Brain Injury Lawyer - New York

Concussion Insurance Benefits for Student Athlethes

Here is some hopefully, refreshing news from an insurance company for a change.  It has been reported that Wells Fargo’s Student Insurance Division (SID) and the Sports Concussion Institute (SCI) has launched Play It Safe Concussion Care (PSC). According to the insurance carrier, it’s a new concussion management treatment and services solution for athletes nationwide.

PSC includes insurance underwritten by National Union Fire Insurance of Pittsburgh, and provides concussion medical expense benefits for athletes who sustain a covered head injury.

The company stated that the process begins with a baseline assessment by SCI, or its affiliated medical providers, which includes a neurocognitive evaluation administered to athletes pre-season. Athlete suffering a covered head injury would receive a post-injury assessment to compare to their baseline results, helping to evaluate the extent of the injury and inform treatment. 

Let’s hope that the “covered” head injuries is not so restrictive as to make the coverage meaningless. I am hopeful that any concussion or even suspected concussion should be covered for post-injury assessment and any player who is diagnosed with a concussion should receive rehabilitation benefits under the plan.  If not, then the coverage is not very beneficial.

Supreme Court reaffirms principals of Individuals With Disabilities Education Act (IDEA)

The United States Supreme Court has reaffirmed the principal and purpose of the Individuals With Disabilities Education Act (IDEA) in providing all children with a free and appropriate public education.
In the recently decided case entitled, Forest Grove School District v. T.A., the court decided that IDEA authorizes reimbursement to parents for private special-education services when a public school fails to provide a free and appropriate public education and where the private school placement is appropriate, even if the child never received any past services from the school system.

The case was significant because the school system never offered this learning disabled child any services.  In the past the Supreme Court had ruled that where an offer of services was inadequate, parents could be reimbursed for the cost of private education. But the law was unclear as to whether the school system would have to make reimbursement when the school system unreasonable withheld any services.  The court agreed with the parents that the failure to provide reimbursement when services where inadequate but not when the school just refuses to supply any services would be absurd and contrary to the intentions of Congress in passing the Act.

The IDEA has very specific requirements that parents must follow in obtaining special education services and parents seeking these services for their children are advised to seek legal assistance to help them through this process.

Read the full supreme court special education decision.

Kaplen appointed legal advisor to Sarah Jane Brain Foundation

I am honored to report that I have been appointed as a member of the legal advisory board of the Sarah Jane Foundation. As a brain injury attorney, I am pleased to be able to offer my years of experience in representing victims of brain trauma to the foundation.

The Mission of The Sarah Jane Brain Project is to create a model system of care for children suffering from all Pediatric Acquired Brain Injuries. You can learn more about the Sarah Jane Foundation by viewing their web site.

The foundation has joined together  51  health care institutions representing states across the country to address issues related to the treatment of brain injury, the number one cause of death and disability in children and young adults in the United States. The goal is to develop a national collaborative network to address brain trauma in children.
 
Member centers in the new network will share information and research findings on pediatric brain injuries in an effort to establish a standardized national medical plan for dealing with these injuries.

Limiting Malpractice Law Suits Will Not Fix Nation's Health Care Crisis

Our nation's health care system is a mess.  Those who work with injured individuals on a daily basis are well aware of the frustrations that our clients have in obtaining health care that is both readily available to them and affordable.  Insurance companies constantly are throwing up road blocks to accessing medical care.  We need health care reform and we need it now. Those who are victims of brain injury know the difficulties they have in getting proper rehabilitation care and the arbitrary limits that health care insurers place upon treatment.  Those who have sustained brain damage as a result of medical errors, know that they are entitled and deserving of full compensation for their injuries, disabilities and loss of earnings.

Health care reform however should not be confused with medical malpractice deform and proposals to link changes in the medical malpractice compensation system with health care reform should be disregarded as ill founded and without merit in attempting to solve our health care crisis.

The following guest editorial from the president of the American Association for Justice is reprinted here for your review. 

The health care crisis is one of the most complex issues facing our country. Ultimately, a national solution will boil down to two major tenets: lowering costs while improving quality, and covering the uninsured.

Changing the legal system will not solve any of these problems. Doing so will only make it harder for patients injured by medical negligence, through no fault of their own, to pursue legal recourse.

Discussing negligence as part of health care reform is a distraction from the debate. Numerous studies and economic experts, such as the Government Accountability Office and Congressional Budget Office, have detailed how tampering with the legal system will save health care practically no money. One study showed that medical negligence lawsuits were a tiny percentage of civil cases.

Fixating on the legal system ignores the larger issue: patient safety. As many as 98,000 people die every year because of medical errors. If medical negligence becomes rarer, so will the number of injured patients who need to seek legal recourse.

A few hospitals are using programs that encourage doctors to disclose errors and apologize to injured patients as a way to avoid litigation. As long as there are strict protocols to protect the legal rights of patients, these programs offer compelling ways to foster openness and defuse what is often an emotional and difficult experience. Even so, these programs are not one-size-fits-all. For patients injured by clear negligence, saying "I'm sorry" does not repair physical disfigurement or relieve pain and suffering. Proper compensation must be provided.

Any "reform" that makes it more difficult for injured patients to seek legal recourse is unacceptable. Alternatives such as health courts not only deny people their guaranteed right to trial by jury, but they also nonsensically create a whole new bureaucracy to accommodate just one select profession.

Limiting the legal rights of patients will do nothing to provide insurance coverage or lower health care costs. Eliminating errors and keeping patients safe will most certainly accomplish these goals. And this is something all of us can support.

The brain injury attorneys and medical malpractice attorneys at the New York law firm of De Caro & Kaplen, LLP support changes in our health care system without limiting patient right's to sue for full and fair compensation.

Protecting service members from medical malpractice in the military

Senator Charles Schumer has introduced the Carmelo Rodriguez Medical Accountability Act of 2009 (S. 1347 / H.R. 1478), which would guarantee active military servicemen and women the right to sue for medical malpractice. Under the Feres Doctrine, a 1950 Supreme Court ruling, active military members cannot sue the government for non combat related injuries. The bill would offer service members injured by medical negligence the same protections currently provided to veterans. It is named after Carmelo Rodriguez, who died from skin cancer in 2008 after his doctor had failed to report his melanoma more than 10 years ago.

More details about the Feres Doctrine and the Carmelo Rodriguez Medical Accountability Act of 2009 can be found at the American Association for Justice website.

Our law firm, DeCaro & Kaplen, LLP  handles medical negligence cases causing brain injury as well as other catastrophic personal injuries. 

Could TV Pitchman, Billy May's Sudden Death Be Caused By A Traumatic Brain Injury?

TV Pitchman Biilly May, suddenly passed away on Sunday.  Word is spreading that on Saturday, while on board an airplane, he struck his head after the plane's tires blew out during a rough landing. 

Sounds similar to the fate of Natasha Richardson who also died suddenly after she struck her head.

The condition causing these sudden deaths is termed, "talk and die" syndrome.  What is implied by this terms is that someone hits their head and seems to initially be OK, but due to a rapid accumulation of blood, called epidural hemorrhage (bleeding between the skull and the brain), their are serious pressure changes within the brain, leading to death. 

The take away message is that any head injury must be taken seriously.  The individual experiencing the head trauma needs to checked out by qualified medical personnel to determine if the head injury requires treatment.

Traumatic Brain Injury Can Cause Premature Death

An interesting news report from ABC News examines the link between traumatic brain injury and premature death .Can Brain Iinjury Lead To Death Years Later? 

It is important to realize that the impact of a traumatic brain injury may have long term consequences including premature death. Traumatic Brain Injury (TBI) for to many years has been overlooked as a source of long term disability and premature death.  The investigation and the studies cited in the news report have serious implications for the many service members returning from oversees with brain damage.  This signature wound may be a cause of premature death.  Who would argue that these service connected deaths are not entitled to proper compensation?

Protect the Public From BIG Truck Accidents On Our Roads and Highways

Large trucks on our nation’s road are a significant cause of highway injuries and deaths. Many of these injuries are head injuries resulting in traumatic brain damage. 

The following statistics are shocking:

Every year, about 5,000 people die and over 100,000 people are injured in large truck crashes. Despite only making up 3 percent of all registered vehicles, large trucks represent 9 percent of all vehicles involved in these fatal crashes and are responsible for 12 percent of all crash fatalities.

Fortunately, Congress is working on a new transportation spending bill that would prevent increases in truck sizes and weights on the National Highway System, including the Interstates – increases that endanger the safety of the motoring public, our roads and bridges.

America's highway infrastructure is crumbling, in part due to oversized trucks, which also are responsible for far too many crashes resulting in deaths and injuries. Also, the bigger the rig, the bigger the impact on greenhouse gas emissions and fuel consumption. We simply cannot afford all of the costs of allowing bigger and heavier trucks on our roads and highways.

PUBLIC CITIZEN, the national non-profit  public interest organization of which I am a proud supporter is seeking support for legislation currently pending in the United States House of Representatives:  H.R. 1618, the Safe Highways and Infrastructure Preservation Act of 2009.  They have requested that you contact your congress person and ask them to both co-sponsor and support this legislation.

Here is some language that you can use when writing to your congressal representative:

I am  writing to relay my strong support for H.R. 1618 and S. 779, the Safe Highways and Infrastructure Preservation Act of 2009 (SHIPA), and urge you to co-sponsor this important legislation. The SHIPA bill is co-sponsored by more than 80 Democratic and Republican Members of Congress, and supported by national highway and truck safety groups, victims and survivors of truck crashes, as well as leading national environmental and public interest organizations.

Every year about 5,000 people die in truck crashes including more than 800 truck
drivers and over 100,000 are injured. Large trucks represent 9 percent of all vehicle involved in fatal crashes, are responsible for 12 percent of all crash fatalities but make up only 3 percent of all registered vehicles.

The purpose of SHIPA is to prevent the constant increases in truck sizes and weights on Interstate and non-Interstate portions of the federal National Highway System (NHS) that endanger the motoring public as well as our roads and bridges. Enactment of SHIPA will extend the safety and infrastructure protection that was achieved in 1991 when Congress overwhelmingly enacted the freeze on longer combination vehicles (LCV) in the Intermodal Surface Transportation Efficiency Act of 1991 (ISTEA).

Enacting H.R. 1618 and S. 779, the SHIPA Act, would save lives and prevent injuries, limit damage to our crumbling roads and bridges, reduce global warming pollution and curb our dependence on oil, and help achieve a balanced multi-modal transportation system. I urge you to support this sound and sensible legislation and look forward to working with you to build a safer, cleaner and more efficient transportation future for our nation.

Your assistance in protecting our nation’s roads and the health and safety of the public is appreciated.

Three Years and Not One Service Member Tested for Subtle Brain Damage

Subtle brain damage is often missed by conventional MRI testing, leading many to falsely conclude that no structural brain damage has taken place.  This false premise has subjected many individuals who have sustained brain injury, including returning veterans to have their claims rejected. 

The absence of proof is not proof of the absence of an injury and the fact that often times brain injury is not detected using MRI Studies does not mean that an individual did not suffer a traumatic brain injury. 

Newer MRI techniques such as the more powerful Tesla 3 MRI machines are now capable of detecting brain injuries that were missed in the past. Other useful techniques for detecting subtle brain injury include functional MRI studies (fMRI)
 
Three years ago, the Department of Veterans Affairs established a laboratory at the University of Texas at Austin with high expectations that it would conduct state-of-the art research into combat-related brain injuries using powerful MRI technology.  However after 3 years no studies have ever taken place!

Last month, the VA announced it was moving the facility to Waco, Texas, after spending more than $3 million without testing a single veteran with traumatic brain injury.  The Waco facility is reported to have the world’s most powerful research MRI machine.

The decision follows a two-year battle between VA and the former director of the Brain Injury and Recovery Laboratory, who has accused his superiors of fraud, mismanagement and wasting taxpayer money.

The uproar has sparked a congressional inquiry, an investigation by the federal Office of Special Counsel and several internal investigations.

Hopefully, research will finally get underway to objectively document subtle brain injuries in returning vets.

You can read more on the controversy and investigation of the Austin facility by clicking a story in the Washington Post , “VA Moves Texas Brain Laboratory After Years Pass Without Testing”

Congratulations to Shana De Caro, Esq.

Congratulations to my partner, brain injury attorney, Shana De Caro who has again been selected for inclusion in the 2009-2010 Edition of Who's Who in American Law. According to the editors, this edition will chronicle the country's most distinguished legal professionals who have made significant contributions to the advancement, understanding and appreciation of the legal profession. 

Shana is also is an officer of the American Association for Justice, Traumatic Brain Injury Litigation Group, a trustee of the Civil Justice Foundation and an editor of the New York State Academy of Trial Lawyer's monthly legal update.