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Author Archives: Adam Peck

 About Adam Peck

Adam J. Peck, ESQ is a principal with Peck Law Group, APC. In 2008, Mr. Adam Peck received his Juris Doctorate from Whittier Law School where he graduated Cum Laude. His practice is primarily dedicated to representing Elders, Dependent Adults, along with their loved ones and family members, who have suffered horrific personal injuries.
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The Brain Will Recover After Serious Brain Injury

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traumatic brain injuryThe Brain Will Recover After Serious Brain Injury: Imaging studies reveal that the brain reorganizes itself to recover function after various kinds of injury. Physicians have used functional magnetic resonance imaging to assess brain activity in people who have recovered some movement ability after brain injury. The damage was due to cerebral palsy, multiple sclerosis or stroke, and these people had all recovered at least some of the action in their hand.

Healthy individuals show most brain activity in the motor cortex of the brain when they move the hands. In patients who’d suffered neurological damage, other neighboring areas of the brain took over, as shown by the imaging. In some patients, the cerebellum at the back of the brain also assumed control of hand motion.

Prior to the study, it was assumed that the patients with cerebral palsy would show the most brain reorganization, as the damage occurs at a very young age in this condition. There are many more years, therefore, for the brain to reorganize itself compared to cases of multiple sclerosis and stroke, where damage is of more recent origin. But extensive reorganization of brain activity was found in all cases in this study. It’s encouraging to learn that the brain has such a remarkable ability to adapt after injury – and this study has some important implications for rehabilitation.

Calculating Wrongful Death Damages

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elder_lawCalculating wrongful death damages: When it comes to calculating damages in a wrongful death case, the jury might have the hardest job in the room.  Plaintiff’s attorneys have to prepare and argue; defense counsel has to challenge the evidence.  These are important roles, but at the end of the day a jury has to decide whether someone is at fault and, sometimes, what a person’s life is worth.

When looking at a plaintiff’s verdict remember that there are two parts:

  1. a wrong attributable to the defendant, and
  2. a monetary value based in evidence.  The requirements to prove a defendant, or defendants, did something wrong depends on the facts of a case.  When it comes to establishing the monetary value of plaintiff’s damages in Massachusetts wrongful death cases, there are some general standards that apply.

Putting a figure on each of these categories requires an artful marriage of documentary evidence and witness testimony at trial.  Lost income is a good example of how paperwork and witnesses work together in a case.  Plaintiff’s counsel will need to show documentation of  what a person was making in order for the jury to understand why an expert witness’ forecast of income during a  lifetime is accurate.  Say, however, a person works in sales.  Defense counsel will likely use documentation showing the decedent’s income varied year by year to make the forecast of lifetime income appear unreasonably high.

Similarly, when it comes to conscious pain and suffering, plaintiff’s counsel will point to medical records and witness testimony to describe the circumstances that took a person’s life.  This pain and suffering considers both mental and physical experiences as a result of the injury.  The time of the physical experience runs from the moment of injury until the time of death and includes consideration of the area of the body affected.  Mental pain and suffering includes things like shock, anxiety, embarrassment, or anguish caused by the injury.

In these cases, the jury has the toughest job in the court room because the lawyers only have to argue what the evidence is; the jury has to decide what it all means.  Jurors are supposed to do that based on their own individual good sense, background and personal experience in the world.  And when it comes to plaintiff’s verdicts in wrongful death case, they essentially put a price on a life.  Sometimes they also have to punish the defendant with additional monetary amounts to make sure the wrongful conduct doesn’t  happen again when punitive damages are appropriate. It may not be an easy calculation, but it is very, very important.

Medicaid Limit

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ElderlyMedicaid Limit: Some would have it that seniors transferring assets to achieve Medicaid eligibility is a widespread phenomenon.  Study after study has shown this assertion to be a myth, and now a new study can be added to the list. A national survey of 21,853 seniors over the age of 50 shows that between 1996 and 2008, only ten percent of the survey participants who were not already on Medicaid spent down their assets to the point of Medicaid eligibility.  In addition, the survey found that 46.1 percent of Medicaid-eligible seniors never used any Medicaid long-term care services at all, even though they met the financial qualifications.

In the study, prepared by RTI International for the SCAN Foundation, investigators found that in most cases, beneficiaries who spent down their resources and qualified for Medicaid were not in good financial shape to begin with.  According to the researchers, “median total wealth less individual retirement accounts (IRAs) for the spend down group was $33,000, compared with $135,000 among the non-spend down group. Moreover, people who spent down to Medicaid on average had one-third the median amount of non-housing assets (exclusive of tax-deferred retirement plans) at baseline than did the non-spend down group ($24,000 and $86,000, respectively), and their median net value of the house (i.e., home equity) was just $17,000, compared with $68,000 among the non-spend down group.”

The study also confirms something that many elder law attorneys probably know from practical experience, namely that a clear majority of people who transfer assets to their children or family members never end up qualifying for Medicaid.  According to the survey data, 25 percent of the respondents who eventually spent down to Medicaid eligibility gave their children $500 or more during the survey period, while nearly half (46.9 percent) of the participants who didn’t spend down made gifts to children.

Writing about the study in Forbes Howard Gleckman points out one obvious problem with relying on this particular study.  Since the youngest survey participants were only 50 years old, “the study may understate the percentage of those who ultimately go on to Medicaid since it followed them for only 10-12 years.  By the end of the survey period, the youngest people were still only in their sixties and had not yet begun to incur heavy medical and long-term care costs. Often, that doesn’t happen until people reach their early or mid-80s.” Nevertheless, Gleckman writes that “the key story is that those who did spend down started with far fewer assets and income than those who did not.”

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