If you’re trying to obtain compensation from someone else to pay the expenses associated with your head injury, you’re most likely going to need an attorney.

If a person or an average company is at fault for your injury, you will be collecting your compensation from their insurance company. Insurance companies profit by underpaying you for your claim. The adjuster will seem very kind and understanding, but his job is to get you to settle for less. He does his job all week long and he knows how to do it very well. You probably have not done this, and you won’t know how you’re being manipulated, but an attorney does.

If a large company is responsible for your injury, you will likely be dealing with their legal claims department. The lawyers and staff in this department have the same motivations as the insurance company. The less they pay you, the more they get to keep. Once again, they are very experienced at doing their jobs, while you are at a disadvantage. Having an attorney on your side levels the playing field.

When Do I Need to Involve an Attorney?

Given that most attorneys offer a free initial consultation, there is no need to wait to have that first meeting.

In the legal process for filing an injury claim, the law requires you to take certain actions almost immediately after an accident to make your claim defensible. Anything you’re required to do, but fail to do in time can reduce your eventual settlement or risk it entirely. Discussing the matter with an attorney will help you understand your obligations and prevent you from making significant errors before it’s too late.

You do not need to hire the attorney you speak with, and before you hire any attorney, you can discuss your case with as many as you like.

Though free initial consultations are common, they are not universal. You should confirm before your initial meeting that there is no fee. After speaking to one or more attorneys sooner rather than later, you will understand better when you need to have an attorney start handling your case.

What Kind of Attorney am I Looking For?

Attorneys are like doctors; everyone has a specialty. When you need brain surgery, you choose an experienced neurosurgeon who operates on people’s brains every day. For your attorney, you want a personal injury lawyer who specializes in head and brain injury cases. A personal injury lawyer without extensive background in brain injuries is like your family doctor attempting brain surgery. You don’t want either of them learning on your case.

How Do I Find a Good Brain Injury Attorney?

Don’t rely on advertising at all. Expensive television spots or big yellow page ads tell you nothing of a firm’s competence or experience.

A good way to find the best and nearest personal injury attorney specializing in brain injuries is to talk to another good attorney in your area, preferably one who does not handle personal injury cases at all. Lawyers tend to know one another and know who’s tops in their fields. If they don’t know someone personally, they know someone who knows.

Some firms specializing in brain injury cases have excellent, helpful web sites that provide background on the firms’ experience. Many of these firms will not be in your area, but some will be able to refer you to a competent nearby attorney.

It’s advisable to get at least three referrals and speak to them all before selecting the attorney you feel will best serve your case. Keep in mind that any referral you get may not necessarily be to the best-qualified person, or to someone you would feel comfortable with.

If you need assistance finding an attorney, please contact us using the form at the right.

What’s a Good Attorney Going to Cost?

Personal injury attorneys typically work on a contingency fee basis, meaning they charge you nothing for their services unless they obtain a settlement for you; then they will charge you a fixed percentage of the settlement, often between 30% and 40%. Any expenses associated with preparing your case are extra and will be deducted from your settlement share.

In the event expenses accrue and no settlement is collected, you need to find out from your attorney if you will be liable for such costs. You should also be consulted before any significant charges are added to your account so you have the opportunity to approve.

All of these matters should be explained in the agreement given to you to sign when you officially hire your attorney. Take your time reading and signing it, and ask for anything to be explained that you don’t understand. When you and your attorney have the same expectations regarding how things will work as you go forward, you will have a much more successful and satisfied relationship.

Related Articles

• Head Injuries – Injury Claim Basics

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Resolving an injury claim proceeds in several phases:

• Notice of injury
• Documenting your claim
• Letter of demand
• Negotiation
• Settlement and release if a reasonable offer is made
• Lawsuit if the offer is not acceptable

When someone is not able to take these steps for him or herself, a representative will need to take these actions on the injured person’s behalf.

Notice of Injury

The notice of injury is simply a letter stating the date and location of the accident, that you were injured and that you may be seeking compensation for your injuries. Say as little else as possible because you may lock yourself into unfavorable terms in a later settlement. The less you say, the more you preserve your options. Send this letter to the other parties, their insurance companies, and your own insurance company.

The letter requires no demand for payment, no evidence of fault or any other type of substantiation. That will come later. For now, you’re merely satisfying your obligation to notify everyone involved. Failure to promptly notify the parties can undermine the validity of your claim, so send the letter as soon as possible after the accident, and request acknowledgement that they received your letter. File your letter and the acknowledgement away safely as proof you complied with your responsibilities.

Documenting your Claim

Immediately after the accident, you want to start writing down everything you can about the accident itself and any subsequent conversations with the parties, witnesses or insurers. Your notes will later prove invaluable in substantiating your claim. Also, obtain and keep copies of every document related to the accident and your injuries.

Small things can also make a huge difference in your case. Keep the clothing you were wearing at the time of the accident. Any photographs you’re able to take to substantiate your injuries are also valuable. Photographs of the accident scene, even if taken afterward, may later provide evidence you weren’t aware of. If any type of potentially faulty equipment is involved, don’t dispose of it.

Letter of Demand

The letter of demand is a request for a specific amount of compensation for your injury. Before you can send such a letter you need to know how much the injury is costing you in present and future medical bills, loss of income, and other costs.

In the formal demand, you want to provide all the documentation possible: including accident records, police reports, medical records, test results, witness accounts, copies of bills, work records showing time lost, and anything else proving the existence and cost of your injury, as well as the other party’s liability for the accident. Only send copies - never originals.

For a mild head injury, it may be several months before the extent of the injury is clear and what the future costs might be. For a severe traumatic brain injury, the costs of future care, rehabilitation, and disability may be extremely difficult to estimate even after six months have passed.

The insurance company knows this and may contact you to settle a claim even before you send your letter of demand, hoping that the lure of immediate cash in hand will lead you to settle before you discover the true economic cost of your injury. Settling too soon and for too little is one of the worst mistakes victims make.

In cases involving serious injury, an attorney with extensive background in brain injury claims can draw on his experience with past clients to help you estimate the true costs of future care, rehabilitation, and disability you may not even be aware of. The attorney can also place a value on the emotional stress suffered by you and your family and other non-economic damages you may be entitled to.

Negotiation

At first, the insurance company will try to claim that their insured party is not at fault for the accident, or that you share some responsibility. If you’re lucky, you’ll have police reports, witness accounts, photographs, and possibly even the other party’s own statements to deflate that argument.

Next, the insurance company will try to minimize the amount of damages you’re seeking. In arriving at a settlement offer, the insurance adjuster is visualizing how well your claim would be viewed in court. If you’ve documented your claim thoroughly and negotiate well, the insurance company may have to capitulate and make a fair offer to settle the claim. They will probably offer a little less than you’re asking knowing that if you have to hire an attorney to go to court, attorney fees could leave with you with less even if you win the full amount you’re asking for.

Settlement and Release

If you accept the insurance company’s offer, you’ll sign documents releasing the company and the other party from any future claim before receiving your check. If delayed symptoms of your injury later arise resulting in additional medical bills or loss of work, you have no recourse for additional compensation.

Lawsuit

If you don’t receive what you consider a reasonable settlement offer, you have little other choice than to take the matter to a court to settle the dispute. If you haven’t already involved an attorney in your claim, you’ll have to find one now.

Be sure to hire an attorney experienced in brain injury claims who is very familiar with the subtleties of proving cognitive impairment and understands the long-term consequences of traumatic brain injuries.

Note: This article is for information purposes only and is not intended to provide legal advice. For legal advice, please consult an attorney experienced in the appropriate area of law. If you need help finding an attorney, please use the form at the upper right to contact us for a referral.

This article was featured in the Carnival of Everything Money at The Penny Daily.

Related Articles

• Hiring a Brain Injury Attorney

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Health insurance is usually the primary avenue for taking care of medical expenses. But even with substantial medical insurance coverage, you can encounter obstacles and limitations in obtaining benefits for rehabilitation and long-term care when needed. And when health insurance is inadequate or non-existent, you’ll have to explore other resources for meeting the expenses of hospitalization and a lengthy recovery.

This guide will help you identify the resources potentially available to you.

The Costs of Acute Care

In the United States, critical care is provided without regard for financial means. Technically, you will still owe for the costs afterward, but essential care cannot be denied or withheld based on inability to pay.

For those who have no insurance and no resources to pay these expenses, medical providers are sometimes reimbursed a portion of their costs through state or county government programs for indigent care. In other cases, the medical providers may simply write-off the costs. But until the debt is actually forgiven, dismissed or settled, providers may continue to seek payment.

Medical Insurance

A typical health, medical, or hospitalization policy will take care of the majority of medical expenses during the hospitalization phase of recovery. Each policy has its own terms, exclusions and limitations. You should be aware of the following regarding your insurance:

• Deductible - amount you must pay before insurance starts paying
• Co-pay or co-insurance – percentage of each bill you’re responsible for paying after the deductible is met
• Maximum out of pocket – total of your deductible and co-payments you must reach before insurance starts paying 100% of expenses
• Maximum annual benefit – when this limit is reached, insurance coverage ends until the next year
• Maximum lifetime benefit – after total insurance payments reach this limit, the policy is canceled

Fortunately, the majority of head injury cases involve only mild brain injury and the hospitalization expenses are not likely to exceed annual or lifetime benefit limits. A severe injury, however, could trigger either one of those caps and leave you without additional coverage. That’s when you’ll need to find other sources for paying medical bills.

(See Traumatic Brain Injury – The Medical Insurance Maze for more detailed information and discussion of coverage for recovery and rehabilitation expenses.)

Automobile Insurance

Some automobile insurance policies include medical benefits for injuries received in an auto accident whether or not the vehicle belongs to the injured party. Coverage can extend to pedestrians injured by the vehicle as well. If the accident involves someone else’s vehicle, be sure to check their policy and yours. You could be eligible for benefits under both.

Your share of these costs depends largely on the provisions of your health insurance policy. Still, you can be saddled with personal responsibility for additional expenses by not being aware of your policy’s provisions and by not following claim procedures carefully.

Maximum Lifetime Benefit

Coverage for hospitalization expenses will usually not be an issue under most health insurance policies until the maximum lifetime benefit is reached. Not every policy includes this limitation, but for those that do, $1 million is a common maximum. However, terms can vary from a low of $500,000 to a high of $5 million. When the lifetime benefit limit is reached, you effectively have no further medical insurance coverage.

“Lifetime” refers to the life of the policy, not the individual insured. Deducting the value of benefits already received from the maximum tells you what is remaining, but it is probably quicker and easier to call your insurer or agent to find out.

Keep in mind that a severe traumatic brain injury can generate more than $1 million in medical bills in a matter of months. It’s best to know the limits of your policy as soon as possible so you can pursue other resources for covering medical expenses in a timely manner if needed. (See Paying for Medical Costs of a Brain Injury.)

Annual Maximum Benefit

As a means of reducing monthly premiums, some lower-cost policies may have an annual maximum benefit. When this limit is reached, the policy no longer covers medical expenses until the beginning of the next policy year. The policy year may start on the policy’s anniversary date, or it may be based on the calendar year.

You should know if your policy includes this limitation, and if so, when the next benefit year begins. Also, ask your agent or insurer if the date for resuming benefits is based on the date of service (when the medical procedure or service occurs) or based on the date of claim (usually filed some time after the service is actually provided.)

You will have practically no choice in timing critical care needs, but in the later stages of recovery, you may have flexibility in timing medically related services so they fall into the next policy year and are covered by your insurance.

Preferred Service Providers

Be aware if your policy pays reduced benefits for services obtained from out-of-network providers. The terms of coverage for out-of-network providers can vary significantly between different insurance policies, but may include higher deductibles, higher co-payments, and possible liability to the service providers for any portion of the bill not paid by insurance.

Policies usually allow for emergency treatment in any facility, but coverage may be reduced. It may be necessary to transfer care to preferred providers after the patient is stabilized. Though it’s painful to have to deal with such mundane issues during a crisis, you can probably find sympathetic help in figuring out your options from the hospital admissions department.

Also, if referrals and pre-authorization are required, be sure to take all those steps as soon as possible to avoid a denial of claim.

While it may be easy to assign primary responsibility for an injury to another individual who caused an accident or a specific company for ignoring an unsafe condition, the ultimate legal question is not “Who is at fault?” but rather “Who is liable?”

Who is Liable

In most cases, the obvious answer is the individual or company directly involved and their insurance carrier. When the insured’s limits of coverage are sufficient to adequately pay for the victim’s injuries, there may be no reason to look into the question of liability any deeper. But when insurance coverage is absent or insufficient, the question of liability becomes important. And the answer to that question may not always be obvious.

The Other Party’s Employer

If you’re injured by the actions of someone who at the time was performing services for an employer, the employer has a certain legal liability for the employee’s activities. Even small companies commonly carry a minimum of $1,000,000 in liability insurance.

That an employee was actually “on the job” is sometimes a point of contention. Take the case of the executive assistant who was at fault in an auto accident resulting in a brain injury to another driver. The employer and employee maintained that she was performing personal errands. The facts indicated, however, that she often visited client’s stores during the day and was on such a visit at the time of the accident. The employer’s liability insurance paid for the other driver’s injuries.

Product Manufacturer

Numerous claims have been successfully settled with the manufacturers of products associated with head injury accidents. Claims against automobile manufacturers for design and manufacturing defects typically capture the headlines. Here are a few less-publicized examples.

In one case, a boy was seriously injured when shelves came loose from a wall and pierced his skull. The boy successfully recovered compensation not only from the establishment, but also from the shelf manufacturer for a faulty design.

In another case, a machine worker received a severe traumatic brain injury when the material he was working on came loose from a lathe and struck him in the head. It was determined this was not the first accident of its kind involving this manufacturer’s equipment, and that the manufacturer did not correct the design defect responsible for the accidents. Although worker’s compensation insurance legally protected the employer from a lawsuit brought by the employee, the employee received substantial payment for his injuries from the equipment manufacturer.