Oregon Personal Injury Lawyer Blog

How does a brain injury impact the time to sue under Oregon's Statutes of Limitations? Time limits in Oregon are too many to list. In fact, Oregon Attorneys all receive a 406-page red book that lists the different limits. This post highlights a few critical laws controlling when to sue the person who caused an acquired brain injury.

A disabling brain injury extends some (not all) statutes of limitations for up to five years. The extension is found in ORS 12.160, which covers minors and "insane" people. It "tolls" -- or puts on hold -- the running of some statutes of limitations for "so long as the person is insane" but not longer than an additional five years. So how bad must the brain injury be to toll the statute of limitations? The injured person must be unable to comprehend his or her legal rights, according to the 1991 case of Roberts v. Drew.

For example, if a person suffers traumatic brain injury in a car accident, the general statute of limitations is 2 years. If the person is unable to comprehend his legal rights for the rest of his life, then the time limitation to sue is 2 years + 5 years for a total of 7 years.

But that is not the whole story. Claims in Oregon have more than just a statute of limitations, which generally begins to run when someone "discovers" her right to sue. What happens if she discovers her right to sue years later? Can she file her claim 20 years later? That depends on another time limitation called the period of "repose." For many claims, that second time limit is 10 years. But for some, it is shorter. For medical malpractice, it is 5 years from the time the doctor made the mistake.

Generally, a person hurt by medical malpractice in Oregon must sue with 2 years, as with car accident cases. For example, I had a client who suffered anoxic brain injury because of the malpractice of the anesthesiologist. If the brain injury were bad enough to toll the statute of limitations for the rest of his life, his time limit to sue would NOT be 2 + 5 = 7, as with the car accident example. Instead, the 5-year medical malpractice statute of repose would require a lawsuit within five years of the date of the anesthesia (with some exceptions). At most, the acquired brain injury would add three years to the time limit, not five years.

Another example where permanent disability from brain injury might not provide an additional 5 years is claims against government hospitals, school districts, or other public bodies. First, Oregon's Tort Claims Act requires formal written notice of intent to sue, regardless of disability, within months. Second, Oregon's law is unsettled whether disability extends the two-year statute of limitations against governmental bodies.

In conclusion, a person who acquires a brain injury because of the fault of another usually has a right to sue. A disabling brain injury often -- but not always -- extends the time limits for asserting claims. If your family member obtained a brain injury, I know you have a lot to deal with. However, if you want to preserve his or her right to sue, you need to find time to talk with me, or another Oregon attorney, to determine the potential claims and time limitations.

Jeff Merrick, Oregon Trial Attorney
503-665-4234

The above is not legal advice. I cannot give you sound advice without knowing more information. It is intended to raise some issues for you to discuss with your own lawyer.

Head and brain injuries among children occur too frequently. The numbers are increasing. On October 28, 2011, the Brain Injury Association of Oregon holds a conference on best practices for diagnosing and treating brain injuries.

I've written about the problems before. At earliest ages, falls cause many pediatric brain injuries, and head injuries, overall cause most of traumatic deaths among children. Statistics indicate that at age 15, head trauma increases significantly, likely due to football and other sports and driving. Although we're getting better at identifying brain injuries after the fact, the number of brain injuries is increasing.

Children's brains differ from adult brains. Their brains are softer because of more water content. This increases the risks of injury.

Speakers at the conference will discuss three general topics: the latest medicine; how educators can better work with students after injury; and tips to the families to get the assistance they need. For more information, please see the Association's website.

If your child was hurt because of the fault of others, please know that there are strict time limits for making legal claims. For example, if a school or public agency is at fault, the time to act may be as short as 270 days. So, although families have much to deal with when confronted with a brain-injured child, sometimes, contacting a brain injury attorney should not wait. If you want to discuss your legal options, please call me.

Jeff Merrick, Oregon Trial Attorney
Injury & Employment Law
503-665-4234

The above is not legal advice. I cannot give you sound advice without knowing more information. It is intended to raise some issues for you to discuss with your own lawyer.

Last week, Oregon's Court of Appeals allowed a family to subpoena records through the probate court to help pursue a wrongful death case. Why is that significant? Because the nursing home thought it could get away from the courts entirely with the arbitration agreement that it buried in the admission papers. I've tried this tactic in the past, but this is the first I've seen the technique written about by an Oregon court.

In Assisted Living Concepts, Inc. v. Fellows, the family alleged wrongful death against Assisted Living Concepts (ALC). They claimed that ALC killed Dorothy Drury because of lack of adequate monitoring and fall-prevention measures. The heirs opened a probate case and then filed a regular lawsuit. Assisted Living Concepts, (ALC) moved to compel arbitration. I've written about arbitration before. I think it's dangerous when "repeat players" go against "one-time players," because arbitrators know if they want to continue to get work from ALC and its lawyers, then they better not award too much money.

As it turned out, the trial court decided to keep the case. But ALC appealed that order, which effectively would freeze fact-finding for another couple of years. Only then did the Estate of Drury use a probate court subpoena to attempt to get records. It is critical to get the records and identify witnesses as soon as possible. Especially in places like nursing homes, where many of the low-paid workers come and go. ALC then challenged the technique of using the probate court to subpoena information. The Court of Appeals threw out the appeal on procedural grounds.

So, the probate court route to obtain and preserve evidence remains viable. I've used it in the past, BEFORE ever filing a lawsuit. The job of the probate court is to identify, gather and disburse or manage assets. I think it is very appropriate for lawyers to use the probate court for exactly that purpose: identify whether there is a lawsuit worth pursuing. This technique is appropriate not only for wrongful death cases, but also for living people whose affairs are in probate, such as a minor, or someone with traumatic brain injury, or someone with dementia.

Jeff Merrick, Oregon Trial Attorney
Injury & Employment Law
503-665-4234

The above is not legal advice. I cannot give you sound advice without knowing more information. It is intended to raise some issues for you to discuss with your own lawyer.

Anyone who has rehabbed just about any injury knows that rehab can become repetitive and boring. It's hard to stay motivated. So, perhaps it's not surprising that researchers are studying computer games as a tool to help patients. Recently, the Journal of Neuroengineering and Rehabilitation published a study indicating that people with Acquired Brain Injury who used the Wii Balance Board® had fun and improved their balance.

Of course, not every person with balance issues is capable of using the balance board. The researchers screened out those with cognitive impairment and those who could not walk at least 10 meters indoors. They excluded people with visual or other impairments who could not interact with the machine.

The advantages of the Wii Balance Board® included that it is widely available and cheap compared to products marketed as medical devices. With careful game selection, patients reported having fun and not being frustrated. In this study, researchers used three games, Simon, Balloon Breaker and Air Hockey. People in the studies had suffered strokes, traumatic brain injury, and benign cerebral neoplasm.

The relatively small sample of 9 using the Wii® compared to 8 using conventional therapy makes it hard to draw any vast conclusions. Nevertheless, the results were positive, with the Wii® group showing more improvement.

The larger message is that people with Acquired Brain Injury need to get all available rehabilitation to improve their abilities and to cope with their condition. It is important to know what therapies are effective. I use life care planners to assess my brain-injured clients to determine the optimal therapies. Then we price out the rehabilitation therapies and devices as part of a life care plan to present to insurance companies. Sometimes, insurance companies will pay for all the necessary therapies; sometimes they will make you hire an attorney to sue them.

Jeff Merrick, Oregon Trial Attorney
Injury & Employment Law
503-665-4234

The above is not legal advice. I cannot give you sound advice without knowing more information. It is intended to raise some issues for you to discuss with your own lawyer.

Oregonians with traumatic brain injury often have to fight insurers to cover cognitive rehabilitation therapy. Today, National Public Radio reported that soldiers, who acquire brain injuries fighting for us, then have to fight some more for cognitive rehabilitation therapy.

It's not unusual to have to fight insurance companies when they deny cognitive rehabilitation. We all know the drill: insurers accept our premium dollars, but then deny coverage that could be expensive, and cognitive therapy can cost tens of thousands of dollars.

Blue Cross Blue Shield published its reasons for denying coverage. On the other hand, Aetna covers cognitive rehabilitation when appropriate.

The NPR story notes "unequal care" to troops depending on the strength of their advocates. In other words, the harder you fight, the better is the chance brain injured people get the treatment they need.

For those with acquired brain injuries, the fight has to be fast because the benefits of therapy decline over time. The sooner one gets the treatment, the better. Consequently, for some denials, we need to seek expedited consideration from the court. Oregon's courts, especially in Multnomah County, are pretty good for granting expedited consideration when appropriate.

Although we've learned to expect "unequal care" with private insurance companies, I think we should expect that our troops would get appropriate care without having to battle claims adjusters at home.

Jeff Merrick, Oregon Trial Attorney
Injury & Employment Law
503-665-4234

The above is not legal advice. I cannot give you sound advice without knowing more information. It is intended to raise some issues for you to discuss with your own lawyer.

Oregon's Court of Appeals ruled that cognitive impairment from hypoxia caused by sleep apnea was more like a "sickness" than an "injury." That distinction allowed the disability insurer to cut off benefits at age 65, instead of continuing them for life under the particular disability insurance policy.

In Boly v. The Paul Revere Life Insurance Co, Jeff Boly, an attorney, gradually lost his ability to work because of sleep apnea. Initially, he suffered daytime sleepiness and reduced productivity. He applied for benefits, and received partial disability payments. Over time, Mr. Boly noticed cognitive impairments and saw a specialist who confirmed the problems and the cause, which was chronic, nocturnal hypoxia from sleep apnea.

The disability insurance policy distinguished between disability from accidents and disability from "injury" and disability from "sickness." The contract did not define those terms, so it was up to the court to decide. To win against an insurance company, the insured need only show that the language is unclear, and the insured's interpretation is "plausible." Mr. Boly's lawyers argued that sleep apnea is not a sickness and that the brain damage could have been prevented if Mr. Boly's doctors had diagnosed the problem sooner. It was more like injury from malpractice than from a sickness, they argued.

The court agreed that the issue was not clear cut. The court, itself, could not define "injury." However, in this situation, the court seemed persuaded that the progressive nature of the problem tipped the scale to say Mr. Boly's situation was more like a sickness than an injury.

Jeff Merrick, Oregon Trial Attorney
Injury & Employment Law
503-665-4234

The above is not legal advice. I cannot give you sound advice without knowing more information. It is intended to raise some issues for you to discuss with your own lawyer.

Today, the Safe Kids Committee on which I serve held a community forum on understanding and preventing window falls among children. Hosted by Legacy Emanuel Children's Hospital and emceed by KOIN TV's Kasey Montoya, the conference gathered numerous stakeholders from Oregon and around the United States who want to reduce the epidemic number of children injured by falling out of windows.

Presentations included the following:

• Considering "human factors" in identifying solutions.
• The tragic stories from two moms, one who lost a child, and the other whose child survived with a severe brain injury.
• Data on window falls from Oregon, Chicago and around the United States.
• As an attorney, I spoke about my clients whose lives were changed by window falls. I also spoke about my efforts trying to pass an Oregon law to provide for window guards in rental properties. (See the Bill and legislative history.)
• Safety products were described. In addition to bars, window protection devices include steel screens, curtain-like mesh, and a variety of window stops.
• Existing efforts at education rules and codes, including Oregon's Building Code that requires window fall protection.

Continue reading "Oregon Window Fall Forum Was a Great Success!" »

Today, the Oregon Court of Appeals ruled that a worker injured in a car accident while on the job may obtain underinsured motorist insurance benefits without having to pay back the workers' compensation insurer.

In Longstreet v. Liberty Northwest Insurance, Dean Longstreet was injured as a passenger in a car while working. Workers' compensation paid medical bills and other benefits. The general rule is that when a worker sues a "third party" (someone other than the employer), then the worker must spend some of the money to pay back the workers' compensation insurer.

Previously, I explained why a worker may and should obtain workers' compensation AND sue third parties, if you want more information.

Here's the new twist with the Longstreet case. First, Mr. Longstreet obtained workers' compensation. Second, he recovered money from the at-fault driver, who had only $50,000 of insurance. Longstreet shared the recovery with the "comp" insurer, as he must. Next, he sought underinsured motorist ("UIM") coverage from the insurer of the car he was in, but he did not want to share that with that settlement with comp insurer.

The court agreed with Mr. Longstreet. A specific statute (ORS 742.504(4)(c)) says the injured worker keeps UIM benefits. This specific statute trumps the general statute that requires paying back the workers' compensation insurer.

Jeff Merrick, Oregon Trial Attorney
Injury & Employment Law
503-665-4234

The above is not legal advice. I cannot give you sound advice without knowing more information. It is intended to raise some issues for you to discuss with your own lawyer.

The National Football League is posting concussion information in locker rooms this season. It's about time that everyone acknowledges that getting "your bell rung" is a big deal because brain injuries occur even without loss of consciousness. Oregon is one of three states with laws on concussions in high school sports. ORS 336.485 requires coaches to receive training every year on the symptoms of concussion and proper treatment. It also prohibits coaches from playing students with concussion symptoms.

Hopefully, the NFL poster will bolster Oregon's law by making it even easier for coaches and parents to do the right thing. The poster lists the stark facts that concussions are traumatic brain injuries that change your brain function, can change your personality, and can forever change the lives of you and your family.

The NFL poster notes that a concussion is not the type of injury a player should "play though," because the grave consequences of repeated brain injuries before the first one is resolved. Symptoms of brain injury are many and can be found here.

So, for parents, coaches and others, the NFL poster is a great opportunity to teach young people what to look for and what to do when it comes to head injuries. This is important not only for football players, but also soccer players, hockey players, and snowboarders and every other person who plays a rough sport.

Jeff Merrick, Oregon Trial Attorney
www.pediatriclaw.com
503-665-4234

Window Safety Week highlights the fact that, like clockwork, children fall from windows every year when the weather warms. Oregon's trauma registry records about 50 window falls per year. Other children are luckier; they fall and do not suffer significant trauma. Nationally, the number of children suffering traumatic injury from window falls is in the thousands per year. The most vulnerable are children under age seven, who suffer brain injury and death from window falls.

These tragedies are as preventable as they are predictable.

Window guards, screens & mesh save lives.

For decades certain jurisdictions have required window guards. The laws work, saving lives and tragedies. As of February, 2010, Oregon's building code addresses some aspects of window falls, but safety professionals know that it is not enough. (Previously, I wrote about the new Oregon regulation.)

With the spread of these laws, manufacturers are competing to produce safety devices that look better than the old bars. The latest product, the window guard mesh, looks more like a decorative curtain.

Even inexpensive window stops can save lives, so long as parents do not open the window wider than their child's head.

Conclusion.

Window Safety Week raises the awareness of this safety issue. We know that the tragedy of brain-injured and dead children is as predictable as it is preventable. Please help spread the word to help families in Oregon and Washington.

The authors of a new study of brain-injured children found that doctors most often used the term "concussion" and not "traumatic brain injury." The authors theorize that the doctors use the "concussion" label to minimize the worry of parents. However, the lead author, Carol A De Matteo, believes that the concussion label misleads parents and coaches, which could cause inferior follow up precautions and care. Oregonians should know that a concussion IS a traumatic brain injury and should act accordingly.

The Canadian study noted that there is no universal agreement on how to grade concussions. There are 6 different categories of concussions plus 8 different grading scales. Doctors use "concussion" to describe brain injuries ranging from (1) a brain injury where the child or teenager returns to preexisting levels of functioning to (2) severe, permanent brain damage or even death. So, Oregonians should know that the "concussion" label does not mean your child is necessarily going to be okay.

The authors fear that a diagnosis of concussion may affect a parent's decision on how soon to return the child to school, or even sports. When the child has some symptoms associated with brain injury, the symptoms might be ignored or pooh-poohed, because everyone thinks the person is "over" the concussion. Consequently, the child might not receive the help he needs in school. In Oregon a proper diagnosis and classification of symptoms might be critical determining whether the school must work on an Individualized Educational Program (IEP).

Jeff Merrick, Oregon Trial Attorney
Injury & Employment Law
503-665-4234

The above is not legal advice. I cannot give you sound advice without knowing more information. It is intended to raise some issues for you to discuss with your own lawyer.

For years, Oregon children have been killed and have suffered Traumatic Brain Injury because they fell from windows. Second story windows are high enough, as I sadly learned while suing a landlord and Portland property management company. In the Portland area, alone, more than a dozen children go to hospitals for window fall injuries each year. Oregon Trauma Registry data indicate a total of close to 50 child window fall injuries per year.

The legal cases I had involving children falling from windows caused me to lead a legislative effort to pass a law requiring landlords to offer window guards to tenants with small children. That law did not pass, but a new Oregon building code is a step in the right direction.

The new regulation became effective February 1, 2010. It is Oregon Residential Specialty Code § R613.2. It applies to windows more than 72 inches above the ground below and offers two protections:

• First, windowsills must at least 24 inches above the floor.
• Second, the windows may not open more 4 inches unless the windows a provided with window guards that meet a certain national standard, called ASTM F 2090-08.

This is an important first step for a couple of reasons. First it acknowledges the serious and continuing problem of children falling from windows. Every year, when the weather gets hot, kids start dropping out of windows. You can count on it.

Second, the window guard requirement might cause stores to stock window guards. Right now, guards are very hard to find. You can see how window guards work at the Legacy Children's Hospital Safety Store, which is borrowing my own window guard displays. The knowledgeable and kind women who staff the store can help you order window guards and other safety devices.

I trust the word will get out to residential homebuilders: Make places safer to prevent tragedy!

Jeff Merrick, Oregon Trial Attorney
503-665-4234

The above is not legal advice. I cannot give you reliable advice without knowing more information. It is intended to raise some issues for you to discuss with your own lawyer.

I represented a Lake Oswego, Oregon family affected by traumatic brain injury to the wife / mother. The impacts on her were devastating. The impacts on the husband and daughter were life changing, also.

The current issue of journal Brain Injury reports a study of the quality of life and emotional distress of primary relatives of those who suffered brain injuries and were treated at Copenhagen University Hospital. The study confirmed what professionals who work with families already knew: the closest relatives of brain-injured patients suffered a severe impairment in their quality of life. The relatives suffered significantly more symptoms of depression and anxiety. (Anne Norup, Emotional distress and quality of life in relatives of patients with severe brain injury: The first month after injury.)

Under Oregon law, spouses of brain-injured people may sue for "loss of consortium." Oregon juries are told that they may award monetary compensation to the spouse for the loss of "spousal services, society and companionship." Only husbands and wives have a claim for loss of consortium in Oregon, not children or parents.

It is important to remember the impacts on the family of those who acquire brain injuries. They need help, too, as they cope with new circumstances they could never have anticipated. Family members might find helpful Mayo Clinic's Guide to Brain Injury for Family Members. Oregonians can also look for support groups in their area by checking the listings in the newsletter published by the Brain Injury Association of Oregon, the latest issue of which is posted on their website.

Jeff Merrick, Oregon Trial Attorney
503-665-4234

The above is not legal advice. I cannot give you reliable advice without knowing more information. It is intended to raise some issues for you to discuss with your own lawyer.

In Oregon, if the employer pays for workers' compensation insurance, then the worker may not sue the employer when he or she is hurt on the job. This "exclusive remedy" provision does not apply if either (a) the employer does not have workers' compensation coverage or (b) someone else -- or something else -- was at fault.

For example, we sued a printing press manufacturer for making a dangerous machine when a worker suffered a severe arm injury. The manufacturer was not the employer, so it was not immune from suit under Oregon law. A more typical example is someone hurt in a car or truck accident while on the job. The worker can sue the other driver that caused the wreck.

But there are special issues to be aware of involving who may sue and who gets the money.

If the workers' compensation insurer pays benefits, then it has a right to get paid back out of any lawsuit proceeds. In fact, the insurance company can force you to decide whether to file a lawsuit. If you do not sue, then the insurance company can sue in your name.

There's a big difference to Oregon workers depending on whether the worker sues or the insurance company files the lawsuit.

If the insurance company sues in your name, then it controls the litigation. It decides when to settle. If the insurance company sues and settles the case, then it gets paid before the worker. The formula is that the insurer gets paid in full before the worker gets even one penny.

If the injured worker sues, then the formula for distributing the money is very different. First, the costs of the lawsuit are paid, including the attorney fees. Next, the worker receives 1/3 of the balance. Only then does the insurance company get paid back. So, if the worker sues, he or she jumps ahead of the insurance company. If there is still money left after paying back the insurer, the balance goes to the worker. The key Oregon law is ORS 656.576 to 656.596.

Another consideration is this. If the insurance company sues, will it really care whether the worker receives any money? Will it settle too cheaply, making sure it gets repaid and not worry about winning monetary compensation for your disability?

So the lesson? If you are seriously injured at work because of someone other than a coworker or something like a dangerous machine, then it is in your interest to sue and not let the insurance company file a lawsuit in your name.

Jeff Merrick, Oregon Trial Attorney
503-665-4234

The above is not legal advice. I cannot give you reliable advice without knowing more information. It is intended to raise some issues for you to discuss with your own lawyer.

Oregon can be a winter playground. Mt. Hood & Mt. Bachelor trails are great for cross country skiing and snowmobiling. But for one Oregon woman, her family outing turned into a life-changing event.

The other guy was test running his family's snowmobiles. On his third run, he sped about 60 miles per hour on a snow covered forest road outside of a popular snow park. When he zipped around a blind corner, he narrowly missed the husband, but came face-to-face with a teenage girl, who had mom on the back of her snowmobile.

It ended up being a dangerous game of "chicken." Both drivers turned the same way, they collided, and my client "flew like superman" off the snowmobile. Despite wearing a helmet, my client acquired a mild brain injury. Twenty years earlier, she suffered a traumatic brain injury, from which she recovered. But the prior TBI made her much more vulnerable to brain injury from her snowmobile collision.

She and her husband tried to settle by themselves. The other driver's insurance company pooh-poohed her injury and said that it was the daughter's fault, at least 50% worth. So they had to hire me.

Most important for any client is to get proper medical care, and I referred my client to an excellent place for diagnosing and coping with head injuries. We sued the other driver and fought hard. After depositions, we asked the court for permission to seek punitive damages, because we believed the other driver was reckless in flying around a blind corner at 60 mph (or more?). The court granted the motion.

Initially, the lawyer for the insurance company thought the case should settle for $30,000. By the time we worked up the case for trial, they paid the full policy limit of $300,000.

The moral of the story? 1. Be careful of dangerous snowmobile drivers even enjoying the weekend. 2. Be careful of insurance companies who do not want to pay what they should.

If you or your child has suffered a head injury, you ought to consider the signs and symptoms of brain injury. Here's a short list of brain injury symptoms from the CDC and a much more comprehensive resource on traumatic brain injury from the State of Washington.

Jeff Merrick, Oregon Trial Attorney
503-665-4234