1 TRAUMATIC BRAIN INJURIES AND THE LAW A General Overview Christine Zaremski-Young, Esquire
2 WHAT IS A TRAUMATIC BRAIN INJURY?
3 TRAUMATIC BRAIN INJURY CDC DEFINITION A bump, blow, or jolt to the head or a penetrating head injury that disrupts the normal function of the brain. Centers for Disease Control (CDC)
4 TRAUMATIC BRAIN INJURY TABER S DEFINITION An injury involving direct trauma to the head, accompanied by alterations in mental status or consciousness. Taber s Cyclopedia Medical Dictionary
5 TYPES OF TRAUMATIC BRAIN INJURIES Closed Head Injury: Contact with the head is made, but the skull and bones are not broken. Open Head Injury: The skull is broken or penetrated.
6 WHAT OCCURS DURING A CLOSED TRAUMATIC BRAIN INJURY (EXAMPLE: COUP COUNTERCOUP INJURY)?
7 WHAT IS A COUP CONTRECOUP INJURY An injury to parts of the brain located on the side opposite that of the primary injury, as when a blow to the back of the head forces the frontal and temporal lobes against the irregular bones of the anterior portion of the cranial vault.
8 THE BRAIN
9 video COUP CONTRECOUP INJURY
10 COUP CONTRECOUP INJURY
11 HIGH SPEED
12 HIGH SPEED COUP CONTRECOUP INJURY
13 LOW SPEED
14 LOW SPEED COUP CONTRECOUP INJURY
15 NEURONS Cell Body ( Soma ) Dendrites Axon
16 MAKING A CLAIM FOR A TRAUMATIC BRAIN INJURY
17 SLIP / TRIP AND FALL INCIDENTS
18 INDUSTRIAL ACCIDENTS
19 MOTOR VEHICLE COLLISIONS
20 FOCUS OF THIS PRESENTATION MOTOR VEHICLE COLLISIONS
21 PART ONE BACKGROUND INFORMATION ON MVC CLAIMS IN PENNSYLVANIA
22 GOVERNING LAW Pennsylvania Motor Vehicle Financial Responsibility Law 75 PA.C.S. 1701, et seq.
23 WHAT IS THE LEAST AMOUNT OF INSURANCE COVERAGE REQUIRED IN PA? Liability Coverage: $15, per individual and $30, per accident. However, if the collision involves an at-fault commercial motor vehicle (CMV) federal law requires: o o o o $750, per accident (carries products, not people) $5,000, per accident if the CMV carries hazardous materials (carries products, not people) $1,500, if carries less than 15 passengers (carries people) $5,000, if carries more than 15 passengers (carries people) First-Party Insurance: Medical Benefits of $5, Uninsured Motorist (UM) Coverage: $0.00 (*can be waived. Unless proper forms are signed UM coverage equals BI coverage) Underinsured Motorist (UIM) Coverage: $0.00 (*can be waived. Unless proper forms are signed UIM coverage equals BI coverage)
24 ADDITIONAL INSURANCE CAN BE PURCHASED TO PROTECT YOU AND YOUR FAMILY First-Party Benefits: Additional coverage can be purchased: o Increased med-pay beyond the $5, minimum, including extraordinary medical benefits exceeding $100, o Income loss benefits o Accidental death benefit o Funeral benefit o Combination benefit Uninsured Motorist (UM) Coverage: Cannot exceed the BI coverage, but you can elect higher BI coverage than 15/30 and not waive or reduce UM. Underinsured Motorist (UIM) Coverage: Cannot exceed the BI coverage, but you can elect higher BI coverage than 15/30 and not waive or reduce UIM.
25 FULL TORT VERSUS LIMITED TORT Full Tort: Can collect both economic and noneconomic damages Limited Tort: Can only collect economic damages
26 WHAT ARE SOME EXAMPLES OF ECONOMIC DAMAGES?
27 ECONOMIC DAMAGES - EXAMPLES Medical expenses Loss of earnings Property Damage
28 WHAT ARE SOME EXAMPLES OF NONECONOMIC DAMAGES?
29 NONECONOMIC DAMAGES - EXAMPLES Pain and suffering Loss of enjoyment of life Scarring and disfigurement Embarrassment and humiliation
30 EXCEPTIONS TO AN ELECTION OF LIMITED TORT
31 EXCEPTIONS TO THE ELECTION OF LIMITED TORT A serious injury is sustained The at-fault party (Defendant) is convicted of driving under the influence of alcohol or other controlled substance (or accepts ARD Accelerated Rehabilitative Disposition) The at-fault party (Defendant) is operating a vehicle registered in another state The at-fault party (Defendant) intentionally caused the collision in order to injure himself or another person The at-fault party (Defendant) does not have insurance The injured person is a passenger of a vehicle that is not a private passenger motor vehicle (ex: a bus)
32 FULL TORT OR LIMITED TORT???
33 FULL TORT OR LIMITED TORT??? OPEN FRACTURE OF THE SKULL RESULTING IN A SCAR ABOVE THE EYE
34 FULL TORT OR LIMITED TORT??? LACERATION OF THE FOREHEAD RESULTING IN A SCAR WITH A SUBDURAL HEMATOMA
35 FULL TORT OR LIMITED TORT??? SUBDURAL HEMATOMA
36 FULL TORT OR LIMITED TORT??? CONCUSSION
37 MOST INSURANCE COMPANIES DO NOT AUTOMATICALLY VIEW A CLOSED HEAD INJURY AS A SERIOUS INJURY
38 PART TWO THE ATTORNEY-CLIENT RELATIONSHIP
39 WHO IS THE CLIENT?
40 WHO IS THE CLIENT FIRST AND FOREMOST THE INJURED INDIVIDUAL, EVEN IF DECLARED TO BE INCAPACITATED BY A COURT OF LAW But Also A GUARDIAN IF NECESSARY
41 WHEN SHOULD A GUARDIANSHIP BE CONSIDERED?
42 Incapacitated Person 20 Pa.C.S [A]n adult whose ability to receive and evaluate information effectively and communicate decisions in any way is impaired to such a significant extent that he is partially or totally unable to manage his financial resources or to meet essential requirements for his physical health and safety.
43 Incapacitated Person Difficulty receiving and evaluating information Inability to manage financial affairs Inability to make decisions regarding his or her medical care Inability to make decisions regarding his or her health and safety
44 Purpose of Guardianship Statutes 20 Pa.C.S Recognizing that every individual has unique needs and differing abilities, it is the purpose of this chapter to promote the general welfare of all citizens by establishing a system which permits incapacitated persons to participate as fully as possible in all decisions which affect them, which assists these persons in meeting the essential requirements for their physical health and safety, protecting their rights, managing their financial resources and developing or regaining their abilities to the maximum extent possible and which accomplishes these objectives through the use of the least restrictive alternative; and recognizing further that when guardianship services are necessary, it is important to facilitate the finding of suitable individuals or entities willing to serve as guardians.
45 Two Main Types of Guardianships Guardian of the Person: Protection of the individual, including but not limited to things such as: o decisions relative to general care, maintenance and custody of the incapacitated person. o designating the place for the incapacitated person to live. o assuring that the incapacitated person receives such training, education, medical and psychological services and social and vocational opportunities assisting in the development of maximum self-reliance and independence. o providing required consents or approvals on behalf of the incapacitated person. Guardian of the Estate: Protection of assets or income (financial).
46 Limited Guardianship Versus Plenary Guardianship Limited Guardianship: The guardian does not have total control over decisions, and the incapacitated individual retains the ability to control certain aspects of person or estate. The guardian is given only the powers set forth in the Order of Court. Plenary Guardianship: The guardian is given total control over all decisions, which requires a court finding of total incapacity.
47 Who May Be Appointed as a Guardian - 20 Pa.C.S. 5511(f) Any qualified individual A corporate fiduciary A non-profit corporation A guardianship support agency A county agency In cases of residents of State facilities, the guardian office of the State facility (but only as Guardian of the Estate)
48 Who May Be Appointed as a Guardian - 20 Pa.C.S. 5511(f) If appropriate, the court shall give preference to a nominee of the incapacitated person.
49 EVEN IF A GUARDIAN IS INVOLVED, WHAT IS THE ATTORNEY S DUTY TO THE INJURED INDIVIDUAL?
50 WHO IS THE CLIENT PA RULES OF PROFESSIONAL RESPONSIBILITY (a) When a client s capacity to make adequately considered decisions in connection with a representation is diminished, whether because of minority, mental impairment or for some other reason, the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client. PA Rule of Professional Responsibility 1.14
51 WHO IS OUR CLIENT PA RULES OF PROFESSIONAL RESPONSIBILITY The fact that a client suffers a diminished capacity does not diminish the lawyer s obligation to treat the client with attention and respect. Even if the person has a legal representative, the lawyer should as far as possible accord the represented person the status of client, particularly in maintaining communication. The client may wish to have family members or other persons participate in discussions with the lawyer. When necessary to assist in the representation, the presence of such persons generally does not affect the applicability of the attorney-client evidentiary privilege. Nevertheless, the lawyer must keep the client s interests foremost and, except for protective action authorized under paragraph (b), must look to the client, and not family members, to make decisions on the client s behalf. Comments - PA Rule of Professional Responsibility 1.14
52 PART THREE HANDLING A MOTOR VEHICLE CLAIM
53 HOW CLAIMS ARE HANDLED Pre-litigation: The handling of a claim prior to filing a lawsuit (no court involvement). o gathering evidence o gathering medical records, diagnostic images and reports o preparing a demand to an insurance carrier o End: settlement, or filing of a lawsuit Litigation: The handling of a claim after filing a lawsuit (court involvement). o filing a lawsuit (Complaint in a Civil Action) o exchanging discovery (material) o taking depositions (sworn statements under oath) o End: trial
54 PROVING A TRAUMATIC BRAIN INJURY IN A COURT OF LAW Preserving evidence, especially if the injured individual does not have recollection of the events Recreating the events Illustrating the severity of injuries to insurance company and/or defense counsel, especially in closed head injury cases: o o o o unlike fracture cases, sometimes it is difficult to visualize a CHI and its impact on an individual obtaining video footage to show the realities of living with a TBI obtaining necessary reports from physicians to explain the impact of the TBI on activities of daily living interviewing family and friends that can testify relative to changes in someone s life
55 PART FOUR PROTECTING ASSETS GENERATED BY PERSONAL INJURY AWARDS
56 SPECIAL NEEDS TRUST
57 o State will receive all amounts remaining in the trust upon the death of such individual up to an amount equal to the total medical assistance paid on behalf of the individual under a state plan SPECIAL NEEDS TRUST An irrevocable trust established for the sole benefit of a disabled individual, and often funded with the assets of a personal injury settlement IndividualTrust -- Typical Trust (Type A ): o Contains the assets of an individual under age 65 o The beneficiary is disabled: Blind (visual acuity 20/200 or less with the use of corrective lenses) Unable to engage in substantial gainful activity by reason of any medically determinable physical or mental impairment expected to result in death or lasted/can be expected to last for not less than 12 months o Can be established by a parent, grandparent, legal guardian, or a court (NOTE: an individualcannot establish his/her own Family Trust)
58 o State will receive all amounts remaining in the trust upon the death of such individual up to an amount equal to the total medical assistance paid on behalf of the individual under a state plan Type C Trust (PooledTrust): SPECIAL NEEDS TRUST o Contains the assets of an individual who is disabled (NOTE: no age limit) o The beneficiary is disabled: Blind (visual acuity 20/200 or less with the use of corrective lenses) Unable to engage in substantial gainful activity by reason of any medically determinable physical or mental impairment expected to result in death or lasted/can be expected to last for not less than 12 months o The trust is managed by a non-profit association o A separate account is maintained for each beneficiary, but for the purpose of investment the assets are pooled o Can be established by the individual his/herself, a parent, grandparent, legal guardian, or a court
59 GUARDIANSHIP ACCOUNT VERSUS SPECIAL NEEDS TRUST
60 GUARDIANSHIP ACCOUNT VERSUS SPECIAL NEEDS TRUST Guardianship Account: assets belong to the ward. In relation to eligibility requirements for certain benefits, the assets are counted and could disqualify an individual. Special Needs Trust: assets belong to the trust, and are not counted as being available to the trust beneficiary if drafted to conform to OCRA 93. In relation to eligibility requirements for certain benefits, the assets are counted and could disqualify an individual.
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