How Is Compensation Determined In TBI Cases? What Should Clients Expect?
What Are the Biggest Challenges Clients Are Going to Face in Traumatic Brain Injury Cases?
The worst thing that clients can experience in a TBI case, which is usually seen in mild TBI cases more than in any other area, is that the defense is almost always, “Your client is a malingerer, a liar, an exaggerator and cannot be believed,” and that is heart-wrenching to explain to the client.
How Much Can Someone Expect to Recover from a Severe or Traumatic Brain Injury? How Is Compensation Determined?
Compensation can be determined by way of a negotiated settlement, by alternate dispute resolution which includes mediation or arbitration, or as a result of a jury trial. The amount will always vary depending on the circumstances of the case.
The exception, to some extent, is in the case of a trial where sometimes juries do unpredictable things, and that can be unpredictable good things and unpredictable bad things. The amount is a function of the strength of the case, which means the individual strengths of the client, the amounts of economic damages, and the persuasiveness of the evidence supporting noneconomic damages. It can be a lot of money, it can be seven figures or even multiple seven figures, or it can be less than that. It is truly case dependent, and clients cannot extrapolate the results of past cases handled by our firm and apply those results to a different case.
Are Future Costs of Rehabilitation and Medical Needs Included in That Amount? How Are Those Determined and Handled?
In order to safeguard a client’s interests, we do address their future economic needs. To do that, we will ask the healthcare providers to provide us with a treatment plan that forecasts future needs. In more complicated cases, we use a life care planner to independently verify future costs that are displayed on spreadsheets. This makes it easy to understand. We will also work with economists to project those future expenses, account for medical inflation and make other necessary adjustments.
Are Cases Involving Children Handled Any Differently?
Yes, to some extent. The biggest concern with a pediatric brain injury client is that the pediatric brain is constantly evolving and developing. So when we secure an assessment of a youngster with a traumatic brain injury, we do that keeping in mind that the brain is developing and it’s more difficult to predict what the future will hold in store with the developing brain. Interestingly, the pediatric brain both develops new cells and shed some cells that are unnecessary.
Among the things that are known, much to the chagrin of those who are convinced that there is great neuroplasticity in the pediatric brain, there is only so much brain, and while some functions can be taken over by the non-injured areas of the brain, that also can translate into crowding of the areas from which brain reserve has been tapped. The injury and that crowding can mean that some other deficit can appear in the future, and attorneys need to be mindful of that.
It’s incredibly unfortunate in Connecticut that the statute of limitations is two years regardless of whether the injury occurs to a 25-year-old or a 5-year-old. In almost every other state in the nation, there is a tolling provision for minors that either delays the statute of limitations until the child reaches majority or some period of time after majority or at least adds a number of years to the statute of limitations. Such flexibility for a minor reflects an understanding that by forcing a minor into court prematurely because of a short statute of limitations, the ability to adequately protect the injured minor can be seriously compromised.
Because Connecticut has a short statute of limitations, the approach taken at Casper & de Toledo when a child is involved is to wait until almost the expiration of the statute of limitations, to get at least that two full years before we file the lawsuit, and then we try to delay the progression of the case for as long as we can. The ability to do that will vary from judicial district to judicial district. We take this approach because it’s unfair to the child to force the case on the same sort of accelerated schedule that every other case is on because health care providers and the attorneys won’t be able to fully assess the damages that way.
Those are the considerations undertaken in representing a youngster with a brain injury.
What Are Traumatic Brain Injury Clients Advised When It Comes to Returning to Work? How Should They Proceed?
At Casper & de Toledo, we advise all our clients pretty much the same. First of all, the advice that is unvarying is to always tell the truth, and when it comes to decisions that involve healthcare, we want the input from the healthcare providers. Sometimes that input is unambiguous, and sometimes it is ambiguous, that is, from a physical standpoint, you may be able to do this but it remains unclear for how long or how efficiently the client will be capable of working.
We tell our clients to try it if they can. If the employer is flexible and will accommodate the situation including limitations, we tell our clients to do “as much as you can; try to do things that you used to do to see if you can do it.” Some people can and some people cannot. Some people can do it physically but cognitively, in the case of a brain injury, they can’t handle the demands of the job. But we always want clients to at least be able to honestly say that they have “tried to do it”.
If you are going through a Traumatic Brain Injury Case and need information on How Compensation Is Determined, call Stewart Casper at the law offices of Casper & de Toledo LLC in Stamford, CT for a free initial consultation at (203) 325-8600 and get the information and legal representation you’re seeking.