Brain Injury Litigation with Lawyer Michael V. Kaplen
Show Notes:
Navigating a legal claim post-concussion can be complicated and overwhelming. Today’s guest, Michael Kaplen explains the immense benefit of pursuing legal proceedings after your injury and to demystify the process behind this. We start with an introduction to Michael and what sparked his interest in brain injury law. Next, we discuss some of the ways that brain injury attorneys can help survivors. Michael gives listeners some tips on how to find the right attorney for you and talks about the benefit of seeking legal help for insurance companies. We acknowledge the fact that every situation is different and consider scenarios where seeking legal help wouldn’t be the best way forward. We also talk about the two-part process of litigation and what your attorney’s lawsuit is likely to consist of, and close off our conversation with some tips for survivors. Michael urges us to stay off of social media during legal proceedings and leaves listeners with a motivational message; you should never give up! Tune in today for some great practical tips.
Key Points From This Episode:
• An introduction to Michael Kaplen and what sparked his interest in brain injury law.
• Some of the ways brain injury attorneys can help survivors.
• Tips on how to find the right attorney for you.
• Why it is important to meet your potential attorney in person.
• Why brain injury survivors should seek legal help.
• A word of warning against insurance companies.
• Why every situation is different and the question of whether it’s ever necessary to avoid litigation because of the emotional toll it might take.
• The statute of limitations as a roadblock if you wait too long before taking legal action.
• Why you should speak with an attorney as soon as possible in order to know your rights.
• The two-part process of litigation.
• What the attorney’s lawsuit consists of.
• Tips for survivors and families of survivors.
• Why you should stay off of social media during legal proceedings.
• Why you should never give up.
Connect with Michael
Check out Brain Law: www.brainlaw.com
Transcript - Click to Read
[INTRO]
[00:00:00] BP: Hi. I’m your host, Bella Paige. Welcome to the Post-Concussion Podcast, all about life after experiencing a concussion. Help us make the invisible injury become visible.
[DISCLAIMER]
[00:00:17] BP: The Post-Concussion Podcast is strictly an information podcast about concussions and post-concussion syndrome. It does not provide nor substitute for professional medical advice, diagnosis, or treatment. Always seek the advice of your physician, or another qualified health provider with any questions you may have regarding a medical condition. Never disregard professional medical advice or delay in seeking it because of something you have heard on this podcast. The opinions expressed in this podcast are simply intended to spark discussion about concussions and post-concussion syndrome.
[EPISODE]
[00:00:58] BP: Welcome to today's episode of the Post-Concussion Podcast with myself, Bella Paige, and today's guest, Michael Kaplen. Michael is a partner in the brain injury law firm, De Caro & Kaplen, LLP, representing victims of traumatic brain injury and other injuries caused by vehicle collisions, pedestrian, unsafe buildings, construction sites and medical malpractice.
Michael is a professional lecturer in law at the George Washington University Law School, the legal aspects of traumatic brain injury and chairs the New York State Traumatic Brain Injury Services Coordinating Council. Michael is board certified as a civil trial advocate and board certified in medical malpractice litigation. He was a participant in the 2014 White House Healthy Kids and Safe Sports Concussion Summit. He is the past chairperson of the American Association for Justice, Automobile, Highway and Premise Liability Section, past chair of the AAJ Traumatic Brain Injury Litigation Group and president of the Brain Injury Association of New York State.
He's a frequent author and lecturer on personal injury law and brain injury litigation. Welcome to the show, Michael.
[00:02:18] MK: Thank you, Bella, for inviting me.
[00:02:20] BP: What created your interest in brain injury related law?
[00:02:24] MK: That's an interesting question. It takes me back many, many years, when I represented a wonderful gentleman that was in a head-on automobile crash. As a result of that crash, he sustained many personal injuries, which thank goodness, he made a very good recovery from. He also sustained head injuries in that accident. Unfortunately, although he looked fine and he sounded fine, he still had significant problems moving forward with his life, problems at work, to the outside world. As I said, nobody could appreciate the difficulties that he was having, which became obviously, a very big source of frustration for him in his day-to-day life. I took a real interest in this, and I wanted to help him in the best way I can. That began my journey of learning about this invisible injury.
[00:03:21] BP: For sure. Well, that's wonderful that you got started in it. Something we talk about a lot on the podcast is that it's invisible, because it's one of the biggest issues that individuals have is explaining it to co-workers, family, friends, partners, that they can't see what you're going through, and it can make it really difficult to handle. How can a brain injury attorney help survivors?
[00:03:45] MK: Well, the first thing they need to do to help any survivor is to not only understand brain injuries, and concussions and how that can affect a person in many, many different ways. To truly help a survivor, a brain injury attorney needs to be able to treat that client with respect. Without that respect, the relationship is doomed to failure. It's not enough just to be able to advocate for your client, it's also important to be able to listen to your client and understand what he or she might be going through and be there for them.
[00:04:26] BP: Yeah, I find that really important. Even just dealing with all professionals when dealing with your concussion, brain injury, because myself sometimes, people that didn't understand the injury, was very difficult, because trying to explain it all, when they had no general understanding in the beginning, made it very difficult for me, especially when I was younger. Because as a teenager trying to explain what I was going through, felt nearly impossible.
I'd have doctors, or teachers look at me and say, “Well, you look fine.” I view it really difficult, because that was very far from the truth. Speaking of attorneys, how do you find the right attorney for you?
[00:05:10] MK: You need to meet with that individual. With COVID, that's a little more difficult now meeting in person. I've met with clients virtually, remotely using Zoom and other platforms. That seems to work. Of course, it's no substitute for an in-person meeting. One of the things is you need to feel comfortable with who is going to represent you. You can't meet with the attorney’s assistant, paralegal. You need to meet with the person who's going to be responsible for your case on a day-to-day basis. You have to do some homework as well before you meet with that person to determine if that person has handled cases like yours in the past and is familiar with brain injury in many different ways. Are they a member of the Brain Injury Association in their state? Do they actively attend meetings? Do they speak about brain injury? Do they write about brain injury? Are they involved in the civil rights movement of brain injury?
It is a civil rights movement to a large extent. Not every attorney is right for every client, or for every case. That's important to know. I've had clients who have come to me unfortunately, after they've had bad experiences with other attorneys, that turned real bad real quickly, because that attorney just didn't have the patience and understanding to work with that individual. It's important that the client build up trust with the attorney, be able to access that attorney in a way that they feel comfortable doing. Everybody who has a brain injury is different. How they access and take in information and understand what the process is, is very important.
[00:06:57] BP: Brain injury is already very overwhelming in itself. There's so many different aspects to it. Something a lot of people tend to get nervous about is getting legal help. I think, because you're already dealing with so many complications, your life is changing, you feel like a different person a lot of the time. Why should a brain injury, concussion survivor reach out for legal help, because they already feel like they're going through so much?
[00:07:29] MK: Well, I work with brain injury survivors that have been involved in incidents that have caused their brain injury as a result of someone else's negligence or malpractice. That's really the area that I could speak best to. Obviously, people with a brain injury, need attorneys to represent them in other different areas as well. When they go back to school, they need an advocate to make sure that they're getting all the services and supports that they are entitled to under the Americans with Disability Act and the IDEA in the school system. When they're dealing with insurance companies to try to get medical benefits for rehabilitation and care, they sometimes you need an advocate for that.
As well, when they're trying to get social security disability benefits, they're better served with an advocate for that area. If they're just left the military, or they’re leaving the military, they need someone familiar with that area of the law to make sure that they're not bamboozled by the VA and they get what they’re entitled to, both now and moving forward.
In my area of the law, a brain injury survivor needs an attorney, because the injury is not a superficial wound that's going to get better over time, like a boo-boo. It's an injury that has serious and potentially lifelong consequences to it. You need an attorney to navigate the legal system for you. You can't do it on your own. That's what we're trained to do. You also need an attorney, because unfortunately, people think insurance companies have their best interest at heart. The only interest that an insurance company has is their pocketbook, trying to save money. That's why they call it insurance companies. They are going to do everything that they can to take advantage of you. Unfortunately, and I don't say that lightly, but it's true. You can't go up and negotiate with an insurance company yourself. You can't believe anything that they're going to tell you, so you need somebody there to be your advocate.
[00:09:39] BP: As you said, the right attorney for where you caught your brain injury, it's really important to look into that before you just go, “I'm going to go with this one, because my friend had success.” That's really important. It's true, insurance, especially workplace insurance parts, we have those here where I am. We had a guest on the podcast talk about it. It's a lot of, “We're going to send you to 10 different doctors and hopefully, get the response that they want.” They want to be told that you're fine. Then, she would try to find other doctors to state that she wasn't fine. It was just an ongoing battle of trying to get the right help. It was very difficult for sure, and a lot to deal with, herself. Is there ever time that litigation may not be worth all the emotional toll that it might put on a person? Should you have a support system with you when going through it? What do you suggest?
[00:10:37] MK: That's a difficult question to answer, because every situation is different.
[00:10:42] BP: For sure.
[00:10:43] MK: Sometimes, unfortunately, mental health issues such as depression and anxiety, complicate the situation. Is it ever a time where it works and not worth going through the process? If you've been injured and someone is responsible for that injury? I think that you have to explore at least bringing a lawsuit and then make some decisions by yourself with your loved one, with your family as to what, if anything, should be done. Sometimes, it doesn't make sense, because of the emotional toll that it might take on you. You need to explore that with your mental health counselors, with your attorneys, with your family and make a decision. There's just no right or wrong answer that I could give anybody on that.
[00:11:33] BP: For sure. Well, thank you. It's true, because when you have a brain injury, it all depends on your situation. Maybe you can't work for the next 10 years after you recover and that will greatly affect your quality of living and things like that. If someone is at fault, it makes sense to possibly try to correct some of that wrongdoing.
With that, you can find more about Michael on brainlaw.com. Like always, it will be found in our show notes and description. With that, let's take a break.
[BREAK]
[00:12:11] BP: Want to create awareness for concussions? Want to support our podcast and website? Buy awareness clothing today on postconcussioninc.com and get 10% off using LISTENIN. That L-I-S-T-E-N-I-N. Be sure to take postconcussioninc.com in your photos. We'd love to see them.
[EPISODE CONTINUED]
[00:12:38] BP: Welcome back to the Post-Concussion Podcast with myself Belle Paige and today's guest, Michael Kaplen. Something Michael wanted to mention was the statute of limitations, which can definitely vary depending on where you are. Do you want to explain that for us? [00:12:53] MK: Sure, Bella. Thank you, it's important for your listeners to know that there may be a roadblock to them bringing a lawsuit if they wait too long. It's known as the statute of limitations, which is the time limit that is imposed upon an individual to start a lawsuit. If the lawsuit isn't started within that period of time, then they would be precluded from later on filing a lawsuit. That's different in every state and every country, and depending on whether it's a malpractice case, or a negligence case, or a death case, each one of those different situations would have a different statute of limitations within a state. It gets tricky and it gets complicated. It's a big danger out there if you wait too long. It's important for your listeners to know that it's important that they speak with an attorney to find out what their rights are as soon as possible before they lose those rights.
[00:13:53] BP: Yeah, for sure. That's some great advice, because that would be very – it'd be heartbreaking if you found out, who knows how many months later, years and you go, “Well, now I can't do anything about it and you can't go against that.” What is the process of litigating for a brain injury survivor? Obviously, every case is different, but is there, about a typical process that starts and goes through?
[00:14:17] MK: Well, there are two parts to every case. There's the aspect of what caused your injury, the negligence of someone and also, the injury itself. The lawyer will investigate both parts of that case when it comes to the accident, or how you were injured. They're going to look for witnesses, they're going to speak to you, they're going to see if there are any photographs in existence, they will read police reports if it's an automobile accident case and the police responded.
When it comes to the injury, they're going to look at EMS records that were generated when they transported you to a medical center for care. They're going to look at the emergency department records. They're going to look at the records of your personal physicians. They're also going to want to know how you were before this accident took place, so that they can make a comparison of how you're doing now. It's important that they have access to all your past medical records, so they understand all the repercussions of that injury, be it physical. Of course, you're suffering from headaches, nausea, dizziness, eye problems when it comes to a concussion.
They're going to speak to, or advise that you see a neuro-psychologist, if you're having memory problems and concentration problems, cognitive issues. They're going to want to speak to your mental health professional, psychologist or psychiatrist if you're having emotional issues, such as depression or anxiety, or behavioral issues. Most importantly, they're going to want to speak to your family and friends to get a picture of how you were doing before this incident took place and how you're doing now. Because the best test of a brain injury is life, how you’re functioning.
Sometimes, unfortunately, the survivor is not the best person to be able to provide that information to the attorney, so they're going to have to go speak to other people who know you well in the community; be it friends, family members, merchants in a store, a priest, a rabbi, someone that you've been interacting with, your spouse, if you're married, if you're a child, your teachers, you're going to need to see those records. You're going to need to put this all together into really a timeline and a story that's readily understandable to anybody who's listening.
[00:16:47] BP: You definitely would have to mentally prepare a little bit that when you're getting ready, they're going to everything, and it's to help you, of course, but it's definitely quite the process to go into medical records, past records, friends, mental help and all the different aspects in your life that have changed. What would be the second part, once all of that is complete?
[00:17:09] MK: The attorney will bring a lawsuit. In civil litigation, the lawsuit is started with something known as the complaint, and then the people and then in the complaint, the attorney will set forth what happened, set forth why that attorney believes it was negligence, set forth your injuries. Then we wait for the other side to provide a document called the answer to the complaint. After that, we usually meet with the judge, or judge’s assistant and come up with a discovery schedule, where we will have to give the other side information about you and your condition about the accident and they in turn, will have to give us information in writing, documents.
After that document exchange is completed, we will proceed to what's known as depositions, where the other side will have a right to ask you questions and we will have a right to ask the other side questions. Of course, this is a formal proceeding that's done with your attorney present and these are all recorded by either a court reporter, or now by video. When this whole process is completed, which can take sometimes a year or more to be done, we will let the court know that we're ready for a trial.
Along the way, hopefully the other side will be amenable to sitting down to discussing your case, either informally, or through a formal process known as a mediation, to see if we could resolve your case for you for fair and adequate settlement. If we can, then we're going to have to schedule a trial. In the US, we have trials by jury in these cases, where either six or 12 people from the community will listen to all the evidence formally in a courtroom and make a decision, both as to whether the people that were suing were liable, or negligent, and then the extent of your injury. It's a process that could take – it’s easy for me to talk about that in a few minutes, but it's a process that can take a few years to accomplish.
[00:19:10] BP: Yeah, for sure. I could definitely see that. Because I think that's pretty much with all law always takes. Everyone thinks it's going to take a month or two, then they're like, “Wow, they’re still working on that.” Yeah, it's definitely a long-term process most of the time. Do you have any tips for survivors, or families who are suffering from brain injury or concussions?
[00:19:33] MK: One big piece of advice that I could give in the year 2021 is to stay off social media. Stay off Facebook, stay off Instagram, all these other channels, because your life has now become an open book. The things that you write, or things that you say might become misinterpreted by someone. A smiley face, a picture of you enjoying life, and there's nothing wrong with that. enjoying life with a brain injury. You're entitled to have moments of happiness and to try to get along with your life. Those photos, or those statements can be misinterpreted along the way and that's what insurance companies and their lawyers are trying to do.
Don't make it easy for them. Just stay off these mediums. I know it's hard, but I tell that to all my clients. At the same time, it's always important to be honest with your attorney, when you're going for testing, neuropsychological testing, the other side is going to do that, is try your best, because you don't want to be accused of being a malingerer, or a faker, or making things up, or exaggerating your injury. When you do this testing, try your best, do the best that you can. The deficits that you have will be shown, but at the same time, nobody will – because these tests are sophisticated, and they can sometimes see if you're exaggerating. That's the worst thing that could happen to you in a case is to be accused of that, even if it's not true. I tell my clients to always work hard and do the best that they can and be honest. [00:21:18] BP: Yeah. Those are both great pieces of advice. It's actually funny, I've had two potential guests for the podcast, and both of them are in legal proceedings. Both of them decided to wait after they talked to their lawyer to come on the podcast just in case, because talking about their whole entire injury and life and everything, it seemed a safer option to wait until everything is done. The same thing with sharing your life on the Internet, it's just interesting. Now I share all of mine now, because I'm helping people with it. That's different for me for sure.
I get the psychological testing. I've done it myself. I've done it three times. I did it for university, and then in high school to get – they didn't believe I had memory issues. I tried hard. It's still seeing the end that I had significant deficits in my memory. Because they do things like, they give you a sentence or a story, and you have to remember points in the story. There's all different types of testing that you can do. I remember I had tried, and I was like, “Whoa. I did way worse than I expected.” It's not worth trying to fudge it at all. Is there anything else you would like to add before ending today's episode?
[00:22:44] MK: Well, it's important for your listeners to know that they are a person with a brain injury, not a brain injured person. The person comes before the injury. They should never give up hope for a better tomorrow. Always look for that better tomorrow, and understand that they are entitled to be treated with dignity and respect, which is so important to live the best possible life that they can in the community, with their family and with their friends.
[00:23:22] BP: Yeah. Well, thank you so much for joining and sharing all of your advice and work with brain injuries.
[00:23:29] MK: Well, thank you. Your visitors, as you said, can go to our site, wwwbrainlaw.com. We have some very good videos that they could share with their families and friends about this invisible injury to help them explain it to everyone else. We also have on this site, the ability to fill out a form and get our brain injury identification card that might be of use to them in dealing with medical personnel, first responders, with the police. That's available on our site, as well in addition to the videos, and we also share a lot of other good information that may be useful for them. In addition, they could sign up for my weekly program, The Brain Injury Insider, where I talk about a different aspect of brain injury each week.
[00:24:21] BP: Well, that's wonderful. Thank you so much.
[00:24:23] MK: Thank you. It’s a pleasure meeting you today, Bella.
[END OF INTERVIEW]
[00:24:27] BP: Has your life been affected by concussions? Join our podcast by getting in touch. Thank you so much for listening to the Post-Concussion Podcast and be sure to help us educate the world about the reality of concussions, by giving us a share. To learn more, don't forget to subscribe.
[END]
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