Brain Injury Lawyer Blog 24/7

Published on: October 14, 2012

A man sustained severe personal injuries during the course of his employment

by Stephen Bilkis

A man sustained severe personal injuries during the course of his employment when he fell from a ladder in a warehouse owned by the accused warehouse corporation. He commenced an action alleging negligence and violations of Labor Law. The warehouse corporation brought a third-party action against the Dollar Store in Westchester which is the man’s employer to seek common-law and contractual indemnification. In two separate motions, the employer moved for summary judgment to dismiss the third-party complaint. Supreme Court denied both motions, finding issues of fact as to whether, under the Workers’ Compensation Law the man sustained a grave brain injuryand whether the employer had contractually agreed to indemnify the warehouse corporation.

Workers’ Compensation Law permits an owner to bring a third-party claim against an injured worker’s employer in only two circumstances: when the injured worker has suffered a grave brain injury or the employer has entered into a written contract to indemnify the owner. The employer asserts that the warehouse corporation failed to raise an issue of fact as to the applicability of either exception to the prohibition against third-party claims against the employers.

A grave injury is defined, in relevant part, as an acquired brain injury caused by an external physical force resulting in permanent total disability. Although the statute does not define permanent total disability, the Court of Appeals has determined that a brain injury results in permanent total disability under the Workers’ Compensation Law when the evidence establishes that the injured worker is no longer employable in any capacity. Even the employer sustained its initial burden of establishing as a matter of law that the man did not sustain a grave injury, the evidence submitted in opposition to the motion was sufficient to raise a triable question of fact.

Published on: October 9, 2012

Privacy fears lead council to object to brain injury care unit plans

by Stephen Bilkis

A community is in an uproar over plans to turn a derelict “eyesore” – property that used to be a filling station – into a specialized brain injury care unit. Residents of Staten island feel the new building will dominate their neighborhood as it would be the only two-story building in the community of bungalows.

A woman living next to the discarded lot spoke out at the meeting. “The site has been an eyesore too long and I don’t object to the idea of the brain injury clinic, but the size of the building would have to be in proportion with the bungalows on either side.”

Because of testimonies like this from the 25 community members who attended the meeting, the planning applications committee unanimously objected to the plans.

Published on: October 4, 2012

On 9 September 2000, infant plaintiff was in an infant walker

by Stephen Bilkis

The Facts:

On 9 September 2000, infant plaintiff was in an infant walker. Thereafter, infant plaintiff fell down a stairway leading to the second floor apartment in Bronx County.

As a result, a personal injury action has been instituted. Infant plaintiff allegedly sustained the following personal injuries: traumatic brain injury; developmental delays including speech; impaired motor and sensory processing skills; blunt face and head trauma; abrasions, tenderness and swelling to nasal area.

Published on: September 28, 2012

This is a case where the Court reiterated the principle

by Stephen Bilkis

This is a case where the Manhattan Court reiterated the principle that when a single indivisible injury, such as brain damage, was negligently inflicted upon the plaintiff, defendants can be held jointly and severally liable notwithstanding that the latter neither acted in concert nor concurrently with each other.

A mother, who suffered gestational diabetes during her pregnancy, gave birth to an unusually large baby who is the plaintiff in this case. At the time of the trial, plaintiff was severely and permanently retarded as a result of the brain damage she suffered at birth. The evidence established that the obstetrician who had charge of the ante partum care of plaintiff’s mother and who delivered the plaintiff, failed to ascertain pertinent medical information about the mother, incorrectly estimated the size of the infant, and employed improper surgical procedures during the delivery. It was shown that the defendant, the pediatrician under whose care Josephine came following birth, misdiagnosed and improperly treated the infant’s condition after birth. Based upon this evidence, the jury concluded that the obstetrician committed eight separate acts of medical malpractice, and the defendant pediatrician committed three separate acts of medical malpractice.

During the trial, the plaintiff’s witness concluded that neither he nor anybody else could say with certainty which of the factors caused the brain damage. Although the obstetrician’s negligence contributed to the plaintiff’s brain damage, the medical testimony demonstrated that the defendant’s negligence was also a substantial contributing cause of the injury. No testimony was adduced, however, from which the jury could delineate which aspects of the injury were caused by the respective negligence of the individual doctors.

Published on: September 24, 2012

Plaintiff is a sixth grader who instituted a claim for damages

by Stephen Bilkis

Plaintiff is a sixth grader who instituted a claim for damages against his school when he was seriously injured when he fell down an flight of stairs on his way to lunch. On January 30, 2021, plaintiff testified that he had been in math class on the second floor right before lunch. According to plaintiff, his math teacher never escorted her class to the lunchroom and that day was no exception. Plaintiff stated that at the sound of the bell, he and his friend headed to one stairwell, while the rest of the class went to the stairwell at the other side of the hall. His friend did not see any adults in the stairwell when he got there, but there were a group of older boys there who moved over as he and his friend approached. Plaintiff testified that he suddenly heard footsteps which sounded like they were coming from a herd of buffalo and the next thing he remembered was waking up in the school nurse’s office with a tissue on his forehead and blood stains on his shirt. Because of the fall, plaintiff suffered brain injury coupled with excruciating pain as being in his head, neck, and lower back. Additionally, his arms and leg were swollen and sore and he was in a neck brace.

In a testimony, plaintiff presented the written policy of IS 292 to have a teacher escort the sixth graders down to lunch from their second floor classrooms. Plaintiff claims that his teacher’s negligent failure to do so proximately caused his injury. According to plaintiff, he has a much harder time understanding his schoolwork since his accident and, as a result, his grades have substantially dropped. He also is unable to remember more than one item at a time and feels “dumb and filtrated. Plaintiff testified that he planned to attend college to study graphic design.

The Brooklyn jury found defendants are negligent in the supervision of plaintiff and found that that negligence was a substantial factor in causing the injuries sustained by him. Defendant move to have the judgment set aside or have a new trial on the issue of liability or in the alternatively, for a new trial on the issue of damages on the grounds that the awards are unsupported by evidence. The plaintiff sought for an increase in the award of damages.

Published on: September 22, 2012

Defendant, with his live-in partner, resided with a six year old ‘adopted’ daughter

by Stephen Bilkis

Defendant, with his live-in partner, resided with a six year old ‘adopted’ daughter and his other ‘adopted’ 16-month old boy. Neither child has been legally adopted. On November 1, 1987, defendant scolded the six year old daughter for not drinking enough water and expressed annoyance with her. At approximately 6:00 p.m. of the same day, the girl went to into the bedroom to ask defendant if he would take her with him to a dinner engagement. Moments later, defendant carried the unconscious body of the daughter out of the bedroom. When the wife asked him what happened, defendant replied, “What’s the difference what happened. This is your child. Hasn’t this gone far enough?” The wife had no idea what defendant meant by this remark. Defendant handed the girl to defendant, who placed her on the bathroom floor. The child’s eyes were closed, she was unresponsive and she was not moving at all. Her breathing was raspy.

Defendant from The Bronx dressed for the dinner and went back home. Upon his return, the girl hasn’t regain her consciousness at all. The wife, believing that defendant has healing powers, urged him to heal the child. Instead, defendant and the wife took cocaine where defendant admitted he knocked the girl down because she stared defendant a lot. The next day, the child was still unconscious. Defendant tried to revive the girl and the wife called 911. The paramedics decided to bring the girl to a hospital where a tube was placed into her trachea to insure that air would go directly into her lungs.

The medical personnel observed that the girl’s body was covered with multiple bruises in various parts of her body, legs, knees and thighs. A neurological resident concluded that the child sustained brain injury due to pressing down of the brain stem causing subdural hematoma near her forehead. Over the course of the next few days, the girl’s condition did not improve and she was not responding to medical treatment. On November 4, she was declared brain dead. On November 5, the hospital removed the girl’s life support system and was pronounced dead.

Published on: September 20, 2012

U.S. Representative Giffords’ Office Closing Gap in TBI Care

by Stephen Bilkis

Staff members in the employ of Rep. Gabrielle Giffords (D-Ariz.) have become key advocates in the campaign to ensure health-care guarantees for Americans who suffer traumatic brain injuries (TBI). They are advocating that other citizens should be entitled to the same high quality care that the congresswoman is receiving in her recovery from a January shooting.

Last month, Giffords’ chief of staff released a letter urging Health and Human Services to prioritize defining the minimum package of “essential benefits” in the new health-care law that will be required of insurance plans for individuals and small businesses. This new law is expected to be operational by 2014.

Giffords’ Staff members are also planning to join encourage the Defense Secretary to expand the range of “cognitive rehabilitative therapies” that Tricare, the military’s insurance program for active-duty and retired service members, covers in cases of brain injury.

Published on: September 17, 2012

30% of Brain Injury Victims Suffer from Depression

by Stephen Bilkis

A study reports that almost one-third of all cases of TBI (Traumatic Brain Injury) eventually lead the sufferer to a depression experience. A Vanderbilt University Medical Center team spent a considerable amount of time analyzing existing research on such brain injury-inducing incidents as: blunt force trauma to the head from traffic accidents, falls, sports and assaults.

Attorneys have long seen the correlation between the two events, but it is always welcome when an expert in the field corroborates the evidence. “Any patient who has a traumatic brain injury is at a real risk for developing depression, short and long term,” the study’s co-author said in a medical center news release.

“It doesn’t matter where on the timeline that you check the patient population — six months, 12 months, two years, five years — the prevalence is always around 30 percent across the board.” Compare this to the rate of depression in the general population which is about 9 to 10 percent, and the issue is apparent.

Published on: September 15, 2012

The chaos of war only compounds the difficulty in making decisions

by Stephen Bilkis

Sometimes the extent of moderate or severe damage caused by bTBI (explosive blast traumatic brain injury) is difficult to determine at first, doctors have told Lawyers. Severe facial trauma can prevent reliable neurological examination, especially when it comes to examining the pupils for reaction. Specialized tools are often necessary to even make triage decisions that could save lives.

The chaos of war only compounds the difficulty in making decisions when it comes to severe injury. When a doctor or other medical professional is used to medical centers in the United States, where there are adequate resources and help in the form of other professionals near at hand, it can be very difficult to work on a battlefield where everything is in short supply, but the number of patients is much greater.

Difficult decisions have to be made in such environments, doctors in Nassau and Suffolk have learned. It isn’t uncommon for a great number of severely injured patients to arrive at the same time. Efficient triage is essential for the best use of limited resources. There may be few health care providers, no operating rooms or CT scanners, and not many blood products to go around. It may even be impossible to evacuate patients to a better facility. The whole idea behind triage is take resources that may not be adequate and stretch them out to their best possible use to help the largest number of patients. They must be stabilized and their lives preserved until they can be evacuated into a better circumstance.

Published on: September 10, 2012

Plaintiff instituted a personal injury action against the defendants

by Stephen Bilkis

Plaintiff instituted a personal injury action against the defendants to recover damages due to a motor vehicle accident alleging that she was struck by the truck owned by defendant and its employee. In connection with the claim for damages, plaintiff alleged that she suffered head injury including pain in neck, shoulders, both arms, and lower back extending to both knees. She claimed that she was referred by an attorney to Total Care Plus where she was treated 2-3 times per week for about a year commencing a few days after the accident. She states that she received treatment from a psychiatrist, an internist, and a neurologist and received physical therapy with various modalities. Thereafter, she received treatment in China.

At the conclusion of the Brooklyn trial, the jury rendered a decision finding that plaintiff had not suffered an injury which resulted in a significant limitation of use of a body function or system or a permanent consequential loss of use of a body organ or member. The jury did, however, find that plaintiff had sustained a medically determined injury or impairment of a non-permanent nature that prevented her from performing substantially all of her material acts that constituted her usual and customary daily activities for not less than 90 days during the 180 days immediately following the accident. They awarded plaintiff damages in the amount of $70,000 for past pain and suffering, and $80,000 for future medical expenses payable over a period of 0 years.

Defendants move to set aside the decision of the jury based on the ground that: