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the amount of monetary damages, which in turn depends upon the extent or amount of injury suffered. There are certain time limits (statute of limitations) for filing a legal action and failure to meet the deadline permanently prevents recovery in a court proceeding. In addition, the longer the delay in hiring a lawyer, the more stale the evidence becomes, making effective legal action more difficult.

Medical Malpractice

This often results in personal injury and may be handled by a personal injury attorney, but it bears separate discussion. Medical malpractice typically, but not always, results from negligence on the part of the physician or other health care provider. This can take the form of surgical error, improper diagnosis, failure to diagnose, medication errors, lack of informed consent, among other matters. Signing a physician’s consent form does not give the physician the right to perform at substandard levels.

To claim medical malpractice, the brain injury survivor (victim) must establish the health care provider’s (defendant) legal duty, that he or she failed to meet the standard of reasonable care relating to that duty, resulting in injury to the survivor.

Before consulting with an attorney, become familiar with the survivor’s medical records. The patient has a legal right to view his own records, so this should not be a problem. It is essential to file a claim as soon as possible, so as to avoid the statute of limitations expiring and causing the case to be dismissed as untimely. Each state has a different statute of limitations, so check with a local personal injury or medical malpractice attorney.

Olmstead Act

On June 22, 1999 the United States Supreme Court ruled in L.C. and E.W. v. Olmstead that it is a violation of the Americans with Disabilities Act (ADA) to require disabled individuals to be treated in an institution versus in a community- based setting. What this means for the brain-injured patient is that if she wants to receive treatment and/or services in the community rather than in a nursing home, for example, she is legally entitled to do so. If the state refuses, then the state is violating the ADA unless it can provide sufficient reason. The Olmstead decision does not, however, give an individual the right to remain in an institution if the state determines


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