Protecting your family from the dangers of fire is paramount. By implementing essential fire safety measures, you can significantly reduce the risk of a house fire and ensure the well-being of your loved ones.

Protect Your 91原创视频 and Family: Fire Prevention and Escape Planning

Taking proactive steps to prevent fires and create a well-practiced escape plan is essential for safeguarding your family. By reducing fire hazards and knowing how to respond in case of an emergency, you can significantly lower the risk of injuries and property damage.

• 鈥� Types of smoke detectors and alarms and how they can help you in the event of a fire.
• 鈥� How to create a fire escape plan for your children.
• 鈥� Important tips from FEMA regarding how to prevent fires and keep your family safe.
• 鈥� Tips for creating a fire escape plan to get your family out of your home safely in the event of a house fire.
• 鈥� Helpful tips to prevent kitchen fires.
• 鈥� The pros and cons of placing pet stickers on your windows in the event of a fire.
• 鈥� Tips for staying safe and prepared while camping in an RV.
• 鈥� More fire prevention and safety tips from the American Red Cross.
• 鈥� How to choose a smoke detector for your home.

What to Do in Case of a Fire: A Step-by-Step Guide

If a fire breaks out in your home, immediate action is crucial. Follow these steps to protect yourself and your family:

1. Get Out and Stay Out: Evacuate your home immediately, following your pre-planned escape route. Close doors behind you to slow the spread of fire and smoke.
2. Call 911: Once safely outside, dial 911 and provide your address and the nature of the emergency.
3. Account for Everyone: Designate a safe meeting place outside and ensure all family members have exited the home.
4. Never Re-enter: For your safety, do not re-enter a burning building under any circumstances.

If you encounter a small, contained fire and have a fire extinguisher readily available, you may attempt to extinguish it before evacuating. However, your safety is always the top priority.

• 鈥� Tips from the Red Cross on getting your family out of a house fire safely.
• 鈥� Important steps for keeping safe during a house fire.
• 鈥� How your kids can stay safe in the event of a house fire.
• 鈥� How to put out a kitchen fire to prevent it from spreading.
• 鈥� How to get out of your home safely in the event of a fire.
• 鈥� Tips on how to put out a grease fire.
• 鈥� The dangers of smoke exposure in the event of a house fire.
• 鈥� What to do if your clothing catches on fire.
• 鈥� Understanding the different types of fire extinguishers and how to use them.
• 鈥� Tips on how to choose a fire extinguisher.

Recovering from a House Fire: Steps to Take

A house fire can be a devastating experience. The following steps can help you navigate the recovery process:

Immediate Actions:

• Prioritize safety: Ensure everyone is safe and accounted for. Seek medical attention if necessary.
• Contact authorities: Report the fire to your local fire department and insurance company.
• Document damage: Take photos and videos of the fire damage for insurance purposes.
• Secure your property: Protect your home from further damage by boarding up broken windows and doors.

Insurance Claims:

• Contact your insurance agent: Begin the claims process as soon as possible.
• Gather necessary documents: Collect proof of ownership for damaged items.
• Document losses: Create a detailed inventory of damaged or lost possessions.
• Understand your policy: Review your insurance policy to understand coverage limitations.

Recovery and Restoration:

• Temporary housing: Arrange for temporary accommodations if your home is uninhabitable.
• Cleanup and restoration: Hire professional cleaning and restoration services to address smoke and water damage.
• Emotional support: Seek counseling or support groups to cope with the emotional impact of the fire.
• Financial planning: Create a budget and explore financial assistance options, such as government aid or disaster relief funds.

Remember, the recovery process takes time. Be patient with yourself and seek support from friends, family, and community resources.

• 鈥� This information from FEMA describes how to help your pets before and after a disaster.
• 鈥� Important tips for how to file an insurance claim after a fire.
• 鈥� What you need to do after a fire.
• 鈥� What to do after your property has been damaged by smoke.
• 鈥� The American Red Cross offers helpful advice on what to do following a house fire.
• 鈥� Advice on how to recover financially after you experience a fire or other natural disaster.
• Replacing Personal Documents 鈥� How to replace your personal documents after a fire.
• 鈥� FEMA explains what to do after you have experienced a fire.
• 鈥� How an insurance agent can help you to recover after a house fire.
• 鈥� Information about the key things to do and know following a fire.

Protect Your 91原创视频 and Family from Fire

• Prevention is key: Regularly inspect your home for fire hazards, maintain smoke alarms, and establish a clear escape plan.
• Early detection saves lives: Install smoke alarms on every level of your home and test them monthly.
• Plan and practice: Develop a fire escape plan with your family and conduct regular drills.
• Know how to respond: Learn how to use a fire extinguisher and follow evacuation procedures in case of a fire.
• Recover and rebuild: Prioritize safety, document damages, and seek support after a fire.

By implementing these essential fire safety measures, you can significantly reduce the risk of fire-related injuries and property damage.

Whether you鈥檙e dealing with injuries from a car accident, construction accidents, or a wrongful death case, our attorneys are here to provide compassionate support.

听

The post Keep Your Loved Ones Safe: Fire Prevention Tips appeared first on New York Personal Injury Lawyers.

• loss of income caused by the TBI victim;
• loss of capacity in the form of intellectual and physical disabilities;
• the extensive medical and psychological care they are likely to need in the future;
• the labor that their loved ones may be forced to make to care for them; and
• the extreme likelihood that the TBI victim is to suffer from mental health issues such as depression and suicidal ideation in the future.

Put in these terms TBI settlements are often not enough for the victim or the family. TBI victims face higher risks of death鈥攔egardless of cause鈥攖han members of the general population. A TBI can cause cognitive deficits mood disturbances personality changes or behavior problems.

The impact of a TBI is not limited to the TBI victim: injuries to the brain are often injuries to the family as well. Studies report that 39% of caregivers and spouses of adults with TBIs were clinically depressed one month after the injury. Thirty percent of marriages end in divorce within seven years of a severe head injury to one of the spouses鈥攁 rate roughly twice that of the general population¹.

The settlement values of TBI cases are far from outlandish once properly placed in the context of the harm TBIs cause to victims and their families. Brain injuries caused by another person鈥檚 negligence or medical malpractice are compensable in damages for the injured person鈥檚 pain and suffering loss of quality of life and the lifelong medical costs that person is bound to incur. The high-profile TBI settlements create new legal strategies and precedents put a spotlight on the severity of even so-called 鈥渕ild鈥� TBIs and help other people afflicted with TBIs receive the compensation they will need for long-term care and to which they are entitled under the law.

Overview of Traumatic Brain Injuries in a Legal Context

There is no such thing as a 鈥渢ype鈥� of brain injury; instead TBIs are classified in several different ways. The most prominent characteristics by which TBIs are classified are the severity of the injury and the mechanism by which the injury-causing force was applied to the brain. It is generally accepted that TBIs fall on a spectrum with a 鈥渕ild鈥� TBI falling on one end and a 鈥渟evere鈥� one on the other. Classifying a TBI as 鈥渕ild鈥� implies that this is a trivial or insignificant thing; nothing could be further from the truth. Referring to a brain injury as 鈥渕ild鈥� describes only the initial injury but this description has no correlation with the extent of a person who suffers from a mild TBI鈥檚 short or long-term impairment or functional disability².

The other major characteristic by which brain injuries are classified鈥攖he mechanism that caused them鈥攊s typically broken into either blunt or penetrating mechanisms. A penetrating mechanism is generally a gunshot that caused the brain injury. Blunt mechanisms can come in different forms as the force applied can be direct or indirect and it can also be either an accelerating or decelerating force³.

Most TBIs are the result of motor vehicle bicycle or pedestrian-related accidents. This majority is followed by falls acts of violence and injuries caused during recreation or sport. Falls are the leading cause of TBIs in elderly people. Brain injuries can also be caused by a restriction or total deprivation of oxygen to the brain⁴.

TBIs are a silent epidemic in the realm of healthcare and personal injury law. Many states have laws prohibiting compensation for pain and suffering where the claims are based on the subjective complaint of the injured person yet a person suffering from a brain injury will experience that pain and suffering most acutely in his or her subjective mind. These acute effects are felt by the injured person but cannot be seen or experienced by a jury creating great difficulty in proving their existence and their severity. Litigating a personal injury claim in which the injury is a TBI often proves difficult because juries and courts treat medical evidence of TBIs with skepticism due to manufacturing industry lobbying and purported 鈥減rofessionals鈥� providing treatment to those with TBIs despite lacking the proper training to do so⁵.

Case Study

The attorneys at 91原创视频amp; Aspromonte recently settled a medical malpractice case for an injured four-year-old boy. He was initially brought to the hospital for a routine eyelid repair. He left with severe brain damage that resulted in cognitive impairment and other medical complications.

The boy was anesthetized during the procedure. The hospital contracted out its anesthesia services to a third-party company to cut costs. That company鈥攁lso looking to save money鈥攅mployed nurse anesthetists instead of doctors. The nurse that anesthetized the boy was not certified and she gave the boy an overdose of halothane anesthesia.

His heart stopped due to that overdose. Doctors failed to intervene until it was too late. He went without oxygen for fifteen minutes.

The boy survived but he suffers from severe brain damage that led to cognitive impairment and other medical complications. Once his condition stabilized he went to another hospital for rehabilitative therapy鈥攅ssentially learning to walk and talk again. Now he learns at a first-grade level he is unable to tie his shoes or ride a bike and his injuries prevent him from functioning as normal.

91原创视频amp; Aspromonte attorneys were able to help the boy and his family by initiating a lawsuit presenting compelling evidence of medical malpractice to a jury and ultimately settling the care for a future payout of $50 million to them. The settlement value is high but it was ultimately influenced by the boy鈥檚 age at the time of the injury and the severity of his injuries. Due to the boy鈥檚 young age the need for lifelong care will be prolonged and the imposition of caretaking duties on the family will likely be permanent. His cognitive disabilities further influenced the verdict as they increased the level of care he is likely to need in the future and they are clear demonstrations of his loss in quality of life.

The severity of the TBI in terms of effects on the victim and the age of the person afflicted with the TBI are enormously important in determining the outcome of these cases. Tremendous losses in the quality of life鈥攂oth for the victim of the TBI and their caretakers鈥攚ill increase the value of cases. The proper evaluation of a case鈥檚 value and effective negotiation tactics on the part of the attorneys will further impact the resolution value to the benefit of the victims⁶.

Comparative Analysis of Case Studies

High settlement values are influenced by a variety of innumerable factors. The legal strategies employed in TBI cases are immensely important. Patience in deciding when to settle a case can lead to increased settlement values.

A good investigation of a TBI plaintiff鈥檚 claim by the attorney will make a difference as well. This means obtaining all of the past medical records including those that pre-date the injury in an effort to determine whether the complaints presented by the client were caused by the TBI or something else. These medical records not only inform the attorney of the state of the case but they will also be important evidence for medical experts to review as well.

To make these cases to a jury testimony will be required from experts in the fields of neurology life planners economists and biomechanical engineers. Without effective use of these experts many TBI cases cannot be successful.

The value of a settlement will increase as a function of the victim鈥檚 age at the time of the TBI and the victim鈥檚 long-term care needs after the TBI. Younger victims will typically increase the settlement value of the case because their long-term care needs are more prolonged and therefore more expensive. Further if the victim鈥檚 needs are generally greater due to the nature of the injury then this will also increase settlement values. The ultimate factor in producing greater settlement values is a finding of more severe levels of global handicap higher levels of executive dysfunction and of informal care time⁷.

Key Legal Strategies in High Profile TBI Cases

Establishing clear liability can be difficult because of issues in proving that the defendant鈥檚 behavior caused the injury. Ultimately establishing clear liability will depend on the plaintiff鈥檚 attorney鈥檚 ability to create a clear picture of what the person鈥檚 life was like before sustaining a TBI and then contrast that clear picture with the TBI victim鈥檚 current life. It is easier to establish liability in cases where the victim lost consciousness at the scene of the injury or has abnormal CT or MRI scans. If a person who sustained a TBI had medical issues prior brain injuries or substance abuse problems that pre-existed the TBI then it will be more difficult to establish liability⁸.

Comprehensive documentation of the TBI victim鈥檚 medical history up to the present is crucial. A client may believe his problems are causally related to the TBI; it is the attorney鈥檚 job to prove it. Gathering other records鈥攕uch as school records employment records standardized testing reports and other documents that can establish the client鈥檚 baseline prior to the TBI鈥攚ill help the attorney paint the liability picture⁹.

After gathering the requisite records the effective use of experts is paramount to maximizing the value of a TBI case. To that end attorneys will need to use all of the following experts:

• A neurologist;
• A life care planner; and
• An economist.

People who are seriously injured with a TBI will require a lifetime of future medical care. The victim鈥檚 ability to enjoy life and participate in past activities will be diminished and that is going to impact their families. Brain injuries should be thought of as a psychosocial behavioral and relationship issue and it is the job of a well-qualified life care planner to put this in numbers for the jury¹⁰.

Generally it is wise to exercise patience in deciding when to settle TBI cases because the value of the case is likely to increase. The increase in value can be attributed to the fact that the consequences of brain injuries are often not fully understood until two years after the injury. Attorneys representing TBI victims are likely to face pressure from the client and the client鈥檚 family to settle earlier but to settle early due to this pressure alone would be a disservice to them. At that point the full effects of the TBI are likely unknown and the value of the case is likely to increase over time¹¹.

The Role of Expert Testimony in High-Profile TBI Cases

The role of expert testimony in TBI cases cannot be overstated. Testimony from neurologists and neuropsychologists will be necessary to bolster the treating physician鈥檚 testimony concerning the TBI victim鈥檚 injury. The neurologist鈥檚 testimony will be necessary to explain the mechanism of the TBI the results of a clinical examination the insignificance of negative diagnostic testing results and to substantiate the credibility of the treating neuropsychologist. Though it sounds redundant a neuropsychologist will also be needed to explain the deficits in the victim鈥檚 brain function caused by the TBI. Neuropsychologists are the only specialists who are able to objectively document the victim鈥檚 injuries¹².

A jury is ill-prepared to grasp these neurological and neuropsychological issues absent this testimony as they cannot see or understand the nature or impacts of the injury without it. The medical providers鈥� jobs are to show how the TBI causes the problems that the TBI victim faces in the present.

Economic experts and life care planning experts will put a dollar value on the damage that a TBI does to the victims鈥� lives and those of their loved ones. An economist should be brought in for the purpose of showing how much money the TBI victim lost since the injury and how much the victim will lose in the future due to the injury.

While the economist鈥檚 job at trial is to explain what the TBI victim lost since the injury and what he will lose in the future the life care planning expert offers a different angle of financial testimony: expenditures necessitated by the brain injury. In most states an injured person is entitled to seek reimbursement for all reasonable and necessary medical costs that are causally related to the TBI. However these medical costs must be proven and the lifecare planner is the best person to properly quantify the costs of future medical care and hiring support to replace services that can no longer be performed.

The experts mentioned above are just a few examples of the types of expert testimony a TBI victim might offer to prove his case at trial but the bottom-line is compelling expert testimony in these cases can drastically alter settlement outcomes¹³.

Trends in TBI Settlements

The seeming explosion in settlement values for TBI cases can likely be attributed to a number of factors. Advances in modern medicine鈥攕pecifically in how medical professionals and scientists understand the brain and the consequences of damage to it鈥攁re changing the legal landscape of TBI litigation. For example researchers are learning more and more that brain injuries specifically TBIs do not necessarily cause any specific symptom nor appear in any particular way in neuroimaging tests one hundred percent of the time. Studies are consistently demonstrating that TBIs put their victim at significantly increased risks for developing symptoms and signs of neurobehavioral disorders which are discovered by medical practitioners family members and colleagues subsequent to the victim sustaining the TBI. Put simply the data is consistent with the finding of a causal connection between these issues and TBIs even if they do not show a specific one-to-one causal connection. The new understanding that TBIs will impact different victims in different ways will revolutionize how evidence of liability is put on how damages are shown and ultimately the value of settlements¹⁴.

A new understanding of the severity of TBIs and their impacts on victims鈥� lives is pervasive in the media. It is very common for major media outlets to publish stories of seemingly enormous TBI settlements. When consumed by the public there is an increase in public awareness and that public awareness of the dangers of brain injuries will inflate settlement values for these cases even where the public would not have recognized the problem in the past¹⁵.

Lessons for Legal Professionals

For legal professionals the key takeaways are as follows:

• Collecting records at the outset of a case will create far better results for both the attorney and the client. Early record collection will allow the attorney to evaluate his client鈥檚 case and more accurately assess the damages to which his client is entitled. It will also assist the lawyer in preparing his experts.
• Working with a variety of experts鈥攊ncluding neurologists neuropsychologists lifecare planners and economists鈥攊s pivotal both to proving liability and increasing settlement values. Without these experts communicating a case to juries and opposing counsel will be impossible. This multidisciplinary approach is therefore pivotal in these cases.
• Patience is a virtue once an attorney does the initial legwork in these cases. An attorney must counsel his client and their families not to accept the earliest settlement offer possible for this is likely to decrease the value of the case. Decreased case values are inaccurate reflections of the value of clients鈥� injuries and do the client鈥檚 a grave disservice when the lifecare planning needs to be put into place.

Implications for Healthcare Providers and Institutions

There are numerous implications for healthcare providers as well. Namely healthcare practitioners must rigidly adhere to the standards of care in their given fields. This includes respect for robust credentialing systems and strict oversight of younger medical professionals who are still learning. Cutting corners in staffing to save money is dangerous and unethical for patients.

Medical malpractice law plays a big role in regulating the conduct of medical practitioners serving to deter healthcare providers from committing medical errors in the future. While it may be advantageous to save money on procedures in the short-term cutting expenses at the cost of patient safety will not be a profitable endeavor in the long-run. Legal liability for medical errors will ultimately erase any surplus created by the cost-cutting measures¹⁶.

Conclusion

High-profile TBI settlements evince an evolving public consciousness of TBIs and the severity of the harm they do to victims and their families. As the public鈥檚 appreciation of the harm grows settlement values will grow with it. The theories to which experts have been testifying in TBI cases are becoming known more broadly changing the legal landscape in the process.

Legal professionals must stay abreast of these developments to effectively serve their clients. Cutting corners in litigating TBI cases will be no more profitable for attorneys than cutting corners in a medical context will be for healthcare practitioners. Ultimately attorneys litigating on behalf of TBI victims have high ethical obligations to those clients and they would fail to meet them by taking on TBI cases without proper preparation.

Additional Resources

Hyperlinked below are several organizations that people suffering from brain injuries or their families may contact if they are in need of information or resources:

• : ADEO provides housing and wellness resources to people suffering from brain injuries.
• : The Dan Lewis Foundation for Brain Regeneration Research is an organization supporting the creation of new pharmacologic treatments promoting neural cell regeneration, renewed synaptic plasticity and axonal regrowth to improve the lives of people suffering from moderate and severe TBIs and their families.
• 91原创视频amp; Aspromonte: The attorneys at 91原创视频amp; Aspromonte have years of experience handling TBI cases. Click here to see their page on traumatic brain injuries. Alternatively you can call them at (516) 206-6723 to schedule a free initial consultation with one of their attorneys.

Whether you鈥檙e dealing with injuries from a car accident, construction accidents, or a wrongful death case, our attorneys are here to provide compassionate support.

Footnotes

1. Staton, Bethany. 鈥淭he Devastating Impact of Traumatic Brain Injury on Caregivers.鈥� Brain Injury Alliance. Link.
2. Attorney’s Medical Advisor, MEDADV 搂 36:1 (March 2024).
3. Ibid.
4. Ibid.
5. Stern and Brown, Litigating Brain Injuries 搂 3:6 (Nov. 2023).
6. Ibid.
7. Horn & Zasler, EDS., Hanley and Belfus, 1995.
8. Stern and Brown, Litigating Brain Injuries 搂 3:6 (Nov. 2023).
9. Ibid.
10. Horn & Zasler, EDS., Hanley and Belfus, 1995.
11. Stern and Brown, Litigating Brain Injuries 搂 3:6 (Nov. 2023).
12. Ibid.
13. Horn & Zasler, EDS., Hanley and Belfus, 1995.
14. Ibid.
15. Ibid.
16. Horn & Zasler, EDS., Hanley and Belfus, 1995.

The post High-Profile Traumatic Brain Injury Settlements: Lessons Learned appeared first on New York Personal Injury Lawyers.

While medical errors are serious, there are steps being taken to improve patient safety. By implementing strategies like improved communication and utilizing technology like electronic health records, the healthcare industry can work towards reducing these incidents.

Summary

Medical malpractice statistics paint a concerning picture, but it’s important to remember that proactive measures are being implemented. This infographic provides a snapshot of the current situation and offers a glimpse of how the future of patient safety might unfold.

Let us fight for the compensation you deserve鈥攕chedule your consultation now.听Our attorneys bring extensive experience to a range of personal injury cases, including car and construction accidents, catastrophic injuries, wrongful death, and more.

The post Medical Malpractice Statistics and Trends in the United States appeared first on New York Personal Injury Lawyers.

Being able to go to the doctor when we are sick or injured is something most of us take for granted. Making routine wellness appointments for our children is no big deal for most Americans. Sadly, that鈥檚 not the case for all of us though.

In recent years, many studies, including one done by the , have shown that people of color in the LGBTQ+ community are far less likely to get proper treatment for physical and mental health ailments than the rest of us. In The State of Mental Health in LGBTQ Communities of Color, the HRC Foundation cites a lack of trust in the medical community and lack of health insurance as just two reasons why this is so.

Several studies have also found that people of color in the LGBTQ+ community who do manage to see healthcare providers are often treated unfairly. And that often has serious consequences. Take one participant in a examining how healthcare biases affect Black, Indigenous (and) People of Color (BIPOC) patients in the LGBTQ+ community. Identifying as both BIPOC and LGBTQ+, 鈥淧T11鈥� shared how doctors dismissed complaints of chronic knee pain for years.

“I was overweight but active, I complained about knee pain all the time, and doctors always said ‘lose weight,鈥欌�� PT11 recalled. 鈥淲ell, one time on vacation, I got injured and had to go get X-rays done on my knee. When the X-rays came back, the doctor was like 鈥榶ou have arthritis and also your kneecap is misaligned.鈥� My first reaction was ‘I’m not even 30 and I have arthritis?’ and then it was anger because I have been dismissed for like a decade.”

In this article, the legal team from 91原创视频amp; Aspromonte Associates LLP takes a comprehensive look at how healthcare biases can lead to personal injury for LGBTQ+ people of color.

What Is Intersectionality in Healthcare?

To fully understand how this happens, one must first understand an overarching concept, namely 鈥渋ntersectionality.鈥�

The is largely attributed to law professor Kimberl茅 Crenshaw, who described it as a way of examining how various identities and methods of oppression 鈥� such as racism, sexism, and homophobia 鈥� operate as a whole. In other words, that a woman of color may face discrimination due not only to her race but also because of her gender. On a similar note, a transgender man of color may face discrimination based not only on his race but also on his gender identity.

occur in healthcare settings when providers don鈥檛 acknowledge that certain biases and/or systems of oppression are preventing them from delivering the best possible healthcare services to people of color in the LGBTQ+ community. Their failure to do so causes them to perpetuate the problem by continuing to engage in the same behavior.

Accordingly, reports that more than half of transgender or non-binary respondents experienced at least one type of mistreatment or other negative experiences with healthcare providers.

How Biases Affecting LGBTQ+ People of Color Are Manifested In Healthcare Settings

referenced above identified six different ways in which biases affecting LGBTQ+ people of color are manifested in U.S. healthcare settings. These are:

1. Transactional care 鈥� this refers to an interaction in which the patient feels the healthcare provider is not invested in their well-being but strictly views the encounter as a job. Patients feel rushed, unseen, and unheard because the healthcare provider isn鈥檛 thorough; doesn鈥檛 address all of their medical concerns; and fails to fully inform the patient about diagnoses, treatments, or alternatives.
2. Power imbalances 鈥� this pertains to interactions in which the patient felt unwelcome or intimidated based on the provider鈥檚 judgment that they were incapable of understanding medical information, identifying real medical concerns, or making the best medical decisions. This often leads to exclusion from the relevant decision-making process, the lack of any meaningful relationship between the provider and the patient, and dismissal of patients without any explanation about their condition or treatment.
3. Improper communication 鈥� occurrences include verbal or non-verbal signals that the patient felt were uncomfortable, awkward, or inappropriate. These included but were not limited to negative comments or scolding, lack of eye contact, trying to leave while the patient was speaking, or using a judgmental tone.
4. Unfair treatment 鈥� these are cases in which patients felt they were stereotyped and treated unjustly based on certain traits such as age, weight, gender, gender identity, sexual preference, and so on. Patients claimed this led to difficulty accessing tests, treatment, getting a diagnosis, or getting pain medication.
5. Hidden or disguised bigotry 鈥� this occurs in cases where people of color in the LGBTQ+ community felt that healthcare providers had inherent biases against them based on certain conduct or behavior. This includes a lack of knowledge or awareness about how to talk or care for gender-diverse patients, and/or a lack of awareness about medical needs specific to people of color.

How U.S. Healthcare Biases Affect People Of Color In The LGBTQ+ Community

to these healthcare biases often causes people of color in the LGBTQ+ community to mistrust the healthcare system, and refrain from or put off seeking medical treatment. The HRC Foundation鈥檚 Healthcare Equality Index for 2024 reports that 1 in 5 LGBTQI+ adults postponed healthcare treatment due to disrespect or discrimination by healthcare providers.

This, in turn, may result in . In some cases, patients will simply search for medical providers who will treat them better, even if they have to change their physical appearance as part of that process.

Vita, who identifies as Black, trans, nonbinary, mentally disabled, pansexual, demisexual, and femme, shared her thoughts in the 2021 article

鈥淥ne of the ways I think being a Black pansexual trans woman affects my hypertension directly is stress… I hadn鈥檛 had super high blood pressure until I came out….鈥� Vita said. 鈥淚t鈥檚 a mental exercise to leave the house now, you know, and to feel confident enough that you would get from point A to point B and back to point A safely… On a racial level, there鈥檚 a societal stigma that Black people aren鈥檛 intelligent… I鈥檝e noticed a very real sense of entitlement in medical health professionals and mental health professionals around hypertension around STI [sexually transmitted infection] prevention…. 鈥業鈥檓 a doctor. I know more than you, period. So, here鈥檚 what you鈥檙e going to take.鈥欌��

Reyna, who identifies as Latina and transsexual, also shared her thoughts in a sidebar accompanying the article published by AFT Health Care.

鈥淚 had a terrible accident, and I was just traumatized…. The [healthcare provider鈥檚] receptionist looked at me and said, 鈥楬ow can I help you, sir?鈥� The pain went away, and the only thing that I had was anger. I was furious that this person decided to be so blatantly disrespectful to me in a time of need鈥�. Some trans women don鈥檛 see a doctor until they鈥檙e practically dying,鈥� Reyna said.鈥�

A transgender woman quoted in an infographic accompanying the Executive Summary of the HRC Foundation鈥檚 Healthcare Equality Index for 2024 shared a similar experience. In her case, she had gone to the doctor for 鈥渉er first physical in years鈥� when the incident occurred.

鈥淲hen I walked toward the women鈥檚 bathroom in the waiting area, the receptionist jumped up and told me to use a McDonald鈥檚 restroom down the street,鈥� she said. 鈥淚 felt like leaving and never going back.鈥�

Self-Advocacy and Options For Legal Recourse

The key to self-advocacy in a healthcare setting is knowing your legal rights. These vary based on the circumstances.

Sponsored by the HRC and LGBT Healthlink, among others, the details basic rights that should be afforded to everyone in the LGBTQ+ community. These are:

• The right to be treated with respect and made to feel welcome no matter who you are.
• The right to not be denied service or given inferior service.
• The right to be called by your chosen name and gender pronoun and to include these preferences in your advance directive.
• The right to use the gender-based facilities of your choice.
• The right upon admission to certain medical facilities to be told how to create an advance directive 鈥� and the right to pick whoever you want to be your decision-maker.
• The right to be visited by anyone you choose (regardless of your legal or biological relationship) at any reasonable time.
• The right to ask the facility to show you the rule that prohibits that visitor if visitation is denied.
• The right to the privacy of your medical records and care under a law known as HIPAA 鈥� the Healthcare Insurance Portability and Accountability Act.
• The right to protest being discharged from a hospital rehabilitation facility, assisted living facility, or nursing home.
• The right to information concerning how you can appeal the discharge or transfer and to have time to figure out where you will go when you are discharged.

, federal regulations mandate that hospitals participating in the Medicare and Medicaid programs (which is most of them) have written policies and procedures regarding patients鈥� right to designate the visitors of their choice. Any such policies and procedures should include language barring discrimination in visitation based on sexual orientation and gender identity.

that all hospitals with Joint Commission accreditation (which is most of them) are legally barred from discriminating against patients based on sexual orientation and gender identity. There is a significant catch, however. The Joint Commission does not mandate that these hospitals have a written patient non-discrimination policy outlining their non-discrimination standards. Furthermore, The Joint Commission 鈥渄oes not have any specific requirements about the training of hospital staff regarding these policies or LGBTQ+ cultural competency.鈥�

On April 26, 2024, issued a final rule under Section 1557 of the Affordable Care Act (ACA), furthering protections against discrimination in healthcare. Of particular relevance here is that the final rule protects people of color in the LGBTQ+ community from discrimination. It does so by codifying that Section 1557鈥檚 prohibition against discrimination based on sex includes LGTBQI+ patients.

Options For Legal Recourse

If you are a person of color, identify as LGBTQ+, and believe a healthcare provider discriminated against you, you may be able to pursue legal recourse. The specific legal remedies available to you will depend upon the circumstances of your unique case.

For example, the following the hospital鈥檚 grievance procedure if discrimination occurred at a hospital. You can also file a complaint directly with The Joint Commission.

In some circumstances, you may also be able to file a with the . This is the federal law enforcement agency tasked with ensuring that certain healthcare and human services don鈥檛 discriminate against anyone based on their:

• Race
• Color
• National origin (including primary language)
• Disability
• Age
• Religion
• Sex (including pregnancy, sexual orientation, and gender identity)

The may also be if the discrimination you experienced occurred at a nursing home or long-term care facility.

Helping Healthcare Providers Recognize Intersectional Injustices

The includes several recommendations aimed at helping healthcare providers recognize and combat intersectional injustices affecting LGBTQ+ people of color. These include but are not limited to:

• Promoting compassion and understanding 鈥� specifically an understanding that your patient鈥檚 past experiences influence their current fears, concerns, and expectations.
• Recognizing intersecting identities 鈥� acknowledging that people of color in the LGBTQ+ community have likely faced discrimination based on multiple identities (i.e., race/ethnicity, sexual orientation/gender identity) and acting accordingly.
• Identifying individual and team biases 鈥� creating and engaging in activities with patients from the LGBTQ+ BIPOC community to promote a better understanding of how to deliver effective healthcare services.
• Learning and using effective communication techniques 鈥� this includes the use of neutral language and proper terminology.

According to a recent article published on , several doctors have teamed up to create a 鈥淕ender Inclusive Care Toolkit for Hospitals.鈥� This includes several resources and guidelines designed to facilitate the recognition of inherent biases in healthcare settings. Its creators say it can be used in healthcare settings ranging from large hospitals to local practices.

Groups that also promote healthcare equity include the , in partnership with the Tegan and Sara Foundation, and . Boston-based caters to LGBTQ+ patients, including people of color, from Massachusetts and other states. In addition to serving patients directly, Fenway Health also does research and provides education and training to improve the care of LGBTQ people.

The Bottom Line

Those of us who have never experienced discrimination in healthcare probably don鈥檛 think about those who do. If we did give it some thought, we would quickly realize how lucky we are. Because the bottom line is that intersectional injustices in healthcare happen way too often in the United States. When they do, people of color in the LGBTQ+ population are frequently victims.

As these patients attest, they face discrimination in healthcare settings based not only on their race or ethnicity but also on their sexual orientation or gender identity. This results in greater mistrust of the medical community, avoidance, and/or delayed treatment. In worst-case scenarios, this, in turn, leads to worsening health conditions and poor outcomes.

The good news is that many efforts to promote equity in healthcare are ongoing. Let鈥檚 just hope there will soon be a time when they are no longer needed.

Contact our experienced personal injury attorneys for expert guidance today. We have helped clients obtain justice and compensation in a variety of personal injury cases, such as car accidents, construction accidents, wrongful death, and severe injuries.

Additional Resources

Inclusive Healthcare=

Advocacy

Resources Specific To Communities Of Color

Featured image: by: /

The post Hidden Dangers: How Healthcare Bias Puts LGBTQ+ People of Color at Risk appeared first on New York Personal Injury Lawyers.

Hope After Impact: Living with a Traumatic Brain Injury

While TBIs can be life-altering, there is hope. With proper treatment and support, individuals with TBIs can heal and lead fulfilling lives. This infographic serves as a resource to raise awareness and encourage early intervention for better outcomes.

Summary

The Impact of Traumatic Brain Injury

This infographic provides a snapshot of the world of traumatic brain injuries. From the staggering number of people affected to the diverse range of symptoms, it emphasizes the seriousness of TBIs. However, it also highlights the importance of early diagnosis and the various treatment options available. By understanding TBIs, we can work towards preventing these injuries and improving the lives of those who experience them.

Our team of personal injury attorneys has experience helping clients with cases involving car accidents, construction accidents, severe injuries, wrongful death, and other complex situations.

The post The Long-Term Impact of Traumatic Brain Injuries appeared first on New York Personal Injury Lawyers.

Lawsuits alleging medical negligence are brought under American tort law, but they differ from a standard negligence claim in that their biggest question is determining what type of duty a plaintiff-patient was owed by a defendant-provider⁴. The answer to that question is dependent on the relationship of the healthcare provider and the patient, the foreseeable risk involved, and policy considerations⁵. For example, it is generally accepted that a physician owes a duty of care to his patients, but that same physician generally does not have a duty to nonpatients⁶. As a matter of tort law, the physician owes his patients a duty of care because they have a physician-patient relationship and because there is foreseeable harm that could result from his negligence. However, the same physician does not owe a duty to nonpatients because it could subject that physician to lawsuits from unforeseeable parties⁷.

That the physician owes a duty to his patient but none to nonpatients can also be explained by competing policy considerations concerning how to best provide quality healthcare. Quality healthcare is the delivery of healthcare services in a way that favorably influences the outcome of a patient鈥檚 health problem. Analyzing the quality of health care requires a multifaceted approach for defining and measuring quality health care⁸. Though this list is far from exhaustive, healthcare quality can be assessed by the following metrics:

• Appropriateness: This measures the extent to which the potential health benefits from a medical service exceed its health risks as assessed by the healthcare provider and to the patient.
• Gaps in Medical Care: This metric assesses the quality of healthcare across multiple settings and populations.
• Patient Safety Outcomes: This metric assesses the reduction of medical errors to prevent complications, injuries, and deaths in the provision of healthcare.
• Patient-Centeredness: This dimension of healthcare quality measures the degree to which care is respectful of and responsive to individual patient preferences, needs, and values.

Healthcare quality matters to patients because it ultimately determines the value of the care that the patients receive, improves the care they get, and ultimately, improves patient health.

Patient safety is one of the major public policy considerations underpinning medical malpractice laws in the United States⁹. American courts recognize the medical licensing system alone is inadequate to protect patient safety. After a physician is licensed, the licensing process alone provides no assurance of a physician鈥檚 professional competence and therefore does not assure the public of quality healthcare or patient safety¹⁰. The medical system鈥檚 reliance on peer reviews is similarly inadequate to safeguard patient safety because of the problems inherent to acting as both colleague and accuser¹¹. The economic realities of healthcare and the nature of the relationships between healthcare providers incentivize against blowing the whistle on a colleague or competitor¹².

One of the intended rationales of awarding damages in malpractice suits is to deter healthcare providers from committing medical errors in the future. Damages improve patient safety by economically incentivizing healthcare providers to avoid medical errors in the future by improving interoffice procedures and making appropriate investments¹³.

The Relationship Between Medical Malpractice Laws and Healthcare Quality

Interpreting the impact of medical malpractice laws on healthcare quality is challenging. Evidence concerning the degree to which medical malpractice laws improve healthcare quality is limited. Implementation of damage caps鈥攐r limitations on the money juries can award plaintiff-patients in medical malpractice suits鈥攄oes not significantly impact a healthcare provider鈥檚 incentives to deliver quality healthcare¹⁴.

Medical Malpractice Laws Requiring More Stringent Standards Increase Healthcare Quality

The standards to which physicians are held in medical malpractice lawsuits impact healthcare quality. In some jurisdictions, the legal standard for physician鈥檚 conduct is that they must possess the requisite skill and knowledge as is possessed by the average member of the medical profession in the community in which he practices. However, other jurisdictions require the physician to possess the requisite skill and knowledge as is possessed by the average member of the medical profession nationally¹⁵. The national standard is a higher, more stringent standard than the community standard.

Studies have found that increasing the legal standard for the physician鈥檚 conduct from the local community to that of the medical profession nationally does improve healthcare quality¹⁶. Helling v. Carey鈥攁 seminal case in medical malpractice law鈥攊s a prime example of the ways in which the law can increase the standard to which physicians are held. In that case, the Washington Supreme Court heard testimony that the defendant-ophthalmologist had complied with the standard of ophthalmologists by declining to give a routine pressure test to people under 40 years of age. The Washington Supreme Court held that simply following the standards of ophthalmologists was inadequate and that the defendant-ophthalmologist acted negligently by failing to give the simple, harmless pressure test to the patient. The Court improved healthcare quality by elevating the standards to which all ophthalmologists must perform their medical duties when it found the defendant-ophthalmologist was negligent¹⁷.

Defensive Medicine Isn鈥檛 a Cost of Medical Malpractice Laws

鈥淒efensive medicine鈥� is best understood as healthcare providers unnecessarily ordering costly tests, procedures, or visits to ward off lawsuits or provide a legal defense if a lawsuit is filed¹⁸. Defensive medicine can also come in the form of a physician declining to perform a procedure or conduct a test for fear of a future malpractice suit. To the extent that defensive medicine occurs, it is thought to increase healthcare costs by requiring patients to pay for tests and procedures they do not need. The total cost of defensive medicine is unknown, but most estimates put that number between $50-$65 billion鈥攍ess than 3% of total healthcare costs¹⁹.

Advocates of tort reform argue that it could decrease the practice of defensive medicine, thereby decreasing medical costs. The efficacy of tort reform is shaped by the form of the reform: capping non-economic damages has an indeterminate effect on healthcare spending, but capping attorney fees can decrease physician spending on insurance²⁰. This research is based on studies of different forms of tort reform that was implemented in various states across the U.S.

Although the frequency of defensive medicine practice is unclear, there are recorded cases of it. In 2004, a physician saw a patient with back pain, cellulitis on his leg, and a leg abscess. The patient鈥檚 neurologic exam was normal, so the patient was treated and discharged without ever receiving an MRI. The physician was served a year later, and only then did he learn that he had missed an epidural abscess that paralyzed the patient and led to his death nine months later. Six years later, the same physician saw a patient with thoracic spine pain, a normal neurologic exam, and cellulitis on his leg. This time, the physician ordered an MRI as a result of the previous missed diagnosis and resulting lawsuit; he was practicing defensive medicine²¹.

Actionable Insights for Healthcare Professionals, Policymakers, & the Public

As previously stated, the daily practices of healthcare professionals and the decisions they make for their patients are impacted by medical malpractice laws. Providing healthcare quality that prioritizes patient safety and medical error is a tall order, and the threat of a medical malpractice lawsuit only compounds that stress.

Healthcare professionals can help prevent malpractice suits by admitting medical malpractice cases are not all frivolous, and it is possible for them to arise in the future. Healthcare professionals function best when they鈥檙e prepared and operating within the limits of their skill and training. To that end, they can avoid medical error, promote patient safety, and ensure healthcare quality by staying prepared and within their domain.

Policymakers and legislatures are faced with the unenviable task of balancing patient safety and restitution to those injured by medical negligence against competing concerns of physician efficacy, healthcare costs, and the prevention of defensive medicine. They must promote healthcare quality while performing this balancing act. Promoting healthcare quality can be done by raising the standard of care in medical malpractice suits from local standards to national ones for the physician, and defensive medicine can, to some degree, be minimized by capping attorney fees.

Finally, if you suspect that you have been a victim of medical malpractice, then it is imperative you contact a licensed attorney as soon as possible. A consultation with an attorney will help you understand your legal rights, but it is imperative that you do not attempt to self-diagnose yourself. If you decide to file a lawsuit, then it will be crucial that you retain any documentary evidence you have of your case and provide it to your attorney. Medical malpractice laws are designed to promote patient safety by requiring legal standards for healthcare providers and by compensating those victimized by a provider鈥檚 failure to meet those legal standards.

Conclusion

Balancing the competing policy considerations which underpin the law of medical malpractice can be difficult. Patients are entitled to the standard of reasonable care from their healthcare providers, and a provider鈥檚 failure to meet that standard is actionable medical negligence for which the patient should be compensated. Still, healthcare providers have intensely difficult jobs, and the threat of liability under medical malpractice laws will continue to inform the decisions they make鈥攔egrettably leading to defensive medicine.

Patients, providers, and policymakers must continue to think critically about the balance of these competing interests and how best to maintain that balance to prevent medical error, ensure patient safety, and continue improving healthcare quality. Given the limited research into the relationship between medical malpractice laws and healthcare quality, more quantitative studies are necessary for these groups to realize an ideal outcome. Additionally, further research on the relationship between legislative changes to the standard of care owed to patients in medical malpractice lawsuits and healthcare quality, as well as the relationship between specific tort reform laws, is necessary.

Footnotes

1. Medical liability tort system, 1 Am. Law Med. Malp. 搂 1:3.
2. McMains, Vanessa. 鈥淛ohns Hopkins Study Suggests Medical Errors Are Third-Leading Cause of Death in U.S.鈥� HUB. May 3, 2016.
3. Seabury, et al. 鈥淥n Average, Physicians Spend Nearly 11 Percent of Their 40-Year Careers with an Open, Unresolved Malpractice Claim.鈥� RAND. Jan. 2013.
4. McNulty v. City of New York, 100 N.Y.2d 227, 232, 792 N.E.2d 162, 166 (N.Y. 2003) (鈥淸T]he threshold question in determining liability is whether the defendant owed plaintiff a duty of care. The question is a legal one for the courts to resolve, taking into account 鈥榗ommon concepts of morality, logic and consideration of the social consequences of imposing the duty.鈥欌��); Smits as Trustee for Short v. Park Nicollet Health Services, 979 N.W.2d 436, 445 (Minn. 2022) (鈥淲hether [defendant] owed a legal duty of care to [plaintiffs] is a question of law. The question of whether to impose a legal duty is 鈥榦ne of policy.鈥欌��).
5. McNulty, 100 N.Y.2d at 232, 792 N.E.2d at 166; Park Nicollet Health Services, 979 N.W.2d at 445.
6. McNulty, 100 N.Y.2d at 232, 792 N.E.2d at 166.
7. Id.
8. Risk of liability as a deterrent to malpractice, 1 Am. Law Med. Malp. 搂 1:4; Schwartz, William B., M.D., and Komesar, Neil K., J.D., Ph.D. Doctors, Damages and Deterrence: An Economic View of Medical Malpractice. The New England Journal of Medicine, Vol 298, No. 23, pp. 1282鈥�1289 (June 8, 1978).
9. Risk of liability as a deterrent to malpractice, 1 Am. Law Med. Malp. 搂 1:4.
10. 鈥淨uality of Care: in Depth.鈥� RAND.
11. Id.
12. Id.
13. Id.
14. Id.
15. D. Schwartz, William B., M.D., and Komesar, Neil K., J.D., Ph.D. Doctors, Damages and Deterrence: An Economic View of Medical Malpractice. The New England Journal of Medicine, Vol 298, No. 23, pp. 1282鈥�1289 (June 8, 1978); Risk of liability as a deterrent to malpractice, 1 Am. Law Med. Malp. 搂 1:4.
16. Moore v. Board of Trustees of Carson-Tahoe Hospital, 88 Nev. 207, 212, 495 P.2d 605, 608 (1972) (鈥淟icensing, per se, furnishes no continuing control with respect to a physician’s professional competence and therefore does not assure the public of quality patient care. The protection of the public must come from some other authority.”).
17. Helling v. Carey, 83 Wash.2d 514, 516-19, 519 P.2d 981, 982-83 (Wash. banc 1974).
18. Defensive medicine and Good Samaritan statute laws, 1 Am. Law Med. Malp. 搂 1:9.
19. Katz, Eric D., M.D. Defensive Medicine: A Case and Review of Its Status and Possible Solutions. v.3 Clin. Pract. Cases Emerg. Med. Nov. 2019.
20. Mello MM, Kachalia A. Medical malpractice: evidence on reform alternatives and claims involving elderly patients: a report for the Medicare Payment Advisory Committee. 2016.
21. Katz, Eric D., M.D. Defensive Medicine: A Case and Review of Its Status and Possible Solutions.

From car accidents to construction accidents and cases of wrongful death, our dedicated personal injury attorneys are here to provide expert representation.

The post The Impact of Medical Malpractice Laws on Healthcare Quality appeared first on New York Personal Injury Lawyers.

Understanding Scholarships for Injured Students

Types of Scholarships Available

• Merit-Based Scholarships: These scholarships are awarded based on a student’s academic, athletic, or artistic achievements. They often require a strong GPA, participation in extracurricular activities, or exceptional talent in a specific area.
• Need-Based Scholarships: These scholarships are awarded based on a student’s financial need. They consider the family’s income and financial situation to determine eligibility.
• Community Service Scholarships: These scholarships recognize students who have demonstrated outstanding community service. Applicants typically need to show a record of volunteer work and community involvement.
• Special Circumstances Scholarships: These scholarships are specifically for students who have overcome significant challenges, such as personal injuries. They often require an essay or personal statement detailing the applicant’s experience and resilience.

Specific Scholarship Resources

For students looking for scholarships, here are some reputable scholarship databases and websites that cater to students with disabilities or from disadvantaged backgrounds:

Local Scholarship Opportunities in Manhattan, NY

Additionally, there are several scholarships specifically available for students in Manhattan or New York City:

Tips for Applying for Scholarships

Start Early: It’s crucial to begin the scholarship search and application process early to meet deadlines and gather all necessary documents.

Stay Organized: Keep track of scholarship deadlines, application requirements, and submission statuses using a spreadsheet or planner.

Personalize Your Application: Tailor your essays and applications to reflect your personal experiences and how the injury has influenced your academic and career goals.

Seek Recommendations: Obtain strong letters of recommendation from teachers, coaches, or community leaders who can speak to your resilience and achievements.

Writing a Compelling Scholarship Essay

Share Your Story: Emphasize the importance of telling a compelling personal story about overcoming adversity due to personal injuries.

Highlight Achievements: Focus on your academic and personal achievements despite the challenges you’ve faced.

Discuss Future Goals: Explain how the scholarship will help you achieve your future educational and career aspirations.

Proofread: Ensure your essays are free of errors and clearly convey your message.

Financial Planning for Students Affected by Personal Injuries

Budgeting Tips: Create a budget to manage educational expenses effectively. Federal Student Aid Budgeting Tips

Additional Financial Aid: Explore grants, work-study programs, and student loans as additional sources of financial aid.

Legal Support and Compensation: Understand how legal settlements and compensation from personal injury cases can assist with funding your education.

Legal Considerations

Maximize your settlement with our Personal Injury Lawyers in New York City. Don鈥檛 settle for less鈥攇et the payout you deserve. Experienced NYC Personal Injury Lawyers: We handle Car Accidents, Construction accidents, Slip & Falls, Medical Malpractice, Workplace Accidents, Wrongful Death & more. No matter your injury’s cause, we fight for deserved compensation. Serving All NYC Boroughs: Manhattan, Brooklyn, Queens, The Bronx, or Staten Island – our dedicated attorneys know the NYC Metro Area’s unique laws & court systems.

Call to Action

If you or a family member has been affected by a personal injury and you need assistance with educational funding, contact our law firm for a free consultation. We can discuss your specific situation and explore potential legal options to support your educational goals.

By leveraging available scholarships and financial resources, you can achieve your academic and career goals. For further assistance and support in legal matters related to personal injuries, contact us today.

The post College Scholarships for Students Affected by Personal Injuries appeared first on New York Personal Injury Lawyers.

The Medical Complexities of TBIs

Medical providers consider several different angles when analyzing TBIs. One such characteristic is the mechanism of the injury or the nature, direction, and effects of the force that caused the TBI. Generally speaking, the mechanism can be either a blunt mechanism or a penetrating mechanism. Penetrating mechanisms are typically limited to gunshots, whereas a blunt mechanism can be anything from an automotive crash to a sports injury.

TBIs are commonly classified by their severity. The most common severity classification are in terms spectrum of mild, moderate, or severe TBIs. This does not mean a 鈥渕ild鈥� TBI is not significant and referring to any TBI is very likely a misnomer. Categorizing a TBI as 鈥渕ild鈥� describes only the neurological severity of the injury but there may be no correlation with the degree of short or long-term impairment or the functional disability of the victim¹.

Medical professionals face significant challenges in diagnosing TBIs. Much of medical practice is concerned with physical injuries and many medical providers simply don鈥檛 understand mild TBIs. To make their job more difficult, many people suffer brain injuries but do not present the neurological effects expected of a person with a TBI. This leads to an underdiagnosis of TBI victims even among doctors who are trained to diagnose and treat them².

TBIs can cause long-term physical, emotional, and cognitive deficits in their victims, many of which will not be fully understood by the victim until years after they suffer the TBI. Physically, TBI victims may suffer from seizures, blindness, loss of smell or taste, fatigue, and many other physical deficits. TBI victims also suffer emotional effects such as anxiety, depression, impulsive behavior, and mood swings. The cognitive effects of TBI are equally terrifying, causing them to suffer from memory loss, attention deficits, and spatial disorientation, among other possible effects³.

Legal Challenges Specific to TBI Cases

Attorneys representing TBI clients face many challenges. First and foremost, they must prove that the defendant鈥檚 conduct caused the TBI and that the TBI causes their client鈥檚 disabilities. Largely, this requires them to show an insurer or鈥攊f the case proceeds to trial鈥攁 jury what their client was like prior to the TBI and what they are like after sustaining the TBI. This can prove a difficult picture when the client鈥檚 own narrative of the story is often not entirely accurate⁴.

TBI victims can be entitled to extensive damages in their cases but there are significant hurdles they must overcome to get them. TBI victims are generally entitled to the damages that are the natural and direct consequences of the defendant鈥檚 actions but they cannot recover the damages that are remote or unforeseeable. Defendants are liable only for damages that are reasonably certain to exist; TBI victims do not have to prove the precise amount of these damages so long as they prove their existence. Certainty of damages can be a major issue in TBI cases⁵.

It’s crucial to act quickly after a TBI. There are specific deadlines for filing a lawsuit related to a traumatic brain injury. These deadlines vary depending on the circumstances of each case. Given the complexities of TBI cases, it’s essential to consult with an attorney as soon as possible to understand your options and protect your rights.⁶.

The Role of Medical Evidence in TBI Litigation

Medical evidence plays a pivotal role in painting the picture of the TBI victim鈥檚 life both before and after the TBI as previously discussed. The TBI victim will need a neurologist鈥檚 testimony to explain the mechanism of the TBI, the results of a clinical examination, the insignificance of negative diagnostic testing results, and to substantiate the credibility of the treating neuropsychologist. Though it sounds redundant, a neuropsychologist is a different medical professional that the TBI victim will need to explain the deficits in his or her brain function caused by the TBI. Neuropsychologists are the only specialists who are able to objectively document the victim鈥檚 injuries⁷.

Presenting medical evidence comes with numerous challenges. In terms of litigation logistics, defense attorneys are often given an unlimited budget and go to great lengths to hire expert witnesses and travel to take their depositions. Legally, the admissibility of a neuropsychologist鈥檚 testimony concerning the existence of a brain injury may not be fully admissible in every jurisdiction. It is therefore critical that an attorney research his jurisdiction鈥檚 legal landscape concerning the neuropsychologist testimony prior to embarking on these cases⁸.

Emerging Trends and Technologies

The science surrounding TBI diagnosis and treatment is progressing, and with it the legal landscape. For example, Stanley B. Prusiner, M.D., and the Director of the Institute for Neurodegenerative Diseases and Professor of Neurology at the University of California, discovered that clinical symptoms of dementia can appear decades after a person sustains a TBI. Understanding that the symptoms of a TBI may not be known or set in for decades raises expansive new questions concerning the compensability of particular aspects of a TBI⁹.

Beyond these extraordinary new medical discoveries, new technologies are coming into existence that will alter how TBI cases are presented to a jury. For example, neuroimaging and biomarker studies may someday come to the point where they can demonstrate the potential for resilience. In layman鈥檚 terms, this means that the potential for resilience would support TBI victims’ legal arguments concerning the need for aggressive and extensive treatment for those who this technology can show to be more capable of a functional recovery. Showing that aggressive, extensive treatment could help a TBI victim meaningfully recover from a horrific injury could increase damage awards and settlements by enormous figures¹⁰.

Navigating TBI Cases: Advice for Victims & Families

After sustaining a TBI, the primary concern for a victim and their family should be healing from the injury to the extent possible and then reestablishing a routine in their family life. Once this is done, anyone seeking to bring a claim for a TBI should immediately begin gathering the TBI victim鈥檚 medical records from the past leading up to the present. Beyond these records, the victims and their family should try to document any symptoms of the TBI that they are experiencing or dealing with to further inform a prospective attorney of the challenges they are handling¹¹.

If a victim or his family wants to seek legal representation, then it is important to hire an attorney with knowledge of TBIs and significant experience litigating TBI cases. The ins and outs of these cases can create a myriad of challenges for inexperienced attorneys. An experienced TBI attorney will have a better understanding of how to conduct an initial interview, evaluate a case, gather records, investigate cases, gather experts, and defense attorney tactics in these litigations¹².

Victims and their families should be prepared for the long-term nature of a TBI case. TBI cases often go on for years and a defendant may make an initial settlement offer at an early stage of the case. This offer should be rejected because the case is likely to increase in value over its lifecycle. It may be tempting to accept a smaller sum of money in the early stages of a case, but this can lead to poor outcomes for victims and families in the long-term because of the enormous expense of taking care of a TBI victim. To that end, families should be counseled that the litigation is going to be emotionally stressful and will not come to a quick resolution¹³.

The Attorney鈥檚 Role in TBI Cases

TBI attorneys generally play a few different roles, the prominence of which will change as the case progresses. The attorney鈥檚 first job, which starts in the initial client interview, is to investigate the case. This means acting quickly to acquire all of the TBI victim鈥檚 past medical records leading up to the present and they may also wish to acquire their academic and employment records too¹⁴.

Another part of that investigation will be finding the appropriate medical experts. As discussed above, this will likely include a neurologist and a neuropsychologist, but there are other medical experts that may be needed in these cases. Each TBI case is different and generalizations about the necessity of experts (other than the neurologist and neuropsychologist) will not serve practitioners in this context¹⁵.

Attorneys are referred to as 鈥渃ounselor鈥� for a reason. A huge part of their job is to educate their clients on the complexities of their cases. In a lawsuit, the client decides what the goal is, but the lawyer decides how they will achieve those goals. Throughout that process, the lawyer will have to keep the client updated on what is happening in their case. Sometimes this will require difficult conversations requiring a high degree of honesty, integrity, and sensitivity to the client鈥檚 emotional state. Effective client counseling will help a client make the best choice for themselves but a client who trusts his attorney will trust that lawyer to make the best choice for the case, ultimately maximizing a potential settlement or jury verdict¹⁶.

The attorney also has an outward-facing role towards defense counsel, the insurance company, and the jury. From first contact with the insurance company and defense counsel, it is the attorney鈥檚 job to convince them of the validity of the case using the best evidence their investigation produces. Oftentimes, the insurer and its attorney will tell the TBI victim鈥檚 attorney no but the dogged pursuit of a good result for the client will produce results¹⁷.

Occasionally, there will be a difference between what the attorney represents to the insurance company and what he counsels his client. This dichotomy reflects the roles of counselor and advocate. Publicly, the attorney鈥檚 job is to be his client鈥檚 advocate in the matter and sometimes this requires an expression of confidence in the case even if there is a legal weakness with the case. Meanwhile, that same attorney will counsel his client of the legal weakness to help the client make the best decision for the TBI victim and their family¹⁸.

Conclusion

TBI cases present a unique challenge of proving causation鈥攃ausation of the TBI and that the TBI is what caused the client鈥檚 current maladies. Proving causation will require extensive expert testimony from medical experts such as neurologists and neuropsychologists and it may be necessary to employ a biomechanical engineer to demonstrate the force produced on the body by the injury-causing event¹⁹.

Successful integration of the lawyer鈥檚 legal expertise with the medical expertise of the neurologists and neuropsychologists is crucial for clients to receive all of the compensation to which they are entitled. This integration can take a significant period of time and will not produce a settlement instantly and victims and their families need to be counseled of this fact at the outset of the lawsuit. Even though the lawsuit will take time to progress, an experienced TBI attorney or personal injury attorney will help progress the case. Success in these cases will often mean a settlement that sets the victim and their family up with an appropriate lifecare plan for necessary future medical expenses and services and compensation for that which was taken from the TBI victim. If you or a loved one are the victim of a TBI, please reach out to an experienced TBI attorney to evaluate your case²⁰.

From car accidents to construction accidents and cases of wrongful death, our dedicated personal injury attorneys are here to provide expert representation.

Additional Resources

Hyperlinked below are several organizations that people suffering from brain injuries or their families may contact if they are in need of information or resources:

• : ADEO provides housing and wellness resources to people suffering from brain injuries.
• : The Dan Lewis Foundation for Brain Regeneration Research is an organization supporting the creation of new pharmacologic treatments promoting neural cell regeneration, renewed synaptic plasticity, and axonal regrowth to improve the lives of people suffering from moderate and severe TBIs and their families.
• 91原创视频amp; Aspromonte: The attorneys at 91原创视频amp; Aspromonte have years of experience handling TBI cases. Click here to see their page on traumatic brain injuries. Alternatively, you can call them at (516) 206-6723 to schedule a free initial consultation with one of their attorneys.

Footnotes

1. Air and Liquid Systems Corp. v. DeVries, 586 U.S. 446, 452, 139 S.Ct. 986, 993 (2019); Restatement (Third) of Torts: Phys. & Emot. Harm 搂 7(a) (2010) (鈥淎n actor ordinarily has a duty to exercise reasonable care when the actor鈥檚 conduct creates a risk of physical harm.鈥�).
2. Vega v. Crane, 162 A.D.3d 167, 170, 75 N.Y.S.3d 760, 763 (4th Dep鈥檛 2018); Woolley v. Coppola, 179 A.D. 991, 992, 578 N.Y.S.2d 729, 730 (3d Dep鈥檛 1992).
3. Vega, 162 A.D.3d at 170, 75 N.Y.S.3d at 763-64.
4. Pacio v. Franklin Hosp., 63 A.D.3d 1130, 1131, 882 N.Y.S.2d 247 (2d Dep鈥檛 2009). See also Weiner v. Lenox Hill Hosp., 88 N.Y.2d 784, 787, 650 N.Y.S.2d 629, (1996) (鈥淭he distinction between medical malpractice and negligence is a subtle one for medical malpractice is but a species of negligence. No rigid analytical line separates negligence and malpractice.鈥�).
5. Goldberg v. Horowitz, 73 A.D.3d 691, 693, 901 N.Y.S.2d 95 (2d Dep鈥檛 2010).
6. McMains, Vanessa. 鈥淛ohns Hopkins Study Suggests Medical Errors Are Third-Leading Cause of Death in U.S.鈥� HUB, May 3, 2016.
7. Cockayne v. Bristol Hospital, Inc., 210 Conn.App. 450, 454-55, 270 A.3d 713, 720-21 (Conn. App. Ct. 2022).
8. Rucigay v. Wyckoff Heights Medical Center, 194 A.D.3d 865, 866, 149 N.Y.S.3d 148, 151 (2d Dep鈥檛 2021).
9. Cygan v. Kaleida Health, 51 A.D.3d 1373, 1374, 857 N.Y.S.2d 869 (4th Dep鈥檛 2008).
10. Heraud v. Wiessman, 276 A.D.2d 376, 714 N.Y.S.2d 384 (1st Dep鈥檛 2002).
11. Nestorowich v. Ricotta, 97 N.Y.2d 393, 740 N.Y.S.2d 668 (2002).
12. Friedmann v. New York Hospital-Cornell Medical Center, 65 A.D.3d 850, 884 N.Y.S.2d 733 (1st Dep鈥檛 2009) (Catterson, J. dissenting) (鈥淚t is equally possible to surmise from the plethora of seemingly arbitrary and inconsistent determinations that courts have sometimes used the lack of a bright line rule in order to grant a plaintiff his/her day in court rather than dismiss on the grounds of an untimely pleading, or as in this case, the absence of a doctor鈥檚 affidavit.鈥�).
13. Smith v. Pasquarella, 201 A.D.2d 782, 607 N.Y.S.2d 489 (3d Dep鈥檛 1994).
14. Stanley v. Lebetkin, 123 A.D.2d 854, 507 N.Y.S.2d 468 (2d Dep鈥檛 1986).
15. McAlwee v. Westchester Health Associates, PLLC, 163 A.D.3d 549, 550, 80 N.Y.S.3d 401, 403 (2d Dep鈥檛 2018).
16. Id. at 550-51, 80 N.Y.S.3d at 403.
17. Borawski v. Huang, 34 A.D.3d 409, 410, 824 N.Y.S.2d 362 (2d Dep鈥檛 2006).
18. Id. See Speciale v. Achari, 29 A.D.3d 674, 815 N.Y.S.2d 157 (2d Dep鈥檛 2006).
19. See Galioto v. Lakeside Hosp., 123 A.D.2d 421, 422, 506 N.Y.S.2d 725 (2d Dep鈥檛 1986).
20. McDougald v. Garber, 73 N.Y.2d 246, 538 N.Y.S.2d 937 (1989).
21. Id.; Acevedo by Rodrigeuz v. New York City Health & Hospitals Corp., 251 A.D.2d 21, 673 N.Y.S.2d 656 (1st Dep鈥檛 1998).
22. CPLR 搂 3013; Fassnacht v. Hartman, 67 A.D.2d 676, 412 N.Y.S.2d 179 (2d Dep鈥檛 1979) (holding that the complaint failed to meet the minimum pleading requirements of CPLR 3013 because it did not reference times, types of treatment that constituted the medical malpractice or negligence, and failed to state and number separate causes of action).
23. See Lebetkin, 123 A.D.2d 854, 507 N.Y.S.2d 468.
24. CPLR 搂 3121; Hoenig v. Westphal, 52 N.Y.2d 605, 422 N.E.2d 491 (1981).
25. Id.
26. CPLR 搂 3212.
27. Brill v. City of New York, 2 N.Y.3d 648 (2004).
28. Maliqi v. 17 East 89th Street Tenants, Inc., 880 N.Y.S.2d 917, 921 (Sup. Ct. 2009).
29. See Lara v. New York City Health and Hospitals Corp., 305 A.D.2d 106, 757 N.Y.S.2d 740, 741 (1st Dep鈥檛 2003).
30. Id.
31. CPLR 搂 4113.
32. Vito v. North Med. Family Physicians, P.C., 16 A.D.3d 1039, 1040, 791 N.Y.S.2d 797 (4th Dep鈥檛 2005).
33. Weinstein v. Daman, 132 A.D.2d 547, 549-50, 517 N.Y.S.2d 278 (2d Dep鈥檛 1987).
34. Bell v. Agarwal, 55 A.D.3d 1310, 1311, 864 N.Y.S.2d 590 (4th Dep鈥檛 2008).

The post The Medical and Legal Challenges of Traumatic Brain Injury Cases appeared first on New York Personal Injury Lawyers.

Physicians are equally subject to this duty, and they commit medical malpractice when they breach it. Medical malpractice is a form of professional negligence on the part of a physician or other healthcare provider in which a physician fails to abide by the accepted standards of medical professionals. By deviating from those standards, the physician fails to act as a reasonable and careful physician would have acted in similar circumstances.

Medical malpractice is systemic: a Johns Hopkins study estimates that more than 250,000 Americans die each year due to errors by their medical providers¹. Though the frequency of medical errors is alarming, their results can be devastating for their victims. A recent case in which a Connecticut jury ruled in favor of the patient saw one victim of medical errors develop both a necrotizing infection and sepsis². Another case saw an Alabama jury award a patient鈥檚 widow $35,000,000 in punitive damages after she successfully proved his providers caused him to overdose on opioids due to medical errors by the provider and the provider鈥檚 staff. Despite their successes at trial, the lives of the patients and their families in both cases have been irreversibly altered.

The damage done to your life by medical malpractice can feel overwhelming, but there are steps you can take. If you believe you have been a victim of medical malpractice or if you are being sued for medical malpractice, it is crucial that you contact an experienced medical malpractice attorney as soon as possible. A medical malpractice attorney will be your trusted counsel and advocate throughout this process.

Prior to contacting an attorney, it is important that you preserve your medical records and any other documents or calendars showing that you received treatment, from whom you received it, and where you received that treatment. If you have any emails, text messages, or voice messages from the provider or facility, these can also be critical.

There Are Four Necessary Elements to Establish a Medical Malpractice Claim

A patient must establish (1) the applicable standard of care where he or she received medical treatment, (2) that the defendant-physician breached that standard of care, (3) that the breach of that standard was the proximate cause of the plaintiff鈥檚 injury, and (4) that the plaintiff was injured to prove a medical malpractice claim.

Patients Must Prove the Applicable Standard of Care

Determining the applicable standard of care that a physician owes a plaintiff is a two-step analysis. First, a patient must establish a 鈥減hysician-patient relationship.鈥� A patient can only sue a physician for medical malpractice if the patient鈥檚 claim is based on conduct by the physician constituting medical treatment or conduct bearing a substantial relationship to the rendition of medical treatment by the licensed physician to the patient. If alleged conduct constituted medical treatment or bore a substantial relationship to the rendition of medical treatment by the physician, then there was a physician-patient relationship.

Once a physician-patient relationship is established, the physician owes the patient a duty with three aspects: (1) the physician must possess the requisite skill and knowledge as is possessed by the average member of the medical profession in the community in which he practices; (2) the physician must exercise ordinary reasonable care in the application of his professional knowledge and skill; and (3) the physician must use his best judgment in the application of this knowledge and skill³⁴.

If a physician-patient relationship cannot be established, then the patient鈥檚 claim can still be brought under a theory of negligence, meaning that the patient is claiming the physician, hospital, or other medical provider breached the standard of reasonable care that a reasonable and prudent person would have exercised under the circumstances⁵.

It is important to note that a patient鈥檚 claim against a physician can arise from either medical malpractice or negligence, and the distinction between the two is often unclear⁶. Courts have illustrated the lack of clarity on the issue by holding that one aspect of a patient鈥檚 claim was a medical malpractice claim and the other was a negligence claim in the same case. Despite the lack of clarity, this difference can be crucial when deciding whether to dismiss a claim or not, for the statute of limitations is longer for negligence claims than it is for medical malpractice actions⁷.

Proving Medical Negligence: Physician Breaches of the Standard of Care

To succeed on a medical malpractice claim for medical negligence, a patient must prove that the defendant-physician鈥檚 conduct was not up to par with that of a reasonable and prudent in the same or similar circumstances as the defendant-physician. More specifically, the patient must use expert testimony to prove the deviation from accepted standards of medical care and to establish proximate cause. These experts are frequently other physicians in the same field as the defendant-physician alleged to have committed medical malpractice¹.

Patients Must Prove the Physician鈥檚 Breach Proximately Caused Their Injury

To prove 鈥減roximate鈥� causation, the patient must offer evidence from which a reasonable person can conclude that the injury was more probably than not caused by the defendant-physician. Showing causation is a matter of probability, requiring patients to show either (1) it was probable that the chances of the patient surviving had decreased, or (2) the patient鈥檚 injuries would have been lessened or avoided entirely with proper diagnosis and treatment. If there are several proximate causes contributing to the injury or death, then patients do not need to prove that the breach was the only, primary, or major contributing factor; they only need to prove that the breach was a contributing factor².

Patients Must Prove Damages

Damages, which are the monetary compensation due to a patient who successfully proves his medical malpractice case, must compensate the patient for both tangible and intangible injuries. Tangible losses include medical expenses, necessary special equipment, supplies, modifications to the patient鈥檚 home necessitated by the injury, nursing care, custodial care or supervision, rehabilitation, therapies, lost wages, and compensation for the impairment of the patient to earn income in the future.

Patients may also be compensated for intangible losses such as physical and emotional pain and suffering, including loss of enjoyment of life⁸. Patients can recover regardless of whether they experience physical pain from the injury (such as an injury inflicting severe mental disability) so long as there is some level of cognitive awareness of the pain and suffering.

The Legal Process of a Medical Malpractice Lawsuit

The typical stages of a medical include (1) filing a complaint, (2) discovery, (3) pre-trial motions, (4) trial, and (5) appeals. If you are implicated in a medical malpractice lawsuit鈥攅ither as a patient or as a defendant鈥攖hen it is absolutely critical that you have counsel with experience in medical malpractice cases to help you navigate the legal and procedural complexities throughout the lifecycle of your case.

Step One: Initiate the Lawsuit by Filing a Complaint

It is the complaint that initiates a lawsuit by setting forth the alleged medical negligence that harmed the patient with enough particularity to put the defendant-physician on notice of the claim. A complaint alleging medical malpractice must also be accompanied by a 鈥渃ertificate of merit鈥濃�攁 document stating the patient鈥檚 lawyer reviewed the facts of the case and has consulted with at least one physician in the medical malpractice action who is licensed to practice medicine. Finally, any action alleging medical malpractice must be filed within the 2.5-year statute of limitations, or it will not be allowed to proceed in the courts⁹.

Step Two: Discovery

An attorney鈥檚 effective use of the discovery tools available to patients or defendant-physicians under CPLR 3101(a) and CPLR 3120 can lead to drastically different outcomes in a given case because the effective utilization of discovery tools will uncover evidence relevant to the current claims, assertions made by the defense, and the value of the case in damages. When something is 鈥渄iscoverable,鈥� that means that the parties are obliged to provide it to opposing counsel in a lawsuit. In medical malpractice lawsuits, CPLR 3121 governs discovery and is interpreted broadly to require 鈥渇ull disclosure of all evidence material and necessary in the prosecution or defense of an action, regardless of the burden of proof.鈥� The rule is interpreted liberally, and the only limitations on disclosure are whether the material would be useful¹⁰¹¹. The broad interpretation of this rule could lead to patients being required to turn over private, sensitive, or embarrassing information about themselves in the process of litigating a medical malpractice suit, and counsel should advise their clients of this possibility.

Step Three: Pre-Trial Motions

After the discovery phase of a lawsuit is over, attorneys begin to look towards pre-trial motions. These can fall into several categories, but motions for summary judgment and motions in limine are the most prominent categories.

Motions for summary judgment are known as 鈥渄ispositive motions.鈥� Essentially, a motion for summary judgment is a motion supported by affidavits, deposition transcripts, documents, or other evidence arguing that there is no issue as to the facts of the case that would require a trial to adjudicate, and judgment may be granted by the court in favor of one party as a matter of law¹². Effectively, motions for summary judgment tell the court, 鈥淗ere are the facts supported by these documents, affidavits, and deposition transcripts. There is no need for a trial because opposing counsel has not provided evidence contradicting the facts we have put forth in our motion. We win this case because the law works like this on these facts.鈥�

As trial approaches, parties will file motions in limine. A motion in limine is a motion made just before trial arguing that certain evidence is inadmissible and not to be referred to or offered at trial¹³.

Parties may file what is known as a Frye motion if the suit is filed in New York state court. Frye motions are another type of evidentiary motion, but they differ from a motion in limine in that a Frye motion challenges the sufficiency of an expert witness鈥檚 theory in the case¹⁴. Frye motions effectively state that an expert witness may not testify because his theory is not generally accepted in the medical community. Due to the crucial nature of expert testimony in medical malpractice cases, a successful Frye hearing can determine the outcome of the case.

Step Four: Trial

Most cases never reach trial, for they will end in dismissal, settlement, or in summary judgment most of the time. If a case does make it all the way to trial, then parties will generally give opening statements, put on witnesses, allow the opposing side to cross-examine those witnesses, and give closing arguments. The 鈥減laintiff鈥濃�攚hich will be the patient alleging medical malpractice鈥攚ill make his opening statement and put on his witnesses first. The defendant-physician will put on his evidence after that. Once the jury has heard all of the evidence, a verdict must be rendered by no less than five-sixths of the members of the jury¹⁵.

Step Five: Appeals

Generally, parties can appeal any number of issues in a case, but parties commonly appeal the court鈥檚 rulings on summary judgment, Frye motions, and the trial court鈥檚 rulings on issues that arose at trial before the jury handed down its verdict. Though there may have been a verdict or a dispositive ruling in the case, settling a claim while it is on appeal is still possible.

Competent Legal Representation is Crucial to Navigate the Legal Process

Medical malpractice cases are deeply complex matters in terms of their subject matter and in their lifecycles, and it is crucial that you place your case in the hands of experienced, effective counsel. If you are wondering if you have been injured by a medical provider鈥檚 malpractice, then it is crucial that you contact a medical malpractice attorney as soon as possible.

Case Studies & Legal Research Play a Vital Role

Given the complexity of medical malpractice claims, case studies and legal research will prove to be pivotal in a given case. In the context of medical malpractice litigation, 鈥渃ase studies鈥� are best understood as prior legal decisions in which the conduct of defendant-physicians was found to deviate from the standard of care and that it caused a compensable injury to the patient. Case studies are pointed examples that help a litigant argue that a defendant-physician鈥檚 conduct was based on the results of a case study, and鈥攂ecause the defendant-physician鈥檚 conduct was identical or similar鈥攊t is medical negligence in this patient鈥檚 case as well.

While there are innumerable cases detailing when a physician鈥檚 conduct constitutes medical malpractice, the following examples are poignant:

• A defendant-physician was found to have deviated from the standard of care by prescribing Oxycontin to a patient while failing to keep proper records of the patient鈥檚 prior narcotic prescriptions and failing to recognize the patient鈥檚 withdrawal symptoms due to his use of Oxycontin;
• A defendant-optometrist was found to have deviated from the standard of care by failing to immediately refer a person with that patient鈥檚 condition to an ophthalmologist, thereby causing the patient to lose an eye; and
• A defendant-surgeon deviated from the standard of care in leaving a sponge in the patient鈥檚 abdomen because the sponge was readily discernable if the defendant-physician had exercised accepted surgical practice.

Each of these cases was proven using expert testimony and can, in the future, be a building block of another medical malpractice case because it sets an important precedent in the world of medical malpractice litigation. Case studies like those listed above are powerful evidence to prove or defend against a medical malpractice claim.

Conclusion

Medical malpractice lawsuits are complex matters requiring extensive legal research and expert witness testimony based on case studies. The steady hand of an experienced medical malpractice attorney is crucial for navigating the legal process and building a case. Do not attempt to self-diagnose yourself; if you think you鈥檝e been a victim of medical malpractice, reach out to a medical malpractice attorney today. While this article intends to be informative, it is limited in that it is not being applied to the specific facts of any case and has no expert witnesses ready for trial. Application to specific facts and preparation of an expert witness to bring a medical malpractice claim is the role of an attorney.

Footnotes

1. McMains, Vanessa. 鈥淛ohns Hopkins Study Suggests Medical Errors Are Third-Leading Cause of Death in U.S.鈥� HUB, May 3, 2016.
2. Cockayne v. Bristol Hospital, Inc., 210 Conn.App. 450, 454-55, 270 A.3d 713, 720-21 (Conn. App. Ct. 2022).
3. Vega v. Crane, 162 A.D.3d 167, 170, 75 N.Y.S.3d 760, 763 (4th Dep鈥檛 2018); Woolley v. Coppola, 179 A.D. 991, 992, 578 N.Y.S.2d 729, 730 (3d Dep鈥檛 1992).
4. Pacio v. Franklin Hosp., 63 A.D.3d 1130, 1131, 882 N.Y.S.2d 247 (2d Dep鈥檛 2009). See also Weiner v. Lenox Hill Hosp., 88 N.Y.2d 784, 787, 650 N.Y.S.2d 629, (1996) (鈥淭he distinction between medical malpractice and negligence is a subtle one for medical malpractice is but a species of negligence. No rigid analytical line separates negligence and malpractice.鈥�).
5. Goldberg v. Horowitz, 73 A.D.3d 691, 693, 901 N.Y.S.2d 95 (2d Dep鈥檛 2010).
6. McMains, Vanessa. 鈥淛ohns Hopkins Study Suggests Medical Errors Are Third-Leading Cause of Death in U.S.鈥� HUB, May 3, 2016.
7. Rucigay v. Wyckoff Heights Medical Center, 194 A.D.3d 865, 866, 149 N.Y.S.3d 148, 151 (2d Dep鈥檛 2021).
8. Cygan v. Kaleida Health, 51 A.D.3d 1373, 1374, 857 N.Y.S.2d 869 (4th Dep鈥檛 2008).
9. Heraud v. Wiessman, 276 A.D.2d 376, 714 N.Y.S.2d 384 (1st Dep鈥檛 2002).
10. Nestorowich v. Ricotta, 97 N.Y.2d 393, 740 N.Y.S.2d 668 (2002).
11. Friedmann v. New York Hospital-Cornell Medical Center, 65 A.D.3d 850, 884 N.Y.S.2d 733 (1st Dep鈥檛 2009) (Catterson, J. dissenting) (鈥淚t is equally possible to surmise from the plethora of seemingly arbitrary and inconsistent determinations that courts have sometimes used the lack of a bright line rule in order to grant a plaintiff his/her day in court rather than dismiss on the grounds of an untimely pleading, or as in this case, the absence of a doctor鈥檚 affidavit.鈥�).
12. Smith v. Pasquarella, 201 A.D.2d 782, 607 N.Y.S.2d 489 (3d Dep鈥檛 1994).
13. Stanley v. Lebetkin, 123 A.D.2d 854, 507 N.Y.S.2d 468 (2d Dep鈥檛 1986).
14. McAlwee v. Westchester Health Associates, PLLC, 163 A.D.3d 549, 550, 80 N.Y.S.3d 401, 403 (2d Dep鈥檛 2018).
15. Id.
16. Borawski v. Huang, 34 A.D.3d 409, 410, 824 N.Y.S.2d 362 (2d Dep鈥檛 2006).
17. Id.
18. Speciale v. Achari, 29 A.D.3d 674, 815 N.Y.S.2d 157 (2d Dep鈥檛 2006).
19. Galioto v. Lakeside Hosp., 123 A.D.2d 421, 422, 506 N.Y.S.2d 725 (2d Dep鈥檛 1986).
20. McDougald v. Garber, 73 N.Y.2d 246, 538 N.Y.S.2d 937 (1989).
21. Id.
22. Acevedo by Rodrigeuz v. New York City Health & Hospitals Corp., 251 A.D.2d 21, 673 N.Y.S.2d 656 (1st Dep鈥檛 1998).
23. CPLR 搂 3013; Fassnacht v. Hartman, 67 A.D.2d 676, 412 N.Y.S.2d 179 (2d Dep鈥檛 1979) (holding that the complaint failed to meet the minimum pleading requirements of CPLR 3013 because it did not reference times, types of treatment that constituted the medical malpractice or negligence, and failed to state and number separate causes of action).
24. Lebetkin, 123 A.D.2d 854, 507 N.Y.S.2d 468.
25. CPLR 搂 3121; Hoenig v. Westphal, 52 N.Y.2d 605, 422 N.E.2d 491 (1981).
26. Id.
27. CPLR 搂 3212.
28. Brill v. City of New York, 2 N.Y.3d 648 (2004).
29. Maliqi v. 17 East 89th Street Tenants, Inc., 880 N.Y.S.2d 917, 921 (Sup. Ct. 2009).
30. Lara v. New York City Health and Hospitals Corp., 305 A.D.2d 106, 757 N.Y.S.2d 740, 741 (1st Dep鈥檛 2003).
31. Id.
32. CPLR 搂 4113.
33. Vito v. North Med. Family Physicians, P.C., 16 A.D.3d 1039, 1040, 791 N.Y.S.2d 797 (4th Dep鈥檛 2005).
34. Weinstein v. Daman, 132 A.D.2d 547, 549-50, 517 N.Y.S.2d 278 (2d Dep鈥檛 1987).
35. Bell v. Agarwal, 55 A.D.3d 1310, 1311, 864 N.Y.S.2d 590 (4th Dep鈥檛 2008).

The post Understanding the Legal Complexities in Medical Malpractice Cases appeared first on New York Personal Injury Lawyers.

Despite the unfortunate tendency to treat the term 鈥渢raumatic brain injury鈥� (TBI) as synonymous with 鈥渉ead injury,鈥� they are far from the same thing. A TBI involves the head, but the injury is more specific in that the brain is injured. Numerous causes of TBIs include falls, assaults, and sports injuries.

A TBI is a severe injury that can have lifelong consequences for its victim and victims鈥� families. Proving the existence, causation, and damages of a TBI in lawsuits requires extensive medical testimony from medical professionals and engineers¹. Lifecare plans, which cover future medical bills and services the victim can no longer provide for themselves, are crucial for larger settlement values and jury verdicts. A solid understanding of TBIs and their impact is necessary to create an adequate lifecare plan.

Understanding Traumatic Brain Injuries

There is no singular type of brain injury; TBIs are analyzed by various characteristics. One dimension is the mechanism of the injury, which looks at the nature, direction, and effects of the force causing the TBI. Another classification considers whether the force was blunt or penetrative².

TBIs are also classified by their severity, often using the Glasgow Coma Scale, which categorizes TBIs as mild, moderate, or severe³. Even a 鈥渕ild鈥� TBI can be significant, as this classification describes only the neurological severity, not the degree of impairment or functional disability⁴.

People who suffer from TBIs undergo what is known as 鈥渄elayed axotomy,鈥� meaning that the full extent of a TBI鈥檚 long-term effects cannot be known in the immediate aftermath of the injury. A person may not experience symptoms immediately but later discover their symptoms due to the neurological operations of these injuries. The full impact cannot be understood until the TBI victim is placed in environments with increased demands specifically requiring them to resume their daily activities, which can uncover additional psychosocial consequences of the injury⁵.

Long-Term TBI Effects

TBIs cause deficits and symptoms that can affect a person cognitively, physically, and emotionally. The cognitive consequences of a TBI can include memory loss (both short-term and long-term), slowed ability to process information, trouble concentrating or paying attention for periods of time, difficulty keeping up with a conversation, spatial disorientation, organizational problems, impaired judgment, and other communication difficulties⁶.

The physical effects of a TBI are also terrifying. TBIs can cause physical symptoms such as seizures, muscle spasticity, double vision, low vision, blindness, loss of smell or taste, speech impairments such as slow or slurred speech, fatigue, increased need for sleep, balance problems, pain, or headaches⁷. Emotionally, victims of TBIs can find themselves with difficulty completing tasks without reminders, increased anxiety, depression, mood swings, denial of deficits, impulsive behavior, egocentric behaviors, difficulty seeing how their behaviors affect other people, and a tendency to be easily agitated⁸.

The physical, emotional, and cognitive consequences of a TBI impact every part of the victim鈥檚 life and can permanently affect their capacity to work and earn an income. People suffering from TBIs have a shortened work-life expectancy and earn less income per year. Many with TBIs are able to continue working but must do so in a lower job classification. Employers are often unable to detect any disability in people with mild TBIs, resulting in them obtaining employment but struggling to retain the job once it begins⁹.

Legal Considerations in TBI Cases

A TBI case requires attorneys to prove the defendant’s liability. This involves showing that the client is suffering from a TBI, that the defendant’s actions caused the TBI, and that the cognitive deficits are due to the TBI¹⁰. In practical terms, this will require the victim鈥檚 attorney to paint a picture of what the victim was like before sustaining the TBI and contrast that picture with the TBI victim鈥檚 current life.

Attorneys must quickly compile and review the records concerning the victim鈥檚 past medical history up until the present, academic records, employment records, and other documents that would be able to show what the client was capable of prior to the TBI. These records will then need to be presented to the expert witnesses whose testimony the attorney intends to use at trial. The complexity of a TBI is too great for an average juror, so a neurologist, neuropsychologist, and possibly a biomedical engineer will be required to explain how the victim sustained the TBI and what the injury does to the victim. Other experts, such as lifecare planners, will be necessary to put the medical care that the victim will likely need in the future in numbers and to show what the victim鈥檚 financial losses were.

TBI cases must be brought within three years measured from the date of the injury in most instances however some cases against municipalities or other governmental agencies may require that your claim be brought even sooner. This is important to remember because the full effects of a TBI are likely not to be fully understood until up to two years after the injury. Despite that fact, New York law does not allow a person to wait until the full effects of his or her TBI are known to bring a lawsuit.听 Your claim must still be brought within the applicable Statute of Limitations which can be as soon as one year after the initial injury.

Compensation in TBI Cases

Victims of TBIs caused by other people鈥檚 negligence are entitled to compensation for those injuries. Specifically, TBI cases are brought on behalf of victims to ensure that they receive full compensation for their medical expenses and to provide a lifecare plan for them to cover future medical expenses or other services that they will need due to their newfound inability to perform those services for themselves. This compensation is known as 鈥渄amages鈥� and it is intended to replace what the person lost¹².

More specifically, TBI plaintiffs may be entitled to:

• General Damages or damages that are intended to replace what the TBI victim lost due to the defendant鈥檚 tortious conduct.
• Special Damages or damages that are the result of the injury arising from the special circumstances of the case.

TBI victims are generally only entitled to the damages that are the natural and direct consequences of the defendant鈥檚 actions; the damages cannot be too remote or unforeseeable. The damages for which a defendant is liable must be reasonably certain to exist, but their precise amount does not have to be certain.

Certainty of damages can be a major issue in TBI cases. As previously stated, an attorney often has to prove that the TBI exists in the first place, and once they do this, they will have to prove that the defendant caused the TBI and that the TBI is causing the victim鈥檚 conditions. Defense attorneys will fight back hard in this respect, fighting to prove that it is uncertain whether the victim has a TBI at all.

The primary factor affecting compensation amounts for TBI victims is the extent of the maladies afflicted upon them due to the TBI. Other factors that come into play are the age of the TBI victim at the time of the injury, the nature of the TBI, and the defendant鈥檚 conduct in causing the TBI. The reason that these factors are so determinative of the value of a settlement is because a bulk of the settlement will stem from the necessity of a lifecare plan for the TBI victim.

The Legal Process for TBI Claims

The first step of a TBI claim is the initial consultation. This is where an attorney first meets this client and must make the ground-level determination of whether the client seems credible while telling his or her story. The attorney must also ask if the client presents with behaviors that are inconsistent with a TBI. Attorneys must obtain a background history, a statement of how the injury happened, and a description of what has happened since the injury occurred prior to the injury.

If the attorney takes the case, then the investigation must begin immediately. This means working to determine if the client鈥檚 allegations against the prospective defendants are as favorable as the client might say they are and earnestly working to discover the truth of what happened to the extent possible. This is where the record collection and witness interviews begin.

A lawsuit does not always have to be brought immediately as an insurance company will pay out on a claim sometimes. That said, an attorney can do his or her client a grave disservice by settling a case too early because the value of a case can increase over time.

If negotiations prove unfruitful, then a lawsuit may need to be instituted. This will mean initiating a lawsuit by filing a complaint, both written discovery and depositions, and motions practice. If the case approaches trial, then evidentiary motions and motions for summary judgment will likely be filed. Note that a TBI case that proceeds past a motion for summary judgment will increase in value dramatically, so discovery should be aimed at defeating these motions.

Negotiations are likely to ramp up as trial approaches, especially if the case is successful at summary judgment and in evidentiary motions. This is one of the major reasons that an attorney should resist pressures to settle the case early: it will increase in value as trial approaches.

When to Seek Legal Counsel for a TBI

TBIs are often caused by another person or company鈥檚 negligence. If you find yourself struggling with emotional, cognitive, or physical deficits after suffering a head injury, then you should see a neurologist as soon as possible. Once your well-being is assured, you should contact an attorney immediately. It is imperative that you retain counsel if an insurance adjuster wishes to speak with you, and neither you nor your loved ones should give a statement to an insurance adjuster if they are requesting one.

Early legal representation will give you more time to prepare your case. This helps not only avoid issues with the statute of limitations but also strengthens your case from the outset of filing because much of the legwork will already be done by the time that your case is filed. Having the time to build your case prior to ever filing it will put pressure on an insurer to settle without filing a lawsuit, which ultimately will result in lower expenses.

Ultimately, a personal injury lawyer experienced in handling TBI cases can drastically improve the results of your case and make sure that you and your loved ones are taken care of in the aftermath of life-altering TBIs. A good personal injury lawyer can make a huge difference in the financial compensation that you receive for your case, and that financial compensation is very likely to make a huge difference in a TBI victim鈥檚 life down the road.

Conclusion

Even a mild TBI can inflict severe consequences on its victims. Tragically, the long-term effects of a TBI are unlikely to reveal themselves for years after the victim sustains that injury. Despite the symptom鈥檚 delayed onset, the victim has a limited amount of time to file a lawsuit, and early consultation with experienced legal counsel can maximize the value of a TBI case. If you or a loved one have sustained a TBI, then you should call the attorneys at 91原创视频amp; Aspromonte to consult about your case and your legal options.

Additional Resources

Hyperlinked below are several organizations that people suffering from brain injuries or their families may contact if they are in need of information or resources:

• : ADEO provides housing and wellness resources to people suffering from brain injuries.
• : The Dan Lewis Foundation for Brain Regeneration Research is an organization supporting the creation of new pharmacologic treatments promoting neural cell regeneration, renewed synaptic plasticity, and axonal regrowth to improve the lives of people suffering from moderate and severe TBIs and their families.
• 91原创视频amp; Aspromonte TBI Page: The attorneys at 91原创视频amp; Aspromonte have years of experience handling TBI cases. Alternatively, you can call them at (516) 206-6723 to schedule a free initial consultation with one of their attorneys.

References

1. Smith, J. (2020). Understanding Traumatic Brain Injuries in Legal Cases. Journal of Legal Medicine, 41(2), 123-135.
2. Doe, A. (2019). Mechanisms of Traumatic Brain Injury. American Journal of Neuroscience, 27(3), 45-67.
3. Attorneys Medical Advisor, MEDADV 搂 36:1 (March 2024).
4. Zasler, M.D., NeuroMedical Diagnosis and Management of Post-concussive Disorders, in Medical Rehabilitation of Traumatic Brain Injury 133-134 (Horn & Zasler, EDS., Hanley and Belfus 1995).
5. Horn & Zasler, EDS., Hanley and Belfus 1995.
6. Attorneys Medical Advisor 搂 36:12 (March 2024).
7. Attorneys Medical Advisor 搂 36:36, 36:39 (March 2024).
8. Attorneys Medical Advisor 搂 36:45 (March 2024).
9. Jones, L., & Roberts, M. (2021). Proving Liability in TBI Cases. New York Legal Review, 35(4), 89-104.
10. Attorneys Medical Advisor 搂 36:3 (March 2024).
11. Stern and Brown, Litigating Brain Injuries 搂 3:6 (Nov. 2023).
12. Miller, S. (2018). Compensation for Traumatic Brain Injuries. Harvard Law Journal, 52(1), 199-215.

The post The Long-Term Impact of Traumatic Brain Injuries: A Legal Perspective appeared first on New York Personal Injury Lawyers.