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"Legal Issues Following Brain Injury"

By R. Brian Webster, LLB

This is an introduction to legal issues, some or all of which will likely face survivors of traumatic brain injury or their families. I raise these issues and discuss them briefly with the expectation that readers will perhaps note them on first reading and then consider them again as the need arises. Discussion of these issues could fill a textbook by itself, so obviously this is just an introduction - something to make you aware when the issues require decisions or actions about which you must consult a lawyer. I can't overstate the importance of this principle. This is at most a guide. It is essential to contact a competent lawyer for advice.

I refer to the 'family' in this chapter because traumatic brain injury affects not just the survivor but the entire family. When considering legal issues (and possibly all issues), it is best that the survivor and family work together, each supporting the other. This will make understanding these issues and the burden of dealing with them far more bearable. I use 'his' when I refer to survivors of traumatic brain injury because most people who suffer traumatic brain injury (as opposed to other forms of brain injury) are male. For balance, I will use 'she' when referring to lawyers.


Do We Need a Lawyer?
There are few absolutes following traumatic brain injury, but one of them is that the survivor or his family should, and probably will eventually, consult a lawyer about some issue arising from the injury. Very soon after the injury, the family should consider whether some legal action may be required to protect the survivor or to enhance the quality of his life after recovery. Although you may not ultimately need a lawyer's services, a good lawyer will advise you whether the circumstances require ongoing legal assistance. Many lawyers do not charge for initial consultations.

If the traumatic brain injury was caused by the behaviour of another person, that person may be responsible in law to the survivor. Consult a lawyer with all possible speed to see that evidence is not lost, that the case is not prejudiced, and that no action is omitted that may compromise the survivor's options. The lawyer may state that there is no case, but at least the family will have that knowledge. There is no worse scenario than a lawyer having to tell a family there might have been a case but the witnesses have disappeared, or the evidence was destroyed because of time delay. Even if a lawyer is not needed immediately, contact has been made with one for later, if a need should arise.

Choosing the Right Lawyer Choosing the right lawyer is fairly simple: hire a specialized lawyer, sometimes now called a neuro-lawyer. Do not hire a long-time family friend. Do get the names of three lawyers that your Brain Injury Association recommends, and interview all three in their offices. Ask these questions:

Choose the lawyer you feel most confident with after these meetings. Your Brain Injury Association has probably given you three good people to start with, so the answers to the questions themselves are not nearly as critical as how you feel about the lawyer.

If you lose confidence in a lawyer you have hired, there is no reason why you cannot change lawyers. The new lawyer will handle all the details involved with the changeover.

In most jurisdictions the issues arising from a traumatic brain injury are resolved through some form of litigation. Litigation is the system of resolving accident cases (or negligence cases) through court proceedings. Exceptions to this are no-fault systems and workers' compensation systems.

Survivors of brain injury and their families may be involved in litigation or in less controversial legal issues such as competency hearings, contracts, and estate planning. Sometimes disputes arise that do not directly involve proof of the injury, but that still involve an understanding of the injury and its consequences. Example: criminal cases. The same lawyer that you carefully chose at the beginning should be able to help with all these matters; if not, she can find someone else, and provide a briefing for you.

All neuro-lawyers will have acquired some technical knowledge about brain injury, but of course they are not physicians or psychologists. You have a right to expect that your lawyer has a working knowledge of the effects of traumatic brain injury, as well as a genuine interest in learning about your particular difficulty. A neuro-lawyer should be comfortable with you, and you with her. There should be an easy relationship where you are accepted and where you feel comfortable and respected by all. You should expect good communication (including copies of correspondence) and prompt personal access to the lawyer. You should expect her to give you her home number.

You should expect a neuro-lawyer to have a wide variety of experts available to assist. You should expect her to be an advocate for you, but a realistic one who does not make unrealistic promises. You should expect to pay legal fees based on a clear agreement with her. This may be based on a fee for time spent, or on a percentage of money actually recovered.

If you are making a claim to establish the injury and obtain damages, you should expect help now, but you should understand that settlement or money may not come for two to four years after the injury. You should expect the lawyer to be available to assist you in all aspects, including ensuring that you get very good independent advice concerning investments and your settlement.


The Nature of the Legal Process
Litigation Most juridical systems, whether they involve courts or no-fault agencies, require the survivor or his representative to initiate a claim for either rehabilitation or compensation, and to follow that claim through, advocating each step as necessary. Some workers' compensation systems require matters be settled by a court; others forbid access to courts. All, however, require a filed claim followed by persistent advocacy.

All systems require the claim to be filed within some specified period of time. The process starts by filing the proper claim, and proceeds through various exchanges of information and documents up to the point of resolution. Failing satisfactory resolution, there may be an opportunity to appeal. In cases involving civil litigation, each party must commence proceedings by issuing a writ or some similar document; then, as matters progress, they have an obligation to the other party to disclose relevant documents and information. These documents include medical records, school records, and tax returns. In most North American jurisdictions, each party in a civil case may conduct an oral cross-examination of the opposing party on relevant issues. These examinations, or depositions, are crucial as the questions and answers are admissible as evidence at the trial.

In cases involving survivors of traumatic brain injury, it is important to consider whether the survivor is able to answer questions reliably, or at all, under oath.

The litigation process proceeds over a period of months or years to the point of settlement - or failing that, to trial. A trial may be in front of a judge alone, or a judge and jury. At the time of trial, each party (plaintiff or defendant) has an opportunity to call witnesses before the court to testify regarding relevant matters. This may be evidence as to how someone has changed as a result of the injury or as to other functional losses. Witnesses are cross-examined by opposing counsel. The opposite party (the defence) then has an opportunity to lead its case, and its witnesses are likewise subject to cross-examination. Finally, arguments are addressed to the court concerning the evidence and the law, and then the court renders its judgment or the jury its verdict.

In cases involving serious traumatic brain injury, the court will expect expert opinions concerning the injury itself, the rehabilitation program, the need for continuing care or rehabilitation, lost income (both past and future), and any impairments of function. Final predictions of outcome, called prognoses, are submitted. The expert witnesses may testify and be cross-examined.

Typically, lay witnesses are persons who knew the survivor both before and after the injury, and who are capable of describing changes they have observed.

From the point at which the claim has been filed until its final resolution, the process usually includes a defence lawyer, whose duty is to reduce the amount of money paid. Sometimes the adversary is the adjuster in the insurance system or workers' compensation system, and that person's role may be a little difficult to discern immediately.

If at any stage the claim or litigation is resolved by agreement, such an agreement is referred to as a settlement.

Whether serious brain injury involves access to the courts, or the insurance system, or the workers' compensation system, the survivor will require advice and advocacy.


Timing Is Everything
A lawyer should be consulted as soon as possible, immediately after the injury. The purpose of this consultation is to obtain advice and, if appropriate, gather key evidence before it disappears or is destroyed. If key evidence is lost, the claim may be lost, regardless of the type of system.

Commencing a claim can be a highly complicated process. At the first meeting, the lawyer can establish to whom a claim may be made, as well as time lines for steps that may be necessary. There will be deadlines for filing documents or issuing proceedings; these vary widely in different jurisdictions and between various systems. You can be assured that with each potential claim, in each jurisdiction, there will be a deadline for filing something, and that failing to meet such deadlines may close the door to help forever. Find out these dates, and keep track of them.

Some jurisdictions provide protection for survivors of brain injury against the expiry of time limits because the survivor may not be legally competent following the injury, but relying on this is risky. It must not be assumed that because a survivor is helpless the law will protect him - that is not always the case.

Speed is essential for starting claims, but may be dangerous when it comes to settling them. Obviously, traumatic brain injuries take time to heal, and rehabilitation is also slow: It takes still more time to assess losses accurately and to predict future outcomes and needs. I suggest that an average of two to four years post-injury is necessary. Calculating future financial needs requires answering certain questions, including these:

Clearly, answering these questions will require considerable time and professional assessment. No settlement should be made or trial take place unless the answers are available.


Remedies
An Introduction to Damages It is a basic principle of Anglo-American law that someone who is injured due to the negligence of another is entitled to financial compensation to restore the injured person as fully as possible to the state he would have been in had the negligence not occurred. For negligence, read fault - the failure to be reasonably careful that you do not cause injury to someone else by your behaviour.

In a conventional legal system, when a person is injured by a person at fault, the wrongdoer may be found liable by a court to pay damages. The damages will usually be covered by the wrongdoer's insurance up to the value of the insurance policy limits.

Damages are considered under various categories. The two main groups are 'economic losses' and 'non-economic losses.' Non-economic losses relate to damages for pain and suffering, loss of function, and loss of enjoyment of life. In 1978 the Supreme Court of Canada set an artificial limit, thereafter to be adjusted by cost-of-living increases (see Andrews V. Grand & Toy Alberta Ltd., [1978] 2 S.C.R. 229). The current limit is now about $250,000 (1996 dollars) for the most seriously injured person's non-economic losses. Awards for less serious injuries will be correspondingly smaller. In the United States there is no such ceiling. Even so, average awards for damages are very similar between England, Canada, and the United States.

The other main category of damages, 'economic losses,' relates to provable past and future financial losses. Typically damages include the following:

These categories understate the complexity of the proof required to support the damages. Establishing such proof often occupies an experienced lawyer for many weeks or months. The lawyer usually retains various experts to assist in preparing and presenting evidence to support the claim.

Damages are calculated at the time of settlement or trial, and are usually paid as a lump sum. This is a once-and-for-all figure. In the litigation process, any damage that is missed or unforeseen will never be recovered.

In a few systems, subsequent care needs may be considered, such as with an active workers' compensation file.

Some insurance companies advocate a change from lump sum to periodic payments so that those payments would cease if the recipient gets better (or dies). However, similar consideration is never suggested to increase payments if the need for care increases over time.

A lump sum settlement (but not a court-ordered judgment), may be partly 'structured.' The meaning of this will be described in the section on settlements.

The survivor and family will want to double-check to ensure the completeness of the budget for future care funds. Some suggestions for this follow:

Doing all of the above will contribute to proper rehabilitation and reasonable prospects for ample rehabilitation and care after settlement. It is my experience that a co-operative and communicative team and case manager will improve rehabilitation and facilitate adequate damage assessment.


What Will This Cost ... How Do I Pay?
There are expenses involved in making a claim for damages. Legal costs will include everything reasonably necessary to bring the case to trial. The most obvious is the legal fee itself. These fees may be pay-as-you-go, or may be paid as a percentage when and if the case succeeds. This latter type is called a contingent fee. The contingent fee is the friend of the seriously injured and economically disadvantaged, because without this type of fee only insurance companies and the rich would be able to litigate serious cases. Contingent fees are outlawed in Ontario; even so, other 'arrangements' can be made to obtain a lawyer's help. Please ask. In the past, contingency fees were also prohibited in England. However, over the last two years, a 'Conditional Fee' has evolved that is based not on the damages recovered, but rather on the amount of costs recovered from a defendant's insurance company.

Other typical expenses include those necessary to collect evidence and investigate the facts, and to obtain the opinions of expert witnesses. (There are also myriad miscellaneous expenses.) Unless otherwise agreed, these expenses may be borne by the survivor or family regardless of the outcome of the case. Lawyers refer to these expenses as disbursements.

A case manager or rehabilitation co-ordinator may be necessary as well. This expense is necessary, in my view, to ensure the proper care of the survivor, to reduce the pressures on the family, and to ensure a cohesive and co-operative team approach to rehabilitation and care. If the insurer does not fund an independent professional rehabilitation manager, then the lawyer or family should. This usually will not be an employee of the insurance company.

Some of these litigation expenses may be recovered as costs following a successful trial or upon settlement. The amount recovered will vary. Some lawyers will accept part of the recovered costs as reimbursement for part of their fee. (Contingent fee agreements are of course negotiable, so I suggest you do just that - negotiate).

These costs vary tremendously between jurisdictions, but generally are between 10 and 40 per cent of legal fees plus disbursements.


Fault / No Fault
Earlier, I described the traditional legal process as one founded on the presence of negligence - that is, the person at fault should pay damages to the person he or she injured. There are disadvantages to a pure fault system, in that it may be some time before trial, with no interim financial assistance available. It is also possible that a person who injures himself will never receive compensation. Various jurisdictions have softened the edges of the fault system by offering immediate rehabilitation assistance. Still others have eliminated the concept of fault and pay reduced benefits to anyone who has been injured, regardless of fault. The most familiar no-fault systems are the various workers' compensation schemes. Each such scheme varies, and some still require litigation to settle the amount. Several American states tried a no-fault system for their general automobile insurance and have subsequently retreated, as has the province of Ontario. No-fault schemes are generally found too expensive, and are opposed by many disability advocacy groups.

In many jurisdictions there is a continuing debate about the wisdom of no-fault. Some people with straightforward and visible injuries may receive benefits more quickly through a no-fault system. However, survivors of traumatic brain injury and their families are in general agreement that they do not do well in a no-fault system, as these systems are usually designed to eliminate advocates, so that traumatic brain injury survivors are on their own.

A common characteristic of no-fault systems is that they provide immediate rehabilitation funding, to be dispensed by approved persons according to schedules and regulations. They also provide listed financial benefits, also administered by the same no-fault entity. There may or may not be any right of appeal, yet at the same time, access to the courts is usually stopped.

Another common characteristic of no-fault systems is there are no 'lump sum' payments. This means there is a continuing administration of, and therefore involvement with, the survivor's care. Immigrants from some countries with a less benevolent history of bureaucracy than our own find this an intrusion. Some families prefer to 'opt out' and take their loved one home and do the best they can without interference. Others cope well with a long-term dependence on bureaucracy.

In a fault system, most people carry insurance. Insurance, of course, is a contract whereby the person at fault is 'indemnified' (his losses are paid for him) by an insurance company, to which he has paid a premium. When an injured person sues the wrongdoer, that wrongdoer has insurance to pay for the claim. In most countries there are private insurance companies, but increasingly there are public schemes that offer basic coverage or that have replaced private insurers.

Also, some jurisdictions now provide compensation for criminal injuries, administered either through a workers' compensation authority or through some other independent body.


Limitation Dates
In every jurisdiction there is a date beyond which, depending on the legal issue, no claim may be made. This date is usually quite final. Do not let it go by because of inattention to business. Do not let it go by because you are preoccupied with issues of rehabilitation and care. The best approach is to retain counsel and have her watch the dates for you. These dates can be quite short for certain types of claims, so it is vital to get advice soon.

In principle, no one who is incapable of looking after his own affairs following a traumatic brain injury should be barred from a claim because of the expiry of a limitation date. If you have let the limitation slip by, do still consult a lawyer, because it may be possible to apply for an extension. This is by no means certain, however.

Jurisdictional Issues When lawyers speak of 'jurisdiction,' they may be referring to the state, country, or province whose laws govern the apportionment of fault or the award of compensation. In Canada it is the law of the place where the incident occurred that governs the wrongdoing. Thus, if you are involved in an accident in British Columbia, it is the law of British Columbia that governs whether someone is at fault.

Typically, then, when someone is injured who is visiting from another place, matters need to be settled in the jurisdiction or location where the injury occurred. The best plan is to retain an expert near your home and have that person find the best expert in the distant jurisdiction. Be aware that there are very limited funds available in some places for any kind of medical or rehabilitation assistance. Many places offer a chequerboard of rehabilitation schemes. Some places are much better than others, so it is worth inquiring, as 'home' may not be the best place for rehabilitation or rehabilitation funding. Check this out.

The Team The legal approach following brain injury should be a team approach. The neuro-lawyer is best thought of as the leader of a client-centred team that includes a case manager. Legal members of the team will include some, or all, of the following:



The non-legal members of the team may include neuropsychologists, speech and language pathologists, occupational therapists, physiotherapists, and physicians. The latter might include the family doctor, a neurosurgeon, a neurologist, a psychiatrist, and/or a physiatrist. Chapter 4 describes the roles these team members play.

This cohesive and co-operative team of qualified specialists not only will improve the outcome, but may well also reduce the burden on the survivor and his family. A good case manager whose primary focus is at all times on the survivor's rehabilitation, care, and recovery, is fundamental - not just as part of the rehabilitation process, but as part of the legal process.


Accessing Rehabilitation Funding
In Canada, the United Kingdom, and the United States, there is good medical care following traumatic brain injury. There is usually immediate institutional rehabilitation - for example, speech therapy and physiotherapy. But once the acute stage has passed, there is little public funding anywhere specifically for survivors of traumatic brain injury. Some services are available but these vary widely between countries and between urban and rural locations, and are often very expensive. Professionals offering services for general neurological rehabilitation may have to be located and accessed. In some instances they may be available only for a fee. Rehabilitation must of course continue well beyond the acute stage. If the case manager can find the services, someone will need to fund them.

Generally, these services can only be obtained through private funds or insurance funds. In my experience the best way of accessing these services, and the funds to pay, is through a family-instructed rehabilitation case manager. This person is usually expert at accessing the funding and finding the services. Brain injury associations and hospital social workers may also assist. All of these people have developed expertise at finding paths through the government, health care, insurance, and litigation bureaucracies. It is not impossible for the family to do the same, but it is burdensome, and better done by others.


Subrogation
Private insurers, and sometimes public agencies and employers, may require that money they have paid as benefits to the survivor (such as disability benefits) be recovered back from the 'guilty party.' This concept is referred to as the right of subrogation. This is important, because sometimes people forget that interim disability payments will have to be returned to the insurance company from the final settlement. Sometimes survivors forget to do this, and are themselves sued by the insurance company. It is important to be aware of what you are signing when you seek interim benefits. It is best to seek advice so that you do not promise to return money you do not have. Discuss this with your lawyer.


Competency
The Concept of Guardianship We all understand that young children are presumed incapable of bargaining away their rights, or of maintaining and settling lawsuits or entering into serious adult contracts. It is also understandable that children cannot finalize settlements or instruct lawyers. The same concept may apply to persons who have lost the ability to manage their own affairs due to a serious brain injury. We refer to children as 'infants,' and we refer to those who cannot manage their own affairs as 'incompetent.' The problem is, as we all know, that children vary tremendously as to their competence, as do people who have had a brain injury. Once children reach the age of majority they are presumed completely capable and able to manage their own affairs. It is assumed that an adult's capability continues even after a severe brain injury unless someone has applied to a court, usually upon the sworn evidence of two doctors, for a declaration that the person is incapable of managing his or her own affairs.

Upon such a declaration being made, a person, typically a family member (or failing that, a public official), is appointed to act as the committee of the person suffering the disability. A committee is a form of agent. One of the things a committee may do is act as a guardian for the purposes of litigation.

Unfortunately, in most jurisdictions the issue of competence is still perceived in black-and-white terms: a person is either competent or incompetent. However, it is now becoming recognized that there is a middle ground where persons may be competent given sufficient help and support. Various jurisdictions are now contemplating complex adult guardianship rules to try to cover this middle ground.

Until those rules are enacted and operating in your jurisdiction, the best way to avoid problems is to act together as a family; this will allow you to provide strength, safety, and support not only to the survivor but to one another, without necessarily removing all the rights of the person with diminished abilities. Unfortunately, this is only possible if the survivor is at least partially competent.

It is a very difficult decision for a family to ask for a declaration of incompetency. It may be seen as giving up. I suggest that it is often the correct step and one that should be made promptly. Some people may see it as the removal of the survivor's basic civil rights, but it also should be seen as a means to protect the survivor against many dangers. It is best if the committee or guardian is someone in the family whose commitment to the injured person is long-term and unconditional.

The question of guardianship must be canvassed at the time a lawsuit is commenced. It must be considered again when an issue arises as to whether the survivor can give oral evidence; and finally, it must be revisited at the time of settlement.


Settlement
We often use the term 'settlement' loosely. Settlement really refers to entering into an agreement - that is, a deal by which a case is settled, often involving a payment of money. It is consensual.

'Judgment,' on the other hand, is an award of damages by a judge or jury. It is not arrived at by agreement, and in most jurisdictions it is paid once and for all, in the form of a lump sum.

Settlement provides some opportunities to plan for the future, as one may be able to negotiate a structured settlement. A structured settlement is an arrangement whereby an agreed payment of money is used to purchase an annuity from another insurance company. That insurance company then promises to pay a blended payment of principal and interest to the survivor on a monthly basis and on terms that are agreed. A structured settlement can be a valuable component of any planned settlement process. The question of whether to take a structured settlement rather than lump sum, and on what terms, is highly complex and requires professional advice from an actuary, as well as legal counsel. These complex settlements are permanent and cannot be changed. Remember that in times of economic and social change, the settlement does not change; and that in times of changing personal needs, no amendment is possible.

Yet at the same time, such inflexibility is the strength of the structured settlement. It cannot be stolen (other than by one payment at a time), nor can it be wasted on a bad investment. It may not be pledged at a bank to secure a loan. It comes routinely and on the terms arranged.

Another component of a planned settlement should be a competent financial planner. Choosing a good one may be crucial. I suggest someone who has experience, who is independent and professional, and whose job is managing funds, not brokering. All of this suggests that well-meaning friends are often not the best qualified to give financial advice, nor are familiar figures like bankers. It may be better to pay a fee and hire a manager, instead of paying a commission and hiring a broker.

The lawyer and the family should double-check every element of this final process. The case manager, having prepared a cost of future care, should prepare a budget that reflects the amount available and the monthly needs for care, rehabilitation, housing, and so on. A structured settlement may well be an important part of that budget.

It is important not to forget income tax issues in this planning process. Funds that are owned by a survivor and that receive interest income will bear income tax. Structured settlement payments will not. If this is not considered, there may be unpleasant surprises at tax time.

There will be investment issues to consider during the settlement. Example: Is it appropriate to buy a house? Also, ways must be found to protect the survivor from being taken advantage of. At the same time, the funds are intended to provide proper care for the survivor - to enhance the quality of his life - and should not be hoarded. Again, a case manager may be invaluable to when it comes to ensuring that payments are actually used for care.


Marriage Agreements and Estate Planning
Marriage agreements should be considered to protect the settlement. Marriages are at risk following traumatic brain injury, and arrangements should be made to ensure that the settlement will stay with the survivor. As well, there are issues of estate planning to consider. The parents and grandparents of the survivor will wish to consider establishing a trust, or some other arrangement by which they may pass on their estate to the survivor. The survivor may wish to make plans so that he can pass on funds to his children. All of this requires specialized planning, which in turn requires competent legal counsel.


Children: Some Special Problems
When the injury is to a child, there arise a number of special legal and other issues. It is even more difficult to predict outcomes when the survivor is a child. In particular, it is hard to predict exactly how a loss suffered by a child may manifest itself in economic terms. It is therefore crucial to address extensively the rehabilitation needs of the child; it is equally crucial to wait until the results come clear. It may be a number of years before anyone has a clear idea of the outcome. For example, until the child has finished high school it may be impossible to say whether he will be able to find competitive employment.

Insurance companies greatly prefer to pay out a child's claim as soon as possible, because this minimizes their risk. It is difficult to decide whether to accept a settlement that must go into trust. Does one wait until the case becomes clearer?

Sometimes parents were involved in the child's injury. Parents should be aware that the insurance company may add them as defendants. This is done for tactical reasons, but also in some cases because the parents may bear some degree of fault. In many jurisdictions, if more than one person is at fault, each person is jointly responsible for all of the loss. Thus, an insurance company may be able to bring in another insurance company to share the expense. For that reason, when considering who will act as the litigation guardian for a child, consider a near relative rather than a parent.

Miscellaneous Issues

Loss of privacy
There is an almost complete loss of privacy rights for a plaintiff's medical, vocational, and other relevant documents and records. It is assumed that when a person makes a claim for a serious personal injury, he has voluntarily waived confidentiality. This may even apply to conversations between doctor and patient, but it certainly applies to doctors' records. One should anticipate this.


Criminal
The criminal justice system is not particularly forgiving of those who suffer behavioural problems following traumatic brain injury. If they are not insane and are found fit to stand trial, survivors of brain injuries will be dealt with like any other person before the court. It is best to make a serious effort to keep persons with brain injury problems out of the criminal court system. If a survivor does get embroiled, experts used in the civil justice system are useful in criminal proceedings.



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