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Legal Issues & Services

1. ADA And Access

1.1. What is the Americans With Disabilities Act

The Americans with Disabilities Act of 1990 (ADA) is the most comprehensive law ever passed to protect the civil rights of individuals with disabilities. The ADA will enable people with disabilities to participate more fully in their communities, compete more effectively for jobs, travel more easily in their hometowns and across the nation, and gain more complete access to the goods and services that most Americans take for granted. United Spinal Association is proud to have played a role in the passage of this landmark law.

Please see the download link below for a complete overview of the Americans With Disabilities Act or click here for the web version

1.2. Voting rights and disability

Is Full Access Finally in Sight?

By Len Zandrow NSCIA Legal councel

The right to vote is perhaps the most cherished right in — and the hallmark of — a democracy.

In 1964, the U.S. Supreme Court ruled in Wesberry v. Sanders that "no right is more precious in a free country than that of having a voice in the election of those who make the laws under which, as good citizens, we must live.

Other rights, even the most basic, are illusory if the right to vote is undermined."

Despite the fundamental and sacred nature of this right, access issues have often made disabled voters feel like second-class citizens.

As just one example, a Pennsylvania court in 2001 reported that only three percent of Philadelphia's 1,681 polling places were accessible to voters using wheelchairs.

As a result, voters with mobility impairments could not cast ballots where their neighbors voted and were forced to vote by absentee ballot or by alternative ballot at accessible polling places outside their precincts.

One year earlier, 43 of 44 polling places in upstate New York were deemed inaccessible.

In that case, the court catalogued accessibility problems in four areas:

  1. parking,
  2. pathways,
  3. poll entrance, and
  4. the interior of the site.

Parking accessibility deficiencies included insufficient access aisles to provide room to maneuver in and out of the vehicle, while pathway problems commonly involved non-level surfaces that made it difficult for people using walkers or wheelchairs.

An entrance was considered inaccessible if it lacked a needed ramp or featured a ramp without handrails, while an interior was noncompliant if its aisles were not wide enough for wheelchair use.

These problems at polling places are pervasive. A Florida-based task force which studied voting procedures after the 2000 presidential election estimated that 20% of the disability community was less likely to vote due to a lack of accessibility.

According to the task force, there are presently 33.7 million Americans of voting age with disabilities. If all polling sites were accessible, an additional 5 to 10 million of these disabled persons would probably vote.

Apart from access problems, confidentiality represents a separate area of discrimination. Legislation to protect voters with disabilities has proven inadequate.

Since 1984, the Voting Rights Act (VRA) and the Voting Accessibility for the Elderly and Handicapped Act (VAEH) have sought to "promote the fundamental right to vote by improving access for handicapped and elderly individuals to registration facilities and polling places for Federal elections."

When enacting this legislation, however, Congress compromised the privacy of disabled voters by relying heavily on the use of third-party poll workers despite the potential for influence and manipulation.

Six years later, Congress passed the Americans with Disabilities Act (ADA), which provides broader protection from discrimination in voting. None of these laws, however, guarantee disabled voters the right to cast secret ballots without assistance like their able-bodied neighbors.

Technological advances offer new hope for providing private, independent voting. A system manufactured by Hart InterCivic now enables manually-impaired persons to vote without help via assistive devices.

A "sip and puff" machine allows the voter to cast their ballot using only their breath. A "jelly switch" machine allows voters to activate a two-inch round switch with a hand, finger, pencil, or other body part or instrument.

The jelly switch is highly sensitive, requiring only a small amount of pressure.

A battleground state for voting rights, as well as for this year's presidential candidates, is Florida.

The voting procedures in this state have been under great scrutiny ever since the 2000 election, when it took five weeks of legal maneuvering and some recounting before Republican George W. Bush was declared president.

Last year, disability organizations challenged Florida officials' decision to certify voting machines which did not permit manually-impaired voters to cast ballots without assistance.

In an important ruling in August, 2003, a Federal District Court in Jacksonville suggested that voting rights may be subject to technological advances.

While access to third-party poll workers may have satisfied legal requirements in the past, a broader use of sip and puff and jelly switch machines may eventually be required in order to permit people with disabilities to vote unassisted.

In the Florida case, American Association of People with Disabilities v. Hood, the court denied the defendants-officials' motion for a legal judgment in their favor and ruled instead that disputed issues of accommodation would have to be decided by a jury trial. Appropriately, that decision would be left in the hands of the people.

Those who wish to register and vote in the upcoming presidential election this November 2nd and beyond should contact the clerk's office in their local city or town.

Ask whether your local polling place is accessible and, if not, what arrangements are necessary to obtain an absentee ballot. Do not be denied your most precious right.

2. Legal Services & Issues

2.1. Legal Rights of the Seriously Ill and Injured: a Family Guide

Nationally recognized for his advocacy services, Mr. Romano provides FREE consultations and answers questions on funding at no charge.

In Joseph Romano's latest book, LEGAL RIGHTS OF THE SERIOUSLY ILL AND INJURED – A FAMILY GUIDE  he discusses how to navigate the maze of the  healthcare reimbursement system. This book contains important information on:

  • Private health insurance and the appeals process
  • Maximizing inpatient and outpatient rehabilitation services
  • Obtaining needed skilled nursing, attendant care and durable medical equipment
  • Securing governmental benefits, Early Intervention Services and Special Education benefits
  • How to obtain Extra-Contractual benefits such as home modifications, respite care, state of the art equipment and stem cell treatments
  • How to insure that the lifetime needs of a patient are met

Get your free copy – available in English and Spanish

2.2. Personal assistants and liability

The U.S. Department of Labor projects that Americans will employ 433,000 more personal assistants, or "PA"s, for home-based services by 2008, an increase of 58% over current levels. A PA can help individuals with SCI become more active and independent and to realize their goals. Like any other resource, however, assistants need to be properly managed to gain the greatest potential benefit, and to avoid legal pitfalls.

Hiring the Personal Assistant

Hiring assistants through agencies is costly and affords less control over the process. Hiring them directly places you in the daunting and probably unfamiliar role of being an employer. Either way, before retaining anyone, you should make a thorough inventory of your personal needs and desires. What personal care or homemaking services would you like? Your inventory will help frame advertisements for the position, any expectations that you create during the job interview, and any written contract you ultimately execute. Based on your inventory, you should also be able to determine the assistant's qualifications, requirements, and wages.

Regardless of the skill level required, any candidates should meet certain minimum criteria. They should: 1. be at least 18 years old (you cannot execute a legally enforceable contract with a minor); 2. possess a valid social security number (required for withholding or social security taxes); and 3. possess a driver's license and authorize you to perform a criminal check — local police will investigate a candidate's background for you.

Ask job applicants for at least two professional references. Be careful how you frame questions; it is illegal to ask candidates about their ethnic origin, nationality, race, political beliefs, or source(s) of income. Ask only what affects their ability to perform the essential functions of the job. For example, you may not legally ask candidates if they are married or have children, but you may ask if work on weekends or holidays would pose a problem. You may not legally ask if candidates have a disability or pre-existing health condition, but you may inquire whether they could help you transfer from a wheelchair, for instance. You may not ask candidates their age, but you may obtain assurance that they are eighteen years or older.

If you extend a job offer, you may want the assistant to sign a written contract, which should specify job duties, hours of work, days off, wages, and possible grounds for termination. The grounds for termination should be broadly phrased to permit discharge for any reason within your complete discretion.

Managing the Personal Assistant

After hiring an assistant, provide proper training to clarify duties and performance standards. Proper training may also protect you from liability to third parties if the assistant negligently injures another while on the job.

Orient the assistant with a tour of the house, showing where supplies and equipment are kept, and discuss your disability and any specific health-related issues. Inform the assistant of any safety guidelines for disability-related equipment or household appliances. Discuss whether the assistant has the right to use any personal items in the household and your ground rules for privacy and confidentiality.

Whether you hired the assistant directly or used an agency, you are considered a supervisor and will be expected to direct the PA's work. Accurate record keeping is necessary for compensation and tax purposes; you may want the assistant to sign time sheets.

The nature of assistant work often blurs the lines between supervisor and employee. PAs might be involved with private, sensitive aspects of your life. You need to keep in mind how your interactions with your assistant may be perceived. To protect yourself from possible liability, you must avoid — and refuse to condone — any conduct that could be considered sexual harassment or abuse.

Firing the Personal Assistant

Best-laid plans do not always work out, so be prepared for the possibility that a PA will leave your employ.

If you initiate the separation, make sure you first provided the assistant prior feedback about his or her job performance. Give your PA an opportunity to improve. If the employee has not been able to improve, then you may wish to terminate him or her.

Unless your employment contract provides otherwise, PAs are generally considered "at will" employees and may be fired at any time for any reason, so long as the reason (for example, unlawful discrimination or retaliation) does not offend public policy. If a terminated employee might get upset and leave immediately, you should plan for a backup. If there is a chance that the employee might become angry and put you at risk, arrange to have a third person present. Before concluding the relationship, be sure to retrieve any keys in the assistant's possession.

If he or she has stolen anything from you, been abusive or severely breached your employment contract, terminate the PA's employment immediately. Any misconduct which violates the law should be reported to the police. If immediate termination is not necessary, you may wish to give the assistant two weeks notice to find a new position, provided their continued presence would not make you uncomfortable.

PAs can be a deeply significant adaptive resource for attaining your fullest potential. The more time you devote to the process of hiring, training, and supervising an assistant, the more likely you will be to have a beneficial and hassle-free relationship.

2.3. Custodial Parental Rights and spinal cord injury

Divorce is difficult enough. Combined with a spinal cord injury, the situation is even more complex. If children are involved, it can be among the most complicated and emotional experiences life has to offer.

There are two basic issues involved in custody over children in any divorce. First, there is physical custody — which parent will the child live with. Second, there is legal custody — which parent is responsible for the child's healthcare, education, activities, and religious instruction, if any. Under "joint custody," a common arrangement, neither parent is deemed to have rights and responsibilities which are superior to the other.

Most courts use a legal standard that emphasizes the "best interests of the child" when deciding custody. This standard varies in any given situation and depends on many factors, including:

  • The child's age, sex, and general state of health
  • The parent's general state of health
  • The parent's lifestyle, including any history of physical or verbal abuse
  • The emotional bond between the parent and the child
  • The parent's ability to provide food, shelter, clothing, medical care, and guidance
  • The child's connections to a particular school, home, community, or religious institution
  • The quality of the child's current education
  • The impact on the child of altering the status quo
  • The child's own preferences, assuming a certain level of maturity and age (usually about 12 years old)

Typically, none of these factors clearly favor one parent over the other. In most cases, the courts then balance which parent is likely to provide the child with the most stable environment. For younger children, custody may be awarded to the parent who has been the child's primary caregiver. For older children, custody may be given to the parent who is best able to offer continuity in the child's education, neighborhood life, religion, and peers.

Parents who do not receive or share physical custody are usually granted visitation rights. Visitation schedules can be flexible or fixed depending upon the degree of hostility that may exist between the divorced couple.

In many jurisdictions, the factors identified above are set forth in a statute, and the courts must address them specifically before rendering any decision on custody. Because most courts are required to evaluate, and make specific findings on, a parent's state of health, the fact that he or she has a disability such as SCI is necessarily relevant — even though such judgments might appear to be discriminatory and unlawful.

For example, in one 1989-dated case, Slavish v. Slavish, a court in Delaware declined awarding joint custody to a father because his SCI and recurrent hospitalizations had caused him to cancel many visits in the past year. Nonetheless, the court ruled that it was "extremely important" for the father to have "frequent and substantial" contact with his children and so ordered generous visitation rights.

In a more recent, 2003-dated case, Brown v. Brown, a Connecticut court granted joint legal custody to a 58-year-old father with paralysis and depression. Based on her superior financial position, the wife in Brown was ordered to pay the husband alimony, but the husband was required to pay child support. The wife was also given primary physical custody, while the husband was awarded substantial visitation rights.

Another key issue is how to calculate the amount of child support a parent with a disability is required to pay. The majority rule, followed by more than thirty states, allows the Social Security dependency benefits which the government pays to children of disabled parents to be credited toward, and thus reduce, the disabled parent's total support obligations.

Because individual circumstances vary so greatly, few generalizations apply in divorce disputes. To avoid potential harm to any children involved, however, parties are encouraged as much as possible to use mediation services and to resolve conflicts by agreement, rather than litigation.

2.4. Participating in a clinical trial

The choice of whether to participate in an experimental research study can be one of the most important life decisions a person makes. Here are some key points to keep in mind if you're considering participation in a trial.

There should be an established protocol or plan which specifies the length of the study, what types of persons may participate, and the schedule of tests, treatments, and procedures.

Eligibility criteria for SCI research studies may include factors like age, gender, extent and duration of injury, previous treatment history, and presence or history of other medical conditions. Because many major studies are funded, at least in part, by government grants, guidelines typically specify that sponsors may not discriminate against candidates on the basis of improper, non-medical criteria.

Expected benefits need to be weighed against potential risks. Assuming that the research study is well designed and implemented, participants might obtain the benefit of access to promising new therapies before they are generally available to the public. They may receive expert medical care at leading facilities not otherwise covered by their medical insurance. Participation offers the research subject the prospect of improved health and quality of life. It can also appeal to a patient's altruistic desire to help others by contributing to the general state of medical knowledge.

Of course, research studies can also involve substantial risks. There may be painful, serious, or even life-threatening side affects to medical experiments. Adverse side affects may be both immediate and long-term and may not be fully known at the time of participation. Participation may also be burdensome, possibly involving a substantial amount of time and effort for treatments and follow-up visits.

Of course, there is also no guarantee of success. Experimental treatments may not benefit the patient at all, especially in a "blind" pharmaceutical study in which some participants do not receive the actual medication, but rather a "placebo."

Most research studies are sponsored by medical institutions, foundations, the pharmaceutical industry, or Federal agencies such as the NIH, and are governed by comprehensive ethical and legal standards. For example, every clinical trial must be approved and monitored by an Institutional Review Board (IRB) composed of independent physicians, educators, and community advocates. The IRB must initially approve the study's protocol and periodically review its findings to ensure that the researchers are following the established guidelines and procedures.

Research candidates must understand their legal rights and obtain informed consent before participating in any clinical trial. The research candidate should meet with a member of the clinical team, preferably a physician, and be advised in a reasonable manner of all significant medical information that the physician possesses — or reasonably should possess — that is material to an intelligent decision whether to participate in the study. It might be helpful for a family member or friend to participate in this meeting for support and possible follow-up questions. Suggested lines of inquiry include:

  • Purpose and duration of the study
  • Eligibility criteria
  • Details regarding the medical procedures involved
  • Likely benefits and risks, and possible impacts on daily living
  • Physician who is primarily responsible
  • Location where treatments will be performed
  • Prior results of comparable studies
  • Person or entity paying for the treatments
  • Whether the participant must bear any out-of-pocket expenses
  • How participant can monitor his or her personal progress
  • Any requirements for follow-up care
  • Whether participant will receive a copy of ultimate results

The study's clinical team will be composed of doctors, nurses, social workers, and other professionals. They should check the health of the participant at the beginning of the trial, provide directions for participating in the study, monitor the participant throughout the trial, and perform follow-up tests. To protect confidentiality, his or her name should remain secret and not be disclosed in any published reports.

During the study, participants should continue to consult with their primary care physicians, as necessary, to ensure that their other medications or treatments do not conflict with the research protocol. Even after making a commitment to participate, they are free to change their minds. Informed consent should not be viewed as a binding contract; one can leave an experimental trial at any time. When withdrawing from the study, however, the participant should inform the research team and offer his or her reasons for leaving the study.

Participating in a research study can offer profound benefits to an individual with SCI, and to the disability community at large. When carefully conceived and performed, research studies provide one of the fastest and safest ways to test new theories for improving quality of life with SCI, yet one must seriously consider these key legal issues to consider before taking part in any research study or clinical trial.

2.5. Special Needs Trusts

If you want to leave money or property to a loved one with a disability, you must plan carefully. Otherwise, you could jeopardize your loved one's ability to receive Supplemental Security Income (SSI) and Medicaid benefits. By setting up a "special needs trust" in your will, you can avoid some of these problems.

Owning a house, a car, furnishings, and normal personal effects does not affect eligibility for SSI or Medicaid. But other assets, including cash in the bank, will disqualify your loved one from benefits. For example, if you leave your loved one $10,000 in cash, that gift would disqualify your loved one from receiving SSI or Medicaid.

How a Special Needs Trust Can Help

A way around losing eligibility for SSI or Medicaid is to create what's called a special need or supplemental needs trust. Then, instead of leaving property directly to your loved one, you leave it to the special needs trust.

You also choose someone to serve as trustee, who will have complete discretion over the trust property and will be in charge of spending money on your loved one's behalf. Because your loved one will have no control over the money, SSI and Medicaid administrators will ignore the trust property for program eligibility purposes. The trust ends when it is no longer needed -- commonly, at the beneficiary's death or when the trust funds have all been spent.

Learn more about How Special Needs Trusts Work.

How Trust Funds Can Be Spent

The trustee cannot give money directly to your loved one -- that could interfere with eligibility for SSI and Medicaid. But the trustee can spend trust assets to buy a wide variety of goods and services for your loved one. Special needs trust funds are commonly used to pay for personal care attendants, vacations, home furnishings, out-of-pocket medical and dental expenses, education, recreation, vehicles, and physical rehabilitation.

Learn more about How Special Needs Trust Funds Can Be Used.

Pooled Trusts

If you can't come up with a good candidate to serve as a trustee or are leaving a relatively modest sum and don't want to set up a separate special needs trust, consider a "pooled trust." These are special needs trusts run by nonprofit organizations that pool and invest funds from many families. Each trust beneficiary has a separate account, and the trustee chosen by the nonprofit spends money on behalf of each beneficiary. Pooled trusts (also called community trusts) are available in many areas of the country.

Learn more about Special Needs Pooled Trusts.

Will You Need a Lawyer?

Some lawyers will tell you that only an attorney can draft a special needs trust. But you can create a special needs trust yourself, with the right guidance. 

Of course, there are times when you should seek an attorney's advice. For example, you must see a lawyer if you want to create a trust that will be funded with the beneficiary's own money (for example, a settlement from a personal injury lawsuit), rather than your money. Complicated and state-specific rules apply to these kinds of trusts.

To find an attorney with the right experience, try searching Nolo's Lawyer Directory.

Learn More

Get much more information Special Needs Trusts on Nolo.com.

Nolo's Special Needs Trusts: Protect Your Childs Financial Future explains when you should seek an attorney's advice to set up a special needs trust. If you determine that you don't need a lawyer, you can use the book's forms and plain-English instructions to set up your own special needs trust.

by: Stephen Elias, Attorney

 

3. Personal Injury

3.1. When in doubt, contact an attorney quickly.

An individual suffering from a catastrophic spinal cord injury is faced with a host of decisions regarding medical treatment, therapy, rehabilitation, and funding. Because the majority of spinal cord injuries are the result of some type of accident, the question about hiring a lawyer most likely will eventually arise. Should we consider filing a claim against the person who caused the accident? Do I have a case? Do I need to hire a lawyer?

Because the more pressing questions regarding care and recovery must be addressed immediately, legal questions about a potential personal injury case are often put on the back burner until the family has time to catch their breath. Sadly, this can work against the injured victim.

If the accident causing the catastrophic injury was caused, in whole or in part, by an entity or individual with means, or covered by liability insurance, you can rest assured that within 24 hours of the accident, the defense and opposition to your claim is being formulated, investigated, and prepared. That's why it's important for you to choose your lawyer not only carefully, but quickly as well.

The importance of moving quickly:

  • Determining Responsibility. Determining who is responsible for catastrophic injuries can be difficult. Typically, there may be one or more obvious parties directly involved at the scene of the accident. However, there may be several other less obvious parties whose conduct played a role in causing your injuries. Catastrophic injuries usually cause the victim to suffer extensive monetary damages. It is important to identify everyone who may be responsible so that complete justice may be done.
  • Documenting the Scene. While pictures and video of an accident scene are worth a lot to your attorney, pictures and video of a fresh accident scene are invaluable. Over time, skid marks fade. Construction sites are cleaned. Remedial measures are taken by the wrongdoer in order to rectify a dangerous situation.  You can verbally describe "the way it was" all day long and not deliver the impact one simple picture can carry.
  • Witnesses. The timing of witness statements is crucial.  Memory changes with time. It also changes with suggestions. Witnesses to an incident which causes a catastrophic injury are immediately interviewed by the responsible party.  It is imperative that counsel for the victim obtain solid witness statements as soon as possible.
  • Preservation of evidence. The entities responsible for a catastrophic injury should be put on immediate notice of your demand that any evidence in their possession be preserved in its original state.  For example, in a case involving a trucking accident, most rigs contain an electronic control module which temporarily records, among other things, the speed of the vehicle. Over time, crucial evidence can be lost or even destroyed.  The victim's attorney should immediately notify the trucking company, demanding that the module, along with all log books, driving records, etc. be preserved.  

This educational information is provided by Ted Tredennick, Esq., of Thompson and Tredennick, LLP.

3.2. Your rights as a patient with a spinal cord injury

For patients with spinal cord injury, the appropriate response to medical malpractice is unique, fact-specific, and as varied as the particular circumstances involved. One of the best ways to protect yourself from substandard care is to be proactive, to be an educated consumer, and to know and exercise your rights as a patient.

Generally, our rights as medical patients are defined by a variety of federal and state statutes and by the common law. While specific provisions differ state by state, typically most laws provide protection in a variety of areas.

Freedom of choice in the selection of a medical facility and a physician. This right, however, may be qualified in the case of emergencies when patients may be unable to make decisions about their treatment.

Informed consent as to all alternatives which are medically viable. In order to evaluate risks properly, the patient must be advised in a reasonable manner of all significant medical information that the physician possesses — or reasonably should possess — that is material to an intelligent decision whether to undergo a proposed procedure.

Prompt and adequate response. All reasonable requests must be answered within the medical facility's ability.

Right to obtain, upon request, basic information about the name and specialty of the physician or other person(s) responsible for coordinating the patient's care. Some laws also require physicians, students, and other employees of medical facilities to wear identification badges that display their photograph and disclose their name, license status, and staff position.

Receipt of any rules or regulations which apply to the patient's own conduct while he or she is being treated within a medical facility or institution.

Confidentiality of all medical records and communications to the extent provided by the law.

Privacy during care and treatment within any medical facility.

Access to, and inspection of, the patient's own medical records, upon request. The patient may be required to pay for any photocopying expenses for a personal copy of these records.

If such records are required in order to support a claim for Social Security benefits or another governmental needs-based program, however, the records should usually be copied free of charge.

Prompt life-saving treatment in an emergency without discrimination based upon economic status or otherwise.

Receipt, upon request, of any information regarding financial assistance and/or free healthcare options for patients.

Prompt and safe transfer to another medical facility, if the patient is refused non-emergency treatment because of economic status or an inability to pay for services.

Receipt, upon request, of an itemized invoice or statement of all medical-related charges submitted for payment to an insurance company or some other third-party.

An explanation, upon request, regarding any relationship or affiliation of the patient's healthcare facility to any other medical or educational institution.

Right to refuse to be examined, observed, or treated by medical students.

Right to refuse to serve as a research subject or to be examined or treated whenever the primary purpose of such care is educational or informational rather than therapeutic.

Patients may also have a right to refuse treatment based upon the creed or tenets of a church or religious denomination whose beliefs limit the form and quality of treatment to which they may submit.

Other laws may protect you as well depending upon your particular jurisdiction. Knowing and reasonably exercising these rights may be your best defense against possible oversight, neglect, or abuse.

They also allow you to achieve the maximum reassurance for yourself and your loved ones that you know as much as possible about your care and the people providing it.

3.3. Selecting an attorney in a spinal cord injury case

In the aftermath of spinal cord injury, there are so many things to do. Among your challenges is the possibility of filing a lawsuit against those who may have contributed to causing your spinal cord injury. Don't face this challenge unprepared.

When you, or someone you know, has sustained a spinal cord injury, at first the world seems to have turned upside down. There are so many things to do, decisions to make... all the while you are grappling with overwhelming emotions such as anger, fear, depression, and loss.

At this worst possible time, you are called upon to make an extremely important decision about something you know nothing about.

Among all the critical issues vying for your immediate attention, there is the overwhelming concern about how the tremendous costs that go along with having a disability will be paid for.

Most people are not in a financial position to pay for essential needs such as a motorized or manual wheelchair, accessible housing, vehicle adaptation, medical supplies, and personal assistance services.

They will require assistance from their health and disability insurance companies and usually from the State or Federal Government as well. Even with these benefits, some people with spinal cord injuries may have to get along without a lot of the financial, social, medical, and rehabilitation supports they really need.

Among your challenges is the possibility of filing a lawsuit against those who may have contributed to causing your spinal cord injury. This prospect may seem daunting. This article is intended to offer some practical suggestions to help you evaluate your options.

All opinions expressed in this article, however, are intended for your general guidance only and should not be relied upon, or interpreted as a substitute for, specific legal advice in your unique circumstances.

To Sue or Not to Sue

Before you consider hiring an attorney, you should weigh the advantages and disadvantages of filing a lawsuit. You should consider the emotional and psychological price to be paid by all persons potentially involved. Civil litigation is typically time-consuming and emotionally-draining. It often takes years for a lawsuit to reach a conclusion.

A successful lawsuit, however, may provide you with a sense of justice as well as needed financial resources to meet the expenses created by your spinal cord injury. It may also help bring about a change in laws or in practices which might help make society safer.

While you may have had no choice in the circumstances which caused your spinal cord injury, you have a choice now whether to seek recourse through the law. Discuss this decision with your most trusted family members and friends. Your decision should be based on the best information and insight available. Ultimately, the final decision must be yours and yours alone.

You should not feel rushed when making your decision. At the same time, however, you should be aware of certain advantages in retaining an attorney as soon as practically possible. Promptness will enable the attorney to gather information more easily. Otherwise, as time passes after your injury, witnesses may become harder to find, physical evidence may be lost or damaged, and memories may start to fade. In addition, each state has its own statute of limitations establishing a certain deadline after which civil claims can no longer be filed.

You may feel unable to look for an attorney promptly after a spinal cord injury due to lack of physical energy or stress. Consider asking family members or friends to help. They can make some preliminary inquiries for you and gather some important background information.

Identifying Potential Attorneys

Word of mouth

Finding a good attorney is similar to hiring any other professional. You will ultimately want to hire an attorney who specializes in complex personal injury law generally and spinal cord injuries (SCI) specifically. Word of mouth is perhaps as reliable a method as any.

Seek recommendations from persons whom you know to have good judgment or to have had a positive experience using an attorney in a comparable case. Ask any judges or attorneys you might know who they would hire if they themselves were bringing a spinal cord injury claim.

Hesitate hiring an attorney who is a personal friend or family member, even if they have expertise in SCI cases. Although they might have a greater personal interest in you at the start, will you feel comfortable later on expressing disagreement with their recommendations or questioning them about billing matters?

Bar associations

Other resources for information on attorneys are local bar associations and professional organizations. Typically, a city or county bar association will provide you with a list of attorneys in your area who specialize in personal injury and SCI law. If this inquiry is not productive, consider calling your state capital and checking with a state bar association.

All factors being equal, it is probably better to hire a local attorney. Local attorneys are obviously closer in distance, reducing travel time and expenses. They are also more familiar with the judges and court personnel in your area and are generally considered more accountable.

Directory services

The leading national directory of attorneys is Martindale-Hubbell. It was first published in 1868 and is updated annually. This directory lists thousands of attorneys. It is available in book form in most local libraries as well as on-line at www.martindale.com.

Aside from providing basic address and telephone contact information, Martindale-Hubbell tells you when a lawyer was admitted to the state bar, where the lawyer went to law school, and in most instances his or her fields of expertise. This directory also includes a rating system which evaluates how peers have rated an attorney in legal ability and ethics.

Be wary of other on-line "directory" and attorney-locator services. Many of these services appear to provide objective, independent information about attorneys, their locales and fields of expertise. Listings in these services, however, are often determined solely by advertising sales – attorneys pay for the right to exclusive listings in, and referrals from, these services.

It is also somewhat risky to pick an attorney from the Yellow Pages or a telephone book. You cannot make many assumptions about an attorney just because he or she pays for a large advertisement.

Some attorneys and law firms advertise having an interest in particular fields of law simply because these fields are attractive and potentially lucrative, not because they have special experience in them. Spinal cord injuries represent such an area of desirable interest to personal injury law firms.

You should probably avoid an attorney who lists a plethora of specializations, since no individual can remain truly current in all kinds of law. The web sites of individual law firms can also offer some useful background information. Be aware, however, that the content of such sites is largely unsupervised and unregulated.

Interviewing Potential Attorneys

After you have narrowed your list of potential attorneys, call them to set up appointments. When arranging an interview, ask if there will be a consultation fee. While most attorneys do not charge for a first visit, some may do so.

Gathering relevant records

Bring all documents related to your spinal cord injury to the first interview. Such paperwork may include: all relevant medical records; the names of, and contact information for, your health care providers; records of any additional out-of-pocket expenses related to your injury; any police and accident reports, photographs or witness statements in your possession; any record of lost wages from your employer.

If gathering this information seems overwhelming, do not let this feeling delay your interview. While these documents will help the attorney evaluate your case, if it is too difficult for you to gather this information, the attorney can do it himself or herself after first obtaining your authorization. If you ultimately decide not to hire the attorney, you may request that he or she return these records to you.

Questions to ask during the interview

Your goals in interviewing are to determine whether your case has merit, whether the attorney is qualified to handle it, and whether you are comfortable with the attorney and his or her law firm. You or someone accompanying you to the interview should be prepared to take good notes.

There is no ideal checklist of questions in each instance, but some key questions you might consider asking include:

  • Do I have a case worth pursuing? What are my case's strengths and weaknesses?
  • Do I need the services of an attorney in order to assert my rights?
  • What is your legal experience in this field?
  • How many cases like mine have you handled? What were the results?
  • When did you graduate from law school? Have you received any professional honors?
  • Have you ever been cited by an ethics committee or sued for malpractice?
  • Will you personally be working on my case or will you delegate responsibility to others?
  • How long do you expect this matter to take?
  • Are there any pending deadlines which are important to preserve my claims?
  • How will you keep me informed as the case progresses?
  • Are there any alternatives to litigation? Do you suggest mediation or arbitration?
  • Can I help with some of the work? What additional information do you need?
  • What are your rates and how will this matter be billed? Do you require any retainer fee up front?

Contingent fee arrangements are the norm for plaintiffs in SCI litigation. This fee arrangement is attractive because it does not require you to pay any money up front. The attorney shares in the risks of recovery and agrees to be paid only if the client's case is ultimately successful by virtue of a settlement or a judgment. Under this arrangement, the attorney receives a percentage of the final amount recovered -- most commonly one-third for cases resolved before an appeal, or 40 percent for cases resolved after an appeal.

The attorney should be willing to itemize all out-of-pocket expenses in your case (such as court filing fees, transcripts, photocopying, and expert witness expenses). It is important to ask whether these expenses will be deducted before or after the contingent percentage is applied.

Another important question to ask is who will be responsible for paying litigation expenses in the event that your case is lost. These questions are especially important in SCI litigation because expenses are almost invariably high. Likely expert witnesses may include: physicians, a vocational rehabilitation consultant, a life care planner, an economist and separate liability experts.

Some plaintiffs with SCI feel reluctant hiring an attorney who has also represented defendants and insurance companies. The choice is yours. Realize, however, that attorneys who have represented both plaintiffs and defendants may have first-hand insights into claims handling practices and may possibly offer a more objective perspective.

Making a Final Selection

After you have interviewed several attorneys, you should be ready to make your choice. Review your notes and assess how well you related to the attorneys involved. Before you hire anyone, make sure that you feel comfortable speaking honestly and openly with him or her. Consider whether the attorney was able to answer your questions clearly and directly.

Make sure that you understand the ground rules for a professional relationship. Does the attorney understand how you wish to be informed as your case progresses? Will you receive periodic updates in letters or over the telephone? Make sure that you have a clear understanding about fees and expenses.

Memorialize your final agreement in a written contract. The document should include all of the essential terms that you and the attorney discussed. Review the contract in the comfort of your home. Read it thoroughly before signing it. If the contract omits any terms that are important to you, ask the attorney to change it to include these terms specifically.

Responsibilities during litigation

The basic responsibilities of you and your attorney will be set forth in your written contract. In addition, you should expect that your attorney will always be willing and able to tell you the status of your case as it develops. He or she should discuss with you the laws which are relevant to your claims and how your own ideas may fit in relation to the law and court procedures. He or she should advise you of your strategic options so that you will be able to make informed decisions as your case proceeds.

You will have continuing responsibilities as well. You should promptly inform your attorney of any new facts in your case and if your medical condition or needs change. Remember that your communications with counsel are confidential. Strive to be as open and thorough as possible. Try not to be influenced by reports of verdicts or settlements in other cases because each individual situation is unique.

Ultimately, our system of justice is human and thus imperfect. While you may never feel fully compensated or restored for the difficulties caused by your spinal cord injury, hopefully you and your attorney will feel at the conclusion of your case that you both did your best in the circumstances.

David G. Geffen, Esq., Leonard Zandrow, Esq. and Jack Dahlberg contributed to this article.

3.4. Strategies for potential tort claimants

Personal injury litigation, an unwelcome bane for most everyone, is sometimes a necessary evil for persons with SCI.

Such lawsuits may provide an important means of paying costly medical expenses and of compensating injured parties for other damages which they have incurred due to another's fault, providing funds that make a substantial difference for their future quality of life.

Personal injury cases are controversial. President George W. Bush has made tort reform one of the top legislative initiatives for his second term of office. Criticism about the amount of money spent on claim settlements and jury awards will likely remain in the forefront of public discourse in the coming months.

Appropriate compensation for injuries to a wronged plaintiff could be impacted in the rush to limit "nuisance" lawsuits.

How are personal injury damages determined, and how should persons with SCI prepare themselves for such cases? There is no single guideline which applies in every case, but certain general principles apply.

First, prospective litigants should keep in mind that the vast majority of personal injury lawsuits which are filed (over 90% nationwide) are eventually settled out of court.

The process of arriving at an agreeable settlement involves balancing a number of factors including:

  • The relative ease or difficulty in proving the defendant's liability
  • The plaintiff's attractiveness to potential jurors
  • The availability and strength of expert witnesses
  • The relative ability of counsel and the expenses associated with their legal representation
  • The amount of insurance coverage available to the defendant
  • The maximum amount of potential damages

For claims covered by insurance, adjusters typically set aside a specific sum of money, called a reserve, at the beginning of the litigation. This fund represents the insurer's best estimate of the case's value.

This amount may change during the course of the litigation as additional facts are discovered or if the applicable law changes.

It may ultimately be difficult to settle a claim for a sum exceeding the reserve amount unless the plaintiff's counsel can convince the adjuster (either directly or through defense counsel) that subsequent developments have increased the insurer's exposure since the time when the plaintiff's claim was first brought.

It should be a highest priority to accurately inform the insurer of its total exposure at the outset of the claims process.

When assessing potential damages, plaintiffs' lawyers and defense counsel typically reflect different perspectives, but their approach is essentially the same. The lawyers on both sides evaluate each of the following factors which potentially affect the amount of damages that may be recovered.

  • Past, present and future pain and suffering (both physical and emotional)
  • Disability, disfigurement, and loss of function damages
  • Past, present, and future medical expenses
  • Past and present income loss
  • Future loss or impairment of earning capacity
  • So-called "hedonic" or damages for loss of enjoyment of life

Depending upon the jurisdiction involved, close family members (such as spouses, children, and parents) may also recover for their losses of the plaintiff's companionship and affection.

To assist them in their damage estimates, lawyers may retain the services of medical experts, economists, vocational rehabilitation specialists, and life care planners.
Questions often arise, in the SCI context, whether plaintiffs should live their lives any differently in order to enhance their prospects of a recovery. In all instances, honesty is the best policy.

Based on my twenty years of experience in litigation, the clients who do the best are those who cooperate fully and provide complete and accurate information. It is never in a plaintiff's best interests to exaggerate any aspect of his or her claim.

When considering whether to return to work, plaintiffs should follow their treating physician's advice and recommendations. They should not deliberately refrain from work, rather than seeking some alternative employment, if they are capable.

Attempted employment represents a win-win option. If the plaintiff can successfully hold a job, he or she will feel and be productive and happier.

If unable to maintain a position, he or she will have at least tried and will have created a more compelling case for recovering lost earning capacity damages.

There is generally no good reason to hold back from the full living of one's potential in the hopes of appearing "more disabled" in pursuit of a greater award, rather than interacting with the process responsibly to gain the best possible result.

3.5. Spina Bifida and Depakote

Depakote (valproate semisodium or divalproex) is the brand name of a drug which was first approved in the early eighties for the treatment of epilepsy. In 1995, it was approved for use in the treatment of bipolar disorder. Depakote was approved for treating migraine headaches in 1996. And finally in 2002, the FDA approved the use of Depakote ER for adults with epileptic seizures.

However, according to the Food and Drug Association there are many dangerous side effects of Dapakote that involve the unborn fetus. We now know that one of the more serious side effects is Spina Bifida. In 2010, a Medical study found that Depakote greatly increases the risk of birth defects when taken as early as the first trimester of pregnancy, before many women even know they are pregnant. According to the FDA, "The rates for neural tube defects in babies exposed to valproate (found in Depakote) during the first trimester are 30 to 80 times higher than the rate for neural tube defects in the general U.S. population."

Spina Bifida is a neural tube birth defect, occurring when there is a malformation of the neural tube during the development of the fetus. A fetus begins to develop its spinal cord very early and it is the precursor to the actual growth of the brain. When children are born with spina bifida, the vertebrae of the spinal cord are not properly fused and the spinal cord itself may be partially exposed. This can lead to a number of very serious complications during the growth of the child and sometimes even results in death.

Spina Bifida, Depakote, and Your Legal Rights

Those who took Depakote during their pregnancy, and are now faced with the task of caring for a child who suffers from spina bifida, should immediately seek competent legal counsel. A law firm with experience in pharmaceutical litigation will know what needs to be done in order to protect any possible claim you may have against the manufacturers of Depakote.

 

This educational material is provided by Ted Tredennick, Esq., of Thompson & Tredennick, LLP.

4. VictimConnect Resource Center

4.1. VictimConnect Resource Center

The VictimConnect Resource Center is a place for crime victims to learn about their rights and options confidentially and compassionately. A program of the National Center for Victims of Crime, it combines:

 

5. Crime Statistics

5.1. Crime Statistics for Persons with Disabilities

Bureau of Justice Statistics 2010 report of crimes against persons with disabilities (PWD) vs those without disabilities