One of the frustrations of hearing the multitude of calls we get having one of the leading web resources for brain advocacy is the cries for help from potential clients who it is too late to help. Most of those people hired a lawyer who was not an expert in traumatic brain injury. The problems that are created are typically forensic problems, those that relate to the case itself. Sometimes these can be undone, sometimes not.
But as I reflect on the harm that can come to a brain injured person by not hiring the right lawyer, right away, my biggest concern is for those with severe brain injuries, which one would think would be the easiest cases for a non-TBI lawyer to handle. After all, how hard is it to prove someone has been catastrophically damaged, when they have been catastrophically injured?
We get far fewer calls from survivors of coma injury cases than we do concussion survivors. In a coma case, there is never a shortage of lawyers wanting the case and most times family members have chosen a lawyer while the injured person is in the ICU. In contrast, proof of brain injury and disability is so much more difficult in a concussion case that many brain injured people can’t even get representation.
The difference a TBI lawyer makes however may be most significant in the severe brain injury cases. That is because the legal advocacy that is done at the beginning may not only make the case easier to prove, it may also make a huge difference in the access to acute and sub-acute care, in those first few months after a catastrophic brain injury when it is most needed. Thus I think it is important to reflect on what difference a TBI lawyer can make from the start.
The first thing that must be done from the advocacy standpoint after a severe brain injury occurs, is to have a guardian or conservator appointed. While many family members might wonder why they can’t continue on without a guardian, from a legal standpoint no real decisions can be made until someone is given the authority to make those decisions by a court. Many people are afraid of the word “guardian” because it connotes some type of loss of freedom of choice, but without a guardian, the severely brain injured person is left in a legal no man’s land. Among the things that can’t be done without a guardian is hire a lawyer to represent the brain injured person in a lawsuit.
The second area of advocacy that is critically important during those first few weeks after injury is to make sure that a professional case manager is assigned to the case – someone who does not work for the hospital or treatment center. A case manager is someone who will coordinate and manage the treatment and rehabilitation of the brain injured person. In today’s world, especially if it is a Medicaid payment case, the case manager is an essential advocate to assure that treatment doesn’t get suspended or underprovided because of some red tape.
Often times when a professional guardianship firm is utilized, the guardianship firm will have their own case managers. This can be an advantageous situation for the injured person and one reason I often recommend that professional case guardians be utilized.
The ultimate advantage of having an experienced brain injury advocate comes in the matter of the sub-acute treatment, the treatment in the months after the person has emerged from the coma. Fewer and fewer hospitals have inpatient rehab programs for severely brain injured survivors and it takes professionals to assure that the proper placement occurs. One of the advantages of having a top lawyer is that the potential for litigation proceeds may allow access to long term brain injury treatment facilities that would not be available under insurance or Medicaid reimbursement.
An experience brain injury lawyer can also help to avoid the dreaded nursing home placement where there may be a Catch 22 where no treatment occurs because only the nursing home can be reimbursed for treatment. The problem with that is the nursing home reimbursement is not enough to provide any meaningful rehabilitation. Thus rehabilitation is minimal at best. The only other alternative under the local reimbursement situation may be adult foster care placement with outpatient treatment, but often times the available foster care homes are completely inappropriate for the survivor.
An experienced TBI lawyer in the beginning can open up other options. We got involved in a case in California about three years ago with a severely brain injured person. Rather than a nursing home placement, the survivor was placed in a nationally recognized rehabilitation program. In that program, the client got 24/7 appropriate treatment and supervision. As a result of the ability of the lawyer to negotiate a lien payment option, the care wasn’t terminated at 30 days. The care continued long term. The ultimate result is the best possible care for that individual, which continues to this day. Future payment of treatment cost are assured because the jury awarded the plaintiff $49 million.
Attorney Gordon Johnson
Past Chair Traumatic Brain Injury Litigation Group, American Association of Justice
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