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Florida PIP Statute Increases Restrictions After Auto Accidents With TBI

June 13th, 2012

There are a number of states, including Florida, that have no-fault motor vehicle laws designed to provide medical, disability, and wage loss compensation for injured motorists regardless of fault called personal injury protection or PIP. In return for this benefit, an injured driver has to meet certain thresholds before being allowed to bring a claim for damages against the responsible party.

Florida requires that all motorists carry a minimum of $10,000 in PIP coverage. Recently, Florida legislators placed additional restrictions on the state’s no-fault law that affect an injured driver’s ability to claim PIP benefits following an accident.

Among the more significant changes to the PIP law that may also affect drivers who sustain a traumatic brain injury (TBI), there are the following:

  • 14-Day Requirement: Anyone injured in a car accident must seek medical treatment within 14-days of the accident.
  • Emergency Medical Condition: To receive the full $10,000 in PIP benefits, an M.D., D.O., P.A., or ARNP must diagnose the patient as having a condition that could reasonably result in serious jeopardy to one’s health, or serious impairment of bodily function, or serious dysfunction of a body part or organ.
  • Should an injured party in an auto accident not seek treatment within 14-days, he or she may not be eligible for any PIP benefits, which probably means an insurer will not pay any benefits unless there are extenuating circumstances.

Consequences for TBI Victims

For those victims who have suffered a traumatic brain injury, the new measure could have even more serious implications. A car accident can produce head trauma that may result in immediate symptoms of disorientation, headache, dizziness, or nausea that many victims may discount as not serious and not seek any medical treatment. More complicating symptoms in TBI victims often become manifest days or even weeks later such as the following:

  • Profound confusion
  • Slurred speech
  • Mood changes
  • Convulsions or seizures
  • Loss of coordination
  • Weakness in the extremities
  • Loss of bladder control

If the injured victim seeks medical care more than 14-days after the accident, it is likely no PIP benefits will be paid. Should more serious symptoms begin to arise after the 14-day period, then a physician or other qualified health practitioner, and not a chiropractor or acupuncturist, would need to diagnose the victim as having an emergency medical condition that is related to the auto accident. If the victim only sought chiropractic care, he or she is only entitled to $2,500.00 in PIP benefits, which may not include any diagnostic procedures.

Problems could arise for TBI victims who have delayed or underlying symptoms that either are not treated or are not considered within the definition of an emergency medical condition until weeks after the accident.

Further, the insurer can require the victim to sit for an examination under oath, or EUO, before any benefits are awarded. In this instance, a patient may not know the extent of his or her condition or the more serious symptoms may not yet have been manifested. The insurer can also withhold any benefits if it reasonably believes fraud is suspected.

Once the more serious symptoms do appear and a qualified physician is able to diagnose a condition of TBI, which would classify as an emergency medical condition, an insurer may challenge the diagnosis or contend that the condition was not related to the accident injuries. A strong medical report and a physician who is willing to advocate for the patient is essential under these circumstances if full PIP benefits are to awarded to a TBI victim.

In any event, auto accident victims who delay in seeking treatment, who do not seek treatment from a physician, or who experience a delay in serious symptoms that would otherwise qualify as an emergency medical condition, may likely face uncertain litigation just to collect PIP benefits.

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New Laws To Protect Florida High School Athletes From Head Injuries

May 1st, 2012

Florida legislators have passed two laws that address the issue of concussions and playing time for high school athletes. The bills require that coaches immediately remove students from competition or practice if they may have sustained a major head injury. The student must obtain a physician’s clearance before returning to practice or play. They also requires that an athlete’s parents sign an informed consent document acknowledging their awareness of the risks to their children before he or she is allowed participation in any practice or game. The law had failed to pass over the last two sessions but representatives convincingly voted positive in 2012.

Dejected Football Player with possible concussion.

Best Place for Player With Possible Concussion

Many concussions among high school athletes go unreported. According to the Centers for Disease Control (CDC), about 100,000 high school athletes per year received concussions from 2005 to 2008. The Brain Association of Florida estimates that more than 40 percent of its athletes with serious head injuries are permitted to return to competition or practice before their symptoms have fully dissipated. A person’s brain does not fully develop until he or she reaches the late 20s, so young people are especially at risk for brain injuries from concussions.

Along with requiring school athletes to get medical clearance after a head injury before returning to play, the legislation asks that all state and independent sanctioning boards for all youth sports adopt policies about concussions to educate parents, coaches and administrators. Coaches will also have to take an online class about concussive injuries and their symptoms.

The law strengthens a claim an athlete or his or her family would have against a school, school district, or youth league if a coach either disregarded an obvious head blow to a player during a practice or game and allowed the player to continue, failed to have the youth examined by medical personnel, or permitted the player to return to play without medical clearance.

Coaches and administrators have a duty to athletes to take all reasonable steps to keep them safe while considering that contact sports can and do result in injuries. Having medical personnel available at practices may be not practical for all schools or teams, but being educated in recognizing concussions and not allowing their athletes to continue until examined by a physician and being cleared to play is now a statutory obligation.

Head blows are not uncommon in sports like football so coaches need to be aware of those times when a player is slow to get up. Players cannot be afraid to tell their coaches if they feel dazed and coaches are obligated to learn to recognize signs of a head injury or at least have someone readily available who has that training. If players and their parents are also educated about the symptoms of concussion or head trauma, they can also take steps to advise coaches of a possible injury and remove themselves from play, if necessary.

In any event, Florida youth and high school coaches and administrators may now find it difficult to not be civilly liable for any traumatic brain injuries (TBI) sustained by a player who sustained a head blow and was not immediately taken out of practice or a game, or was allowed to return before being examined and cleared by a physician.

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Brain Injury Lawyers Can Already Utilize New TBI Testing

March 31st, 2012

A traumatic brain injury (TBI) can either lead to a short period where the victim experiences concussive symptoms and a normal recovery, or he or she suffers serious physical and neurological difficulties and must endure long term care with a poor prognosis. Knowing the extent of a TBI shortly after it occurs, however, will radically affect treatment and have legal implications as well.

Researchers at the University of Pittsburgh are improving an MRI scan that has the potential to specifically identify a brain injury and assess the nature and magnitude of the damage. This could lead to prompt medical care that could minimize any permanent damage as well as proving or clarifying that a serious injury has occurred for medical/legal purposes.

The military is also using a powerful CT scan that can detect blood flow changes in the brain that could signal an abnormality that needs to be explored further and treated. Injured veterans of the Afghan and Iraq conflicts are being tested to demonstrate the reliability of the technology, though it could take years.

Proving the Injury

Doctor Viewing MRINearly any injury can cause head trauma, from a car accident to a slip and fall. A TBI occurs in about 1.7 million people in the US each year, with most injuries minor in nature and not leading to any long lasting or permanent cognitive or physical damage. Many, however, do lead to serious problems but proving that the injury was caused by a particular accident may not be so easy.

Showing or proving causation is an element of negligence or tort law, so attorneys need to show a connection, or nexus, between the accident and the alleged injury. A broken limb or severe lacerations are obvious, but not brain injuries in many cases. Even if a brain scan shows swelling, there is no real proof that it could lead to a particular neurological or physical impairment. If you can demonstrate and see the injury, though, and what areas of the body it can affect, then the causation element may be proved.

An MRI scan called diffusion tensor imaging (DTI), is able to map major fiber tracts in the brain, likened to roadways with millions of connections. Brain cells travel along these fiber tracts, also known as the brain’s white matter. The scan detects breaks in the fibers that can affect normal function of limbs or fingers, or even cognition like memory, learning, or recognition.

If the CT scan now being tested is able to demonstrate blood flow changes that only a TBI could produce or cause, then an additional arsenal for plaintiff attorneys could be at hand in an injury claim.

Rehabilitation for TBI Victims

The goal of any injury victim is to return to their pre-injury condition. Immediately recognizing that an injury has occurred, where it has occurred, its extent, and what it could affect, could substantially affect a victim’s prognosis. Prompt treatment often minimizes the extent of an injury, whether it is a stroke, heart attack, broken bone, internal injuries, or a brain injury. If the imaging and CT scan technology can immediately tell physicians that a serious disruption in a victim’s brain fiber tract has occurred, or that person’s blood flow has been affected, then treatment can be directed to decreasing any damage followed by more effective rehabilitation.

Also, participants in contact sports who have sustained head trauma can be assessed and advised to refrain from further play if the scans uncover damage in the brain’s fiber tracts or in blood flow.

Compensation Implications

While the major goal for any TBI victim is recovery, the other goal in an injury case is the amount of compensation. If proof of the injury is an issue, then the value of a case may be diminished since the defense may feel that it is more likely to prevail at trial. However, with objective evidence of an injury, and knowing its extent and what the consequences of the injury are, then the value of a claim can be more accurately ascertained to everyone’s satisfaction and possibly lead to a prompt settlement.

For example, if a TBI is detected by a scan that can locate the damage and its affect on the victim’s ability to move or control a limb, then experts can testify as to causation, the affect on the victim’s life, and the cost and nature of treatment. The scan may also reveal if an injury is permanent so that treatment can be directed toward having the victim adapt to it, rather than wasting time and money on ineffective treatments that may not be proven as necessary in proving damages. It can also greatly increase the claim’s value if certain nerve fiber tracts are shown to be permanently damaged.

With this technology, a plaintiff’s attorney may have a valuable tool to more easily prove what damages were sustained and that the treatment rendered and its cost were necessary and reasonable, and bolster the claim’s credibility by arguing that the technology may have minimized the damage to the client.

All brain injury attorneys should follow these new technologies over the next few years as developers improve the results and what they can definitively conclude about injuries. If so, TBI victims could greatly benefit in their recovery from serious injuries along with receiving the appropriate compensation if they have a personal injury claim.

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Traumatic Brain Injury Possibly Linked to Post Traumatic Stress Disorder

March 12th, 2012

A recent study from UCLA published in Biological Psychology has suggested that people who suffer from traumatic brain injuries (TBI) may be more susceptible to post traumatic stress disorder (PTSD) or anxiety attacks. The study could have implications for lawsuits brought by accident victims who sustained TBI.

Researchers induced concussive brain injuries in a group of rats and then exposed them to an emotional trauma two days later. When compared to a control group of rats with no TBI, which was exposed to the same emotional trauma, the TBI rats exhibited substantially greater fear. One scientist commented that “it was as if the injury primed the brain for learning to be afraid.” +Read more

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The Importance of Expert Witnesses in Brain Injury Cases

February 24th, 2012

Any type of lawsuit that involves complex issues of liability, proof, evidence, and damages will typically require expert testimony. Similarly, in a brain injury case, it is vital that each of the injury victim’s experts act in concert to satisfy the elements of liability, causation, and damages for the plaintiff to prevail and collect the compensation appropriate for this kind of injury. +Read more

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Music Therapy for Brain Injury Victims

February 7th, 2012

Brain injuries can be devastating for victims in many ways, but some of the most frustrating side effects are language and speech problems. These problems are very common after traumatic brain injuries. The effects can be long term or short term, and are emotionally upsetting to the victims. Some say that they feel they have lost a part of themselves. +Read more

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Florida Brain Injury: Income Determinations, Earning Capacity and Disability

January 26th, 2012

Among the often overlooked tasks of a Florida brain injury attorney is to establish a client’s degree of disability and loss of earnings capacity. Determining lost wages can have a major impact on a claim. The younger a victim is, the more complex the determination and the more critical the outcome to long-term care and well-being. +Read more

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Traumatic Brain Injury: Hypopituitarism and growth hormone deficiency

January 6th, 2012

In recovering from a traumatic brain injury, it’s important to have an attorney who understands not only the injury, but the various medical complications and pathways to recovery.

Nearly 1.7 million people will be diagnosed with a brain injury in 2012. Of those, more than 250,000 will be hospitalized and another 50,000 will die as a result of their injuries. Patients will present with different symptoms, and with substantially different injuries. Courses of +Read more

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MRIs, DTI and Diagnosing Mild Traumatic Brain Injury

November 8th, 2011

The work of Dr. Erin Bigler at Brigham Young University offers promise to those dealing with a brain injury in Florida or elsewhere.  Imaging the brain was a primitive endeavor when Bigler began in the field in the mid 1970s. Diagnostic X-Rays provided no information about soft tissue like the brain. Bigler grew passionate about neroimaging after CT technology allowed detailed brain scans. Today the license plates on Bigler’s Volvo read “Cortex,” and as BYU Magazine reports, Bigler stands at the pinnacle of science and technology. +Read more

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MRIs and Medical Testing for Brain Injuries

October 30th, 2011

Magnetic Resonance Imaging (MRI) has long been the gold standard when it comes to diagnostic tests for brain injuries. The technology uses a rotating magnetic field to obtain 3D images of the body. It offers good contrast between the soft tissues of the body and as such has been especially useful in imaging the brain, the heart, and cancerous tumors.

Combine that with the fact that it does not expose patients to radiation, unlike traditional x-rays +Read more

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