Traumatic Brain Injury

Over 1.4 million Americans sustain a Traumatic Brain Injury each year, and more than 5.3 million Americans currently require lifelong assistance in order to perform daily activities. A traumatic brain injury can cause a wide range of disabilities, which can affect a person’s thinking, comprehension, emotions and behavior. Traumatic brain injuries can also cause epilepsy and increase the risk for conditions such as Alzheimer’s, Parkinson’s, and other brain disorders that become more prevalent with age.

Those suffering from traumatic brain injuries often have questions about their rights and need help in determining what benefits are owed to them. Stark & Stark’s attorneys have devoted themselves to obtaining the compensation our clients deserve and provide each client with personal guidance in order to coordinate and promote the healing process.

When hiring a personal injury attorney to represent a person who has suffered a traumatic brain injury, is it necessary for the attorney to have specialized knowledge of brain injuries?

Yes. The attorney you hire should have specialized knowledge and experience in the field of neurolaw and in handling traumatic brain injury cases. Just as a person with a brain injury would not be treated by a general medical practitioner, he or she should not be represented by a lawyer who is a general practitioner.

When you meet with a personal injury lawyer, inquire whether the attorney has handled brain injury cases, whether he or she has published or lectured in the field of traumatic brain injury, and most importantly, whether he or she understands the unique problems of a traumatic brain injury victim.

You should also review the attorney’s qualifications, such as whether the lawyer is board certified by your state’s bar or Supreme Court or by the National Board of Trial Advocacy and whether the lawyer is listed in the National Directory of the Brain Injury Rehabilitation Services, published annually by the National Brain Injury Association.

During my case, is it common to meet with my attorney’s legal assistants or associates rather than with my brain injury attorney?

When you begin working with a brain injury attorney, it is important to understand the course your litigation will take. Ask for a description of the work to be performed personally by your attorney and the work which will be delegated to others in the office. Litigation may take years and there are many situations which occur that do not require the expertise of the attorney, but can easily be handled by the attorney’s associate or legal assistant. Discuss your expectations with your brain injury attorney so that he or she understands your needs. As a client you have many rights, including the right to be kept up to date on developments in your case, the right to review your file, and the right to speak with your brain injury lawyer.

Can my insurance company and the defendant’s insurance company obtain my past medical records, which I believe are personal and privileged?

One of the most disturbing events for you, as the plaintiff in a personal injury action, is the intrusion into your privacy by attorneys and insurance adjusters. This intrusion is even more pronounced for the traumatic brain injury plaintiff.

When you pursue a claim against the party that caused your brain injury, all lawyers involved in the case are entitled to “discovery.” Discovery is the process by which brain injury lawyers try to find out information important to the case about both you and the defendant.

If you bring a claim for traumatic brain injuries, your entire medical history, both physical and psychological, becomes subject to discovery and review by not only your brain injury lawyer, but also by defense counsel and the insurance companies.

In defending personal injury cases, attorneys delve into a plaintiff’s past to uncover information about any pre-existing injury or complaint to which the plaintiff’s present condition can be related.

You may be familiar with the concept that conversations between you and your doctor, including notes about your treatment, are confidential or “privileged.” Under most state statutes, when a person brings a personal injury claim for injuries, that person waives the physician-patient privilege, allowing the defense access to all relevant medical records.

In addition to medical records, any records dealing with your emotional or psychological problems may be important to your claim. When a person asserts a mental or psychological problem as part or all of a personal injury claim, most courts have held that the psychotherapist-patient privilege is waived.

If your medical records contain prior medical, psychiatric or psychological information that you and your brain injury lawyers feel is not relevant to your claim, your brain injury lawyers should make a motion with the court requesting that the court review the records to determine if they should be released.

The process by which the defense physically obtains your medical records is fairly straightforward. To obtain your records, defense counsel will issue subpoenas or forward requests for medical record release authorizations to you. Most states require that copies of these documents also be delivered to your brain injury lawyer.

How much will a traumatic brain injury case cost me?

You have the option of hiring a brain injury lawyer on an hourly basis or a contingency basis. If you elect to pay your brain injury attorney on an hourly basis, he or she will quote you an hourly rate and will keep track of the amount of time spent on your case.

Since the amount of hours spent by an attorney on a traumatic brain injury case may be significant, most plaintiffs elect to retain a brain injury attorney on a contingency basis. This means that the maximum legal fee paid to your attorney is based on a percentage of the award he or she recovers on your behalf. In New Jersey, contingent legal fees are set by the New Jersey Supreme Court and are calculated on the net* award as follows:

  • 1/3 of the first $750,000.00

  • 30% of the next $750,000.00

  • 25% of the next $750,000.00

  • 20% of the next $750,000.00

Legal fees over $3,000,000.00 are determined on an individual case basis by the Assignment Judge in the county where the case is tried.

*Note that legal fees are calculated on the “net” recovery, that is, the recovery after costs are deducted. For example, if your case is settled for $2,000,000.00 and the costs are $50,000.00, then legal fees are based on the net recovery, or $1,950,000.00. (Costs for preparing your case include such items as medical record recovery charges, expert fees, etc.). Your attorney would be entitled to 1/3 of the first $750,000.00; 30% of the next $750,000.00; and 25% of the remaining $450,000.00.

I am dissatisfied with my present brain injury attorney and want to hire new counsel. Do I have to pay legal fees to both brain injury attorneys?

If you chose to pay your present brain injury attorney on an hourly basis, you will be responsible for paying the attorney’s fees incurred. If you chose to pay your brain injury attorney on a contingency basis, you will be required to pay only the contingency fee as set forth by the New Jersey Supreme Court, regardless of how many brain injury attorneys represent you in a case.

If you do end up having been represented by multiple attorneys, your new attorney will contact your former attorney and work out a satisfactory division of the legal fees. Under New Jersey law, your former attorney is only entitled to be compensated on a quantum merit basis, that is a fee equal to the value of his or her legal services. If the attorneys cannot agree on an appropriate division, the dispute will be submitted to a fee arbitration panel or to a Superior Court Judge to determine a fair fee for the work performed by each attorney.

I have both private health and automobile insurance coverage. Which insurer should I look to for payment of the rehabilitation and treatment services that I still need as a result of the traumatic brain injury I suffered in a motor vehicle accident?

Under New Jersey law, a person injured in a motor vehicle accident looks first to his or her automobile insurance policy for medical coverage. The sole exception is if you selected your private health insurance as “primary” when you obtained your automobile insurance.

The basis of no-fault automobile insurance in New Jersey is that your private automobile carrier is your primary source for insurance coverage. This is true even if you were injured while riding in someone else’s vehicle or if you were a pedestrian struck by a vehicle. In either case, your own automobile insurance company pays your medical bills. This coverage, called Personal Injury Protection coverage (PIP), provides that every driver insured in New Jersey is entitled to $250,000. The only criteria for payment of medical bills is that the treatment be reasonable, necessary and related to the motor vehicle accident. There are no limitations or caps on the type or amount of treatment you can obtain from any provider or providers other than the $250,000 limit. There is, however, a $250 deductible and a 20% co-payment until the bills reach $5,000. Therefore, you would be personally responsible for $1,200 of the first $5,000 medical bills incurred. Once your medical bills reach $5,000 they are fully paid by your insurance carrier.

In the event you selected your private health insurance carrier to be primary (HIP), then you must first proceed under your private health insurance coverage. If treatment is not covered or if you maximize your available private coverage, you may then turn to your automobile insurance carrier for payment.

What affect will the new auto insurance laws have on my ability to obtain reimbursement for medical costs?

Under the automobile insurance legislation recently passed by the New Jersey State Legislature and Governor Whitman, unless you choose to purchase less insurance, you are still entitled to $250,000 of medical coverage (PIP — as described above) under most circumstances. Nevertheless, your rights and abilities to obtain such coverage have been severely curtailed. Under the new law, the Commissioner of Insurance must establish “protocols” to determine the appropriateness of medical treatment. That is, regulations will be established to determine what, in the normal case, is appropriate treatment. This will include the type and length of treatment. What will happen if your case is not “normal?” This remains to be seen. If you find that your rights to medical care are being abused or limited to your detriment, it is important that you contact an attorney to assist you and that you complain to your state legislator.

If you choose less insurance coverage, you are entitled to that amount of medical coverage under your automobile insurance policy and then must turn to your private health coverage or Medicare/Medicaid for any additional treatment.

Is it a good idea to lower my automobile insurance costs to $350- $400 per year by purchasing the “basic” insurance policy i’ve read about?

Unfortunately, the name given the “basic” insurance policy is misleading since it implies that it provides all the coverage you would “basically” need. Unfortunately, this is not the case. The “basic” insurance policy greatly reduces your insurance coverage and exposes you to great personal liability. Under this policy, the amount of medical insurance which you can seek if you are injured in an automobile accident is greatly reduced, from $250,000 to $15,000, except in cases as described below.

Furthermore, the “basic” policy permits you to purchase only up to $10,000 of liability insurance. Therefore, if you cause a motor vehicle accident and people are injured, you are provided with only this limited liability insurance protection. You may be personally liable for any amounts over and above that limit, putting your assets, such as your house and car, in jeopardy.

I understand that under the “basic” insurance policy, no-fault medical coverage is reduced from $250,000 to $15,000 except in the case of quadriplegia, paraplegia and significant brain injury. What does the term significant mean?

From our standpoint, all brain injury is significant. Since the legislature chose to qualify the term brain injury with the word “significant”, the courts must interpret the term “significant”. Whether mild traumatic brain injuries, concussions or post-concussion syndromes will qualify as “significant” remains to be seen. There is great concern that a “mild traumatic brain injury” will be classified as not “significant” by the courts.

In the case of someone who has suffered a mild traumatic brain injury, it is important that the injured person’s physicians document the extent of the injury and the remaining or lasting effects of that injury on the physical and mental capacities of the injured and his or her quality of life.

Can my insurance company require that I attend a medical examination by a doctor whose office is over 100 miles from my home?

Under New Jersey law, an automobile insurance carrier has the right to require the claimant to submit to a medical evaluation. However, the carrier is required to retain a physician whose office is located in the municipality where the insured lives. If no qualified physician can be located in your municipality, then the carrier must look to the closest municipality until such a doctor is found.

What happens if the insurance company, after receiving the results of my medical examination, refuses to pay my bills or terminates my care?

Under New Jersey law, when an automobile insurance carrier refuses to pay benefits, the claimant has a right to submit the dispute to binding arbitration or to file a Complaint in the Superior Court.

If arbitration is selected, a petition is filed with the American Arbitration Association (AAA). Formerly, an attorney specializing in personal injury law would sit as the arbitrator, hear testimony, review medical bills and reports and then render a decision. That is no longer the case. Arbitrators are no longer informed attorneys with practical personal injury experience, but full time arbitrators. Either party or the arbitrator may request that the treatment or dispute be submitted to independent peer review. While that peer review probably will not be binding on the arbitrator, it certainly will be influential and will affect the arbitrator’s decision.

I suffered a mild concussion following a motor vehicle collision but, two months later, I still have headaches and difficulty concentrating and suffer short term memory loss. Should I be concerned?

You have every right to be concerned. In the past, it was believed that persons who suffered concussions were not severely injured and that there would be no permanent problems from the concussion. While it is true that while many of the symptoms of a concussion are not lasting, existing scientific data and research today clearly shows that not everyone fully recovers. As a result of this recent realization, the American Congress of Rehabilitation Physicians has established an interdisciplinary committee to review and set the criteria for mild traumatic brain injury.

  • Traumatic Brain Injury Articles

Recent Experience

  • Successfully represented a client who suffered a mild traumatic brain injury when her vehicle was struck on a major New Jersey highway. After a mistrial and a hung jury, this case was settled for $975,000.00. Read more details about this case.
  • A female client was delivering newspapers during early morning hours when she was hit by a garbage truck while crossing the street. When retained, the plaintiff was living alone in her apartment receiving no medical care. Within a few months, we compelled the defendant’s liability carrier to acknowledge its obligation to provide $250,000 of PIP coverage. These funds enabled the defendant to be admitted to a long term brain injury program in New Orleans. While the defendant had initially reserved the case at $1 million, the matter ultimately resolved for $3.8 million.
  • A female client was on her way home from work when she was involved in a car accident and sustained a mild traumatic brain injury. At the time we were retained, prior counsel valued the case at approximately $300,000. Ultimately, we were able to settle the case for $1.5 million.
  • A male client drowned while canoeing on a river in New Jersey. Two of his friends who were with him at the time sustained emotional damages as a result of seeing their friend die. To prepare the case, I retained liability experts from Tennessee, North Carolina and Colorado. Costs to prepare the case were more than $100,000. The case was settled for well in excess of $2 million.
  • A female client was injured when she slipped on an unknown substance in her local grocery store. Six weeks before the trial was to begin, the demand made months earlier was $500,000 and the offer was $100,000. Three weeks after being retained, we were able to settle the case for $800,000.
  • A male client had been totally disabled as the result of a fall years earlier. He was the involved in an auto accident with a tractor trailer. This accident aggravated his pre-existing neck and back condition. We were retained a week before the final pre-trial conference in this federal court case. The plaintiff’s demand was $125,000 and the offer was $75,000. We received a 60 day extension of discovery which enabled us to retain eight new expert witnesses. As a result, defense counsel was forced to withdraw their expert neuropsychologist’s report because we had discredited it. The court was about to bar the defendant’s low-impact liability expert, when the case settled at mediation for $400,000.

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