BRAIN INJURY

TRAUMATIC BRAIN INJURY

As an injury lawyer, I have handled many cases involving Traumatic Brain Injury (TBI). Often the diagnosis is not made right away, but only becomes clear over time.

I recall a particular workers compensation case I handled where a man was struck by a machine while wearing a hard hat. Even though he did not need a single stitch, that blow caused his brain to bleed. Over time, his personality changed radically and he became irritable, angry and lacked the ability to concentrate.  His memory became so limited that he would leave pots on the stove for hours and either double dose his medication or not take it at all. Eventually, that single blow caused him to become disabled.

Motorcycle helmet use is currently at issue in Tennessee. Some want to repeal the helmet ban and allow adult motorcyclists to ride without a helmet, like in Arkansas.  The National Institutes of Health said in Pennsylvania, after dropping the ban, helmet use among riders in crashes decreased from 82% to 58%. Head injury deaths increased 66%. Motorcycle-related head injury hospitalizations increased 78%. Helmet law repeals jeopardize motorcycle riders, and their long-term care for a TBI eventually falls upon all of us.

The very young and the elderly account for many TBI cases. Approximately 18% of all TBI-related emergency department visits involved children aged 0 to 4 years. Approximately 22% of all TBI-related hospitalizations involved adults aged 75 years and older.
Males are more often diagnosed with a TBI (59%). Blasts (such as IEDs) are a leading cause of TBI for active duty military personnel in war zones.  The NFL gridiron is also rife with head injuries. Over 3,000 players, spouses and other relatives or representatives are suing over TBIs.
According to the Centers for Disease Control, a few of the leading causes of TBI are:

Falls (35.2%) Falls continued to be the leading cause of TBI (35.2%) in the United States. Falls cause half (50%) of the TBIs among children aged 0 to 14 years and 61% of all TBIs among adults aged 65 years and older.

Motor vehicle – traffic (17.3%) Among all age groups, motor vehicle crashes and traffic-related incidents were the second leading cause of TBI (17.3%) and resulted in the largest percentage of TBI-related deaths (31.8%).

Struck by/against events (16.5%) Struck by/against events, which include colliding with a moving or stationary object, were the second leading cause of TBI among children aged 0 to 14 years, with 25%.

Assaults (10%) Assaults produced 10% of TBIs in the general population; they accounted for only 2.9% in children aged 0 to 14 years and 1% in adults aged 65 years old and older.

Very little is understood about concussions and other brain injuries. Some are not properly diagnosed. Tests sometimes do not show the injury. Insist on helmets for your loved ones.

Fact is, we might ought to all be wearing helmets all the time!

LAWYERS DOING GOOD

As an injury lawyer, I know that lawyers everywhere are know besmirched with the unseemly TV ads that seem to trip over each other in a race to the bottom of respectability.
But lawyers have done and still do a lot of good.  Abraham Lincoln was an attorney, as was Gandhi and Thurgood Marshall. Lawyers at their best harness the power of words and persuasion to move the hearer to truth.

Have you ever heard of George Graham Vest? Born in 1830, a lawyer as well as a politician, he served as a Missouri Congressman, and even a Confederate Congressman during the Civil War, and finally a US Senator. He is best known for his "a man's best friend" closing arguments representing the family that owned a dog that was killed named “Old Drum.”  Movies have been made about the trial, a monument stands to this day. Only a partial transcript of his words, spoken on October 18, 1869 remains.

If you are a dog lover like me, slowly read and think on the truth of his words that day:

“Gentlemen of the jury: The best friend a man has in this world may turn against him and become his enemy. His son or daughter that he has reared with loving care may prove ungrateful. Those who are nearest and dearest to us, those whom we trust with our happiness and our good name, may become traitors to their faith. The money that a man has, he may lose. It flies away from him, perhaps when he needs it the most. A man's reputation may be sacrificed in a moment of ill-considered action. The people who are prone to fall on their knees to do us honor when success is with us may be the first to throw the stone of malice when failure settles its cloud upon our heads. The one absolutely unselfish friend that a man can have in this selfish world, the one that never deserts him and the one that never proves ungrateful or treacherous is his dog.
A man's dog stands by him in prosperity and in poverty, in health and in sickness. He will sleep on the cold ground, where the wintry winds blow and the snow drives fiercely, if only he may be near his master's side. He will kiss the hand that has no food to offer, he will lick the wounds and sores that come in encounters with the roughness of the world. He guards the sleep of his pauper master as if he were a prince. When all other friends desert, he remains. When riches take wings and reputation falls to pieces, he is as constant in his love as the sun in its journey through the heavens.
If fortune drives the master forth an outcast in the world, friendless and homeless, the faithful dog asks no higher privilege than that of accompanying him to guard against danger, to fight against his enemies, and when the last scene of all comes, and death takes the master in its embrace and his body is laid away in the cold ground, no matter if all other friends pursue their way, there by his graveside will the noble dog be found, his head between his paws, his eyes sad but open in alert watchfulness, faithful and true even to death.”

The verdict went his way, and because this good lawyer spoke such truth, it resonates with us dog-lovers even now, some 144 years later.

PAYING UP IN DEATH CASE

Imagine loosing your son in a tragic car accident. It is the stuff nightmares are made of. It happened to a businessman in 2001, and he had to deal not only with the loss of his beloved son, but the handling of a complex wrongful death case as well.

At some point, a settlement was reached between several insurance companies, and the checks were cashed. Closed case?  Not so fast.

Apparently, there was still a dispute as to whether one particular policy applied to the deceased, and others in the car that survived appealed that issue. It had to be decided by a higher court on appeal, and that decision was handed down recently. They ruled the father had pay the other survivors some of the money back.

To protest what he felt was an unfair decision, he had a flatbed truck leave four tons $150,000 in quarters in the other lawyer’s parking lot!

He’s not the only one. One man reportedly received a $310.50 bill from city hall for having to cut his grass. The homeowner thought the bill was far too high, so he collected 31,050 pennies, weighing 170 lbs. and dutifully delivered them to City Hall.

Another fellow, mad about a parking ticket, paid his fine by writing a check on a strip of toilet paper.

Not to be outdone, the owner of a monument business once had a forklift deliver his check, etched in a ton of granite, to his local authorities.

Before you get any ideas, the city judges in most of these cases held these folks in contempt and fined them substantially more for their expressions of protest. Still, though, there is something satisfying about paying of a credit card and sending 25 cents extra, thereby costing them 44 cents to mail you a check back for the quarter.

Daycare Center Settles Disputed Case

DAYCARE CENTERS NEED SUPERVISION

I recently filed a case against a local Memphis daycare center alleging it failed to provide adequate supervision and staffing during spring break when several children were in their care. Holidays can mean special challenges for them.

Though the daycare center disputes all the allegations, we alleged that a three-year-old child broke his femur as a result of falling from a non-toddler swing after having been put into it by another child. The three-year-old was in a cast for an extended period but made a full recovery.
We arrived at a pre-trial settlement of $192,500.

Daycare centers are expected to do one thing and do it without fail: keep children safe. This is why we must have adequate staffing and supervision at daycare centers. If they can teach music appreciation, or creative art projects, all the better, but they are expected to assure the safety of children.

How do I find an attentive child day care center?
What is the ratio of caregivers to children? You will want to visit the childcare center while the children are there and active. Is the day care licensed, and by what regulatory agency in the state or county? Is there a file for each child that contains important contact, pick-up and health information?  Interview the childcare giver(s). Ask questions about educational background, length of employment and feelings about the facility. Inquire of whether or not background checks and drug screens are done as a requirement of employment at the childcare center. Ask to see the kitchen and nutritional inventory. You will observe for cleanliness and the variety of food choices.  Inquire as to where the children eat and how the food is served. Is there fencing around the outdoor play area? Do they transport? Who drives? What books, music, and toys are available, how are they cleaned and are they age appropriate?  How does your child respond to being left at the day care? When you pick your child up, is she happy or irritable? What interaction did she have with other children? What age were they? Many centers take kids 12 weeks to 12 years. How many adults can hold how many babies and look after how many kids? Are their remote viewable cameras?

I encourage parents to check the ratings of day care centers in Tennessee by logging onto the state website at http://www.tn.gov/humanserv/adfam/ccrcsq.html.

If you believe a child has been injured by negligence, seek counsel.

Car Accidents & Insurance

CAR ACCIDENTS AND INSURANCE

On average, you will have some type of car accident once per decade. As an injury lawyer, I see the most serious car accidents.

Many, if not most car accidents are minor. Most are so-called “fender benders.”  In these less serious accidents, such a bump in parking lot without any visible damage, it will be tempting to just let it go.  However, take photos and at least exchange information (name, address, phone, license plate, number driver's license number, insurance information and any witness contacts).

If it was just you, and you simply backed into a tree in your yard, or your own garage door, and the damage is close to your deductible amount, there is no need to report it to police or your insurance.

However, hitting another vehicle can lead to unforeseen consequences. Damage to cars are often may be much worse underneath than they look from eye level.  Many of my clients suffer soft-tissue injuries they themselves did not even think they had at the scene.

If you feel tight, sore or at all affected by the accident, allow the EMS ambulance to take you to Emergency Room. You are in no position to diagnose yourself. While the ER will only rule out the most obvious injuries, it documents your complaints. This can be important later if you injuries prove much more serious than you initially suspected.

Specialists are needed to evaluate back and neck problems, often relying on an MRI scan. Sometimes, inflammation can increase to such an extent that it impinges upon a nerve. This is often the case with someone noticing numbness and tingling in the hands, or down the legs into the feet. These symptoms should never be ignored.

Insurance companies try to get recorded phone statements from the injured parties very early on. If they succeed, only the initially noted injuries will be recorded. This makes it more difficult to tie in later appearing problems later. As such, giving a statement to the opposing insurance company should be viewed for what is. It is a chance for that opposing insurance company to minimize or even deny your claim.


The earlier the wise counsel you obtain, from doctors and an injury lawyer, the less regrets you may have.

LETHAL FORCE

LETHAL FORCE IN TENNESSEE

With all the news surrounding the Zimmerman case, you may wonder what rules we have in Tennessee. Since I am an injury lawyer, the only shooting cases I handle personally are accidental shootings.

However, as a concealed carry permit owner in Tennessee and a practicing attorney for 17 years, I am familiar with the laws in my home state regarding the regrettable use of deadly force.  You can read our statute, called Tennessee Code Annotated, Title 39-11-611, online. 

But here it is its most basic form:

Deadly force may only be used if you or another have a reasonable belief of imminent danger of death or serious bodily injury.

Statutes are strictly construed.  That means that each and every one of these elements must be present or you will be in the wrong. Let’s work through each word in the pertinent section above.

“Reasonable belief” means that 12 jurors, two years later better believe that you were reasonable under the circumstances.

“Imminent” is derived from the Latin: “to project, threaten, from mountain.” This is the vivid idea of a large overhanging slab of rock projecting from the mountain, just above your head. If it begins to slide, you have no real time to react.  That’s the idea. So if Bubba says on the phone he is going to kill you after work today, that’s not anywhere near imminent. If, on the other hand, he corners you in a dark alley, and puts a knife to your throat telling you he is going to kill you, this is “imminent.”

“Danger of death or serious bodily injury” would not normally include merely a fat lip.  Also, we are talking of life, not stuff.   Your junk in your shed cannot fear for its life, so it cannot be protected with lethal force. However, that may lead to a confrontation that does threaten your life, or the life of another.   No warning, or warning shot is needed. You need not retreat. If a break in occurs to your home or car while you are in it, the danger is presumed.

If in a shooting, leading criminal defense attorneys seem to agree that you simply ask for your counsel, and then remain silent. Medical care would be a good idea, to make sure you do not have a heart attack. It may also verify the lack of alcohol or drugs in you.  By the time you are released, your lawyer can talk with you.

As for gun control making us safer, my stance is that “if guns cause crime, then matches cause arson and spoons make us fat.”

15.2 Million Dollar Medical Malpractice Verdict

HISTORIC MEDICAL MALPRACTICE VERDICT

Weakley County attorney Roy Herron and Nashville attorneys Randy Kinnard and Mary Ellen Morris have achieved something no one else can recall ever having been done in Dresden, Tennessee: Winning a medical malpractice verdict. 

And what a verdict it was: a record $15.2 million!

If you believe everything that you hear, you might assume this happens all the time.  In fact, the exact opposite is true, which is why it is so newsworthy.

It took a month of trial, but my friend, Roy Herron, and his excellent co-counsel, were able to convince a rural jury that Dr. Susan Lowry of Martin, Tennessee was 60% at fault and the company that owns HealthSouth Cane Creek Rehabilitation Hospital 40% was at fault in a tragic matter.

According to the lawsuit, a 17-year old high school senior had a serious car accident that caused him to have to breathe with a ventilator through his tracheostomy tube surgically inserted in his throat.  After his initial care, he was discharged to Cane Creek and at some point became a patient of Dr. Lowry.   

But, he was to be returned his surgery clinic for a follow-up later, something the lawsuit alleges never occurred.  According to the lawsuit, his tracheostomy was removed there at Cane Creek without consultations with the surgery center.

Reportedly, the patient developed progressively worse breathing over the next couple days, but he was never put back on the ventilator, nor was he transferred to a hospital. At some point, it appeared that a respiratory arrest caused such a lack of oxygen to the patient’s brain that he suffered permanent brain damage.  As such, he is projected to be confined to a bed or wheelchair, and on a ventilator for life.

This verdict, if it stands on appeal, will allow a far greater standard of life for this victim.  But it also benefits others, as over Two Million Dollars will pay back the health insurance and the State of Tennessee for the care they have paid for.

Most doctors and rehab facilities do their very best and are quite careful. When they are not as careful, the results are often life-changing tragedies. Some of the medical malpractice cases in which I am involved resulted in death or long-term injuries.  It is only the jury system that can cause providers to more careful and to prevent more tragedies.