrown or bounced around inside the skull in an acceleration/deceleration injury. The interior of the skull is not smooth but sharp and has boney protrusions. These ridges can injure delicate brain tissue which has the consistency of oatmeal or jello in an impact. It is not necessary to have a blow to the skull to cause a brain injury in acceleration/ deceleration such as in a car wreck, a fall, or even in a “shaken baby” syndrome where a baby is shaken and brain injury results. Loss of consciousness is not necessary for a brain injury to occur. Frequently a client will not know that they have lost consciousness, because they were unconscious and have no memory of the event or of being unconscious. Sometimes they will report feeling dazed and confused after the injury and this is sometimes what people whom bystanders have seen lose consciousness report really happened. The lawyer should have some basic knowledge about the structures of the brain: such as, neurons, axons, dendrites, cerebellum, ventricles, cerebrum. They should have basic knowledge about anatomy of the brain as it relates to brain function. The lawyer should understand concepts like loss of concentration, executive functions, sleep disturbances, word search problems, depression, inability to stay on task, distractability, auditory and visual memory, sequencing, etc. as these terms relate to traumatic brain injury. The lawyer should demonstrate a basic knowledge of the testing, both neuroimaging and neuropsychological used in brain injury cases. The lawyer should be able to explain in general terms, MRI, CT (cat scanning), QEEG (brain mapping), PET scanning and how neuropsychological testing works. The lawyer should demonstrate that he understands the mechanics of a sheer/strain or rotational injury to the brain and an acceleration/deceleration mechanism as well as excitotoxicity when a brain cell is subjected to trauma and chemical changes occur, which further damage the brain. A lawyer should demonstrate basic knowledge about skull fractures, contusions fo the grey matter, laceration, or tears of the brain, defuse injury of white matter of the brain, intracranial hemorrhages, increased intracranial pressure, epidural, subdural, and intracerebral hemorrhages, hydrocephalus, ischemic brain injury, hypoxia, anoxia, epilepsy, excitotoxicity injuries, tinnitus (permanent ringing or buzzing in the ears), etc. A lawyer should demonstrate knowledge that many brain injured people have normal CT and MRI scans, because the injury to the brain tissues are on a microscopic level, and the lesions are too small to be demonstrated on an imaging study. PET Scanning which shows glucose metabolism in the brain may demonstrate injuries where MRI or CT fail. The lawyer should indicate his knowledge that a mild brain injury does not necessarily mean a mild deficit in function for those people who operate in careers which require peak mental performance ex. air traffic controller. The attorney should be able to discuss how a brain injury causes sleep disorders either from micro seizures or simply the healing process required when a brain is injured, and the fact that partial insomnia produces sleepiness, feeling stressed, irritability, less capability of meeting challenges, or experiencing pleasure, reduced concentration and memory, fuzzy thinking, reduced motivation, depressed mood, and slowed reaction time. A lawyer should be familiar with the Halstead Reitan test battery or Luria-Nebraska Neuropsychological Battery (LMNB), or other such batteries and the functions of at least some of these tests used in a neuropsychological test battery.
The attorney should demonstrate a knowledge of neuropsychologists, and how to select one with the appropriate credentials, and who has a track record as being an effective advocate in a litigation setting. The attorney must demonstrate to the client that a neuropsychologist must have completed at least one year of post doctoral training in their specialty within a medical school or hospital setting. It is better that the neuropsychologist is board certified. The neuropsychologist should have taken courses in neuroanatomy and behavioral neurology in a medical school setting so that they will be able to offer opinions about causation in brain injury cases and about neuroanatomy. Such medical testimony is allowed in some states such as Georgia. Neuropsychologist who have published papers, book chapters, or text books are preferable. Neuropsychologists who have been invited to speak at national or international conferences or seminars in their specialty are preferable. Neuropsychologists with teaching or faculty appointments at a University medical school or a well known rehabilitation facility such as Shepherds Center or Craig Center are preferable. A neuropsychologist should have forensic experience in both plaintiff and defense cases. The neuropsychologist should be well respected by peers within his/her specialty, and by plaintiff and defense lawyers. If the neuropsychologist is known solely as a defense or a plaintiff’s witness, the plaintiff is not served well. The neuropsychologist should devote a substantial portion of his practice to patients with traumatic brain injuries, rather than doing an occasional neuropsychology case mixed with family therapy or something else. The attorney should be able to explain to the client what the neuropsychologist does i.e. obtaining a detailed chronological history of the patient’s injury, including information from the patient, significant others, and available medical records. The neuropsychologist should obtain an extensive background history from the patient including; developmental, educational, family history, military, occupational, marital, sexual, medical, and psychiatric history. Observations should be made of the patient’s behavior. The patient’s academic, vocational, medical, psychiatric, psychological, legal, and military records should be obtained and reviewed. A wide variety of specialized tests should be administered to evaluate the patient’s cognitive, emotional, and behavioral functioning. Careful analysis of the test results, using both quantitative and qualitative scoring methods based upon the neuropsychologist experience expertise and training in neuropsychology should be used. Conclusions regarding the patient’s impairments, or lack of such based upon an integration of all of these data bases should be reached. A neuropsychologist should offer an opinion about the patient’s prognosis and long term cognitive, behavioral, and emotional difficulties. The neuropsychologist should be able to make recommendations about treatments that are needed such as; rehabilitation, psychiatric treatment, cognitive remediation, to improve the patient’s quality of life and to minimize the effects of the patient’s impairments upon his/her daily functioning. The neuropsychologist should determine the effect of the patient’s impairments upon the family. The neuropsychologist should be willing to make referrals to medical doctors who can prescribe appropriate medications such as Tegretol, Phenobarbretol (for seizures), anti-depressants, etc.
TRIAL STRATEGY AND PREPARATION
The client of the attorney being interviewed should ask the attorney what his strategies would be to develop the case for trial, for example: the attorney should express familiarity with the technique of using spouses, friends, co-workers, and significant others to offer anecdotal evidence about the effect of the brain injury on the survivor to the jury. Oftentimes these lay witnesses are more believable to the jury than neuropsychologists who are dependent on psychological jargon, which may not be particularly credible to a society in which psychologists are not held in particular high esteem in a legal setting. The rarely successful “insanity defense” as presented by psychologists has probably caused much erosion of the credibility of the profession of psychology in the forensic setting of jury trials.
The attorney should be asked about how the attorney would prepare the client for his deposition. The client should ask if the lawyer would recommend using a diary or entry notebook to document the effects of the injury over time so that the client would be able to present these anecdotal experiences to the jury a year or two years after the injury when the case goes to trial. Some brain injured clients are “high maintenance” because of the irritability, bad temper and emotional liability sometimes associated with traumatic brain injury. Clients sometimes are mistrustful of their attorney, so counsel should attempt to keep clients fully informed of the progress of the case and not cause clients to have unrealistic expectations. It is advisable for the attorney to establish a close relationship with one or more significant others in the clients life to act as a liaison to act as a bridge between the attorney and the client during periods of emotional fragility or lability. The attorney should caution the client not to withdraw as is often the case in traumatic brain injuries, but to try to remain connected to friends and family who will be able to witness the client’s activities and status and testify to his/her disabilities at a later time. The attorney should mention to the client the particulars of how the client will be prepared for deposition or trial such as being prepared to make a good impression through proper dress and personal hygiene, politeness, speaking clearly, answering questions briefly, telling the truth, not embellishing, trying not to memorize testimony by vote, stop speaking if an objection is made, not becoming angry, excited, nasty, or aggressive to opposing counsel, not joking around or using inappropriate behavior, not chatting with the opposing party or lawyer.
A substantial award by verdict of settlement will permit the brain injury survivor to obtain the funds necessary for costly treatment and rehabilitation and will allow the survivor of brain injury to begin enjoying life to some degree without the stress of constant worry about financial concerns. Choosing the best Traumatic Brain Injury attorney can promote this goal.
The attorney should express a willingness and demonstrate an ability to work together with the medical profession to promote the interest of brain injury survivors. The attorney should understand that he is a part of a team of professionals whose purpose it is to help the TBI survivor and make a difference for the survivor in a positive way, just as the medical profession is attempting to achieve the same results.
LIFE CARE PLANING
In case of a severely disabled traumatic brain injury survivor, the attorney should be familiar with the profession of the life care planner. There are certain professionals who prepare plans which outline in detail all of the elements of medical and rehabilitative facilities, equipment, and rehabilitative devices, medicines and therapies, which are necessary to care for brain injury survivor over his/her life time. The data from these life care plans comes from interview of the client, review of all of the medical records, and review of the medical care providers and consultation with providers of goods and services related to care and treatment. Future needs including; medical evaluations, therapeutic treatment, residential treatment programs, living alternative support care, educational and vocational training, medical equipment and supplies and adaptive equipment are addressed. Adaptive living environments and personal equipment are identified in the life care plan. This information is presented in the form of a cost report. After the individual cost items are detailed, a summary is prepared which shows the costs that occur on a one time basis and are not repeated. The life care plan can be given to an economist who can calculate the cost of care over the injury survivors life reduced to present cash value. This data can be presented to the jury in an effort to obtain full economic recovery for the client. Sometimes the most significant financial aspects of recovery for brain injury client will not be related to the need to medical attention, but more likely to the type of structured environment, including home, adaptive facilities, transportation that many individuals who have lost the ability to be in charge of their own lives now require, because of the various cognitive sequelae of traumatic brain injury. Proper care often will make a significant difference in the long term outcome in individuals with traumatic brain injury. The important task performed by the rehabilitation team and the attorney is to determine what an individual will need to have a healthy fulfilling life for the remainder of his/her life.
Most trial lawyers work on a contingent fee arrangement. The range of the fee may be from 25% to 50% of the total recovery plus expenses.. Many of the better trial lawyers are associated by other lawyers who do not specialize or do not feel they are competent in the traumatic brain injury field. When you hire John Smith the lawyer with the store front office in your neighborhood, he may then in turn associate another lawyer who is a trial lawyer. Frequently the first lawyer will receive a third of the fee from the second lawyer. He may or may not do much work on the case. These arrangements are common and should not result in your having to pay a larger fee. The problem for the traumatic brain injury consumer of lawyer services is that if a first lawyer is hired who hires a second lawyer, the second lawyer is less able to negotiate on the amount of fee that he/she requires, because typically a third of the fee is being given to the lawyer who does not fund or work on the case to any great extent. Oftentimes a traumatic brain injury lawyer who is hired directly will work for a third and in rare circumstances even 25%, if he/she does not have to pay a referring lawyer a percentage of the fee. Thus, it is best for the client to try to find a good traumatic brain injury lawyer directly. A caveat to this is that if the first lawyer is a friend of the family whom you trust, perhaps this first lawyer will be useful in looking over the shoulder of the second lawyer to make sure everything is being handled appropriately. Most fee contracts will provide that the client is liable for expenses. These will be deducted from the recovery. The State Bar of Georgia Rules requires that a firm require in addition to the fee this language even though in practice many lawyers made it a policy to not insist on collecting expenses if the case is lost. There is an opinion floating about that this language is no longer required. I would recommend that you have the lawyer tell you specifically whether he/she would enforce the expense provision of the contract in the event the case is not successful in the presence of your witness, such as friends or family members. Most trial lawyers recognize that they have a duty to the public to represent people who are not financially capable of fighting the monied interests of insurance companies and corporations on their own terms. Most successful trial lawyers have built up capital reserves to apply to use for the benefit of their clients as part of the service to the client, yet expecting to be paid this money back if the case is successful. Often times a trial lawyer will have to spend even as much as a $100,000.00 or more on a complex case, paying expert witnesses, court reporters, accident reconstructionists, life care planners, neuropsychologists, and other experts. You will be charged for copies and postage. I would recommend that a client not hire an attorney who insists on you paying the expenses as you go, unless you can readily afford it or perhaps negotiate a lessor fee in turn for your funding the case. The funding of the case does add an element of risk for the trial lawyer, and my belief is that this justifies a somewhat higher percentage contingency fee contract.
You should make sure that the fee contract provides for an exit clause in the event that either you or the lawyer become dissatisfied with the case. A fair exit clause would provide that if a lawyer abandons the case or withdraws from the case, the lawyer on his/her initiative the lawyer should not insist on a fee. Expenses probably should be reimbursed at the end of the case, not at the time of severance of the relationship. If the client wishes to terminate the relationship, the contract should provide that the lawyer should receive a percentage of whatever offer has been made if any or an hourly rate for the work that has been performed.
You should ask the lawyer whether he will respect your confidentiality with family members and medical care providers. In other words, ask him/her whether he/she will refuse to disclose confidential information such as psychiatric history without your permission.
GOVERNMENTAL BENEFITS/ INSURANCE SUBROGATION/ REIMBURSEMENT
You should ask the attorney what he/she knows about how social security (SSI), Medicaid, state and local disability programs, impact your case. You need to ask whether or not your health insurance company will insist on reimbursement pursuant to a subrogation clause in the contract. This is a murky area for trial lawyers, because the laws are constantly evolving. A Georgia statute provides that the insurance company should not be entitled to reimbursement if the client has not been “made whole”or fully compensated. If you are interviewing with lawyers on behalf of a client who is mentally disabled as a result of a traumatic brain injury, you must understand that when a lawyer reasonably believes that the client can not adequately act in the clients own interest, a lawyer may seek the appointment of a guardian of the person or property of the client or take other protective action with respect to the client. In that case the Probate court will most likely undertake a “hands on” role in the management of the client’s settlement proceeds, so as to protect the corpus of the client’s estate.
DISCOVERY OF THE CLIENT’S MEDICAL RECORDS
If a case is filed on behalf of a traumatically brain injured client, the defense firms will, no doubt, use all of the data bases at their disposal to supeana all medical records no matter how remote in time and geography pertaining to the client. Sensitive and confidential materials concerning prior mental illness, criminal activity, divorces, will most likely be brought to light. If the Plaintiff’s attorney objects to producing confidential psychological or psychiatric materials, the privacy of these documents may be protected, however, to the great detriment to the case. Many judges would take the position that if the client puts their psychological status into issue, then prior psychiatric and psychological history must be revealed or in the alternative, the case will be dismissed. At a minimum, using the “privilege” to protect such matters, probably will hurt the case and detract from it’s value because it will appear the client is not being honest. If medical bills have been paid by a company health insurance plan governed by ERISA, certain laws and rules apply. ERISA plans by federal law preempt state laws on the subject of a requirement of being “made whole” before subrogation reimbursement applies. ERISA plans have, through federal law, draconian powers of enforcement against the client for recovery of medical expenses in the event that the client makes a recovery, and even against the client’s attorney. Payment by medicare and medicaid, also are subject to subrogation/reimbursement so that any recovery made by the client is subject to part of the client’s money being paid over to medicare or medicaid for reimbursement. Sometimes ERISA plans health insurance companies, medicare and medicaid will agree to compromise the amount claimed, or at least deduct for a prorate share of attorney’s fees and expenses, but sometimes they won’t. If these issues are not dealt with there is a possibility that the client will later be sued for reimbursement, long after the case is over. As a general rule, the subrogation rights of ERISA qualified self funded or self-insured employee medical benefit plans are enforceable against both the employee beneficiary and/or a third party tort feesor, who is held responsible for the injuries to the employee beneficiary. State statutes that limit or prohibit subrogation with regard to such plans, such as the Georgia statute which prohibits subrogation unless the client is fully compensated are generally preempted by ERISA Employer Retirement Income Security Act of 1974, ERISA, sec.1001-1461 Title 29 U.S. code, (Federal preemption sec. 1144A title 29 U.S. code). The lawyer should demonstrate to the client an awareness of state and federal statutory liens and/or subrogation, as well as health care provider claims. For you to fail to take affirmative action to pay medicare and medicaid plans for reimbursement may result in personal liability for you and your lawyer.
Often times it is in the interest of the client who is disabled because of a traumatic brain injury to receive a structured settlement. Such settlements are worth considering because the interest earned on the annuity purchased with your recovery over time is not taxable to the client, if the structured settlement is made a part of the settlement and funded before the client receives the money. If the client receives the cash first, and then an annuity which has the same effect as a structured settlement is purchased, the income earned on the corpus of the money is taxable. Many clients who are not used to handling large sums of money particularly those who may have some mental disability as a result of traumatic brain injury, quickly fritter away their money for various reasons. Friends and family come out of the woodwork seeking loans. A compassionate client may well loan away large sums of money with no hope of repayment. Clients may buy extravagant presents for friends and family such as cars or houses. With a structured settlement there is a monthly check coming in and the most damage that can be done by poor money management is that months proceeds be spent. Hopefully the learning curve will be such that the client will learn not to waste the money over time, but the steady monthly income stream will still be available to protect the client’s financial well being and security over time in the event of a structured settlement. In the event a mentally disabled client who is not competent to handle his/her financial affairs does not want a structured settlement, a guardianship of a person or property would be advisable. In considering a structured settlement, the financial stability of the company should be assessed and considered. Grades from Moody’s. Standard and Dave’s and Best rating companies should be obtained. Depending on how the client is rated as to life expectancy due to overall health status, better pay outs can be obtained for clients who have a lesser life expectancy. Another consideration is whether or not to have the annuity continue on for a period of years certain following the death of the client, so that the spouse or children of the client are cared for over time. It is important to know that the attorney fee should only be applied to the present cash value to the settlement, not the total amount of the settlement over time. For example, an annuity purchased for $300,000.00 now may be worth 1.5 million over time, but the fee should be 100,000.00 not 500,000.00
SPECIAL NEEDS TRUSTS
Many competent trial lawyers in the field of traumatic brain injury, are not specialists in trust and estates, including special needs trusts. Sometimes special needs trusts are used to preserve eligibility for medicare, medicaid, or social security. The complex issues involved should be referred to a specialist in special needs trusts. See 1993 OBRA 42 USC 1396 p (d) 4 (A)
On August 10, 1993, President Clinton signed the 1993 Omnibus Budget Reconciliation act OBRA into law. A portion of the act has had significant impact on the use of settlement trusts. For the first time federal legislation authorizes and recognizes their validity while allowing eligibility for disability related benefit programs. The act also grants states a lien against the trust assets remaining at the death of the beneficiary to the extent of medicaid benefits rendered to that beneficiary. The relevant portion is codified at 42 USC Sec. 1396 p(d) The language of the cited provision has created confusion and conflicting interpretations state by state. New policies, regulations and statutes are being enacted as each state struggles to implement the new law. In special needs trusts. If there is any appearance of constructive or actual control by the beneficiary or his parents, guardian, or conservator, the trust efficacy could be negated. The issues relative to the use of the trust in regard to medicaid eligibility are in a constant state of flux. In a special need trusts, the co-trustee must obtain a federal employers tax identification number (“EIN”) or bank accounts must be opened for the trust. The co-trustees must maintain accurate and complete records of all trust activities and make annual reports and file trust tax returns. Most attorneys experienced in traumatic brain injury do an excellent job in the preparation, presentation and resolution of the case both in settlement discussion and litigation, however, many of these attorneys are woefully ignorant of the critical impact that funds received through settlement or judgement can have on the disabled client. Issues involved in competency to sign attorney/client agreements and releases and to properly hold and manage the proceeds of litigation must be considered. The attorney should also be aware that implications for eligibility for collateral source benefits from local, state, or federal programs available to the client as a result of the clients disability. As a severely disabled individual, the plaintiff could be eligible for local, state, and federal benefits based on his disability, such as titles, XVI and XIX of the Social Security Act (SSI and medicaid- 42 U.S.C. 1382 et seq) In order to be eligible for those benefits, Plaintiff may not have resources in more than $2,000.00 available to him. Assets held in guardianship or conservatorship accounts, historically the most common way to manage settlement funds for a disabled client are considered available to the plaintiff for purposes of eligibility determinations and could disqualify the plaintiff from receiving the benefits. Assets held in a properly drafted Special Needs Trusts are not considered available to the plaintiff because title to the assets does not transfer to the beneficiary in the same way that title to assets in a guardianship transfer to the ward. The Social Security Administration recognizes and acknowledges this difference. Eligibility for SSI and Medicaid benefits is important for far more than just the monthly income stream provided under SSI. The federal medicaid budget allocations go to each state to provide on going community and long term residential care for a great number of persons with a wide variety of disabilities. Also, expenditures to traditional medical areas often included are such things as: therapies, long term care, rehabilitation, group home or other living arrangements, sheltered workshops, work activity rehabilitation. By maintaining the plaintiff’s eligibility for SSI and Medicaid, an entire system of state services for social programs, residential alternatives, rehabilitation and case management is preserved. Most states adopt SSI and medicaid eligibility criteria for entrance into those programs. Sometimes the use of the trust as a financial investment and management vehicle is more economical than guardianship. On going reports to the court are minimized and thus court and attorney’s fees are reduced. Financial supervision and security for the client, so that assets are not squandered is not sacrificed. SSI eligibility criteria allow an applicant to have no more than $2,000.00 in liquid resources. Assets in a guardianship belong to the ward and are thus by definition available to him/her for purposes of benefit eligibility determinations. It is a rare plaintiff’s lawyer, experienced in traumatic brain injury, who is adequately familiar with the esoteric rules and regulations regarding Special Needs Trusts, but the attorney must at least be aware of the problems so as to know when and to whom to refer these matters for resolution to the client’s benefit.
The problem with the justice system as it relates to the brain injured client or any client for that matter, is that the only thing that it can deliver is money or punishment. In a perfect world the justice system could restore the injured person to full health, and his or her god given perfect brain function would be restored. Money, however, will not accomplish this. Brain cells such as axons, neurons, and dendrites once killed by an injury will not regenerate. Granted, sometimes new neuro-pathways will be created to try to compensate for the damage, but there is nothing the justice system can do to regrow damaged brain cells. Thus, TBI cases often make demands to the justice system, to which it simply can not respond. Certainly, there would be few if any brain injury victims who would take any amount of money willingly as a bargain for losing any part of their mental faculties. When the insurance companies or the corporations pay up, they do not flinch. For them the settlement is a mere accounting entry made on some ledger sheet or computer program by a clerk. Often times there is no apology, no admission of guilt, and even the settlement is confidential and secret. The defendant company then gets back to business to usual while the brain injured plaintiff gets back to the difficult, lifelong business of living a different, altered, brain injured life. Oftentimes the brain injury plaintiff would much rather settle than go through a long ugly trial where all of the sometimes painful and sordid details, are brought into issue in an effort by the insurance company to prove that the psychological elements associated with the brain injury are really nothing more that preexisting problems from life before the injury.
The best way for the client to navigate these difficult waters is to carefully select the most experienced, knowledgeable and compassionate trial lawyer possible for the job. Hopefully, some of the ideas contained in this paper will assist the traumatic brain injury survivor in the selection process, so that the best possible financial outcome will be reached and so that the stress fo going through the litigation process will be minimized.
Credit for explanation about special needs trust, guardianships, and the OBRA Act go to William L. E. Dussault, J.D. attorney practicing in Seattle Washington, who specializes in law for individuals who experience disabilities.