Head Injuries and Concussions in Car Accident Victims
*These general comments on head injuries and concussions after a car accident or other injury producing accident are published from my general perspective as a personal injury lawyer in Ontario, Canada, and should not be taken as being medical advice in any way, or specific legal advice. Please seek appropriate medical and legal consultation on your specific issue*
The effects of head injuries and concussions after a car accident or other injury producing accident are wide ranging and, in my experience, difficult to predict. Some people with concussions and head injuries make excellent recoveries and go on to move past the injuries completely, or to a great extent. However, others are not so lucky. My experience has been that doctors need a considerable period of time to go by, to make any firm prognosis with respect to how a person’s functioning will be affected into the future. Some of the types of difficulties and complications that I have seen people suffer with have included memory, concentration and attention problems, balance issues, rage, anger and mood problems, psychological and psychiatric disorders, loss of motivation, depression and emotional distress. I have seen these kind of problems have a snowball effect and end up making the other problems even larger.
Not all head injury or concussion victims need to proceed with a lawsuit. It’s not really in everyone’s interests to do so. Lawsuits should be considered where there are ongoing symptoms that are impacting on a person’s functioning. The problem is trying to figure out whether or not it is in someone’s interests to proceed with a lawsuit. You don’t want to proceed with a frivolous lawsuit, but you also don’t want to miss a notice or limitation period that may apply. In motor vehicle accident claims, generally, there is a 30 day time-period to file a claim for accident benefits (no fault benefits) and a 120 day time-period to notify the defence about your intention to make a claim (these time-lines can be extended and often are extended). There is, generally, a two year time-period to sue as a result of a car accident (this can be extended in certain circumstances). Earlier time-lines can also apply in certain types of cases. It is best to seek advice from a lawyer as soon as possible after a car accident. I have often helped clients by filing the necessary notice and benefits paper-work (without charge) and then considering whether or not to proceed as time goes on.
Slip and fall claims or denied disability benefit claims can be very difficult because there is even less help available than there is to car accident victims. With slip and fall cases or general (non auto) accident claims, there is no basket of no fault benefits available to assist someone with treatment and income loss in the interim. If the property owner in a slip and fall claim is denying liability (fault) for the accident, then you may not be able to get anything until the end of the claim – that can be an extremely difficult situation. I do everything that I can to find a way to help my clients manage during that time period (within the bounds of ethics).
What is vital when handling head injury cases, is to have all of the information available. If a student had a head injury it is important to review past educational records and testing against post-accident records. It is important to obtain employment files to see what issues were being reported pre and post accident. It is also vital to speak with people who know the injured victim and to preserve that evidence. In two past cases where a witness’ health was failing, I conducted “de benne esse” examinations of witnesses (these are out of court examinations that can be used at trial) to preserve the evidence. In both of those cases the witnesses gave powerful and emotional evidence about the accident and the injuries and that made a significant impact on the insurer. It is important to remember that an “Insurer” is made up of people who are, for the most part, decent hard-working people (there certainly are exceptions). When an insurer sees heartfelt testimony and raw emotional evidence, it has an impact on most of them.
What these cases are typically about is common-sense. I always encourage my clients not to try to memorize anything or do what they think is best for the claim – claimants are best served by being honest, forthright, honourable and specific. A claimant who goes into questioning and is clear and honest about their abilities and their limitations will make an impression on the insurer and in a court. Embellishment allows the insurer to turn the tables on you and to say that you are trying to take advantage of them. The best way to avoid that is not to take advantage of them. You are the victim and they should compensate you – they need to hear that and be reminded of that.
The other thing that makes an impact in these cases is having a team of qualified and reputable experts on your side. Having an orthopaedic surgeon giving evidence about the capabilities of someone with a head injury simply is not going to have the same impact as having a renowned head injury expert doing the same thing and, frankly, the expert is in a much better position to reach an opinion. Unfortunately, the OHIP system does not have the capacity to send injured people to all of the experts that can provide the opinions necessary to understand the long term consequences of the injury. The experts who are truly qualified to give those opinions are not cheap. For that reason, you need a lawyer who is going to invest in your case and who is going to believe in your case.
Feel free to call us. The consultation is free. We offer only pay if you win fee structures, because the unfortunate reality of most of our client’s situations do not allow them to elect for an hourly rate retainer. We pride ourselves on being a fair fee group of lawyers.
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