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Questions About Brain Injury Claims

  1. The insurance company is requesting my medical records. Is this a violation of my privacy?

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    Normally the doctor-patient relationship is confidential. However, when you make a claim for an injury you forego this right to privacy. The insurance company uses your medical records to determine the extent and the cause of your injuries. Obviously, they are not going to take your word for it. In many types of cases your past medical records would be protected, but brain injuries are different. Brain injuries involve harm that includes mental health problems and cognitive impairment. In order to determine whether or not the brain injury is truly the cause of all of the damages you seek compensation for, the insurance company will need to look at your medical history prior to the brain injury and make sure that you did not have these problems prior to the injury. This does not mean that you should sign every release form automatically and without hesitation. The sad fact is that insurance companies have a known history of taking advantage of brain injury victims. Talk to an attorney who understands brain injury cases before you sign anything. Have your brain injury attorney review and approve everything that the insurance company asks you to sign. This will ensure that you do not accidentally sign something that you should not, and it will help to deter the insurance company from trying to take advantage of you.
  2. What happens when a loved one has suffered an incapacitating brain injury and there is no living will or power of attorney?
    In certain circumstances, such as medical emergencies, the decision making responsibilities may fall on the doctor. In most cases the decision making powers are passed to the spouse, parents, adult children, or an appointed legal guardian. This can be very complicated if family members do not agree on important matters such as medical care and how to handle finances. If the state steps in and appoints a temporary representative, the victim’s assets may be frozen. No one wants to anticipate a traumatic and life-altering event, but it is well worth the time and effort to discuss these issues and prepare for these things before they happen. For those who have not made arrangements it is necessary to seek legal help and establish who will make decisions before things get out of hand. As hard as it is to think about when faced with this kind of tragedy, to properly pursue a brain injury claim, someone has to be in charge and time is of the essence.
  3. Do I need a lawyer that has special knowledge of brain injury cases?
    Yes. Brain injury cases are different from most personal injury cases. Brain injuries can be hard to prove. The evidence can be elusive. Often, brain injuries do not show up in a straight forward manner through clear and simple decisive tests. Comparisons must be made between pre and post injury conditions. You may need expert witnesses, and you can be sure that your insurance company will have their own. Because mental health and cognitive abilities are often major factors in brain injury claims, you may have to work with several types of specialists. The long-term effects of brain injuries are very difficult to predict, and the insurance company will try to pay for as little as possible. The insurance company will try to work with the best possible outcome and you will want to believe in the best possible outcome, but if you give in to their efforts you may not get the compensation you need and deserve. You need a brain injury attorney on your side who is familiar with these tactics.
  4. I have a “mild” brain injury. Do I still have a claim?
    Yes. Mild brain injury is a deceptive term. It does not refer to the impact that the injury will have on your life and your ability to function. It refers to the severity of the neurological injury at the time of the event. So-called mild brain injuries can be very debilitating both short and long term. Mild brain injuries can cause emotional, cognitive, behavioral, and physical problems. The brain is still a mystery to doctors and scientists. It is very difficult to predict how severe your problems will be, what problems you will experience, or how long they will last. Any brain injury should be taken very seriously.
  5. How do I know/prove that I have a brain injury?
    Brain injuries can be difficult to prove. Some types of brain injuries do not show up in x-rays, MRIs, CT scans or EEGs. If you do not lose consciousness and do not have an open head injury, you may not even be aware that you have a brain injury until well after the fact, when symptoms start to reveal themselves. Psychological changes, impaired concentration and personality changes are all common results of brain injuries. You may have to undergo a battery of tests to truly determine what kind of damage you have suffered. Testimony or statements from those close to you will often reveal personality and behavioral changes far more drastic than you are aware of yourself. Changes in job performance can also serve as an indicator. An attorney who specializes in brain injury cases can help you determine exactly what kinds of tests and proof will be needed for your specific circumstances.


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