Articles Posted in Current Issues

Traumatic brain injuries are caused by significant contact between the head and a hard surface. This much is well known by most. That naturally leads to the assumption that one important way to prevent head injuries is to promote the use of helmets. Of course, that is exactly what many advocates are urging on a wide variety of fronts–from bicycle helmets and motorcycle helmets to better designed football helmets.

Yet it is a mistake to assume that all we need is more helmet use to get rid of the TBI problem. In fact, researchers are still toiling away to figure out exactly how helpful helmets are–the results may surprise you.

Bike Helmet Study

The Illinois General Assembly ended its official 2013 legislative session last Friday. As usual in the chamber, the elected body left many issues to the very end. Some of the items on the docket related to different proposals affecting the civil justice system–even those which may implant those who suffer a traumatic brain injury as a result of negligence.

New Legislation

For example, SB1912 was contested last week. The bill–first introduced in the Senate in mid-February–dealt with procedural rules for settlements in civil law cases. Specifically, the measure requires a “release” to be given to defendants in a case within 14 days of an agreement being reached between the parties in a civil lawsuit. Once that happens a 21 day timeline begins, and the defendant has those three weeks to pay the full settlement amount.

Considering there is still so many unknowns when it comes to brain injuries, it is often difficult for doctors, patients, and their families to understand their recovery expectations. If you break your arm, doctors can say with reasonable certainty that if you properly cast it, then the bone will heal and give a rough time for everything to be fixed. The same does not often work with something like a traumatic brain injury. Doctors often do not know how much will heal or at what speed.

One way to help provide some clarity is by properly tracking the injury and progress of many different patients over a period of time. In that way data can be compiled to understand normal recovery times and extent of recovery. That is the idea behind the large and long-standing “Brain Injury Data Project” which has been run by the U.S. Government for the past quarter century.

Tracking Brain Injuries

The NFL world was shocked and saddened last year with news of the passing of well-known former player Junior Seau. Regarded as one of the best linebackers in the history of the game, the athlete was only 43 years old when he committed suicide last May. His death came at a time when the National Football League, and the sport as a whole, was under intense scrutiny as information emerged about the long-term harm to players from the game. With this year’s Super Bowl around the corner, one can expect more discussion about football and the possibility of severe brain injury in the coming days.

New Lawsuit

Those discussions are likely to be particular common considering that last week’s Seau’s family filed a brain injury lawsuit against the NFL and the equipment manufacturer Riddell, Inc. The family–Seau’s ex-wife and children–claim that the suicide was caused by brain damage that itself resulted from years of taking hard hits to the head in the game. Of course, football is a contact sport and all players understand that in playing the game they may face significant physical blows. However, the main legal issue is what the league knew about the long-term brain damage and what they did (or did not) do to limit the harm.

Brain injury lawsuits include accidents that occur in many different settings, from car crashes and medical malpractice to construction accidents or falls on unsafe property. One things that is similar in all of them is often the seriousness of the harm. Brain injuries can completely alter the course of a life. It is usually not something that you can just give time to heal and be assured that things will be back to normal. Sometimes things will never be back to normal and it takes grueling (and expensive) medical care and therapy over the course of decades to improve as much as possible.

It is therefore no surprise that lawsuits seeking accountability and redress following these injuries are sometimes significantly larger than suits for less serious injuries. After all, the civil justice system is premised on the idea that wrongdoer pay for the actual harm caused. The more significant the harm the larger the compensation needed.

For this reason, cases like those involving brain injury are often at the forefront of “tort reform” efforts where big interests seek to insulate themselves from being forced to pay large damages for the harm their negligence causes. Attorneys throughout the state appreciate how misguided these efforts are–constituting nothing more than an attempt by deep-pocketed interests to wrestle even more power away from ordinary residents.

One of the founding partners at our firm, Attorney Steve Levin, is scheduled to present next month at an interesting seminar on complex evidence issues which may be of value to all Illinois litigators. The seminar is entitled “Advanced Evidentiary Issues At Trial.” It is sponsored by the Illinois Institute for Continuing Legal Education (IICLE), and you can register for the event by visiting this website. It is a day-long affair to be held at the UBS Tower & Conference Center on January 25th.

Attorney Levin will specifically discuss a few evidentiary rules that are applicable to wrongful death cases, including the Illinois Dead Man’s Statute. The Act is a limitation on the introduction of certain evidence in cases where a relevant party is deceased. When not navigated carefully, the protections afforded to the estate of the deceased may derail even the most worthy of claims. For that reason it is important for all Illinois litigators to have a good foundational understanding of these rules and how they might affect litigation.

Dead Man’s Act in Illinois – Alive and Kicking

MedPage published an interesting interview this week with a researcher who is working on new methods to help those who have suffered a brain injury. While a bit “wonky,” the story is worthwhile, because it explains the current state of the research as well as a few areas where experts are exploring in order to make new advances.

The doctor explains that current treatment methods involve use of both “devices” and therapies. The devices are a range of tools to keep the patient alive and to prevent further complications. They include things like intracranial pressure monitors, ventilators, and more. The professional explains that the “therapy is directed towards reducing intracranial pressure that comes from brain swelling, and prevention of secondary brain injury that can occur in the setting of hypoxemia, hypotension, fever, seizures, etc.”

New Frontiers

In a post last week we shared information from the Center for Justice & Democracy’s “Briefing Book” on tort litigation. As noted, there are serious misperceptions about the frequency of these cases, which often include suits by plaintiffs who suffered brain injuries. Contrary to some arguments, tort litigation is nowhere near the most prevalent form of lawsuit. Most suits are filed by businesses and regard debt collection. Contract cases far outnumber tort suits, and yet no one is calling for changes to limit the rights of those affected by contract disputes from holding wrongdoers accountable.

The confusion about the system don’t end there. Not only are far fewer suits filed than are suggested, but the outcomes of those matters is much different than a string of jackpot verdicts. For one thing, verdicts are only rarely handed down at all. That is beccause 97% of tort cases end with a settlment between the parties involved–not a trial with a judge or jury decision. In most cases, the parties are able to see all of the information about what occured and reach an agreement that is satisfactory to both to end the matter without going to trial. It is only 3% of cases that make it to trial–those are usually matters with disagreement about the scope of the harm caused or where there is a close call on negligence.

On top of that, even when a judge or jury decides the matter, their verdicts are rarely large. According to the CJ&D briefing book, about half of plaintiffs who receive favorable verdicts following a trial received only $24,000 or less. In the vast majority of cases we are not talkng about mega-millions. Punitive damages–one of the most talked about aspects of the system for tort reformers–is only awarded in about 5% of those cases, an incredibly small number when comared against both the total cases filed and the total number of individuals actually injured by the negligence of others. In that small number of cases the median award is only around $55,000. This is a far cry from the large, supposedly “unfair” verdicts that are trumpeted by tort reformers.

Most civil justice lawsuits filed by those suffering traumatic brain injuries are types of tort litigation. These lawsuits most often stem from negligence–the general idea that one was harmed because of the unreasonable actions of another. For example, if you suffer a TBI in a car accident that was caused by another driver failing to yield, then the subsequent lawsuit will likely be a type of tort litigation, a negligence lawsuit.

However, the rights of community members to file these suits and use the system to have a trial by jury, if necessary, has long been under attack. Leading the way are insurance companies which generally do not like to pay for claims made upon them by those harmed. Unfortunately, when pushing to curtail civil justice rights–in order to increase their own bottom lines–these companies often put forth claims that are misleading and something outright false.

For example, this week the Center for Justice & Democracy released a succinct “Briefing Book” that sheds light on some of the most commonly made claims about these issues. The full book can be downloaded here–it is a helpful primer on some of the most common facets of tort litigation in the system today.

The U.S. Food and Drug Administration released information this weekend on the results of its latest investigations into conduct at the New England Compounding Center (NECC). Of course the NECC is the “drug mixing” company at the center of the fungal meningitis outbreak. Contamination of thousands of vials of a spinal steroid injection led to hundreds of patients developing the serious brain and spinal cord membrane inflammation. At least two dozen have already died as a result of this fiasco. Obviously the FDA will be heavily scrutinizing the facility to determine exactly how this tragedy developed so that similar diasters are prevented in the future.

New FDA Report

According to the Wall Street Journal, the latest FDA report on the facility offers clear evidence that sanitary conditions at the facility were far from ideal. Shockingly, the FDA report explains that about a quarter of the vials examined by investigators contained a greenish-black substance that seemed an obvious indicator of unsafe products. In total fifty individual vials were sent out for testing to check on their safety. The result indicated the scope of the contamination problem at the NECCC: all fifty vials were found to contain fungus. It is no wonder then that the total injury count continues to rise from the outbreak–thousands of vials were likely unsafe.

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