Question:
In the spring of last year, I received a brain injury in auto accident. Within a month I hired an attorney who claimed to be experienced in representing people with brain injuries; however, it is quite obvious now to myself and my family that this man does not understand the situation. Is it too late to change lawyers?
Answer:
You always have the right to change lawyers, but I understand your concerns about doing so. Obviously, once a case has been underway for a number of months there many factors to consider.
One major factor is the statute of limitations. After you have received a brain injury you generally have two years from the date of the initial trauma to file your claim; however, the length of time allowed does vary somewhat from state to state, so check to see what your state allows.
The length of time your attorney has to collect information on your case is also governed by law. Once you retain an attorney he or she has the authority to gather records on your case, have you evaluated by medical experts, and do a through investigation before filing your case. When the lawsuit is filed there is then a period of time designated as “discovery.” The length of time allowed for discovery varies according to the state and the federal district courts also have their own regulations. During discovery, the defense has access to medical records and the right to have the client evaluated by medical experts. Each side has the right to take depositions from the witnesses and from the other party’s medical experts.
Ideally, any change of lawyers should be done well before discovery ends. It is extremely difficult to get the court to admit new evidence after the close of discovery; a lawyer hired after this time will generally have to use the evidence already collected and this may not be adequate.
Privacy rights in TBI lawsuits
Question:
I am troubled by the access the insurance company and its attorneys have to my medical records since I filed a lawsuit over my brain injury. I fell in a grocery store on a wet floor and at first the injury seemed mild, but I was later diagnosed with TBI. The insurance company seems to want access to medical records not even pertaining to my injury. Isn’t this an invasion of privacy? How can I stop this or can I?
Answer:
Ordinarily, doctor-patient confidentiality and Federal law protect the privacy of your medical records; however, you temporarily waive these rights when you file a lawsuit claiming physical injury or health problems.
Because an injury may be due to factors other those alleged in the lawsuit, the defendant in the suit and their attorneys have the right to obtain all of your medical records, even those that would not seem to directly pertain to the case. Some states mandate greater protection for psychological or psychiatric records; however, emotional issues are one the symptoms of TBI and so some access to these records is allowed.
Do I need a Lawyer?
Question:
My doctors have diagnosed a brain injury as the result of a car accident. Should I hire a lawyer? Won’t the insurance simply take care of it?
Answer:
Because laws on insurance coverage vary widely from state to state, you really should hire a lawyer to make sure you get the compensation coming to you. Let me explain what I mean. Some states are no-fault states and this makes it easier for injured parties to receive compensation in case of an accident; in states with a no fault law, the injured party’s insurance company must pay their medical bills, regardless of who caused the auto accident.
However, even in states with no fault laws, the insurance companies may still be difficult to deal with. In some states, the insurance company must pre-approve any treatment or tests before they authorize payment. While some insurance companies are prompt about such authorization, many are not. An experienced personal injury attorney can help you deal with the insurance company and advocate for your rights.
How much is Awarded in Brain Injury Cases?
Question:
My wife was recently diagnosed with a brain injury due to an accident. How much compensation can we reasonably expect if we file suit?
Answer:
The case value of a brain injury case depends on a number of complex factors. The degree of injury and the amount of income lost from being unable to work are significant factors in the court’s determination of what you are entitled to; however, the degree of brain injury is sometimes difficult to prove. Once an amount is awarded you need to be aware that you will not receive all of it. You will receive the amount left over after the attorneys’ fees, court fees, and miscellaneous fees are paid.
Awards for brain injury cases can vary from in the thousands to over a $1 million. To determine the amount possible for your particular case you should talk with an experienced brain injury attorney.
Does my attorney need special knowledge to handle a brain injury case?
Question:
I am seeking an attorney to represent me in a brain injury case. Is it necessary that he or she be experienced in handling brain injury cases?
Answer:
Brain injury cases are complex and require attorneys with both knowledge of the law pertaining to them and knowledge of the medical aspects of these injuries. An attorney should be knowledgeable in neurolaw and have experience successfully advocating traumatic brain injury cases.
Before hiring an attorney to represent you in a brain injury case, ask if they are have handled brain injury cases before. Inquire whether they have spoken or published about brain injury cases. Question them about their understanding of the difficulties of people with brain injury. Find out whether he or she is listed in the National Directory of Brain Injury Rehabilitation Services. Although voluntary, board certification by the state bar, or state Supreme Court or the National Board of Trial Advocacy is a good sign that that the lawyer is highly qualified. Board certification requires that the attorney has licensed to practiced law for five years and specialized in one area for three years; board certified attorneys have passed an evaluation by other lawyers and judges, along with a stringent written examination. Board certified attorneys are also required to take continuing education in their field.
BrainandSpinalCord.org works with a team of personal injury attorneys who are dedicated to getting you the compensation you deserve. We are experienced in brain injury cases and will guide you through the legal system. If you or someone you love has experienced a brain injury, we can help. Fill out the free case evaluation form on the right of your screen and one of our experienced attorneys will contact you and advise you on your legal rights. There is no obligation; please contact us today.