Fighting the Insurance Company After a Traumatic Brain Injury

Perhaps two of the most harrowing experiences a person will have to deal with are being told something amiss in their brain and fighting a seemingly uphill battle with a behemoth insurance company. The last thing anyone needs at this point is distractions and added stress.

Once a diagnosis of TBI is made, everything else fades into the background. A family is, and rightfully so, singularly and laser-focused on the recovery process. And, it is a process a long, difficult, and financially draining process.

Our brains are the essence of who we are and what we are capable of doing. Trauma to the head derails our best-laid plans becoming a completely different person changes everything, and recovery is intensive.

Whether the injury is the result of a motor vehicle accident, a fall, a medical procedure that went bad, a defective product, or if the victim simply bumped their head on an open kitchen cabinet door, the financial implications are the same. When all is said and done, the best way to deal with an insurance company is to hire a Brain injury lawyer.

Dealing With an Insurance Adjuster Can Be an Adversarial Process

Once it is determined whose insurance company should ultimately be responsible for the costs of the injury (An automobile collision and comprehensive company, a business owner’s liability company, a physician’s malpractice company, or the accident victim’s personal health insurance carrier), the first point of contact is a claims adjuster.

At this stage in the financial recovery process, they have all the power and know how to leverage it to their advantage. They see the claimant has no frame of reference to guide them, and they know that the accident victim has the burden of proof.

An insurance claims adjuster’s only interest is protecting their interests and their company’s bottom line. They can and will use any method to “deny, delay and devalue” what probably is a legitimate claim. When an accident victim hires a personal injury attorney, they effectively take back some power and control over the situation.

How the Insurance Company Operates?

Experience Lawyer for Traumatic Brain Injury Attorney near NYSo, how can a brain injury patient, even with the help of a strong family support system, fight an insurance company alone? The answer is, “They most likely can’t.” An insurance company is a for-profit enterprise. They make money by underwriting profit, wise investments, and reducing claims expenses. Simply put, they play the odds.

Industry data indicates that only three out of every 100 premium holders make a claim. Insurance carriers employ actuaries who analyze the financial cost of risk, which can take some of the guesswork out of uncertainty. There is a method to their madness, and for the most part, it works. They bank on the fact that a fair percentage of claimants will abandon their quest due to the hassle factor, and unfortunately, some will not survive the injury at all.

An adjuster may be able to unearth a loophole or an exclusion in the policy contract that will make the payout issue a moot point.

Some of these can include: 

  • Lack of definitive proof
  • Missing or false information
  • A delay in medical treatment
  • Location restrictions or exclusions
  • A lack of a connection between the accident and the type of injury
  • A pre-existing injury
  • Insufficient medical records
  • A failure to mitigate the injuries
  • A lapse in coverage

A Traumatic Brain Injury Is a Complex Issue

There are many possible reasons an individual will be diagnosed with a TBI.

Anything that strikes or jolts the head could cause a severe problem, for example: 

  • A knock against a cabinet or shelf
  • A bump while getting in or out of a car
  • A slip-and-fall accident
  • A sports injury
  • A motor vehicle accident
  • A workplace injury
  • A defective consumer product
  • Physical violence

The consequences include the possibility of long-term or even permanent physical abnormalities, behavioral challenges, cognitive impairments, personality disorders, sensory issues, and emotional distress. That requires the professional services of physicians, psychiatrists, surgeons, neuropsychologists, speech therapists, rehabilitative care experts, physical therapists, and long-term health care planners.

An accident victim may need modifications to their home to accommodate the physical limitations caused by the accident. An injured person may need round-the-clock care, either at home or in a skilled nursing facility. Loss of income and loss of future earning capacity aside, the medical costs alone associated with a TBI can run as high as $3 million for some patients.

There are many non-economic damages that are expected when facing a lifetime of reduced quality of life as one knows it.

Brain injury victims may experience: 

  • Depression
  • Anxiety
  • Trouble sleeping
  • Loss of memory
  • Irritability
  • Impatience
  • Reduced tolerance for stress
  • Sluggishness
  • Flattened or heightened emotions and reactions
  • Denial of disability
  • Increased aggression
  • Personality changes

The list of potential consequences is seemingly endless.

A victim of a traumatic brain injury may have to deal with:

  • Difficulty processing information
  • An inability to successfully express thoughts
  • Difficulty understanding others
  • Lack of an attention span
  • The inability to understand abstract concepts
  • Impaired decision-making ability
  • Memory loss
  • Changes in vision and hearing
  • Spatial disorientation
  • Inability to understand the concept of time
  • Balance issues
  • A heightened sensitivity to pain
  • Persistent and intractable headaches
  • Extreme mental and physical fatigue fatigue
  • Seizure disorders
  • Sensitivity to light
  • Sleep disorders,
  • Slurred speech
  • Loss of consciousness or fainting
  • Social anxiety
  • Self-imposed isolation

Without even analyzing the cumulative costs of lost current and future income, the average family cannot shoulder the financial costs of a traumatic brain injury.

So, what can they do when the insurance company is less than helpful, unnecessarily uncooperative, and often underhanded? They can and should contact a personal injury lawyer to help them get the compensation they deserve.

What Can a Traumatic Brain Injury Victim Recover From an Insurance Claim?

In a compensation claim, TBI victims can ask for the actual and projected costs of medically related expenses and lost income. Additionally, they may request the monetary value of any lost or damaged personal property when applicable.

If the injury results from a motor vehicle accident, such items may include the damaged vehicle, the value of any damaged or lost jewelry, and electronic devices and leather goods (handbags, briefcases, etc.). If a settlement negotiation fails, the victim may sue the insurance carrier.

At that point, you may recover:

  • The original claim under the terms of the policy
  • Interest
  • Court costs and legal fees
  • Punitive damages

What Can Influence the Financial Outcome?

Regardless of the cause of the injury, there are many factors that come into play when it comes to decision-making. Nothing is ever just black and white, and emotions often affect an outcome.

Your compensation may depend on:

  • The specific details of the incident
  • The prognosis for a complete recovery
  • The length of time a victim will need therapy or specialty care
  • The possibility that the survivor can return to work
  • The probability the survivor will be able to return to their chosen profession
  • Is job retraining a possibility
  • The age of the survivor at the time of the accident
  • The educational background of the survivor
  • The ages of all immediate family members
  • The amount of past and future medical expenses
  • Lost earnings to date and projected lost income
  • Validation of pain and suffering
  • How the injury impacts the victim’s daily life
  • How the injury impacts the family dynamic

How Can an Accident Victim Help Their Cause?

Probably the most important thing an accident victim can do is follow all recommended medical treatments and therapies. Nothing will make an insurance claims adjuster happier than to dismiss a claim because the victim did not seek or follow medical advice.

Keeping accurate and up-to-date documentation, such as a journal or a diary detailing all medical treatments, can prove invaluable if a claim goes to trial. A detailed accounting of how the accident affects daily life for the accident victim and the family puts a personal spin on what otherwise can be just cold hard facts.

A personal injury lawyer may advise an accident victim to keep a low profile when using social media. Make no mistake; the claims adjuster will look for anything to use against an accident victim.

Is It Legal for an Insurance Company To Deny a Claim?

Under certain circumstances, yes, it can be. An insurance policy is a legal contract between the company and the potential policyholder both have responsibilities.

The insurance industry is regulated by state-specific legislation, and individual carriers are bound to treat their insureds fairly and reasonably. However, in a personal injury case, under the circumstances, they can summarily deny a specific claim that does not fall under the terms of the contract.

This can include:

  • An absence of clear evidence that the policyholder is responsible for the injury
  • A lapse in premium
  • Falsification on the application for insurance
  • There is an existing policy exclusion some auto insurance policies have location restrictions, meaning certain accident locations will not be covered.

The denial of a claim does not mean all is lost. A personal injury attorney may file a lawsuit or an appeal. Accident victims in this position should contact a qualified attorney for direction.

A Bad Faith Claim

Andrew Finkelstein Attorney for Traumatic Brain Injury

Andrew Finkelstein Traumatic Brain Injury Lawyer in New York

In a perfect world, an insurance company will act above the board promptly and give a claimant a clear and understandable response if it denies the claim.

This rarely happens. A claims adjuster will usually operate in one of two ways.

On the one hand, they may reach out immediately to an injured party (usually when they know their client is responsible) and offer a quick lowball settlement.

They hope the family will immediately need a cash infusion and jump at the chance to put the whole incident behind them. Or, they may stall as long as they possibly can before initiating any communication at all. Why? To delay compensation.

The carrier may only make a cursory attempt at investigating the incident and then subsequently offer a settlement far below what is fair and just. A personal injury lawyer can address this.

An Attorney Can Help

Victims of traumatic brain injury or their families do not have to deal with the insurance company alone. An experienced personal injury attorney in New York can gather sufficient evidence and expert witnesses to present a compelling case for full and fair compensation.