Brain Injury Association and Scholarly Journal

The Brain Injury Association of America (“BIAA”) is the leading voice of brain injury in the United States. It is the parent organization for a network of state affiliates including the Brain Injury Association of Connecticut and the Brain Injury Association of New York State. These organizations service professionals and businesses involved in the diagnosis, care and treatment of acquired head injury. On November 20, 2008, BIAA announced that effective January 1, 2009 it had designated the Journal of Head Trauma Rehabilitation (“JHTR”) as BIAA’s official scholarly journal. JHTR is published by Wolters Kluwer Health/Lippincott Williams and Wilkins. The full press release issued by BIAA can be found on the BIAA web site.

TWENTY-EIGHT CATEGORIES OF PREVENTABLE MEDICAL MISTAKES

TWENTY-EIGHT CATEGORIES OF PREVENTABLE MEDICAL MISTAKES

The National Quality Forum (“NQF”) is a consensus standard setting organization that has published a list of 28 adverse medical event categories that should never occur in a hospital setting. The list of events has been embraced by eleven states that have directed hospitals not to charge patients or insurance companies for these categories of preventable mistakes. Unfortunately, neither Connecticut nor its hospitals have endorsed this program. Nevertheless, we have listed the 28 categories of “Never Events” as a preliminary “qualifier for patients and family members interested in further investigating potential medical malpractice claims in Connecticut. The categories are as follows:

1. Unintended retention of a foreign object in a patient after surgery or other procedure

2. Patient death or serious disability associated with patient elopement (disappearance)

3. Patient death or serious disability associated with a medication error (e.g., errors involving the wrong drug, wrong dose, wrong patient, wrong time, wrong rate, wrong preparation or wrong route of administration)

4. Patient death or serious disability associated with a hemolytic reaction due to the administration of ABO/HLA-incompatible blood or blood products

5. Patient death or serious disability associated with an electric shock or elective cardioversion while being cared for in a healthcare facility

6. Patient death or serious disability associated with a fall while being cared for in a healthcare facility


7. Surgery performed on the wrong body part

8. Surgery performed on the wrong patient

9. Wrong surgical procedure performed on a patient

10. Intraoperative or immediately post-operative death in an ASA Class I patient

11. Patient death or serious disability associated with the use of contaminated drugs, devices, or biologics provided by the healthcare facility

12. Patient death or serious disability associated with the use or function of a device in patient care, in which the device is used or functions other than as intended

13. Patient death or serious disability associated with intravascular air embolism that occurs while being cared for in a healthcare facility

14. Infant discharged to the wrong person

15. Patient suicide or attempted suicide resulting in serious disability, while being cared for in a healthcare facility

16. Maternal death or serious disability associated with labor or delivery in a low-risk pregnancy while being cared for in a health care facility

17. Patient death or serious disability associated with hypoglycemia, the onset of which occurs while the patient is being cared for in a healthcare facility

18. Death or serious disability (kernicterus) associated with failure to identify and treat hyperbilirubinemia in neonates

19. Stage 3 or 4 pressure ulcers acquired after admission to a healthcare facility

20. Patient death or serious disability due to spinal manipulative therapy

21. Any incident in which a line designated for oxygen or other gas to be delivered to a patient contains the wrong gas or is contaminated by toxic substances

22. Patient death or serious disability associated with a burn incurred from any source while being cared for in a healthcare facility

23. Patient death or serious disability associated with the use of restraints or bedrails while being cared for in a healthcare facility

24. Any instance of care ordered by or provided by someone impersonating a physician, nurse, pharmacist, or other licensed healthcare provider

25. Abduction of a patient of any age

26. Sexual assault on a patient within or on the grounds of the healthcare facility


27. Death or significant injury of a patient or staff member resulting from a physical assault (i.e., battery) that occurs within or on the grounds of the healthcare facility

28. Artificial insemination with the wrong donor sperm or donor egg

An injury or death resulting from one of the category of events does not necessarily justify bringing a malpractice claim. However, it does present an opportunity to further explore the viability of a medical malpractice claim.

Stewart M. Casper
Casper & de Toledo LLC
1458 Bedford St.
Stamford, CT 06905
email: scasper@cadetlaw.com

Brain Injury Association of Connecticut Functions

Annual Summer Picnic -The Brain Injury Association of Connecticut ("BIAC")held its annual Summer Picnic & Volunteer Awards on August 12th at the Wickham Pavilian in wickham Park in Manchester, CT. A fun time was had by all.

The 2008 BIAC Golf Tournament at Wintonbuy Hill raised over $120,000.

The American Academy of Neurology Recognizes – There’s Nothing Mild About Mild Traumatic Brain Injury

The American Academy of Neurology Recognizes – There’s Nothing Mild About Mild Traumatic Brain Injury

Like never before, the war in Iraq is focusing dialogue on brain injuries. The discussion has been prompted by the large number of casualties who have sustained such injuries and who have survived. Not only are troops experiencing penetrating trauma that often result in prolonged periods or unconsciousness or require brain surgery but they are also experiencing the type of head trauma caused by the concussive effect of explosions, particularly from roadside bombs known as IEDs (Improvised explosive devises).

In the July 3, 2007 of "Neurology Today" reporter Stephanie Cajigal highlights the epidemic of the so-called “mild traumatic brain injury” (MTBI) cases that occur each year in the United States. “Neurology Today” is a bi-weekly publication of the American Academy of Neurology. The article, entitled “Taking the ‘Mild’ Out of Mild Traumatic Brain Injury” also underscores the problems inherent in the word “mild” because for patients who do not recover from mild head trauma, there is nothing “mild” about the injury. By embracing the notion that “mild” does not mean “inconsequential”, the American Academy of Neurology will advance the way we deal with significant injuries, the majority of which occur as a result of car accidents and trip and fall or slip and fall accidents.

There is no consensus about how to define “Mild Traumatic Brain Injury”. In the Textbook of Traumatic Brain Injury (edited by Silver, McCallister & Yudofsky, published by American Psychiatric Publishing, Inc. 2005), Dr. Thomas McCallister listed more than eleven definitions from government sources and peer reviewed literature. There does appear to be a consensus that a concussion is a brain injury and that a patient will fall into the mild traumatic brain injury classification if there is either a short term loss of consciousness (<30 minutes) or a transient impairment of cognitive function. It is also widely known that many head trauma victims are never seen in a hospital and many such patients are treated and released despite suffering an injury that can have far reaching consequences impairing a host of cognitive functions including but not limited to problems with memory, attention and concentration, emotional control, irritability, and decision making.

The article urges neurologists to “be on the lookout” for symptoms of TBI and recognizes that the diagnosis may be challenging. Often such diagnostic tests as CT Scan, MRI, EEG are normal or negative but that is insufficient as a patient can have a brain injury despite negative diagnostic testing.

It is also common for a patient to fail to recognize lasting symptoms from head trauma that is classified as Mild Traumatic Brain Injury. While a majority a patients who sustain head trauma do not have lasting symptoms, nearly 80% of the head trauma population do experience permanent post concussion syndrome. As any of those patients will tell you, there is no good kind of brain injury.

CBIA - AN ENABLER OF DISCRIMINATION

CBIA – AN ENABLER OF DISCRIMINATION

It frequently happens that when the Connecticut Business and Industry Association (“C.B.I.A.” – and not to be confused with our Connecticut Brain Injury Attorneys “C-B-I-A”) issues a “Government Affairs Report” the content reveals an invidious bias against the ideal of “justice for all.” Today’s missive from the Business Association is no different.

On May 29, 2007, the U.S. Supreme Court issued its decision in Ledbetter. v. Goodyear Tire and Rubber Co., Inc. In Ledbetter, by the barest of majorities, the Court ruled that a woman who discovered that she was receiving unequal pay as compared to her male colleagues could not maintain her claim retroactive to the commencement of the discrimination under Title VII of the Civil Right Act of 1964. The Court held that the statute required that a complaint of discrimination be filed within 180 days of the discriminatory act and therefore the damages related to the earlier period of discrimination could not be addressed. The majority, that included conservatives Samuel Alito, Jr. and Chief Justice John Roberts, failed to explain how it was just to penalize Ms. Ledbetter for her inability to discover the longstanding discrimination that was alleged in her complaint when she did not know about it.

The CBIA has advocated communication with Congressional representative to oppose the “Ledbetter Fair Pay Act” (H.R. 2831) claiming that the legislation that has been passed by the House and is being considered by the Senate will not see the light of day. Of course, any legislation that is calculated to do justice for all will likely be the subject of a Presidential Veto and George W. Bush has threatened to Veto the legislation should it reach his desk.

The CBIA advances its opposition to the legislation because it believes that the Ledbetter decision forces the employee to report discrimination quickly and permits the employer to defend itself while “the evidence is fresh”. Unfortunately for workers victimized by discrimination, the Ledbetter decision is intellectually and pragmatically dishonest. For decades, the prevailing wisdom has permitted the application of Title VII to a course of discriminatory acts that were unknown to the victim thus holding accountable under the law the employer that has violated the law over an extended period of concealment. While all involved in the justice system recognize the advantages of dealing with evidence while it is fresh, when it comes to discrimination, the employer is in a uniquely advantageous position as it controls the evidence including payroll and personnel records. Thus, it is the employee that is at a disadvantage by the failure of the employer to reveal its pattern of discrimination.

The “Ledbetter Fair Pay Act” is an attempt by the Congress to level the playing field in discrimination cases. It is also an affirmation of the Congressional intent concerning the applicable statute of limitations. Remember, when a statute of limitations is used to deny a person a chance to have his or her case heard on the merits, it amounts to a denial of justice. Why should an employee lose out on a claim for discrimination based upon a 180 day notice requirement when one business can sue another business on a written contract 6 years after a breach of that contract? The “Ledbetter Fair Pay Act” will only prove costly to employers that have broken the law. Despite C.B.I.A.’s protests to the contrary, making the wrongdoers pay is the right way to go.

I urge you to write to your representatives and let them know that the Ledbetter bill should have their support.


Stewart M. Casper
Casper & de Toledo LLC
1458 Bedford St.
Stamford, CT 06905
Tel. (203) 325-8600
Fax (203) 323-5970
Board Certified in Civil Trial Advocacy by the National Board of Trial Advocacy
http://www.casperdetoledo.com

Does the Business Community Have a Stranglehold on the Legislature?

I am a resident of Wilton, CT and I recently wrote to my state legislator John Hetherington asking that he support SB 847 presently pending before the legislature. The bill is designed to provide workers’ compensation commissioners with discretionary authority to award more than the minimum specified benefits for permanent partial disability to a part of the body injured in a compensable workers’ compensation claim. So many workers are injured and not only lose function in one or more parts of their bodies but also many are thereafter precluded from earning a living as previously. The legislation in question is calculated to put some compassion and mercy in a cold and cruel system of compensation where often employees are injured through the negligence of the employer. Ironically, the only justification advanced for not passing the legislation is that it might cost some extra money but there is no independent empirical evidence that demonstrates that the cost will be significant. The following is the party line, business community, CBIA propaganda being spewed back at me.


Dear Mr. Casper:

Thank you for your message. I appreciate hearing from you on labor issues which I note is an area of interest to you.

Honestly, I have to say that I am concerned about the additional costs that are likely to result from SB 847 at a time when our state is not viewed as very friendly to business. But I will pay attention to its debate.

Sincerely,

John Hetherington

Dear Mr. Casper:

Thank you for your message. I appreciate hearing from you on labor issues which I note is an area of interest to you.

Honestly, I have to say that I am concerned about the additional costs that are likely to result from SB 847 at a time when our state is not viewed as very friendly to business. But I will pay attention to its debate.

Sincerely,

John Hetherington

My response follows:


John: When the 1993 measures were adopted, the cost savings attributable to discretionary benefits was extremely marginal. Now, without any additional data to work from because of the 1993 legislation, the cost projection for giving commissioners more discretion somehow mysteriously increases. I would think you would want to call these prognosticators on the carpet for altering their figures to suit their political agenda. Further, if the legislature does not have enough faith in their appointed compensation commissioners to fairly and equitably exercise their discretion and to do justice, shouldn’t we seriously consider scrapping the entire workers’ compensation system in favor of a pure tort system? The fairest system probably is one in which a person is compensated only where he or she is not more at fault than the employer or some third party.

Stewart M. Casper
Casper & de Toledo LLC
1458 Bedford St.
Stamford, CT 06905
Tel. (203) 325-8600
Fax (203) 323-5970
Board Certified in Civil Trial Advocacy by the National Board of Trial Advocacy
http://www.casperdetoledo.com

I CAN FEEL YOUR PAIN

I CAN FEEL YOUR PAIN

The event that caused me to experience a sudden onset of right arm pain shall remain confidential as it involves a friend. Nonetheless, this Connecticut injury lawyer who has spent a career representing people with just this sort of injury, knew right away that the type of searing pain I was having was a serious problem.

The pain ran from the right side of my neck, shot into my right shoulder blade and then progressed down the back of my arm through my triceps muscle, across my elbow at the funny bone and then went down my forearm into my hand causing tingling in my index finger. The pain in my upper arm was like a hot knife slicing through my flesh and my forearm felt like it was on fire. When I stood or sat, the pain worsened as the weight of my head and upper torso further compressed the nerve and when I was prone, it lessened. I knew that I had a C6-C7 radiculopathy. The question for me was whether or not the nerve pain was caused by an injury to the nerve alone or whether I had herniated the C6-C7 disc or whether the trauma had somehow caused an osteophyte(a boney formation caused by naturalaging or trauma) to damage the nerve.

Unfortunately, the onset of the pain came just before I was to depart for Las Vegas to attend a special seminar that focused on neuroimaging techniques for brain injury. I traveled to Vegas on a Thursday in tremendous pain and attended a great seminar but the pain was constant - probably a 9 out of 10 (it can’t get a ten because I’ve had a kidney stone and that was the worst pain but it passed). When I awoke early Friday morning (it was early in Las Vegas because of the three hour time difference) I waited until it was 9:30 back east and then I telephoned a neurosurgeon’s office to schedule an appointment first thing Monday morning. Despite a fascinating brain injury program that far surpassed anything available in Connecticut, I couldn’t wait to get home on Saturday night. (I didn't gamble but I ate well and saw the wonderful Celine Dione show).

The weekend was a blur of pain and I was thrilled when Monday came and I could see the neurosurgeon. He confirmed my lay diagnosis (my mother calls me an AAD for Almost A Doctor) that I had a C6-C7 radiculopathy with weakness and diminished reflexes in my right triceps. He sent me for an MRI that confirmed that the disc was herniated with disc material in the neural foramen and more disc material was pressing on my spinal cord.

My injury was treated conservatively with steroids and pain killers for about three weeks. During that time I underwent an epidural steroid injection that provided no relief. The next step was apparent to me and that was surgery. So on May 17 I underwent a posterior cervical foraminotomy. I am working on my recovery, resting, going to physical therapy, massage and plenty of swimming for exercise. By mid July I should be fully back to normal

It has been a real eye opener for me. I never adequately understood just how painful a radiculopathy was; how debilitating it could be. I was in so much pain prior to my surgery that I didn’t need any medication to calm my nerves as I awaited my operation. I was only awake in the operating room for a few minutes and someone on the OR staff said she had never seen anyone so happy about having surgery.


Stewart M. Casper
Casper & de Toledo LLC
1458 Bedford St.
Stamford, CT 06905

203-325-8600

www.casperdetoledo.com

CBIA IS AT IT AGAIN

I have been absent from this blog for Casper & de Toledo for an extended periodof time now. I have been recovering from my own injury and surgery and I will Blog at a later time about how I know I can really feel my clients' pain. As a trial lawyer, we read and study about injuries and learning the medicine is quite helpful. But nothing compares to walking in someone else's shoes.

In any case, today I include an email message that I am sending tothe entire Connecticut state legislature. This morning I opened "The Advocate" and read how there is contention in Hartford in the waning days of the legislative seesion about a mandate for paid sick leave of 6.5 days a year. Naturally, the Connecicut Business and Industry Association ("CBIA") (not to be confused with www.c-b-i-a.com or Connecticut Brain Injury Attorneys) is out lobbying for a bill that makes no difference to the major corporations that set policy for the CBIA. When will these out of touch executives from the insurance companies and large corporations learn that by protecting workers, particularly people with small paychecks who can't afford to miss a day's pay, we actually elevate the level of compasion and humnity in our society. My email to the lLegislators follows:

I am writing to each member of the legislature in favor of mandating paid sick leave of 6.5 days for employees. I also write as a long standing member of the CBIA. I believe that the Connecticut Business and Industry Association is misguided, ill-informed, provides unreliable information to the legislature and is organizationally incapable of analyzing public policy issues beyond the visceral reaction that this will cost our members some money. Not once in my recollection has the CBIA taken any stand on any issue that would benefit employees and fails to recognize that an employee who does not feel penalized by illness is a happier and more productive employee.

I have a total of 11 employees. Our standing benefit policy provides 5 paid sick days, 2 personal days (funerals, sick, appointments etc) and 3 weeks of vacation that rises with longevity. We also are flexible under special circumstances permitting employees to make up hours and to work remotely under specified conditions.

If an employee is sick with something that is contagious whether it is viral or bacterial, I don’t want that employee in the office exposing others to illness. A sick employee also is under productive, inefficient and brings an attitude that can become contagious within the office.

CBIA has taken a position but it has not canvassed its members on this issue. It is another CBIA knee jerk reaction that the proposal is a mandate that will cost small employers (most large to middle size employers already provide such benefits). The irony is that CBIA weighs in opposition to any proposal that will cost an employer any money but usually only does the bidding for its large members who control the CBIA Board. Let the CBIA offer some real evidence or analysis that this proposal would be harmful to the economy of Connecticut. Today I have blogged further on this subject. If you go to my blog I have more to say. http://stamford-trial-lawyer.blogspot.com/

Good luck and hoping your final days of the session will be productive.
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