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Auto Accident / Attorney Errors / Mild Brain Injury

Discussions relating to Personal Injury Law

Auto Accident / Attorney Errors / Mild Brain Injury

Postby Hamlett » Mon Oct 31, 2016 5:04 am

On 2/13/06(TN = 1 yr; already filed) I was hit from behind(as a stopped vehicle) and pushed into the vehicle in front of me who hit the vehicle in front of him.  My car was totaled.  I was taken by ambulance to the hospital with a fractured foot, concussion, separated sternum, bruises, etc., chest pain, etc...  Head and neck pain...etc.  The driver, who was in a '3 quarter-ton' work truck was 17 at the time of the accident and had two 17 year old friends in the car at the time.  There is no question of liability.  To date, their insurance company has not paid anything toward my medical. etc.  I lost my $40k per yr(+ commission) position of 8 years at that time, due to my time off.  The attorney I had at that time said that we should take the insurance company's offer of $25k which would not have even paid my medical bills..  We declined.  I found on-line that this child's parents own a construction company of some sort.  I called the attorney and he said that the parents were not at fault, the child was, because the title was in his name.  I told the atty that the child and dad have the same exact name and that Property Titles surly weren't issued to minors.  He said he could only go by the police report...?  Anyhoo...after several months of crap...I called another atty who did some checking and told me this 1st atty was in the wrong.  He called the 1st atty, and gave him information he had found.  The 1st atty then to correct his negligence began a motion to include the parents on the suit.  The judge allowed the parents to be brought into the suit.  I changed attys and sent the 1st atty a long letter detailing his mishaps.  My new atty says that since he fixed the problem I don't have any claim against him...but I am not sure of anything anymore...  My new atty is representing me on the auto claim, but says that he didn't feel any atty would represent me in filing a malpractice claim against the 1st atty----but when I was talking to him about all of this over the phone, he was anxious to work with me and even told me I would be better off filing the malpractice claim against the atty over the accident...  Can you give me some guidance as to if I have any claim against the 1st atty. with regard to malpractice or whatever.  His actions caused me a Hugh headache and caused a delay in proceedings, and a possible loss of award once the jurors find out I have been with 2 different attys---not sure if that will be brought up or not ....  Thanks!
Hamlett
 
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Joined: Sat Jan 04, 2014 6:14 pm

Auto Accident / Attorney Errors / Mild Brain Injury

Postby Donavan » Tue Nov 01, 2016 5:13 am

On 2/13/06(TN = 1 yr; already filed) I was hit from behind(as a stopped vehicle) and pushed into the vehicle in front of me who hit the vehicle in front of him.  My car was totaled.  I was taken by ambulance to the hospital with a fractured foot, concussion, separated sternum, bruises, etc., chest pain, etc...  Head and neck pain...etc.  The driver, who was in a '3 quarter-ton' work truck was 17 at the time of the accident and had two 17 year old friends in the car at the time.  There is no question of liability.  To date, their insurance company has not paid anything toward my medical. etc.  I lost my $40k per yr(+ commission) position of 8 years at that time, due to my time off.  The attorney I had at that time said that we should take the insurance company's offer of $25k which would not have even paid my medical bills..  We declined.  I found on-line that this child's parents own a construction company of some sort.  I called the attorney and he said that the parents were not at fault, the child was, because the title was in his name.  I told the atty that the child and dad have the same exact name and that Property Titles surly weren't issued to minors.  He said he could only go by the police report...?  Anyhoo...after several months of crap...I called another atty who did some checking and told me this 1st atty was in the wrong.  He called the 1st atty, and gave him information he had found.  The 1st atty then to correct his negligence began a motion to include the parents on the suit.  The judge allowed the parents to be brought into the suit.  I changed attys and sent the 1st atty a long letter detailing his mishaps.  My new atty says that since he fixed the problem I don't have any claim against him...but I am not sure of anything anymore...  My new atty is representing me on the auto claim, but says that he didn't feel any atty would represent me in filing a malpractice claim against the 1st atty----but when I was talking to him about all of this over the phone, he was anxious to work with me and even told me I would be better off filing the malpractice claim against the atty over the accident...  Can you give me some guidance as to if I have any claim against the 1st atty. with regard to malpractice or whatever.  His actions caused me a Hugh headache and caused a delay in proceedings, and a possible loss of award once the jurors find out I have been with 2 different attys---not sure if that will be brought up or not ....  Thanks!
Donavan
 
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Joined: Fri Jan 31, 2014 11:01 am

Auto Accident / Attorney Errors / Mild Brain Injury

Postby Selyv » Fri Nov 11, 2016 7:00 pm

Hi Babette

I will answer your questions, but I also have two cautionary warnings for you that you have not addressed(post concussive syndrome care and excess attorney’s fees on low limit policies).  My sense of things is that you will have to do a lot of reading here if you want to maximize your award—and to get some necessary healing.  Because I think your attorney did not look after you very well, I am going to put in at least an hour and a half to give you some thoughts on these issues.  So I hope you are comfortable and have the patience to last through all that I am going to get into for you.

OK, Babette, on any malpractice case there are three things to be aware of.  First is that malpractice cases are not just settled to avoid the embarrassment to a doctor or attorney.  Instead, they are rigorously defended.  Second, is that there has to be pretty good liability to go forward.  And third is that no one will take a malpractice claim unless there are some pretty good damages.  

In this case, the attorney did not fulfill his duty to you in a professional manner.  I am disturbed about three aspects of this.  First, he wanted you to take a low policy limits award, and never offered to eliminate his attorney’s fees or to reduce them to something around one or two thousand dollars at most.  Second, he was willing to take the offer without checking to see what other assets might be reached if he went to trial.  Third, and to my mind, most seriously, he was in gross error in failing to bring in the parents to begin with. Hence, it is my opinion that he likely breached his duty of care owed to you and he thus violated the Code of Professional Responsibility adopted by the Tennessee Supreme Court to govern all actions of attorneys.  http://www.tba.org/ethics/index.html

See particularly the following rules(and some of the comments under the rule): Rule 1.1

COMPETENCE

A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation.

Rule 1.3

DILIGENCE

A lawyer shall act with reasonable diligence and promptness in representing a client.

OK, now so what?  What does this mean to you?  What did that breach of duty cost you?  Here are the three things that you mentioned to me:

1.   His actions caused me a huge headache;  and 2.   caused a delay in proceedings; and 3.   a possible loss of award once the jurors find out I have been with 2 different attys---not sure if that will be brought up or not

Taking the easiest one first: there is no award of damages for number three.  It is pure speculation as to what a juror might think if she knew you hired an attorney other than the one trying the case.  First, how would she find out?  And second, that happens all of the time.  Many attorneys will work a case to settlement negotiations, with another attorney taking it to trial.  Hence, number three would not be a relevant item of damages.   

As for number one, do you mean inconvenience, or hassle, or work you had to do on your own, or do you mean emotional distress that resulted in an actual huge headache?  If emotional distress, there could be some damages there if a doctor saw you for the problem.  As for hassle or inconvenience or extra work on your part, I would not present that to the jury as the sole basis for an award.  Most of that would go to eliminating any award of attorney’s fees.  

As for number two, what is the problem with the delay?  Why should you be paid for a delay?  Well, for one thing, if you were to get $100,000 in your eventual award, and this attorney delayed the end of the trial by one year because it had to be reset, then the investment value of that money is owed to you.  Assuming that the investment value were 10%, then he would owe you $10,000 for each one year delay, prorated to parts of years.  

Should you bring a claim?  I WOULD SPEAK WITH A MALPRACTICE SPECIALIST ASAP.  Your claim will be in contract, which usually has a longer statute of limitations.  But part of your claim also sounds in tort, which may have a shorter limit.  I would call around to make sure that they do handle professional malpractice against attorneys.  There is nothing wrong with presenting your facts to such an attorney to see if she has any ideas that would strengthen your case.  ALSO, please include the mention of contracting for fee reduction if there is a low policy limits settlement(see below).

OK, Babette, that is it for the questions you asked.  Now it is my turn to give you a couple of things to think about.  As I mentioned above, the first of these is the concept of becoming more familiar with the elements of a post concussive syndrome.  I want you to be able to identify these and to make sure that you are getting good help for them.  Furthermore, I want to be sure that your attorney did get you to see a good doctor for treatments, and of course to provide a basis for your claim.  

If your attorney failed to give you what I am giving you and to insist that you seek professional mental care, then a minority of attorneys—but I am one of them—believe that THIS IS AN ENTIRELY NEW charge of malpractice.  You would have lost a SUBSTANTIAL ELEMENT of damages if your case was not given the proper workup because your attorney failed to make a referral to a proper doctor.  Sure, sure, we do not expect an attorney to oversee the treatment pattern, OR DO WE?  For my money, any attorney who holds himself out to be a competent personal injury attorney HAS THE OBLIGATION to coordinate the medical care if he sees that critical aspects of the injuries are being ignored. Xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx

NEW TOPICS: BRAIN INJURIES AND ATTORNEY’S FEES

How hard did you hit your head?  It sounds like a pretty hard whack.  So, let’s first address that topic of the most significant potential injury, your traumatic brain injury.  Research that term, and especially post concussive syndrome and you will see some of the symptoms of that condition.  My bet is that you DO HAVE A MILD BRAIN INJURY.  It is untreated for two reasons.

First off, you most likely denied any loss of consciousness, right?  Second, if there is no loss of consciousness and no complaints of the symptoms of brain injury, most doctors who are called upon to treat injuries will not make referrals to have the patient tested for brain injury.  

Let’s first examine what is a concussion and what is a loss of consciousness.  You DID HAVE A CONCUSSION, that much is for sure, since you hit your head.  So traumatic brain injury is in play in your claim since you suffered a brain concussion.  

Post-concussion syndrome, also known as post concussive syndrome or PCS, is a set of symptoms that a person may experience for weeks, months, or even years after a concussion, a mild form of traumatic brain injury. As many as 50% of patients who have experienced concussion have PCS, and some sources say as many as 90% of patients experience post concussion symptoms.   People who have had concussions may experience physical, mental, or emotional symptoms. Symptoms can appear immediately or weeks to months after the initial injury.

Physical symptoms can include:

•   headache •   dizziness •   impaired balance

•   nausea and/or vomiting •   fatigue or sleepiness •   inability to sleep •   decreased libido

•   sensitivity to noise or light

•   ringing in the ears •   double or blurred vision

•   decreased sense of taste, smell, or hearing Emotional symptoms may include:

•   irritability •   anxiety

•   restlessness

•   depression

•   lack of emotion •   emotional lability or mood swings •   lack of ability to tolerate stress or alcohol

•   aggression

Cognitive or mental symptoms can include:

•   amnesia or difficulty remembering things •   confusion or impaired cognition

•   impaired judgment

•   slowed cognitive processing

•   difficulty with abstract thinking

•   difficulty concentrating

•   decrease in work performance

•   decrease in social skills

LOSS OF CONSCIOUSNESS—not essential to diagnosis of post concussive syndrome, but sometimes the length of time unconscious will be used to judge the degree of the brain injury.

The patient is typically the primary source who is asked the most significant question: Did you lose consciousness as a result of your injury? Most of my clients who actually later recalled that they did not remember moments just after being struck in the head, AT FIRST DENIED ANY LOSS OF CONSCIOUSNESS TO THE POLICE AND TO THE EMERGENCY ROOM.  

WHY?  First, most people equate loss of consciousness with being unconscious for some time.  But in fact, “loss of consciousness” means loss of conscious awareness. Hence, loss of consciousness can range from being briefly dazed to several days of coma.  In fact, in order for a brain injury victim to answer such a question, they would have to undergo extensive examination recollecting past events.  Any change in mental state can be significant in understanding a patient's condition and if loss of memory(amnesia) occurred immediately before or after the trauma.

When you struck your head on something, probably there was a brief loss of consciousness.  Even if you never before reported it, now is the time to correct your records with a letter to your doctor explaining that you DID have a brief loss of consciousness.  

Loss of Consciousness http://www.settlementcentral.com/page0134.htm  After Accident or Injury

How do you correct records with the medical providers and the insurance adjusters?  http://www.settlementcentral.com/page7004.htm   Letters to insurance claim adjuster.  While this is designed for self help claims, your attorney could write the same letter, even at this late date.  Better now than at trial.  

This page talks about how to confirm conversations with the insurance adjusterhttp://www.settlementcentral.com/page0460.htm   with loss of consciousness notify the insurance adjuster as soon as you recall it.  Naturally I do NOT want to second-guess your attorney, but I would bring up to her the fact that you now recall loss of consciousness and lobby for her to let you write to correct your records.

Xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx

TMJ—temporomandibular joint syndrome: possible source for headaches.

This is another term I want you to research.  When an accident victim strikes her head, there is a good possibility that the disc in the condyle, or jaw joint disc, can be displaced.  One of the consequences of jaw joint displacement is headaches.  All too often in my practice, the doctors treated headaches as having originated from cervical problems, when in fact, they were due to a TMJ.  http://www.lectlaw.com/med/med04.htm http://en.wikipedia.org/wiki/Temporomandibular_joint_disorderhttp://www.tmjdoctorofmaryland.com/

There are two at-home ways to see if your jaw joint is moving.  First, find the spot in front of the little lobes on the middle of your ears.  These are called “tragus”: http://www.infovisual.info/03/048_en.html

Now, put your fingers just in front of the tragus and over the jaw joint and open and close your mouth.  If the disc is far out of place, you will feel a click.  Better is for someone to stand behind you as you are seated and perform the same test.  That person can feel the click if your jaw joint disc is far out of place.

WHAT TO DO ABOUT REFERRALS:  If you feel that you do have any of these symptoms and they are of some significance, I WOULD INSIST UPON TREATMENT for them ASAP.  It is best to get your general practitioner to refer you, but you can self-refer if you have to.  Your attorney can also be a source of information on good specialists.  Here is what you would need: a neuropsychologist to test and to treat the mild brain injury.  That is where the big mental help will come from, and of course that is where the BIG INSURANCE SETTLEMENT DOLLARS come from also.  

As for the TMJ, a dentist who specializes in that field would be a lot better than an ordinary dentist.  The TMJ specialist is adept at diagnosis and treatment, and of course, at making records that will help in making a good insurance settlement.  

Xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx

NOW ON TO ATTORNEY FEES.

This part is not really relevant unless the total insurance via the driver and parents is a bit on the low side.  The point I am going to make is that with low limits, the work of the attorney may not merit a full one-third fee.  THIS IS A MATTER TO DISCUSS WITH THE MALPRACTICE ATTORNEY along with the malpractice claim. Here is what I want to convey as to the relationship between policy limits and attorney’s fees.  Let’s assume that you develop the post concussive aspect of your claim to the point that it has a value of $150,000, including the medical expenses.  

If the policy limits of the tortfeasor are only $25,000—as in the case of the driver—then a blind dog with a note in its mouth could settle the claim.  So why pay an attorney to do what you can easily do?  Now, assume the tortfeasors combined policies have limits of $300,000.  Here you would need an attorney right from the start.  She can marshal the facts and witnesses and doctors and arguments to actually increase the value of the claim and she will earn her fees.  

If you have your attorney contract, take a look to see if you get any break if the total limits are no more than $50,000.  If you have even a mild brain injury claim, and if the attorney has done her job to get you to some psychological treatments, then the value of the claim is such that one would want to see a lower fee if all that is in play is just $50K.  Here is why.

A few of us—not too many—believe that the personal injury attorney should  make any arrangements for a reduced fee in the event that the tortfeasor had no insurance or low policy limits?  The value of your claim is hard for me to judge because of all of the complicating factors.  But here is the bottom line: if your claim had an obvious value in excess of the policy limits, then one would think that when he made his contract with you, he would have made arrangements for a reduced fee in the case of low limits.  

With respect to low policy limits, there is a real possibility of your netting nothing.  So I am going to focus in on subrogation defense, and challenging your attorney fees.  You will have to ENSURE THAT YOUR ATTORNEY EXPLAINS what can be done to fight subrogation claim, and to explain why she should charge full fees if all she had to do was to get a policy limits settlement was to write a few letters.

Here is the background on subrogation, just for your information.  http://www.settlementcentral.com/page0459.htm   Ask your attorney what she expects for subrogation claims, and whether there are any defenses to subrogation, and what she intends to do about fighting for them?  

Xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx

OK, Babette, that about does it.  I trust that my time here has produced some information that has been of value to you, and thus I would respectfully request that you take the time to locate the FEEDBACK FORM on this site and leave some feedback for me.

Best Wishes, Dr. Settlement, J.D.(Juris Doctor) http://www.SettlementCentral.Com
Selyv
 
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