Sleep Better at Night With Answers to Your Top Questions on Virginia Brain Injury Claims
Experiencing something as traumatic as an accident in Chesterfield County can leave your head spinning with questions and uncertainty. Get the answers you need fast in this FAQ series from Richmond brain injury attorney Kevin Mottley.
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If I told the EMT that I did not lose consciousness, do I have a case for my traumatic brain injury?
One of the standard questions a first responder (emergency medical technician, or "EMT") will ask a person who has been involved in an accident is whether they "lost consciousness." Depending on the answer, the EMT will put that information in their report. Then, when the injured person gets to the emergency room, they will again be asked whether they lost consciousness. Once again, the answer given by the patient will be put in the emergency room report.
This raises the question: "What if I told the EMT and the emergency room doctor that I did not lose consciousness? Does that mean I have no case for a traumatic brain injury from the accident?"
No, it does not.
A person who loses consciousness is not aware of having lost it. Therefore, they're not able to accurately respond to that question. Only if a third person was there observing what happened (rarely the case) can loss of consciousness be accurately determined by simply asking the question. Loss of consciousness means that the person has a gap in their ability to recall a period of time. That lost period of time may be only a few seconds. If a person responds to a question about loss of consciousness by saying that they "don't know" or "no," that fact does not medically rule out the possibility that a concussion occurred. Determining whether a concussion, or mild traumatic brain injury, occurred, requires the medical provider to dig a little deeper into investigating what happened.
Another factor that plays into this issue is that emergency personnel, including EMTs and emergency room doctors, are typically more focused on other problems with a patient than they are with investigating whether a concussion occurred. To illustrate the point, let's assume a patient was in a car accident in which they broke their leg and suffered a nasty gash on their hand, which is bleeding profusely. When they arrive at the emergency room, they are fully awake and oriented. They are as conscious as a person can be. But they're bleeding and in a lot of pain. The ER doctors are going to focus, first, on stopping the profusely bleeding hand and, second, on getting down to fixing that broken leg. They'll most certainly ask whether a loss of consciousness occurred. The answer will in most cases be "I don't know" or "no," at which point the medical personnel will check that box off in their report and move on.
This sort of dynamic is why a recent study showed that more than 50% of mild traumatic brain injuries (concussions) are not diagnosed in the emergency room.
Here at The Mottley Law Firm, most of the traumatic brain injury cases we handle involve a person who either responded "no" or "I don't know" to the question, "did you lose consciousness." That is the fact pattern we see most of the time in mild TBI cases.
If you or a loved one have suffered a mild traumatic brain injury or concussion due to some sort of accident or mishap, feel free to contact us about the matter. We focus a significant portion of our practice on helping people in this position with their legal needs.
What is post-concussion syndrome?
Post-concussion syndrome, or postconcussive syndrome as it is sometimes referred to ("PCS"), is a diagnostic label applied to a set of symptoms that sometimes arise following a concussion. These symptoms may last days, weeks or months, but a diagnosis of PCS is usually not made until several months following an injury. The symptoms are the same as those for a mild traumatic brain injury ("TBI"). They include headache, difficulty concentrating, irritability, and emotional and behavioral changes.
Who can bring a lawsuit for a wrongful death?
In Virginia, as elsewhere, a lawsuit may be filed against a person (including a company) whose negligence, recklessness, or intentional conduct caused someone else to die. These are called "wrongful death" suits. Under Virginia law, all wrongful death cases must "be brought by and in the name of the personal representative of such deceased person." A personal representative is a person, such as an executor, executrix, or administrator of a person's estate who is qualified by the clerk of the circuit court to represent the deceased person and his or her estate. One of the powers of a personal representative is the power to sue. Virginia has enacted statutes that explain who may qualify as a personal representative. Personal representatives may be designated in a person's will. If no will exists or if the executor named in the will fails or refuses to qualify, then the statute gives priority to others who may want to be the personal representative. Qualifying as a personal representative is fairly easy and the people working in the clerk's offices in Virginia are very helpful in answering questions on these topics.
What does "contributory negligence" mean and why is that important in a Virginia brain injury case?
In another Frequently Asked Question, I explained the meaning of "negligence" and why it is important in Virginia brain injury cases and all other personal injury cases in Virginia. "Contributory negligence" means the same thing as "negligence." The only difference is that, when lawyers speak of contributory negligence, we are referring to any negligence committed by the injured person (the plaintiff) that "contributed" to the injury. Hence, the word "contributory" is inserted in front of "negligence."
Why is this distinction important? It is important because of the common law in Virginia. Virginia is one of only two states (I believe) that still adheres to the old rule that, if an injured person's own negligence contributed to his or her own injury, then the person is completely barred from recovering compensation from the defendant. So, for example, if a defendant store was negligent in maintaining its store by leaving a tripping hazard in a walk way, a person injured by that negligence would be completely barred from recovering money from the defendant if the injured person was also negligent in failing to watch where they were walking. This is a pretty harsh rule, particularly in cases in which the injured person was only slightly negligent. That, unfortunately, does not matter. Most other states adhere to some sort of "comparative" negligence rule. In such states, the jury can take into consideration the degree of negligence attributable to each party and take that into consideration when awarding compensation to the injured person.
What does the word "negligence" mean in a Virginia brain injury or other serious injury case?
The word "negligence" is very important in any personal injury case. That is because, for the plaintiff to win a personal injury case, it is usually necessary for the plaintiff to prove that the defendant was negligent and that the defendant's negligence caused the plaintiff's injury. In Virginia, as elsewhere, "negligence" means a failure to exercise what is called "ordinary care." Ordinary care is that degree of care that a "reasonable person" would exercise under the same conditions and circumstances existing at the time and place of the incident in question. I know this sounds like a lot of legal gibberish. But what I've just written is pretty much what a jury is told about the law before the jury is sent back to the jury room to decide the case. In fact, the actual jury instruction read to juries every day in Virginia is as follows: "Negligence is the failure to use ordinary care. Ordinary care is the care a reasonable person would have used under the circumstances of this case." So there you have it. What does it mean, exactly? When thinking about the "reasonable person" in layman's terms, I tell people to imagine a slightly nerdy fellow with a pocket protector who is very careful about things as he goes about his daily activities. Is the speed limit 55 miles per hour? The so-called "reasonable person" goes 55 mph or below, but not so far below to be "unreasonable." (We've all seen people driving 35 in a 55 zone, which I would submit is unreasonable and negligent.) Is there something slippery on a floor in a grocery store? The reasonable person who works at the store looks for that sort of condition and, when he finds it, he cleans it up or puts down an effective warning sign. You get the picture.
What is fraud?
In Virginia, a person who has been defrauded may have a civil claim for damages against the person who defrauded the plaintiff. A fraud is, in essence, a lie that has been relied upon by someone and, as a result, has caused damage to the person who relied on the truthfulness of the lie. In legal jargon, an "actual fraud" is defined as a misrepresentation of a material fact, knowingly and intentionally made, with the intent to mislead another person, which that person relied upon with the result that he or she (or it, in the case of a company) was damaged by it. Frauds come in two different types: actual fraud and constructive fraud. Constructive fraud happens when someone says something that is not truthful, but the falsehood was made "innocently" and "negligently," as opposed to "knowingly and intentionally." Fraud cases are very complicated and all sorts of nuances to the above definitions exist under the law. Therefore, if you suspect you have been the victim of a fraud, you should consult with a Virginia attorney about the matter so that you can understand whether you should seek relief in court.
What is a business conspiracy?
Virginia is unique in that it has a criminal statute making it illegal for two or more persons to conspire to harm another person in his or her trade, business, or profession. Although the statute is a criminal statute, it gives rise to a civil lawsuit for treble damages, and I suspect that the statute is actually used more often in civil cases than in criminal cases. So, what is required to show a violation of the business conspiracy statute in Virginia?
First, it must be shown that the defendant and at least one other person acted in concert, agreed, associated, mutually undertook, or combined together for some purpose. Second, it must be shown that the conspirators intentionally, purposefully, and without lawful justification injured the plaintiff in his, her, or its reputation, trade, business, or profession. Third, it must be shown that the plaintiff actually suffered damage as a result of the conspiracy. If each of these elements is shown, the plaintiff may be entitled to recover treble damages plus attorney's fees as a result of the conspiracy.
Business conspiracy law is incredibly confusing in Virginia. The foregoing definition is a generalization. For you to understand whether you may have experienced a business conspiracy that may be redressed in court, you really need to have the matter evaluated by a Virginia attorney.
What is tortious interference with contract?
First, let's get the name right. It is not "tortuous" interference with contract. It is "tortious" interference with contract. (These cases can indeed be "tortuous" to handle. But that is not the name of the cause of action.)
A tortious interference cause of action arises when (a) there is a valid contract or business expectancy between the plaintiff and a party other than the defendant, (b) someone who is not a party to the contract (the defendant) has knowledge of its existence, (c) the defendant intentionally causes the contract to be broken (breached) by one of the parties to the contract (not the plaintiff) and (d) the breach of contract causes damages to the plaintiff. If each of these elements are present, a tortious interference with contract case may exist. If the contract in question was "terminable at will," meaning that either party had the legal right to break it, a case may still exist. However, an additional showing must be made by the plaintiff that the defendant used "improper methods" to interferfere with the contract that was terminable at will. This same additional requirement applies to legal relationships that are in the category of business "expectancies" but that do not rise to the level of a contract. Business expectancies may also be interfered with in a way that leads to liability for damages. But improper methods of interference must be shown.
What is a breach of contract?
Most business disputes involve a contract and an allegation that someone has broken a promise contained in the contract. What is a "breach of contract" case? A breach of contract is when one party a contract breaks a promise that is embodied in the contract. To have a case for breach of contract, it is necessary to show the existence of a legally enforceable contract, oral or written, a material breach (violation) of the contract by one of the parties to the contract, and damages resulting from the breach of contract.
Do I need a lawyer?
Do I need a lawyer? Every client who comes through my door has asked that question prior to picking up the telephone and calling my law office for an appointment. It is, of course, a very good question that every person with a law-related issue should ask. It is a fundamental question that leads down two very different paths. Either you hire a lawyer to help you or you do not. Depending upon your answer, the two experiences you will have are completely different.
The problem, in my view, is not that people fail to ask this question. The problem is how people answer it. In my experience, people do not spend enough time thinking about whether they actually need to get a lawyer involved in their situation. And even when they do make that decision, they run out as quickly as they can and hire the first lawyer who agrees to take their case without doing a lot of homework. (How you choose the best lawyer for your case is a topic for another frequently asked question.)
When a person who has been injured asks me whether I will agree to take their case, this begins an evaluation process at my firm during which I determine if the matter is a case I would be willing to handle. Not every legitimate personal injury case requires a lawyer to settle it. Particularly in cases that: (a) involve clear liability on the part of the defendant and (b) do not involve significant medical bills or other out of pocket expenses (damages), it is often better for the injured person to resolve (settle) their case directly with the other person's insurance company without using a lawyer. Despite what many personal injury lawyers will tell you, settling your own case without a lawyer is not only possible, it is often better for the injured person.
Why is that? The answer is attorney's fees. In the case of a person who has been injured, lawyers typically will earn a fee that is calculated using a percentage of the recovery (the settlement or judgment amount). This is called a "contingency fee" because the lawyer's fee is not guaranteed. It is "contingent" on (dependent upon) the outcome of the case. A typical contingency fee is 33%, or one-third, of the recovery. So, if you have a case with low "special damages" (such as medical bills, lost wages, other expenses) and it is clear that the other side is responsible for the injury, you should at least try to resolve the claim directly and save on the attorney's fees.
So, what damages are significant enough to get an attorney involved in an injury case. Every lawyer is different. In my own law practice, I typically require medical bills in excess of $3,000 before I will agree to consider a case. But even that depends upon the type of case, how the injury is still impacting the person, and what happened to cause the injury. It really depends upon the circumstances. So it is best to at least establish contact with a lawyer to discuss your matter.
The foregoing comments apply to personal injury cases. If your case involves another situation, like a business dispute or a family estate dispute, then you most certainly will require an attorney to consult with you on your case. Cases in these two categories are very unique and can be very complicated, and it is highly unlikely that you're dealing with an insurance claims representative on the other side. Thus, the issue is not as much about resolving your case for a fair amount as it is understanding your rights and the other party's duties and obligations to you. Again, these situations tend to be so unique, case-specific and complicated that you really need a lawyer experienced in these areas to help you.