Legal Issues Pertaining to Traumatic Brain Injury

Welcome to the TBI-HELP Live Chat

Today's topic is: "Legal Issues Pertaining to Traumatic Brain Injury"

Our Guest is: Mr. Michael Kaplen, Esq. President of the Brain Injury Association of New York.

[18:58:44] Mod: Good Evening. Tonight as our special guest we have Mr. Michael Kaplen, Esq. Mr. Kaplen is the President of the Brain Injury Association of New York. Good Evening Mr. Kaplen
[18:59:17] Mr.Kaplen: Good evening. I'm happy to be here tonight to answer any questions out there
[19:00:09] Mod: Mr. Kaplen can you please explain the mission of the Brain Injury Association?
[19:00:59] Mr.Kaplen: The mission of the Brain Injury Association of New York State is to improve the quality of life for persons with brain injury and their families and to work to prevent brain injury from occurring.
[19:01:51] Mod: Given the usually 'extreme' conditions that correlate with Traumatic Brain Injury - what is the most common Legal Issue that confronts the Patient and Family?
[19:02:07] Mr.Kaplen: When dealing with severe TBI, one of the most critical areas of concern for a lawyer is how to get his client adequate medical assistance.
[19:02:41] Mod: What is meant by adequate medical assistance?
[19:03:56] Mr.Kaplen: What I mean is knowing what facilities are out there and how to get funding for your client. Sometimes you must interact with your client's insurance company to make sure they provide the benefits which they are supposed to provide. Other times, you must know how to secure funding from government entities such as Medicaid
[19:05:04] Mod: How often are there 'power of attorney's issues to resolve since the Patient may be an adult and no longer able to "represent" their own best interests. Are there guidelines for the relatives to help in this aspect.
[19:05:32] Mod: That was a good question Ron, thanks!
[19:05:38] Mr.Kaplen: Power of Attorney is not the proper term since this deals with individuals who are "competent" to give someone else the right to speak for them. When we are dealing with severe brain injuries, the person cannot speak for themselves and make decisions so we need to go to Court to have someone appointed as their guardian.
[19:05:55] Mod: Welcome Susan!
[19:06:16] Mod: Do you have a question for Mr. Kaplen?
[19:06:54] Mod: Welcome Ed
[19:08:01] Mod: Ed: It is very difficult to set up conservatorship for patients/
[19:08:17] Mod: Hi Richie and welcome
[19:09:41] Mr.Kaplen: The process in New York State is actually quite simple. A written petition is prepared by the person who wants to be the guardian and explains why the person who is injured needs assistance. The person who needs assistance is called the AIP or alleged incompent person. You need to have a doctor explain the individual's condition. The Court then appoints a seperate lawyer to protect the AIP's interests and they report back to the court and a hearing is scheduled within 21 days.
[19:09:58] Mod: Susan: Hello. I spoke to you via e-mail a few times. Its nice to have you on the web site. My son is Eric. he had a TBI a feeding tube that erupted, we spoke of stuff like that. I actually do have a question for you and I thank you for the previous info.
[19:12:52] Mod: Does BIA-NY provide pro-bono advice to families that may need to "guardianship" for the relative - or is possible for the family member to interact with the courts
[19:13:09] Mr.Kaplen: We do not provide pro bono advice, but we do have a booklet prepared on Guardianship which you can get by telephoning the Association at 518 459 7911.
[19:13:10] Mod: Ed: How long does the process take from start to finish?
[19:14:08] Mr.Kaplen: Ed: The law in New York requires that a hearing be scheduled within 21 days of filing the papers with the court.
[19:14:49] Mod: Susan: My son is now 24, 19 when the injury occurred. As his parents do we have to be made legal guardians? He is considered an emancipated minor for SSI and Medicaid. He is seriously cognitively impaired and cannot make decisions. Are we as his parents able to make all his decisions?
[19:14:56] Mod: Ana welcome
[19:15:00] Mr.Kaplen: It would be prudent to be appointed since their are issues that may come up from time to time such as the ability to make medical or financial decisions.
[19:15:29] Mod: Mr. Kaplen just answered Susan's question
[19:15:39] Mod: Welcome Richie
[19:16:13] Mod: If a person did not sustain any cuts, broken bones or major injuries in the accident how can you tell that it was a TBI
[19:16:29] Mod: Ed:
[19:17:48] Mr.Kaplen: TBI is often called the invisible injury because in order to make a diagnosis you need to do a series of neuropsychological tests. With the information you can draw a conclusion that the person sustained a brain injury. Remember, you do not need to have been knocked out or rendered unconscious to have sustained a brain injury.
[19:17:49] Mod: Ed: Given the 21 days hearing date, what is the actual length of the "guardianship" or "conservator" process - up to the ruling?
[19:19:52] Mod: Susan: Would that be the same process as you described and requires a dr, lawyer, Indian Chief, judge?
[19:19:55] Mr.Kaplen: Susan: You will always need a doctor or other qualified individual such as a psychologist to explain the nature and extent of the individual's impairments to the Court.
[19:20:13] Mod: Ed: What I mean is that after the 21 day hearing date when does the conservatorship become final?
[19:21:11] Mr.Kaplen: Ed: The court often makes its decision on the spot and then the attorney has to file an order for the court to sign and then the appointed guardian goes to the County Clerk's office and gets what is known as a piece of paper called a "commission" which is the legal document giving the guardian the right to act.
[19:21:41] Mod: Rail: Sports Injuries are often causes of "minor" TBI - so the "walking wounded" are among us - Isn't it the case that there are behavioral change criteria that help to define TBI from just a mind "concussion" and its recovery period?
[19:22:06] Mod: Hi Joe!
[19:22:39] Mod: Welcome back Carol
[19:23:10] Mr.Kaplen: Rail: Because the brain is very complex, every brain injury is different. Some symptoms may appear right away, while others may not show up for days or weeks after the concussion. Sometimes the injury makes it hard for people to recognize or admit that they have a problem
[19:23:10] Mod: Terry: does the courts use the best interest test when deciding case of tbi individuals?
[19:24:22] Mr.Kaplen: terry: the test is clear and convincing evidence that the person is impaired and cannot protect their own interests or safety. Sometimes a guardian is appointed for a limited purpose, such as when a individual may only need help with their finances.
[19:25:43] Mod: Carol: Thanks, If a TBI patient does not manifest symptoms until some time after the accident what is the legal recourse?
[19:26:58] Mr.Kaplen: Carol: I assume you are talking about what is called the statute of limitations which means the time in which you have to sue somebody. Each state has a different statute of limitations. Generally, in New York State, the statute of limitations for injuries caused by negligence is three years from the date of injury. Always check the specific facts with an attorney.
[19:27:01] Mod: Carol: Are there sometimes two people appointed as helpers one as guardian of the person and the other as guardian of the finances?
[19:28:16] Mr.Kaplen: Carol: There can be. There are no set answers. Each case is looked at by the Court separately and a unique plan is formed to help the person who needs assistance.
[19:28:22] Mod: Susan: I have the booklets from BIA, A Guide to Being Heart, what is a guardian?, and the first steps. They are very informative for the advocate, family member etc. I'm glad BIA has them. They provide a lot of info.
[19:28:55] Mr.Kaplen: Susan: Thank you for the compliment. Our staff works very hard on this and other information booklets.
[19:30:32] Mod: Mod: If I was in a situation that required me to have the need of a TBI lawyer, what criteria would I be looking for?
[19:32:37] Mr.Kaplen: Mod: I am the co chair of the Traumatic Brain Injury Litigation Group of the Association of Trial Lawyers of America. We hold seminars for lawyers. In New York State, the Brain Injury Association holds a two day seminar each year to provide information to lawyers on representing persons with a brain injury. You should ask your lawyer if he or she has ever been to a seminar on brain injury. Whether they keep up with the literature. How many brain injury cases have they had. And most importantly, what do they know about brain injuries.
[19:32:46] Mod: Jimmy: Sometimes TBI patients are not the same after their injury. What Happens when a patient becomes potentially violent?
[19:33:44] Mr.Kaplen: Jimmy: Violence can be a sign of a brain injury since the injury can affect a person's social skills and their ability to regulate their emotions or their temper. It is important for a lawyer to know this.
[19:34:02] Mod: Susan: Perhaps you could give the address where to get these booklets. The family help line is another I have used as a resource many times
[19:35:02] Mr.Kaplen: Susan: The Brain Injury Association help line number is 1 800 228 8201. You can always reach me at my law office toll free at 1 866 BRAINLAW.
[19:36:49] Mr.Kaplen: Rail: The Brain Injury Association of NYS web site is www.bianys.org. My private law web site is www.brainlaw.com
[19:36:50] Mod: Terry: how do you go about getting legal help if you can't pay
[19:37:55] Mr.Kaplen: Terry: A negligence lawyer will represent you on a contingency fee basis which means that they will only take a fee from the amount that you recover as a result of the law suit.
[19:37:56] Mod: Jimmy: Are there special laws that apply to brain injured people especially when trying to get financial assistance for care?
[19:39:01] Mr.Kaplen: jimmy: In New York State, Medicaid will provide assistance to those who need medical care and cannot afford it. NY has a Medicaid waiver to provide assistance in the home or community so a brain injured person does not need to be institutionalized.
[19:40:52] Mod: Susan: I was surprised to find that when our insurance ran out and Medicaid kicked in, as I had filled out the papers months before, I had to sign a waiver that if there was a lawsuit and it was won, Medicaid would be paid back first and then if anything was left over it could then be used for my son. Pretty unfair. It helped us decide not to sue as we needed the care then and didn't think of the future.
[19:42:37] Mr.Kaplen: Susan: A special needs trust needs to be created
[19:42:51] Mod: Jimmy: what happens if Medicaid rejects you or gives you a tough time...would it be prudent to access legal assistance?
[19:43:24] Mr.Kaplen: Jimmy: It is always prudent to have good legal assistance to help you through the process.
[19:43:24] Mod: Terry: How much will the negligence lawyer take out of the amount recovered
[19:43:57] Mr.Kaplen: Each state is different. In New York, a negligence lawyer, usually takes on third of the settlement or verdict. ]
[19:44:16] Mod: Jimmy: Susan brings up a good point can but if it's after three year they cannot sue.
[19:44:30] Mr.Kaplen: Jimmy; It is never to late to apply for Medicaid assistance.
[19:45:53] Mod: What are the signs of a TBI?
[19:46:49] Mod: Please be reminded that these are the opinions of Mr. Kaplen and as always, please seek out your own doctor for medical advise
[19:46:57] Mr.Kaplen: Mod: Persistent headaches, having trouble with memory, having difficulty concentrating or making decisions. Being easily irritated. These are frequent signs of the post concussion syndrome.
[19:47:21] Mod: Jimmy: You spoke about a special needs trust...I'm not familiar with that what is it and how do you start one?
[19:48:03] Mr.Kaplen: Jimmy: It is a way of shielding money from Medicaid. In order to be eligible for Medicaid you have to have a limited income. So the money that you get does not go to you, it goes to the trust and you are still eligible for Medicaid,
[19:50:11] Mod: Since children play hard and have many accidents, how can you determine if a child has a head injury?
[19:51:10] Mr.Kaplen: Mod: Sometime you will see changes in school. They might complain of headaches and be more irritable then usual. If they got a seizure disorder as a result of the brain injury you may see bed wetting.
[19:51:11] Mod: Susan: Can life insurance of a parent be put into a special needs trust when the parent dies? How is it doled out and by whom?
[19:52:14] Mr.Kaplen: Susan: Yes. Any source of funding can be used to fund the special needs trust. The money is spent by the trustee under the terms of the trust document that essentially provides that the money can be spent for anything that medical will not pay for.
[19:53:39] Mod: Susan: I think we need a TBI lawyer. Know anyone we can use?
[19:54:14] Mr.Kaplen: Susan: You have to contact me privately. Each situation is different.
[19:54:24] Mod: Susan: So would the policy be for my son with someone appointed as trustee, by us or by the court?
[19:54:25] Mod: <just sitting here>
[19:55:23] Mr.Kaplen: Susan: The trustee is appointed by the Court. Usually they will follow the families wishes. Sometimes they appoint a bank to act as co trustee.
[19:55:28] Mod: Susan: I am finding this session so helpful thanks to all of you
[19:55:47] Mod: thanks Susan
[19:55:56] Mr.Kaplen: Susan: Your welcome. I am glad to provide you with information.
[19:57:04] Mod: Thanks to ALL of you!
[19:57:34] Mr.Kaplen: Remember, when you are engaged in sporting activities to wear a helmet!
[19:58:10] Mod: Terry: Is there a publication of lawyers that deal with TBI cases that I can obtain
[19:58:19] Mr.Kaplen: Terry: Unfortunately, there is no such publication that I know of.
[19:59:52] Mod: I want to take this opportunity to thank Mr. Kaplen for his valuable information and his time. I hope that you will come back and be a guest speaker in the future. Many thanks to the new people who joined us this evening.
[20:00:50] Mod: and welcome back to our familiar names. Chat with all of you next week. Enjoy your week and be safe!
[20:00:56] Mr.Kaplen: It has been my pleasure. I take great pride in representing persons with a brain injury and in my role as President of the Brain Injury Association of New York State. I urge everyone to join their own state's brain injury association.
[20:00:58] Mod: Good Night to all