Protecting Brain Injured Patients in Legal Proceedings
The need for mental health and legal advocacy.
Posted Jun 09, 2017
Today I attended a legal conference given by the Brain Injury Association of Michigan and learned some important things about advocacy for patients with brain injuries that I will share with you. Pratheep Sevanthinathan, a Michigan attorney, gave an excellent presentation.
It is a well-established clinical fact that people with brain injuries have cognitive difficulties involving problems with memory, concentration, focusing and remembering, among others. These difficulties are also known to be stress-sensitive, meaning that when the person with a brain injury is under stress, these difficulties become more severe and interfere with their functioning to a greater degree.
Attorney Sevanthinathan presented a disturbing legal case, Bahri v. IDS Property and Casualty, 308 Mich App 420 (2014) in which the entire no-fault case was dismissed based upon allegations of fraud involving incorrectly stating the date services were rendered (dates were given for services before the accident happened) and surveillance footage which contradicted testimony about what they were capable of doing.
A Bahri defense is now being used increasingly by insurance carriers on which to build a case for terminating all benefits due to allegations of fraud. While the issue of fraud needs to be of concern to all service providers, a Bahri defense is an apparent expansion of the definition of fraud that may place people with brain injuries from car accidents in an unfair position due to their inability to accurately recall information during legal proceedings such as a deposition. For example, if a brain injured person forgets a fact about having a prior specific injury this could be used by the insurance carrier to file a Bahri motion to dismiss the entire case.
The attorney advised that patients who have brain injuries that might interfere with their ability to competently testify should be protected against possible charges of fraud based upon misstating details about their conditions or injuries in legal proceedings. One way this can be done is for the patient’s attorney to file a Motion for Protective Order to stop depositions from occurring. The judge will then decide if this will be granted or may be modified in some way to accommodate the injured person’s compromised cognitive functioning. In some cases, a guardian can be appointed who would do a deposition in place of the injured person.
Mental health professionals treating patients with brain injuries need to be aware of these potential pitfalls due to cognitive deficits and possible accusations of fraud, and be prepared to advocate for appropriate protective accommodations in legal proceedings that might have profound impact on patients receiving the care to which they are entitled. This may involve active communication with the patient’s attorney and providing necessary clinical information needed for filing Motions for Protective Orders and possibly Motions for Guardianship.
This posting is not meant to be legal advice. If you have been in an automobile accident in which you may have serious injuries, it is recommended that you consult with a competent, ethical attorney who can assist you in understanding your rights and obligations under the law.
The Bahri case also highlights the need for providers to accurately collect history from patients who have brain injuries and to document and clarify any apparent inconsistencies. Attention to accurate clinical documentation as well as collaboration with other providers and legal professionals in auto accident cases is essential when the patient’s mental status is compromised due the effects of a brain injury or other conditions impacting cognitive functioning. In order to achieve the best clinical outcomes a patient-centered team approach is essential when dealing with patients who have legitimate injuries whose cognitive deficits may make them fall victim to false accusations of fraud.