Brain Injury Lawyer - New York

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. 

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”

Brain Injury Resource Lecture at The George Washington University

I am thrilled to be in Washington DC today to again lecture at the Master's Degree Program in the Center for Education and Human Services Acquired Brain Injury Masters program at The George Washington University.

This semester’s lecture is focused on examining the various sources of information that is available on the internet in the area of traumatic brain injury. We will be exploring government web sites such as the Center For Disease Control and the National Institute of Health, great brain injury resource sites such as BrainLine, web sites that emphasize management of sports concussions, web sites that provide useful information on special education, various neuropsychological accrediting groups, brain injury association pages, brain injury professional societies and of course the brain injury news and information blog and brain law and the brain injury legal guide web site.

The Master's Degree Program in Special Education: Emphasis in Acquired Brain Injury is focused in addressing the national shortage of special education and related service personnel qualified to meet the needs of students with traumatic brain injuries (TBI) and their families. Graduates are uniquely prepared to be educators and systemic improvement specialists in schools, hospitals, rehabilitation programs, advocacy programs, and related organizations. Scholarship support for qualified students is available. You can obtain more information on the GW Acquired Brain Injury Program by clicking here.

Brain Injury Legislative Update

This week's brain injury legislative update has been prepared by the Brain Injury Association of America (BIAA):

Health Care Reform Update

On June 9, 2009, the Senate Health, Education, Labor and Pensions (HELP) Committee released a draft health care reform bill.  In summary, the draft would expand Medicaid eligibility to those with incomes up to 150 percent of the federal poverty level, impose federal tax penalties on most individuals failing to purchase coverage, mandate a public plan option, require employers to provide coverage or pay into a pool, and stiffen regulation of private health insurance plans.

Importantly, the plan eliminates life-time insurance caps as well as provides for the establishment of a medical advisory council that will submit a report to the Secretary of Health and Human Services including recommendations on essential health care benefits eligible for credits which includes rehabilitative services. In issuing the report, the council will ensure that the recommendations take into account the needs of diverse segments of the population including persons with disability.

The HELP committee plans to begin considering this bill on June 16, 2009.  BIAA will continue to monitor the situation carefully.

NIDRR Grant Forecast

This week, The National Institute on Disability and Rehabilitation Research (NIDRR) announced it will include two TBI grant programs in its forecast for 2009. 

The first grant application notice, rehabilitation research and training centers (RRTC) on traumatic brain injury interventions, will be available on June 30, 2009, while the second, RRTC on developing strategies to foster community integration and participation for individuals with traumatic brain injury will be available on July 24, 2009.

BIAA will report on the details of these applications when they are released.

Coalition for Regenerative Stem Cell Medicine update

As part of the Coalition for Regenerative Stem Cell Medicine, BIAA enthusiastically endorses two important pieces of legislation aimed at advancing the therapeutic potential of newborn stem cells, the unique stem cells that can be collected immediately following birth from umbilical cord blood and the cord itself, as well as helping to advance the use of one's own newborn stem cells in regenerative medicine.

HR 1718 - The "Family Cord Blood Banking Act" amends Section 213(d) of the IRS Code to add cord blood banking services as a qualified medical expense. This change will allow individuals and couples to use tax advantaged dollars to pay for umbilical cord blood banking services through flexible spending accounts (FSAs), health savings accounts (HSAs) health reimbursement arrangements (HRAs) or the medical expenses tax deduction.

The "Family Cord Blood Banking Act" will make cord blood banking more affordable for American families and provides incentives to ensure that this valuable health resource is never thrown away.

HR. 2107 - The "Cord Blood Education and Awareness Act of 2009" will provide expectant mothers with straightforward, accurate and easy to understand information about the value of their child's umbilical cord blood stem cells. It will offer a government stamp of approval on all available cord blood banking options and will give expectant parents confidence in the information they are reviewing.

Take The "R" Word Out Of New York State Vocabulary

Thanks to my friend, disability advocate, Ralph Shields for bringing this important legislation to my attention and to the work of the Center for Disability Rights for the following memo:

Action Alert – No More "R" Word! Support A07566!  

For many years, advocates have pushed for a name change for OMRDD (Office of Mental Retardation Developmental Disabilities) and are extremely pleased at the possibility that New York will now join all but a few states in the USA that have removed the words 'mental retardation', often referred to as the "r-word", from the name of the state agency that supports people with developmental disabilities. A name change has been proposed by the Governor's Office and OMRDD:  New York State Developmental Disabilities Service Office--NYSDDSO.
 
The Senate passed a bill sponsored by Senator Huntley (S 4383) supporting this name and Assemblyman Rivera's proposed a similar bill in the Assembly (A 07566), which, despite our best efforts, is currently stuck in the Assembly Ways and Means Committee. The problem seems to be that there are too many bills on the docket, but this bill MUST be pushed forward to the Assembly for a vote.
 
Words and language matter. The "r-word" has become a symbol of all of the negative words that are offensive to people with disabilities; words that hurt and sting when used in school yards or heard in movies, words that do not acknowledge our value and contributions as citizens.  As many advocates have said, "that word is the same as a curse word to many of us".
 
There are only a few short weeks left in this session of the Assembly and it is imperative that the name change comes before the Assembly for a vote on the floor as soon as possible. It is important that our leaders in Albany hear from you! 

You can take action by clicking here

Weekly Brain Injury Legislative Update

Here is this week's traumatic brain injury legislative update provided by the Brain Injury Association of America (BIAA)

Health Care Reform Update

Currently, the Senate Finance Committee has reached no consensus on major provisions of the anticipated health care overhaul, raising doubts that it will be considered this month.  Committee members remain at an impasse in part because members still lack a clear picture of what potential policy choices would cost.

The Congressional Budget Office (CBO), which estimates what legislation will cost the taxpayers, is scrambling to analyze dozens of policy options the committee is considering. Without cost estimates, lawmakers say it is difficult to decide which provisions they can support. (CQ)

BIAA will continue monitoring the situation closely.

BIAA mobilizes Grassroots Advocates in Support of The conTACT Act

On Thursday, June 4, 2009, BIAA circulated an action alert with the intent to urge members of Congress to sign on to HR 1347, the Concussion Treatment and Care Tools Act of 2009(ConTACT Act). 

The bill would require the Centers for Disease Control (CDC) to convene a conference to adopt official concussion guidelines. The bill would also provide grants to states for the purpose of ensuring that elementary and secondary schools implement these guidelines by funding computerized pre-season baseline and post-injury neuropsychological testing for student athletes.

BIAA Submits Comments to NIDRR in Response to Proposed Priorities for RRTCs

This week, BIAA submitted comments to the National Institute on Disability and Rehabilitation Research (NIDRR) specifically regarding the fourth priority included in the proposed plan for the Rehabilitation Research and Training Centers (RRTCs) entitled, "Developing Strategies to Foster Community Integration and Participation for Individuals with Traumatic Brain Injury." 

BIAA expressed strong support for the inclusion of a brain injury related research priority.  However, BIAA also detailed some concerns related to the strategies used in the priority to foster community integration and participation for affected individuals. As proposed, this priority would develop a classification system based on symptoms experienced by individuals with TBI who are living in the community.

BIAA explained that no two brains are alike and each and every individual presents with different symptoms, and each injury results in different challenges. Therefore, trying to categorize these injuries could be counterproductive to the priority's goal.

BIAA also suggested several suggestions in lieu of a categorization strategy.  For further reading, the full text will be posted on BIAA's web site shortly.

Concussion Management Bill Introduced in Congress

Urge House Members to Cosponsor HR 1347, The Concussion Treatment and Care Tools Act of 2009 
 
Members of the House of Representatives have introduced the Concussion Treatment and Care Tools Act of 2009 (HR 1347), a bill designed to ensure adoption, dissemination, and implementation by elementary and secondary schools of concussion management guidelines for the purpose of better treatment and awareness of the injuries of the estimated 3.8 million young people that suffer sports and recreational concussions each year.

The sponsors of this Act, Representatives Bill Pascrell, Jr. and Todd R. Platts, have called upon Congress to provide grants to states for the purpose of ensuring that elementary and secondary schools implement these guidelines by funding computerized pre-season baseline and post-injury neuropsychological testing for student athletes.

Because the support of this initiative is vital to the protection of school aged children engaging in sports and recreational activities, it is important for us to urge as many Congressional Members as possible to sign on as cosponsors!