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Crashes and Falls Leading Causes of Traumatic Brain Injuries (TBI)

Traumatic Brain Injuries are said to be the leading cause of death in South Carolinians from the ages of 1-44, per statistics from the Brain Injury Association of South Carolina. The known leading causes for TBI are said to be falls and motor vehicle collisions according to the Brain Injury Association of America.

As illustrated in a recent article in The Greenville News, TBI affects a range of cognitive, behavioral, emotional and physical functions, which can include anything from problems with short-term memory, personality changes and speech impediment to lack of coordination and persistent fatigue.  As awareness of these type injuries is increasing, there are still believed to be over 60,000 South Carolinians living with traumatic brain injuries.

Rebecca Hadel was in a t-bone collision when she sustained a traumatic brain injury, along with other severe physical injuries. The Greenville News article, “Recovering, Step by Step”, highlights her personal story along with information about TBI.  As Hadel states in the article:

“Brain injuries don’t ever go away…”

 

To learn more about traumatic brain injuries and the resources available, click on any of the below links:

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Injured at Work in South Carolina? What you need to know. (Part 1)

This is the first of a series of blogs written to tell workers in South Carolina what they need to do if they suffer a work-related injury.

  1.  Report your work-related injury immediately!

The most important advice that I can give an injured worker is to report the injury to his supervisor immediately and to make sure that the injury is documented by the employer.  While the law only requires the injured worker to report the injury within 90 days of the occurrence, the practical effect is that most employers will deny the injured worker’s claim if the injury is not reported immediately.

Having represented only injured workers for more than 29 years, I can’t count the number of times that a potential client came to see me because his workers’ compensation claim had been denied by his employer solely due to the fact that he had waited a few days to report his work injury.  The most common excuse given to me is this:

“I thought I had only strained my back and that it would get better in a couple of days so I did not tell anybody about my accident.  It was only after it did not get better that I decided to say something about it to my boss.”

While the excuse may sound reasonable to the employee, it often gets him in trouble when he subsequently decides to report the injury.

How does it get the injured worker in trouble? 

  • First, the delay in reporting the accident gives the employer greater reason for questioning whether the worker truly got hurt at work.  After the injury is reported, the employer will likely investigate the accident by questioning co-workers.  If the worker did not say anything when he got hurt, there will not be any co-workers to confirm his injury claim.   Even if the injured worker did say something to his co-workers when the injury occurred a few days earlier, they may, as a practical matter, be too afraid to speak up on his behalf to the employer for fear of job retaliation.  It is an easy way out for the co-worker to simply say to the employer that “I don’t remember it.”  I have even seen some co-workers try to gain favor in the eyes of the employer by saying that the injured worker told them that he had gotten hurt at home rather than at work.  The bottom line is that a delay in reporting the accident by the injured worker gives the employer justification to question the injured worker’s credibility and to deny the claim.
  • Second, some companies even have a policy that requires injured workers to report their injuries immediately to the company.  Failure to report the work accident immediately is deemed to be a violation of company policy for which the injured worker may be terminated.  Therefore, the worker who does not report his work accident immediately because he fears that he may get fired by his employer for getting hurt at work (which is against the law for the employer to do in South Carolina) actually gets fired for violating company policy when he reports the accident late.

In conclusion, it is imperative for the injured worker to report his accident at work immediately to his employer regardless of how insignificant he may initially think that his injury will be.  Often the very severe pain from an injury such as a back strain may not arise until the following morning.

How many times have you gone out and done some strenuous work or exercise only to feel a little sore immediately after you finished, but then felt like you could not move the next morning when you woke up?  Don’t take the chance.  Report the injury immediately!

My next blog will be about the importance of the medical history that you give to the physician when you go for medical treatment after you have suffered a work related injury.

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Summer, The Most Dangerous Driving Season

We love so many things about summer.  School is out, the weather is great, the lakes and beaches are inviting us to get away and enjoy some much needed down time.  Summer also means more cars on the road, which can easily make it the most dangerous driving season of the year.

According to the South Carolina Public Safety Traffic Collision Fact Book, there’s a traffic collision every 3.7 minutes in this state.  Every 13.5 minutes, one of those wrecks causes an injury.  And every 9.5 hours, a crash involves a death—of a driver, passenger, bike rider, or a person not even in a vehicle.  Teenage drivers age 15-19 are in fatal or injury collisions every 90 minutes in South Carolina.

More motorcycles are on the road during summer, and their numbers aren’t any better.  Fatal motorcycles crashes rose sharply in 2021, higher than it’s been in decades.  Last year saw 154 motorcycle deaths, which is more than any year since 1980—the first year South Carolina compiled its Collision Fact Book.  By comparison, there were 116 in 2020.

There are several main causes for these wrecks and alcohol is high on the list.  The Centers for Disease Control ranks South Carolina 10th highest among all states in alcohol-related deaths, which is unusually high for its population.  In 2019, this state had 276 traffic deaths involving alcohol, and that number jumped to 315 in 2020.  Drinking increased during the Covid pandemic, and Mothers Against Drunk Driving attributes the rise in fatalities to more people being on the road since restrictions relaxed.

Speed is certainly a factor in summer traffic crashes.  People are in a hurry to get where they’re going, and summer trips are no exception.  They want to get out of town and start their vacations as soon as possible.  Many drivers push beyond speed limits, which leads to senseless crashes and injuries.  And one of the biggest factors is distracted driving.  Cell phones are one of the worst distractions for any driver, and glancing at a phone screen for just a second can lead to a fatal accident.

So, what can you do to help make road travel safer in the summer?  We can all slow down and obey posted speed limits—on interstates, smaller highways, and on streets in any town.  Combining drinking and driving is always a bad idea, so make sure there are designated drivers in every group.  Wearing a motorcycle helmet can reduce your chance of injury by 37%.  Most importantly, put down the phone while driving, so you can pay full attention to the road in front of you and the other drivers around you.

If you’re in a wreck, call the police—and get medical treatment if you are injured. Make a video recording of the other driver and get them to provide an account of what happened. If they won’t do that, at least call 911 to have the local authorities or SC Highway Patrol make an official record of the collision. Keep in mind, if it ain’t documented the at fault insurance company will say it didn’t happen. If you’re an accident victim, don’t hesitate to call Trammell & Mills at (864) 485-8585 to get the medical and financial compensation you deserve.  Be careful out there, and have a safe summer on the road!

 

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Surgery Checklist Implemented in South Carolina Hospitals

South Carolina hospitals are addressing an issue that may save hundreds of lives by simply looking over a checklist after surgery. Much like a pilot does prior to take-off, surgeons would have a checklist devised by an international patient safety guru, Dr. Atul Gawande. It appears Dr. Gawande has even written a book entitled, “The Checklist Manifesto”. As Malcolm Gladwell comments about the book:

Gawande begins by making a distinction between errors of ignorance (mistakes we make because we don’t know enough), and errors of ineptitude (mistakes we made because we don’t make proper use of what we know). Failure in the modern world, he writes, is really about the second of these errors, and he walks us through a series of examples from medicine showing how the routine tasks of surgeons have now become so incredibly complicated that mistakes of one kind or another are virtually inevitable: it’s just too easy for an otherwise competent doctor to miss a step, or forget to ask a key question or, in the stress and pressure of the moment, to fail to plan properly for every eventuality. Gawande then visits with pilots and the people who build skyscrapers and comes back with a solution. Experts need checklists–literally–written guides that walk them through the key steps in any complex procedure.

Liv Osby of The Greenville News wrote an article on Sunday, September 19, entitled “List Could Put Check on Surgery Deaths”.  In her article it was interesting to read phrases like “serious surgery complications”, “we’re doing the right thing for the patient”, and “this could save many thousands of people from harm”.  All due to a simple checklist of 19 functions, including marking the area to be operated, verifying the patient’s identity, and discussing any special risks.

This is not a new concept as a very similar article on the same subject was written by the The Washington Post entitled “Surgery Checklist Lowers Death Rate”,  back in January of 2009. However, I was happy to not hear anything about Medical Tort Reform and this being a result of trial lawyers but a simple article indicating accidents happen in the medical field and they happen at a high rate. As the article indicates:

..every avoided complication saves $13,000.00 on average, the checklist would also cut annual health care costs statewide by more than $50 million….

Another important point made by Dr. Gawande, is that every professional could benefit from a checklist of the simplest tasks that would avoid a great deal of trouble down the road.

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Personal Injury Claims and Bankruptcy (Part Two)

In Part One, I explained that if you don’t list your personal injury claim in your bankruptcy, you don’t “own it” any longer and don’t have the right to pursue the personal injury claim.   In this post I’ll tell you about another problem you’ll have and about a real case right here in South Carolina.

Judicial Estoppel Can Really Cause You Problems

If you fail to list legal claims during your bankruptcy, you may forever lose the right to pursue those claims. Once the other lawyer finds out your bankruptcy is inaccurate, you can’t say, “Whoops, I guess I’ll call my bankruptcy lawyer and list that claim on my schedules!” It’s too late.

This problem just raised its ugly head in the United States District Court here in South Carolina.  Blanche Wright had a legal claim against Richard Guess alleging violation of her civil rights. But when Ms. Wright filed bankruptcy, she didn’t list the federal lawsuit.

Predictably, the defense attorney found out about her bankruptcy filing. And they always do, by the way.

The defense then asked the court to dismiss Ms. Wright’s case because (1) she didn’t have standing to bring it—that is, she didn’t “own” the claim; her bankruptcy estate did, and (2) because Ms. Wright’s claims should be barred because of judicial estoppel.

What Exactly is Judicial Estoppel Anyway?

As Judge Anderson explained, “judicial estoppel is ‘an equitable doctrine that prevents a party who has successfully taken a position in one proceeding from taking the opposite position in a subsequent proceeding.’” This means you can’t say, “I have no legal claims” in your bankruptcy by not listing your personal injury case, then turn around and say, “I do have a legal claim” in your state or federal court case. You can’t “play fast and loose with the courts,” as Judge Anderson explained in Ms. Wright’s case.

Although Ms. Wright actually amended her bankruptcy after the defense filed its motion to dismiss, this didn’t impress Judge Anderson, who stated, “[c]ourts have repeatedly rejected the argument that judicial estoppel should not be applied when the debtor-plaintiff has attempted to remedy an omission by amending her bankruptcy filings.”

What’s All This Mean?

The bottom line is this:

  • You must notify your personal injury lawyer if you intend on filing bankruptcy. He needs to know. And he may also be able to refer you to a bankruptcy lawyer he knows will be qualified to handle your case.
  • You must list your personal injury claim on your bankruptcy schedules. Don’t ever hide anything from any lawyer you hire, and this is especially true when dealing with assets like claims in your bankruptcy estate.
  • If you don’t list your injury claim in your bankruptcy estate, you may lose it forever. Saying “oops, I forgot” will not work.

Your lawyers want the best outcome to your cases. Help them help you by keeping them informed of all your legal problems.

 

(This is a guest post written by Russell A. DeMott. Click on his biography below for more information about Mr. DeMott’s bankruptcy practice.)

 

Russell A. DeMott is a bankruptcy lawyer practicing in Charleston, South Carolina. He represents clients in Chapter 7 and Chapter 13 bankruptcy.

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