Brain Injury Lawyer - New York

New York Attorney, Michael Kaplen Elected to Board of Directors of Prestigious New York State Academy of Trial Lawyers

I am pleased to report that I have been elected to serve as a member of the Board of Directors of the prestigious New York Academy of Trial Lawyers.

The Academy is a statewide association made up of the leading trial attorneys in New York State dedicated to preserving and improving the civil justice system. Through grass roots efforts, legislative action and professional development it promotes the highest ethical standards of our profession and strives to improve the quality of legal representation in New York State.

It is with great honor that I join the board of this association and work to further their mission. A swearing in ceremony will take place next Monday in Albany, New York presided over by our attorney general, Andrew Cuomo.

Brain Injury Legal Information Guide

I am pleased to announce the launching of my new web site, Brain Injury Legal Guide which can be viewed by clicking here .

The site is designed to be a resource of those who have questions about brain injury and the legal system. 

It includes information on how to select a brain injury attorney: Selecting a brain injury lawyer

What every lawyer needs to know about traumatic brain injury:  Lawyer facts about brain injury

The common signs and symptoms of concussion and brain injury:  Signs and symptoms of brain injury

A guide in preparing for a visit to your doctor following a brain injury: Brain Injury and Doctors

Common questions on brain injury and epilepsy: Brain injury can cause epilepsy and seizures

Settlement options in a brain injury law suit:  Brain injury legal settlements

Supplemental Needs Trust Information: Special Needs Trust Guide

The guide is compiled from information available in my free publication, Brain Injury Legal Guide which I would be pleased to mail to you if you e mail me.

What set's us apart from most personal injury law firms is our commitment and passion to protect the rights of brain injury victims.-- De Caro & Kaplen, LLP Provides Compassionate Legal Representation to the Victims of Negligence and Their Families

Information on Substandard Nursing Homes

Centers for Medicare and Medicaid Services (CMS) Takes Step to Improve Quality in Nation’s Nursing Homes.

It is still a sad fact, that many individuals in need of long term care following a traumatic brain injury find that they must obtain these services within the confines of a nursing home rather than at home under a TBI waiver program. 

The care in many nursing homes is substandard, yet how does the public know about these substandard nursing homes?  The Centers for Medicare and Medicaid Services (CMS) has made public more names of under performing nursing homes across the country.

On November 29, 2007, the agency began publishing the names of Special Focus Facility (SFF) nursing homes that had failed to improve significantly after being given the opportunity to do so.

Once a facility is selected as an SFF, State survey agencies are responsible for conducting twice the number of standard surveys and will apply progressive enforcement until the nursing home either (a) significantly improves and is no longer identified as an SFF, (b) is granted additional time due to promising developments, or (c) is terminated from Medicare and/or Medicaid.

The complete list of substandard nursing homes is available by clicking here. This list will provide consumers with information needed to make a distinction between nursing homes that are improving and those that are not.

This updated and expanded list identifies facilities by the category they fall within, such as:
- New Additions: nursing homes added within approximately the past six months;
- Not Improved: nursing homes that have failed to improve significantly in at least one survey after being named as a SFF nursing home;
- Improving: nursing homes that have significantly improved on the most recent survey, including no findings of harm to any resident and no systemic potential for harm;
- Recently Graduated: nursing homes that have sustained significant improvement for about 12 months, indicating an upward trend in quality improvement compared to the nursing home’s prior history of care; and those
- No Longer in Medicare and Medicaid: nursing homes that were either terminated by CMS from participation in Medicare within the past few months, or voluntarily chose not to continue participation.

The SFF initiative was created by CMS in 1998 in response to the number of facilities that were consistently providing poor quality of care.  Those facilities were periodically instituting enough improvement so that they would pass one survey, only to fail the next (for many of the same problems as before).  Facilities with this compliance history rarely addressed underlying systemic problems that were giving rise to repeated cycles of serious deficiencies.

Serious deficiencies include such things as failing to give residents their medications in the correct dose at the correct time, taking steps to prevent abuse or neglect, inappropriate use of restraints and failure to prevent or properly treat bed sores.

There are currently about 131 active facilities identified as an SFF.  This number varies over time as nursing homes are graduating or leaving Medicare and Medicaid and new nursing homes are in the process of being added to the SFF list.

More on the SFF initiative can be found on the CMS Web site

At the law firm of De Caro & Kaplen, LLP, we can assist victims of nursing home abuse.  You can visit our site to obtain more information about legal services available following nursing home abuse.

Domestic Violence and Traumatic Brain Injury

On Tuesday morning, February 26, 2008, I will be making a presentation on Domestic Violence as a Cause of Traumatic Brain Injury to the Nassau County Coalition Against Domestic Violence. 

I will be educating social workers, attorneys and other agency personnel on the signs and symptoms of traumatic brain injury, concussion and the post concussion syndrome and explain the mechanism of how these devastating injuries take place in the context of domestic violence.

Many victims of domestic violence fail to get proper treatment for their brain damage because their symptoms are not appreciated.  Unfortunately, many individuals still fail to understand that this injury can take place even without the head being struck or if a person never loses consciousness.  In many cases the full extent of the brain damage is not apparent for days, weeks or even months after the assault took place.

I am pleased to provide some very important educational information on traumatic brain injury, its causes and repercussions to this dedicated group of professionals. For further information contact the Educational Coordinator of the Nassau County Coalition Against Domestic Violence 

If I can provide a complementary presentation to your group on this or some other topic surrounding traumatic brain injury, please do not hesitate to contact me.

At De Caro & Kaplen, LLP, we concentrate our practice on representing persons with traumatic brain injury.  What set's us apart from most personal injury law firms is our commitment and compassion to protect the rights of brain injury victims.

Has the Senate Forgot About The Way The NFL Handles Traumatic Brain Injury Claims?

The Senate Judiciary Committee in addition to examining the destruction of tapes by the NFL, needs to look at how the NFL and their disability fund handles claims of traumatic brain injury.

I am hopeful that the Senate committee and Senator Specter who has been getting a good deal of attention on his questioning of Commissioner Goodell on the missing tapes, spend as much time on looking at the issues of why brain injured players are not receiving the compensation they so justly deserve.  Senator Spector is quoted as saying, "We have the right to have honest football games."  We also have the right to have an honest assessment of a player's disability.

The committee needs to address the deference under ERISA laws that courts give to the paid experts for hire retained by the league to defeat the claims of players.  Despite overwhelming evidence of permanent traumatic brain injury, the league is permitted to seek paid experts to offer opinions that are flawed and based upon antiquated science.  Yet, because of the way ERISA is written, the league is given "unfettered discretion" to rely upon any expert of their choice.

This law and its interpretation defies principles of due process and needs to be changed to protect players and all injured workers.

Criticism of Proposed New Rules on Classifying Brain Damage

Formal comments criticizing regulations proposed by the Department of Veterans Affairs governing compensation of veterans with traumatic brain injury has been submitted by U.S. Sen. Daniel K. Akaka (D-HI), Chairman of the Veterans' Affairs Committee who was joined by Senators Rockfeller, Murray, Obama, Tester, Brown, and Sanders.

"The new rules must provide for a fair evaluation of the veteran's disabilities. Unfortunately, the proposed regulations do not," said Sen. Akaka.

Under current regulations, compensation for symptoms attributable to TBI, such as headaches, dizziness, or insomnia is limited to "10 percent and no more." While VA recognizes that this requirement is outdated, it remains in effect pending the release of new rules. Chairman Akaka and majority members asked that this outdated rule be withdrawn immediately.

Akaka also objected to a section of the proposed rule which would not consider the severity or frequency of TBI symptoms, only count the number of symptoms.

The proposed brain injury regulations and the formal comment letter sent by Chairman Akaka and majority members can be found  by clicking here .

80 percent of prisoner's found to have sustained brain injury

A fascinating story appears on the AP wire service today concerning a survey done of prisoner's by the Wyoming Brain Injury Association.  The Wyoming Brain Injury Association found that more than 80 percent of the state's inmates have a mild to high likelihood of having suffered brain injury.

The association worked with the Wyoming Department of Corrections to survey a sample population of 200 offenders in the Wyoming State Penitentiary in Rawlins and Wyoming Women's Center in Lusk.

The survey did not actually medically diagnose people with brain injuries but asked them a series of questions about their injuries, hospital stays and difficulties with daily life to determine the possibility of injury.

Considering the behavioral affects of brain damage, the fact that most prisoner's sustained a brain injury some time in their lives is no surprise to me.  Hopefully prisoner's who have sustained a brain injury will be identified so that they can obtain proper cognitive support and rehabilitation.  At the present time their is apparently no screening in place to determine mild and moderate brain damage in prisoner's. 

The Wyoming Brain Injury Association has also offered to institute support groups for brain injured prisoners and to provide educational assistance to correction department officials about traumatic brain injury.

You can read the full AP story by clicking here.

Brain Injury Association Legal Conference

I am pleased to have been selected to speak at the Brain Injury Association of America's legal conference to be held in Las Vegas, Nevado from April 3-April 4, 2008. The conference is entitled: Brain Injury Litigation Strategies 2008--Mastering the Science and Trial Strategies.  Some of the best brain injury attorneys in the country will be present at this conference. 

This will be a unique conference made up of both plaintiff's and defense attorneys designed to bring both sides together for an intelligent discussion and understanding of traumatic brain injury.

As a frequent speaker at brain injury legal conference's, I am extremely pleased to have been selected from attorney's throughout the country to speak at this meeting.  My topic will be: "turning defense tactics at trial to the plaintiff's advantage"

My presentation will focus on many of the "dirty" tricks utilized by insurance company lawyers in the courtroom that are designed to pursuade the jury that persons who have sustained brain injury really aren't injured or really did not sustain a brain damage at all.  I have confronted these tactics in the past and have been able to effectively deal with them. 

More information about this conference can be obtained from the Brain Injury Association of America web site.

Hospital's Slow Response to Cardiac Arrest Leads to Hypoxic Brain Injury

Hypoxia (diminished oxygen) and anoxia (absence of oxygen) are leading causes of brain damage.  These events are often precipitated by cardiac arrest which causes the heart to stop pumping needed blood supply to the brain.  It is the blood that supplies needed oxygen to the brain.  The brain utilizes the majority of the bodies oxygen supply.

An article on the front page of today's New York Times, Hospitals Seen as Slow to Halt Cardiac Arrest reports the findings of a study published today in the New England Journal of Medicine where it was found that in nearly a third of cases of sudden cardiac arrest in the hospital, the staff takes too long to respond, thereby increasing the risk of brain damage and death.

In nearly 30 percent of the cases studied, it took longer than the national standard of two minutes to shock the heart and bring it back to normal function. This increased time leads to increased oxygen deprivation and increased brain damage.

The study and an accompanying editorial clearly find that these injuries are preventable and good hospital care would prevent this needless brain damage from occurring. 

Delays were more likely in patients whose hearts stopped at night or on the weekend, who were admitted for non cardiac illnesses, in hospitals with fewer than 250 beds and in units without heart monitors.

The lead author of the study, Dr. Paul S. Chan of St. Luke's Mid America Heart Institute in Kansas City,  MO is quoted as saying, "We know what works, what save lives. We have the technology available, and certainly the knowledge and skilled personnel in the hospital to shock patients back to normal rhythm. But it will take political will for hospitals to put those resources to better use."

Dr. Leslie A. Saxon, chief of cardiology at the University of Southern California in an accompanying New England of Medicine editorial is quoted as saying, "This is the kind of date we need to say, Let's make sure these preventable things never happen on our watch"

One thing the study recommends is that all hospitals have sufficient automatic defibrillators (which cost less than $500 a piece)  in place to shock the heart back to life along with better monitoring of all patients to alert staff to cardiac arrests.

Hopefully these recommendations will be implemented in hospitals throughout the country without delay to reduce these needless brain injuries.

Rhode Island Hospital Operates on Wrong Side of Brain Again!

Unbelievable, but for the fourth time neurosurgeons at a hospital in Providence Rhode Island operated on the wrong side of a patient's brain.  It was the third wrong site operation this year! The Rhode Island Department of Health reprimanded the Hospital yesterday, and fined it $50,000.  Hardly sufficient in my opinion for such inexcusable conduct.

The incident at the Providence hospital occurred Friday, when a resident, a doctor in training, began drilling into the right side of the patient's head during a bedside procedure. A CT scan had shown bleeding on the left side of the patient's brain. The resident realized the mistake, closed the initial incision, and performed the procedure on the left side.

State health officials had ordered the hospital on Aug. 2, 2007, to improve its procedures, because of a pattern of wrong-site surgery dating back to 2001. This latest incident is the hospital's fourth wrong-site surgery in six years, all involving brain operations.

While it may be difficult to believe, surgery at the wrong site for unnecessary surgery because of the reading of the wrong slides or wrong x rays is a frequent cause of medical malpractice litigation.

You can read the full story by clicking here.

New Lead Poisoning Recommendations Released by CDC

The Center for Disease Control's Advisory Committee on Childhood Lead Poisoning Prevention has issued new recommendations in a report issued last week.

Lead contamination and exposure to lead is associated with significant cognitive impairments, motor impairments and behavioral difficulties in children.  In 1991 the CDC defined  the blood lead level (BLL) that should prompt public health action as 10 units.  Since that time, strong evidence has been discovered to show that lead levels below 10 units should be of concern to public health officials as well as parents and medical personnel. 

The full CDC Lead report  can be found on line at the CDC web site. The report is dated November 2, 2007 and is number 56(RR08); 1-14; 16

Diffusion Tensor Imaging Can Detect Brain Damage Even in Mild TBI

Researchers report that diffusion tensor imaging can identify structural changes in the white matter of the brain that correlates to cognitive deficits even in patients with mild traumatic brain injury.

The study is published in the October issue of the journal Brain.

"We studied patients with all severities of traumatic brain injury -- mild to severe -- and found that abnormalities in white matter existed on the spectrum," said Dr. Marilyn Kraus, associate professor of psychiatry and neurology at the University of Illinois at Chicago College of Medicine and lead author of the study. "Even in patients with mild TBI -- those identified as having minimal or no loss of consciousness -- there were structural deficits."

Diffusion tensor imaging uses magnetic resonance imaging technology to examine the integrity of white matter that is especially vulnerable to traumatic brain injury. This imaging modality allows researchers to quantify and qualify structural changes in white matter, particularly in chronic TBI patients.

Thirty-seven TBI patients (20 mild and 17 moderate to severe) and 18 healthy volunteers underwent diffusion tensor imaging and neuropsychological testing to evaluate memory, attention, and executive function. All subjects were at least six months post-injury, and the majority were high-functioning people who were employed or in school at the time of evaluation.

The researchers found that structural changes in the white matter correlate to observable cognitive deficits related to thinking, memory and attention. Patients with more severe injuries had greater white matter abnormalities, representing a permanent change in the brain.

"We know that discreet brain areas are important for specific types of functioning, such as thinking, memory, cognition and motor skills," said Kraus. "But what's also very important is that the white matter serves as the connection between these significant areas of the brain."

In some ways, the brain is similar to a computer, said Deborah Little, director of MRI research in the department of neurology and rehabilitation medicine at UIC and co-author of the study. "You have the CPU and the memory, but they are worthless unless they are connected to each other. The white matter of the brain has the same function as the cables of the computer."

When white matter is damaged, areas of the brain may appear healthy but they are actually "unplugged" and cannot function.

Patients who have a contusion, or bruising of the brain, can also suffer from subtle and diffuse damage to the white matter. The researchers believe that not only the focal lesion but the damage to the white matter is very important.

In the study, the researchers were also able to determine axonal damage (tearing of the axons that allow one neuron to communicate with another) in white matter versus abnormalities in the myelin (the protective sheath that, if damaged, can disrupt signals between the brain and other parts of the body.) If an axon is severed, the damage generally cannot be repaired.

Assistance Needed to Insure Funding Of Needed TBI Programs For Brain Injured Veterans

The Brain Injury Association of America has requested that I post this urgent request.

Earlier this week, the Senate passed its version of the defense authorization bill, including the text of the Dignified Treatment of Wounded Warriors Act, which contains critically important provisions to improve TBI care for returning service members.  The House of Representatives passed its defense authorization bill, which does not contain these critical TBI provisions, in May.  Conferees have now been appointed, as the House and Senate will work in conference to produce a final version of the legislation to send to President Bush.

Action Requested: Please contact your Representative today and urge them to sign on to the Congressional Brain Injury Task Force letter urging conferees to retain the Senate’s Dignified Treatment of Wounded Warriors Act provisions in the final version of the defense authorization bill. 

Click here to contact you representative.

Thank you for brain injury legal advocacy award

I was honored to receive the Advocate of the Year award for my "advocacy in the filed of brain injury rehabilitation" which was presented to me following my lecture yesterday at the New York, Mid Hudson brain injury rehabilitation symposium sponsored by the Northeast Center for Special Care.

In my talk today I emphasized the need to treat all persons with brain injury and family members with RESPECT.  I also discussed the need to refocus are approach to brain injury and be more concerned with quality of life issues for those suffering the life long affects TBI.

Once  again, thank you for this award. I take great pride and satisfaction in the legal  assistance that I provide to many individuals with traumatic brain injury and their family members. Knowing that I have helped a person with TBI and their family obtain necessary services, obtain proper insurance reimbursement, deal with the bureaucratic maze, obtain proper legal compensation and justice within the legal system makes my job a joy. Advocating for persons with TBI in my eight years as president of the Brain Injury Association of New York State was a very moving and meaningful part of life.  As the new chair of the State traumatic brain injury services coordinating council, I look forward to working with the State of New York to further improve services for those suffering from a TBI.  I look forward to continuing my private as well as pro bono legal efforts on behalf of the brain injury community.   

More Double Talk Today at Senate Hearing Examining NFL Disability Plan

I was privileged to attend the United States Commerce Committee oversight hearing today on issues pertaining the National Football League's Disability Plan and a follow up press conference hosted by Gridirons Greats, an organization of retired players headed by Mike Ditka and dedicated to achieving fairness and fair dealing for disabled players..

Unfortunately, what I heard was a lot of double talk.  While I commend NFL Commissioner Roger Goodell for his willingness to discuss the issues surrounding the plan, take the heat and pledge reform,I really didn't hear anything that was new or different.  The true issue is how the plan gets the final say on whether or not the player has permanent brain damage.  At the conclusion of the hearing I had an opportunity to meet with Gene Upshaw, head of NFL Player's Association.  I offered to meet with him in New York or anywhere else to discuss the serious issues of traumatic brain injury and the devastating nature of this condition.  He seemed interested.  Let's hope he contacts me so we can have a serious discussion and open a dialog.

They can change all the definitions of disability they want, but when the league gets to pick its own medical consultants who have the final say and the player gets no opportunity to challenge the decision, no matter how arbitrary or capricious it is, that violates fundamental principals of fairness and due process.

I have sadly been asked to review files of former players whose have been turned down by the league despite overwhelming evidence of brain damage suffered while playing professional football.  The league will keep looking until it finds a doctor to disagree with the multiple medical experts who have already concluded that a disability exists.  They will then chose to follow the recommendation of their bought and paid for, so called medical expert.

As I have previously said, When it comes to concussions and legal determinations as to whether a player has sustained brain damage, the league's position is heads I win, tails you lose.  It is outrageous that the league has stacked the deck against its retired and disabled players. It's time for Congress to act and rectify the injustices that have deprived victim's of brain trauma their legal rights.    They must allow players access to Court's of Law to review these determinations and take away the unfettered discretion that the league now enjoys.

Senate Hearings on NFL Disability Plan

I will be in Washington, DC this Tuesday, September 18th to participate in the hearings conducted by the Senate Commerce Committee on the way that the National Football League and Player's association disability plan manages claims of disabling brain damage.

Having personally been consulted by numerous football player's who have been wrongfully turned down by the league, I can personally attest to the way that the deck is stacked against brain damaged players by the league.  The disability plan consistently ignores the evidence of brain injury presented by players; ignores prevailing medical opinions about brain injury, its cause and consequences and instead chooses to rely on "experts" bought and paid for by the league who improperly claim that the player is not brain injured or has no permanent disability. 

These so called "experts" wrongful state that their is no evidence of brain injury either because the player was never knocked unconscious or because the MRI and CT scans are normal or because they player can pass a mini mental status exam. It's time that these professionals be subject the rigors of cross examination.  The "heads I win, tails you lose attitude of the disability plan when it comes to evaluating evidence of concussions needs to change and it may be the time for Congress to step in and fix what the plan itself is incapable of correcting on their own.

Scheduled to testify on Tuesday are Commissioner Roger Goodell and NFL Players Association executive director Gene Upshaw as well as Hall of Fame tight end and former Chicago Bears coach Mike Ditka, a critic of the plan as well as several players who claim they have wrongfully been denied disability benefits despite overwhelming evidence of brain damage.

Learn more about Chris Benoit's Brain Injury Tonight on Geraldo At Large

Just learned that tonight at 8 PM and 11 PM EST, Sports Legacy Institute founding members will discuss their neuropathology findings and opinions concerning Chris Benoit brain damage.

Taking on the VA For Brain Injury Rehabilitation

The Boston Globe in an important article reports on the success and failures of returning veterans and their families in obtaining brain injury rehabilitation services outside of the Veterans Administration network.

I have been saying for a long time that I can't understand why the VA will not allow brain damaged vets to obtain services in facilities that are not only close to their home but provide expertise that the VA still is incapable of providing.  It simply makes no sense that the VA is trying to reinvent the wheel.  Why not use the available services that are available in the community to provide care to returning vets.  The adamant attitude of do it our way or not at all simply needs to change!

Read the full story Families wage fight for brain injured.  Thanks to the Going Through the Motions blog for alerting me to this story.

Brain Autopsy of WWE Wrestler Benoit Shows Extensive Brain Damage

In a Manhattan press conference today, physicians associated with the Sports Legacy Institute announced their findings today concerning the examination of the brain of pro wrestler Chris Benoit who killed his wife, son and then himself.

Not surprisingly, the examination of his brain showed extensive areas of brain damage.  All four lobes of his brain showed extensive cell death which is consistent with the multiple concussions he sustained while engaged in professional wrestling.

Benoit's brain was examined by the research team which included noted neurosurgeons Julian Bailes and Robert Cantu who along with retired pro wrestler, Chris Nowinski, author of Head Games, established the Sports Legacy Institute to look at the mounting evidence of permanent brain damage caused by concussions sustained by athletes.  Head Games is an excellent source of information on the dangers and long term effects of concussions

The brain experts had not problem concluding that the brain damage they found were due to the multiple concussions that Benoit sustained. But, the physicians could not say with absolute certainty that this brain damage was the cause of Benoit's erratic behavior on the night of the murders. They did say however, that the this type of brain damage can cause depression and irrational behavior in an individual.  Similar brain abnormalities were also found on autopsy of the brains of other athletes who committed suicide including pro football player, Andre Walters.

A full report of the press conference can be found at ABC News. 

More Congressional Hearings Scheduled on NFL Disability Plans

Following a House Judiciary Subcommittee meeting in June on the sorry state of the NFL players disability plan and the unconscionable way that disability determinations are made in areas of brain damage and other disabilities, the United States Senate Committee on Commerce, Science and Transportation announced that they would be holding hearings on September 18th.

Let's hope that league officials attend this hearing and answer the tough questions of why players with obvious brain damage are consistently denied disability benefits and why the league's disability plan ignores the opinions of the players treating health care professionals. 

The league should not be allowed to now hide behind the vague and arbitrary standards of the social security administration in determining disability for brain injury.  Social security doesn't have any real standards for determining disability for a traumatic brain injury.  Instead social security bundles this unique condition under the term "mental disorder".  If an individual can perform any job in the economy, anywhere in the United States, social security does not consider the individual to be disabled. No consideration is given to the number of hours that an individual can work following a brain injury, that they may not be able to keep a job and may be terminated because of their social and emotional difficulties.

The NFL needs to do better than the social security administration in determining disability following brain trauma.

 

Madden NFL 08 Criticized For Violent Content

Today's Houston Chronicle contains an interesting article, In games, it's all about the big hit.  The article discusses the mounting criticism of the new Madden video football game and its emphasis on violence.

I am honored to have been extensively quoted in the article about the myths perpetuated by the NFL in licensing this product.  This new version of Madden is reportedly the most violent version ever produced.  It's emphasis on the big hit sends the message to all who view this game, that the big hit doesn't cause any head injury or brain damage. 

If the NFL is serious in their concern over concussions, they ought to rethink the image they are creating in the minds of young fans when they allow these video games to be produced under their license. The NFL should learn that the best cure for brain injuries is prevention! 

Neurosurgeons Operate On Wrong Side of Brain For Third Time!

I try to refrain from criticizing the medical profession on this blog, but this time, I really have no choice. It's hard to believe, but for a third time, neurosurgeons at a Providence Rhode Island Hospital have operated on the wrong side of a patient's brain!

The error at Rhode Island Hospital was the second time this year a neurosurgeon there performed a procedure on the wrong side of the head, and the third such mix-up since 2001.

The Joint Commission on Hospital Accreditation (JCAH) is reevaluating its standards and safeguards in light of this and other mistakes where surgery has been performed on the wrong side of a patient's body.

Current standards require that hospital staff verify that they have the right patient and body part, mark the body part to be operated on, and take a "time out" in the operating room to double-check the surgical site before starting the procedure.

Even with all these safeguards, this act of medical malpractice still took place.  It's not enough that the hospital's have these safety procedures in place, they need to be followed and when they are not, thought has to be given to stringent penalties to both the hospital and the individuals involved including license revocation and criminal proceedings.  There can simply be no acceptable excuse or explanation for this type of malpractice. 

Reportedly, nationwide, hospitals have reported 552 cases of wrong-site surgery to the joint commission since 1995. I wonder how many more of these surgical mistakes took place that weren't reported to the Joint Commission?

You can read the full story by clicking here.

Vote for TBI Question for Democratic Presidential Debate

If you have been following this blog, you know about Darcy Keith from Fishers, Indiana and the important question she posed to ABC news in connection with the recent republican presidential debate in Iowa.  Now we have a chance to again vote and hopefully the question will be asked in the democratic debate scheduled for August 19th. 

Here's the question:  How are you going to address the needs for services, treatment, rehabilitation and public education for those who have suffered from a traumatic brain injury.

Although the question wasn't asked directly to the candidates during the debate, it was asked in a post debate interview.  Darcy was pleased with the response although it did not address the important issue of public education and awareness of this silent epidemic that affects millions of Americans.

Here is Darcy's response:

The public education of Traumatic Brain Injury is very important.  There is a negative stigma associated with traumatic brain injuries. Most folks don't understand what type of injury this is, not to mention the affect it has on survivors, family caregivers and society.

You can now vote by clicking this link to have this question asked on national television of the democratic candidates.  Simply open the link and then click the box under the video that says rate it.  Click the fifth star to give it the highest possible rating.

Let's go Darcy!

Update

You may have wondered where I have been for the last two weeks.

I've just returned from the American Association for Justice convention in Chicago where I gave a presentation to the Traumatic Brain Injury Litigation Group on the effective use of medical literature in the trial of a traumatic brain injury case.  I am a former chair of this litigation group made up of brain injury lawyers from across the country.

My presentation included a review of the current medical literature on concussions, mild traumatic brain injury and the lasting consequences following brain trauma. I also taught the audience effective strategies for the use of medical literate in both direct and cross examination in the trial of a brain injury case.

For brain injury attorneys this is an extremely important topic as it helps to validate the concussion and post concussion syndrome that affect our clients.  Frequently we encounter defense counsel and their insurance company experts who attempt to argue that our client could not have sustained a brain injury because there was no loss of consciousness or because MRI and CT scans were normal or because the impact was minor.  Of course, this is all nonsense and is contrary to the accepted medical literature but non the less, they still attempt to pull one over in the courtroom. 

By effectively using the medical literature in a brain damage case in both the direct case and through cross examination, these and other myths of brain injury can effectively be rebuked.

I am also pleased to report that during the annual meeting of Public Justice (formely Trial Lawyers for Public Justice, TLPJ) also held in Chicago, I was reelected to a second term as a member of the Board of Directors.

Public Justice opened its doors 25 years ago to pursue an inspiring vision -- building the trial lawyers' public interest law firm. We have done that and more. Over the past quarter century, no public interest law firm in the country has been involved in a broader range of high-impact, cutting-edge litigation. firm.

Public Justice fights for justice through precedent-setting and socially significant individual and class action litigation designed to enhance consumer and victims' rights, environmental protection and safety, civil  rights and civil liberties, workers' rights, America's civil justice system, and the protection of the poor and powerless. Our Access to Justice Campaign  keeps the courthouse doors open to all by battling federal preemption of injury victims' rights, unfair mandatory arbitration, class action bans and abuse, unnecessary secrecy in the courts, attacks on the right to counsel and jury trial, and unconstitutional legislation.

I am also pleased to report that my partner, Shana De Caro was elected to be a trustee of the Civil Justice Foundation.

The Civil Justice Foundation was established to provide grants to grassroot consumer advocacy groups.  Since its inception in 1986, the Foundation has awarded over one million dollars to over 100 organizations.

The Foundation is committed to preventing consumer injury and defending consumer access to justice by donating grants to worthy organizations. The Foundation is especially interested in organizations or projects that have difficulty obtaining funding either because of the organization is newly formed, small or because of the controversial nature of the important issues it tries to address.  You can go to the Foundation's web site for further information if your organization is interested in applying for a grant.

Now that I am back in town, I look forward to continue blogging about important news and information on traumatic brain injury. 

Brain Injury and Proposed Changes to NFL Disability Plan

I am pleased to be participating in an on line talk radio show tonight featuring a discussion of how the NFL disability plans deals with brain damage and proposed changes to the plan.

We are gong to be discussing the NFL proposal to use the social security disability definition of brain injury as well as the league's own definition.

Unfortunately, traumatic brain injury is poorly defined by the social security administration which does not have a specific category for disability due to traumatic brain injury.  Instead brain injury is grouped under a very confusing category entitled, "Organic mental disorders".  The grouping and the social security administration really are not looking at the extent of injury and the life long consequences to the individual and his family, but is instead focusing on what they consider to be residual functional capacity. 

The social security administration tends to focus on the physical limitations that the individual has rather than the day to day difficulties and the behavior and social limitations that are associated with traumatic brain injuries.   

The Internet broadcast can be heard at 8 pm eastern standard time on sportsmavericks.

Another Guest is Bernie Parrish, former Florida Gator Football Player and Cleveland Brown in the 1960's. Bernie was one of the professional players that strengthened the NFLPA (NFL Players Association) with the dream of making it the most powerful union in sports. Bernie is at the forefront of the Congressional hearing on the fight to restructure the NFL Pension and Disability program.

In addition, Mel Owens, former Linebacker for Los Angeles Ram who is presently a Workers Compensation and Disability Attorney will share his prospective. 

We hope to also have Sylvia Mackey, the wife of John Mackey to call in and discuss "Plan 88"

State to screen returning troops for brain injury

The state of Illinois has announced that it would begin mandatory screening of their National Guard members who were deployed to Iraq and Afghanistan for traumatic brain injuries.

Reportedly, Illinois officials have become increasingly frustrated with the screening procedures of the federal government and the services and support available made available to returning vets with brain damage by Washington.

So, state veteran affairs officials have taken matters into their own hands.  They will require mandatory screening for brain injury of all returning members of their national guard and offer brain injury screening to other veterans of the state.  They will also provide a 24-hour hot line for psychological counseling services for brain injury victims.

Medical professionals in Illinois recognize the difficulties in detecting mild traumatic brain injury and are directing special attention to the symptoms of mild brain injury including irritability, headaches, dizziness, memory problems, feeling tired or feeling groggy.  The screening program includes a written questionnaire and an assessment by a trained brain injury professional.  Any soldier with a suspected brain injury would then be referred to a veterans center for further evaluation and treatment.

Hopefully, more states will follow the Illinois example and establish traumatic brain injury screening programs themselves.

You can read the full story in the New York Times, Screening for Brain Injury Is Set for Illinois Veterans, by clicking here.

Final NABIS Legal Conference Program

The North American Brain Injury Association, (NABIS) an organization for brain injury professionals including attorneys and those involved in providing brain injury rehabilitation is holding their annual conference on September 27-September 29 in San Antonio, Texas.

I have been invited to be a guest speaker at each of the legal conferences sponsored by NABIS.  This year I have been asked to give the lecture on Opening Statements in Brain Injury Cases.

The final brain injury legal program can now be viewed on the NABIS web site.

First reports from NFL Congressional Hearing

The long awaited congressional hearing into the unfairness of the NFL player's disability plan was held today by House Judiciary subcommittee chaired by  Rep. Linda Sanchez, D-Calif. and some of the testimony given by retired players suffering from brain damage wasn't pretty. 

Testimony about lives shattered, homelessness, years of depression, memory loss and other conditions were given my many retired players.  These players also testified to the refusal of the NFL disability fund to grant them disability benefits despite overwhelming evidence of brain injury sustained while playing professional football.

Here are some of the things that were said at today's hearing:

The players from the '50s, '60s and '70s laid the groundwork for the popularity of the NFL, a billion-dollar industry, and should be treated better, lawmakers said.

"Perhaps there ought to be a legal solution," said Rep. Chris Cannon, R-Utah.

"We have a group that should be protected, but is not being protected," said Rep. Tom Feeney, R-Fla.

"What is even more troubling is that through projects such as NFL Films, the NFL continues to profit off those very same players who are denied benefits," said Rep. Linda Sanchez, D-Calif.

What is extremely troubling to me is the failure on the part of the league to even admit that there might be a problem with a plan that has refused to acknowledge player's brain damage and other physical injuries despite the overwhelming evidence presented to them.   

You can read a full report of today's hearing by clicking here.

Defective Chinese Tires Lead to Brain Injury

A roll over accident of an SUV in New Jersey which led to severe brain injury was allegedly caused by defective tires manufactured in China by  Hangzhou Zhongce Rubber Co. and sold through it's US distributer Foreign Tires Sales Inc.  A lawsuit for the brain injuries and for the wrongful death of the other two vehicle occupants was instituted in the Federal District Court in New Jersey.

Today, the National Highway Traffic Safety Administration issued a recall of all tires manufactured by this company.  The tires are used as replacements on pickup trucks, sport utility vehicles and vans. 

Apparently the tires lack a critical component which causes the threads to separate.

Over 450,000 defective tires are involved in the recall.

This is not the first instance where defective tires have caused brain injuries and wrongful death to vehicle occupants.  Vehicle roll over accidents caused by thread separation is the defect that led Firestone in 2000 to undertake one of the largest tire recalls ever in the United States, involving millions of tires.

NFL Disability Plan Cleaning Up Their Act Before Congressional Hearing

On Tuesday, a congressional hearing is scheduled to examine the NFL Disability Plan and the obstacles it put in the way of brain injured players from obtaining disability benefits.

Their have recently been several notable court cases where the actions of the league disability committee charged with determining the eligibility for disability benefits have been severely criticized.  The center of criticism has been the plan's contention that they have unfettered discretion to overrule the determinations of treating physician's and neuropsychologist's that either a player indeed has a brain injury and/or that the brain damage took place while playing professional football. 

I have reviewed several cases where the league ignored the opinions of treating professionals and actually went out to find a professional to voice a contrary position which the league then accepted and denied the player his disability benefits.  This action which can only be characterized as mean spirited and contrary to due process has actually been condoned by the court's who claim they are powerless to rewrite the collective bargaining agreement between the players association and the league. 

It is my legal opinion that this agreement is contrary to equitable principles, due process and should be stricken by the courts as being unconscionable.

Now fearing Congress will act. the Washington Post reports that the disability plan is going to change how they look at the opinions of treating health care providers in some limited instances. 

If a player has been granted social security disability benefits, then that individual will automatically qualify for NFL disability benefits.  Under Social Security regulations, the opinions of treating health care providers are entitled to greater weight then the opinions of "hired guns" and due deference must be given to the opinion of the professional,  who presumably knows the injured applicant the best. 

I am hopeful that continued public pressure on the NFL players association and the National Football League will force these NFL disability plan to use the social security criteria in ALL disability cases, even before a decision is reached by the social security administration which could take years.

Why this plan thinks it is entitled to greater rights over injured individuals then even our government has in something that is truly troubling. 

You can read the full Washington Post story "Plan Eases NFL Disability Process" by clicking here.

Congress to Hold Hearings on NFL & Concussions

Several months ago I was the first to call for a congressional inquiry into the way that the National Football League manages concussions.  Thankfully, congress has now heard from enough advocates on behalf of brain injury survivors that the first congressional hearing has been announced.

The House Judiciary Subcommittee on Commercial and Administrative Law has scheduled an oversight hearing on June 26 to look into the way benefits are paid to disabled former players.  They also intend to look into the NFL disability plan and the way that it determines disability benefits to players claiming a brain injury.

Here is what the Washington Post reported today:  The issue of disability payments has been contentious for several years but has only recently received much public attention as former players have stepped up to say they believe the pension and disability plan, managed in part by the NFLPA, routinely denies benefits for injuries suffered while playing in the NFL. Among the accusations is that the plan's administrators have created a system that makes it almost impossible for a player to claim disability.

"The NFL is a billion-dollar industry and yet the players who built the league are too often left to fend for themselves," Rep. Linda T. Sanchez (D-Calif.), who chairs the committee, said in a statement last night.

"The subcommittee has seen recent reports that the benefit plan offered to retired players may be stacked against players who need serious medical care."

Although lead officials and the head of the NFL players association have been invited to the hearings, they have not yet accepted this invitation and have not issued any comments about this inquiry.

You can read the full story in the Washington Post by clicking here.

Brain Injured Veterans Still Getting Short Changed

Despite all the talk in Washington about how the VA has changed their attitude towards brain injured soldiers, one has to really wonder after reading a story about Sgt Tyler Hall in today's Anchorage Daily News.

The news report chronicles the horrendous injuries that Sgt. Hall received in Iraq and the way the military continues to jockey to reduce his benefits.  Sounds to me like the VA is no better than most disability carriers in their attempts to reduce benefits following brain damage.

Sgt. Hall's multiple physical injuries include an amputation of his leg, and brain damage that resulted in his being placed in an induced coma for a month and a permanent shunt to drain fluid from his brain, Now, back in Alaska four years later, Tyler Hall still grapples with the effects of all that, from pain in his back and truncated leg to short-term memory loss that stems from brain damage.

With injuries so severe that the Dept of Defense initially listed him as dead and with current cognitive brain injuries that affect his speech and memory, the VA has reclassified his brain injury rating in half from a 100% disability to only a 50% disability.  This reduction in disability status makes him ineligible for home and community based assistance programs

As the story reports. "It would be different if he thought his brain injury was getting any better, Hall says, but he's pretty sure it isn't. He still wrestles with lapses in his speech and memory. He gets sharp headaches most days, just as he has for the past two years."

Here's the astounding response by the VA in Alaska: "Either the condition improves or the condition worsens," Scheibel said. "So we set up future exams for those kinds of conditions."  Do these bureaucrats ever consider that maybe the condition just stays the same or that the brain injury and it's disability continues but just affects the brain injury survivor in different ways.

Here's what his mother says,  "But this is not my son that I sent over to Iraq. He looks real similar, but he doesn't have the same nose. He doesn't have the same features. He has a brain injury. ... He went in (to the Army) with an attitude, and he came out with a completely different attitude."

Sadly those suffering from the life long consequences of traumatic brain injury still are not getting the attention and compensation they deserve.

You can read this full story by clicking here.