How Do Traumatic Brain Injury Cases Proceed in Court?
Is There a Statute of Limitations on These Types of Injuries?
Yes, and the statute of limitations will vary from state to state.
In Connecticut, that statute of limitations is two years from the date of the injury in almost all cases involving traumatic brain injury. An exception to that would be in a situation where there is an issue of a defective highway or sidewalk, and while the statute of limitations is two years, there is a 90-day notice requirement. Either the municipality or the State of Connecticut must be notified about the injury in accordance with the statute. There are certain specifications regarding information required in order to comply with the statutory notice requirements, and the notice has to be received within 90 days of the date of the injury.
What Is the Typical Claim Process When It Comes to an Injury? What Happens When a Claim Is Denied?
When someone comes into Casper & de Toledo with a new claim, they have an initial conference that usually includes two lawyers to get all the necessary background information. Under Connecticut law, attorneys are required to have the client sign a fee agreement. Lawyers can’t represent anybody without having a written fee agreement that has been signed.
Then new clients sign a variety of authorizations from HIPAA compliant medical authorizations to wage and employment authorizations, school authorizations, Medicare and social security authorizations – whatever is applicable. We also explore whether or not someone has filed prior claims that would show up on an insurance industry database, simply because that’s information that can be useful and the other side will surely obtain that information.
The attorneys then give clients some guidance about what treatment they are having or may require. They listen to what kind of problems clients are experiencing, and because they’re so familiar with this area, they can provide names of different healthcare providers who can address the types of symptoms and problems that are being experienced.
Clients are generally informed that their progress and recovery are going to dictate what a claim will look like. We want clients to concentrate on getting better and following healthcare advice. We’ll make some recommendations about evaluations, and eventually, we will arrive at a point when our office is going to be in a position to try to resolve the case or to put the case into suit.
Most head injury cases go into suit, in part, because insurance companies and big corporations think that people with head injuries, particularly people who fall into the mild traumatic brain injury classification, can be worn down, and they also count on the fact that they can exploit lawyers who are not accustomed to working up these cases and trying these cases.
At Casper & de Toledo, we will gather information depending on the nature of the claim and the types of evaluations, and make a decision at some point to place the claim into suit. And one of the reasons a case goes into suit is that the statute of limitations is generally two years – the general period for spontaneous recovery, i.e. the normal healing process from even a mild traumatic brain injury is one to two years.
Generally, 90% of the recovery will take place in a year, and the rest will pan out by two years. Well, attorneys are not going to run out to two years and then think about trying to settle the case. They want to get that case in suit somewhere around the one-year point after the injury, or when they’re actually ready to frame the complaint. That’s when the litigation process commences.
Some of the evaluations in a traumatic brain injury case, even a mild TBI case, are not only healthcare, involving a medical doctor, psychologist, neuropsychologist, psychiatrist, and therapist, but they also look at vocational and economic issues. The vocational and economic issues are to determine what impact this injury will have on an individual’s earnings and earning capacity.
Attorneys often work with a life care planner. A life care planner is someone skilled and trained in rehabilitation and formulating an individual’s healthcare needs over the lifetime. In the most serious TBI cases, the client will require some sort of assisted living or custodial facility. Others require some type of supportive living situation, and other clients require just someone to monitor them and manage their finances. These are all considerations that would be addressed by a life care planner.
At Casper & de Toledo in Stamford, CT we put together all these pieces and come up with some numbers for economic damages, and we then evaluate the quality of life issues or the loss of quality of life for the purposes of making a settlement demand – that’s what we call the initiation of the negotiation process – “the demand,” and the responses- “the offer.”
So, all that needs to get stirred into the pot in order to figure out what the case is worth, and in many situations, the case is limited or the ceiling on the case relates to insurance coverage. If there is a limited amount of insurance coverage and that limit is below what the full value of the case is, then the attorney would typically obtain the client’s consent to demand the full amount of the insurance coverage.
How Long Do Traumatic Brain Injury Cases Take to Resolve?
If someone has a traumatic brain injury, then resolution of those cases will generally take around three to four years, unless there is a limit to the coverage and that three years can get extended if the case is going to be tried. Some cases that are tried can end up being appealed, so things can go on for several years. But that’s really something that has to be judged on a case by case basis.
Do Most Of These Cases Go to Trial or Settle out of Court?
That answer, likewise, is dependent upon the circumstances of the case, and it will depend on the nature of the lawyers and insurance companies involved.
Generally, insurance companies’ defense lawyers know which lawyers will go to trial and which lawyers will likely capitulate to the insurance company. At Casper & de Toledo, we will try the case when the case should be tried, and we will not capitulate unless there is very good reason to do so. So, a general answer to that question cannot be given. It really depends on the unique circumstances of each case.