Catastrophic or severe brain injury
In the landmark punishment verdict in Canada against an insurance company, the victim suffered a catastrophic brain injury and was in critical care with a prolonged coma. The insurance company refused to pay for attendant care services for many long years while the victim was left to face increased danger to her safety and well-being. The fight was on with the insurance company. After five years of contesting with one of the largest insurance group of companies in Canada, in the longest arbitration hearing at the Financial Services Commission of Ontario, Kevin Doan was successful in representing the young woman who was 21 years old at the time of the accident. This case set record verdicts, made new laws and legalized a new treatment for severe pain.
Why was the fight so long and the contest so vigorous? Because in part brain injuries and brain impairments are often invisible, and both sides therefore have opposite positions. The injuries to the brain can not be seen readily because of the skull, and no one wants to open the skull, and risk death, to prove the residual injuries and impairments. MRIs, CT Scans, CAT scans do help but sometimes they do not reveal much.
Brain injuries can change a person into a totally different person by changing personality, patience, or character such that the victim is no longer the same person, and no longer able to control emotions, to remain safe, to avoid danger from being lured on the internet etc... However, there may be little evidence of all these changes objectively on these radiology tests. Without clear and convincing evidence, the fights are some of the most heated.
Brain injuries cases are some of the most complex cases in personal injury law because every case is different. One area of the brain functioning may be impacted while another is left almost entirely intact. The victim may speak well under a controlled interaction such as even at an examination for discovery, but falters and unable to participate in a conversation in another context such as a social conversation with more than one friend at a time. The processing brain pathways are stimulated differently in different environment.
Brain injuries can actually cause victims to under-estimate their disability, and over-estimate their ability. They can become overly optimistic, wanting to return to difficult work just a few months after having a severe brain injuries with an extensive coma for days or weeks.
Even experienced lawyers, who have not had extensive and specific expertise in handling brain injury cases, may not know or appreciate how brain injuries may mask disability. Victims can "talk a good game" and continue to announce intentions to return to their work, because of injuries to their frontal or right cerebral hemisphere (Lezak, Neuropsychological Assessment, Fourth Edition, 2004, page 180). Defence lawyers for insurance companies will emphasize the brave talk to persuade the victims' lawyers that the victims are not so disabled because they testified under oath that they could return to work, and that they needed no help with their activities of daily living. Unfortunately, insurance companies often succeed because many plaintiff injury lawyers (and many medical professionals and assessors as well) are not aware of the above scientific reference and evidence, and are unable to prepare and account for the victims' over-estimation of ability. The amounts of settlements to compensate the victims are frequently reduced accordingly.
From our experience, we would highlight the following two issues, out of many issues, for your consideration in your own severe or catastrophic brain injury case:
How to prove invisible brain injuries and problems:
Remember that you and your family members know your behaviour best, and better than any doctor, specialist or lawyer. If you and your family member honestly know that you have changed, and have changed significantly for the worse, then you have some strong evidence to support your claim.
An experienced lawyer would have examined the medical file to look for those incidents where your safety had been compromised as a result of the injuries. The lawyer would have hired occupational therapists, speech language therapists, neuro-psychological experts who are highly-qualified in brain injury rehabilitation and who should also know to be vigilant, to look out for these incidents and to appreciate how these incidents may have been prevented in the first place. The winning edge in these cases are often the small little incidents that prove the drastic changes (forgetting to put out candles, lock doors at night, turn off stove, not able to control anger, punching walls, forgetting to "remember to remember" (prospective memory) etc...).
The lawyer should assess the victim's ability to live safely and independently, without family members. With family members around, the neuro-cognitive deficits (including lack of initiation even for basic tasks such as eating, bathing, and taking medications) may not show up as much and as clearly because of the artificially structured environment, including various reminders to the victim. In other words, with family members around, it is not the real world that the injured person is navigating, but an artificially protective or sheltered world. The needs for care and supervision may be underestimated in a sheltered world.
The most important and expensive claim is often for 24/7 supervision in a severe brain injury case:
How much is the claim for 24/7 supervision and care worth? When you buy such services on the market, it costs about 30$ per hour for a personal support worker (that is a manual helper without rehabilitation expertise). One day would cost $720 (30x24), and a year costs about $262,000. If you add up the remaining years, you can see how the total cost can be very high.
Your own no-fault insurer pays a maximum of about $6,000 per month, subject to a lifetime maximum of one million in most cases before 2016, but thereafter may be reduced by further regulations. After deducting your own accident benefits insurer's limit of one million, depending on your life expectancy, there can still be a large shortfall to be claimed from the party who caused the accident.
Keep this serious exposure against the party who caused the accident in mind, when it comes time to estimate your losses or damages to be claimed, or to be settled, in order to be well-informed to protect your interests.
In the landmark punishment verdict in Canada against an insurance company, the victim suffered a catastrophic brain injury and was in critical care with a prolonged coma. The insurance company refused to pay for attendant care services for many long years while the victim was left to face increased danger to her safety and well-being. The fight was on with the insurance company. After five years of contesting with one of the largest insurance group of companies in Canada, in the longest arbitration hearing at the Financial Services Commission of Ontario, Kevin Doan was successful in representing the young woman who was 21 years old at the time of the accident. This case set record verdicts, made new laws and legalized a new treatment for severe pain.
Why was the fight so long and the contest so vigorous? Because in part brain injuries and brain impairments are often invisible, and both sides therefore have opposite positions. The injuries to the brain can not be seen readily because of the skull, and no one wants to open the skull, and risk death, to prove the residual injuries and impairments. MRIs, CT Scans, CAT scans do help but sometimes they do not reveal much.
Brain injuries can change a person into a totally different person by changing personality, patience, or character such that the victim is no longer the same person, and no longer able to control emotions, to remain safe, to avoid danger from being lured on the internet etc... However, there may be little evidence of all these changes objectively on these radiology tests. Without clear and convincing evidence, the fights are some of the most heated.
Brain injuries cases are some of the most complex cases in personal injury law because every case is different. One area of the brain functioning may be impacted while another is left almost entirely intact. The victim may speak well under a controlled interaction such as even at an examination for discovery, but falters and unable to participate in a conversation in another context such as a social conversation with more than one friend at a time. The processing brain pathways are stimulated differently in different environment.
Brain injuries can actually cause victims to under-estimate their disability, and over-estimate their ability. They can become overly optimistic, wanting to return to difficult work just a few months after having a severe brain injuries with an extensive coma for days or weeks.
Even experienced lawyers, who have not had extensive and specific expertise in handling brain injury cases, may not know or appreciate how brain injuries may mask disability. Victims can "talk a good game" and continue to announce intentions to return to their work, because of injuries to their frontal or right cerebral hemisphere (Lezak, Neuropsychological Assessment, Fourth Edition, 2004, page 180). Defence lawyers for insurance companies will emphasize the brave talk to persuade the victims' lawyers that the victims are not so disabled because they testified under oath that they could return to work, and that they needed no help with their activities of daily living. Unfortunately, insurance companies often succeed because many plaintiff injury lawyers (and many medical professionals and assessors as well) are not aware of the above scientific reference and evidence, and are unable to prepare and account for the victims' over-estimation of ability. The amounts of settlements to compensate the victims are frequently reduced accordingly.
From our experience, we would highlight the following two issues, out of many issues, for your consideration in your own severe or catastrophic brain injury case:
How to prove invisible brain injuries and problems:
Remember that you and your family members know your behaviour best, and better than any doctor, specialist or lawyer. If you and your family member honestly know that you have changed, and have changed significantly for the worse, then you have some strong evidence to support your claim.
An experienced lawyer would have examined the medical file to look for those incidents where your safety had been compromised as a result of the injuries. The lawyer would have hired occupational therapists, speech language therapists, neuro-psychological experts who are highly-qualified in brain injury rehabilitation and who should also know to be vigilant, to look out for these incidents and to appreciate how these incidents may have been prevented in the first place. The winning edge in these cases are often the small little incidents that prove the drastic changes (forgetting to put out candles, lock doors at night, turn off stove, not able to control anger, punching walls, forgetting to "remember to remember" (prospective memory) etc...).
The lawyer should assess the victim's ability to live safely and independently, without family members. With family members around, the neuro-cognitive deficits (including lack of initiation even for basic tasks such as eating, bathing, and taking medications) may not show up as much and as clearly because of the artificially structured environment, including various reminders to the victim. In other words, with family members around, it is not the real world that the injured person is navigating, but an artificially protective or sheltered world. The needs for care and supervision may be underestimated in a sheltered world.
The most important and expensive claim is often for 24/7 supervision in a severe brain injury case:
How much is the claim for 24/7 supervision and care worth? When you buy such services on the market, it costs about 30$ per hour for a personal support worker (that is a manual helper without rehabilitation expertise). One day would cost $720 (30x24), and a year costs about $262,000. If you add up the remaining years, you can see how the total cost can be very high.
Your own no-fault insurer pays a maximum of about $6,000 per month, subject to a lifetime maximum of one million in most cases before 2016, but thereafter may be reduced by further regulations. After deducting your own accident benefits insurer's limit of one million, depending on your life expectancy, there can still be a large shortfall to be claimed from the party who caused the accident.
Keep this serious exposure against the party who caused the accident in mind, when it comes time to estimate your losses or damages to be claimed, or to be settled, in order to be well-informed to protect your interests.