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Cognitive brain injuries are some of the most widespread and serious harms that befall senior residents–millions of Americans are affected. These injuries refer to conditions like Alzheimer’s and other dementia which interfere with mental cognition. As most are aware, those with Alzheimer’s face many different challenges with memory issues, problem solving challenges, and other difficulties which affect their ability to live on their own. Unfortunately, there is no cure for these conditions and treatments are limited. As a degenerative condition, those with these brain injuries usually discover the problem and then wait as the injury expands over a period of months and years.

Understanding the Cause

One of the main problems in identifying ways to treat cognitive brain injuries is the current lack of understanding on their origin. After all, it is hard to prevent an injury (or treat it), if the reason it develops is unknown. However, researchers have been diligently working on this problem for years and more information is emerging.

Brain injuries can strike at any time: when riding in the car, while stepping on a ladder, or even while walking through the snow. Any significant contact between the head and a hard object can cause serious brain damage. Much of that damage permanently affects the individuals capabilities, from walking and talking to experiencing certain emotions.

Because of the significant harm that results from brain injuries, medical experts have long-been looking at ways to minimize the damage. This can be done in two ways–prevent the harmful contact in the first place and/or stop the “cascading” of brain damage after the injury. One of the largest challenges faced by those addressing the issue is the tendency for brain damage to actually increase in the hours and days after an initial injury. For example, while significant harm may develop in the exact second of an impact to the head,, the damage that exists at that exact moment is not the maximum harm to the injured individual. Instead, the brain may continue to suffer expanded injury even after the impact, leading to more and more (sometimes permanent) harm.

So can anything be done to minimize the cascading effect?

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

If you have spent any time watching a legal movie on the big screen or in front of your TV at home, you may have a somewhat mistaken approach to the civil justice system. If the fictionalized dramas are to be believed, then you might suspect that someone is injured, the next day they visit an attorney, the next day evidence is gathered, and a week later the team is sitting in front of a jury arguing the case. While that direct storyline is convenient when creating a two hour movie or thirty minute television drama, it is far from a reflection of reality.

The truth is that the civil justice system is far more drawn out–often lasting months or even years. On top of that, the vast majorty of cases never go to trial. That is because well over 90% of legal matters are resovled amicably via a settlement between the parties. That includes most traumatic brain injury cases, often stemming from auto accidents and falling incidents. In other words, more than anything else, the civil justice system is a means by which parties are able to discuss their disagreement under neutral terms and, in most cases, figure out a fair way to end the matter without being forced to bring in neutral third party outsiders to resolve the matter.

Yet, that doesn’t mean that all cases end in settlement. When the presence of negligence is difficult to determine or if there is disagreement about the scope of damages, then a judge or jury trial is often necessary to end the matter. Fortunately, these methods, while not perfect, are far and away the best that we have to ensure a fair resolution is reached with both sides being given an adequate hearing.

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.

If you have had a conversation with anyone about birth injury lawsuits or any other medical malpractice related issue, then its likely that tort reform issues came up. In fact, there is so much news made about efforts to curb the rights of community members following malpractice that the debate on limiting the rights greatly overshadows the actual discussion of limiting malpractice and improving patient safety. This is incredibly unfortunate, because many continue to suffer serious harm (or even death) as a result of unreasonable care. At times this includes the most vulnerable patients among us–newborns.

A robust and fair civil justice system is an important piece of the the patient safety puzzle–accountability is necessary for improvement. For that reason, we urge local residents to remain informed about the civil justice system, particularly as it relates to tort litigation like most birth injury lawsuits. A helpful primer on that front was recently released by the Center for Justice & Democracy. The short report (download here) shares a lot of helpful information that can be used to fight back against those who are calling for taking away legal rights for community members.

The facts are on the side of those hoping to prevent further deterioration of the civil justice system. The claims made by proponents of tort reform–often insurance companies and powerful medical interests–bear little resemblance to reality.

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.

One of the frightening things about brain injury research is that that more we uncover, the more long-term consequences are found. Without digging deep, at first blush the consequences of these injuries (even “mild” brain injuries, like concussions) only appear to be the symptoms that manifest immediately–things like head pain, fatigue, or dizziness. When those feelings go away, then everything is healed and there is no harm done, right? Wrong. The more our medical experts learn about traumatic brain injuries, the more severe and long-term consequences are becoming apparent.

Even less serious brain injuries are not some mild event that can be shaken off in short order. The changes to the brain caused by these injuries may very well play a role in a range of physical problems that might not manifest for years (or even decades) later.

For example, a new ABC News story discussed a survey that sought to examine Parkinson’s disease. Parkinson’s is a movement disorder that causes tremors and usually comes with a loss of coordination. Researchers were seeking to identify anything about sufferers’ experiences that might indicate a connection to the development of the medical condition. The results, published in the recent issue of the journal Neurology, identify several very clear events which significantly increase the risk of developing Parkinson’s.

Community health officials in nearly two dozens states, including Illinois, are warning local residents of a new outbreak that can be deadly. As discussed recently in a Reuters story, thousands of vials of an epidural painkiller may have been infected with a rare strain of meningitis. Over 100 people have already been infected, eight have died, and thousands more may be at risk.

It goes without saying that all local residents should take this issue seriously to ensure they receive the treatment they need if they are affected by the recalled drug.

The Meningitis Outbreak

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