Groups » 4 Factors to Consider When Dealing with Brain Injury Claims

Traumatic brain injury or TBI is a serious health issue in the U.S. faced by children and adults alike, contributing to a substantial number of permanent disabilities and deaths annually. According to the Centers for Disease Control and Prevention (CDC), around 1.7 million Americans suffer a traumatic brain injury each year. These brain injuries are caused due to various reasons, ranging from sports activities, falls and assaults to car accidents.

The following chart shows the leading causes of TBI in the U.S.:

Brain injuries are painful, for both the victims and their loved ones and often lead to serious damages like cognitive impairments, severe concussion, memory loss, and emotional and behavioral changes impairing the victim’s standard of living. If you or a loved one has sustained a traumatic brain injury, you can claim a compensation under the law and, if proven, the at-fault party is legally obliged to pay the amount.

The victim can obtain the compensation by means of voluntary settlement or through litigation, although for the latter both parties need to invest considerable amounts of time and costs. But brain injury claims are not easy to settle. The claim settlement depends on various factors. In this post, we will examine the factors you need to consider for making such claims.

1. Comprehend the Severity of the Injury

When asked a seasoned Kansas City brain injury lawyer, he said that the first thing you need to understand is the severity of the injury. They are typically sorted into two categories – mild traumatic brain injury and severe traumatic brain injury. A mild injury generally involves loss of consciousness for less than 30 minutes. In fact, most of the TBI symptoms are considered mild, although almost 15 percent of victims experience them for over a year.

General signs of a mild traumatic brain injury include:

• Excessive sleep or depression
• Problems with coordination
• Difficulty in formulating sentences
• Memory loss
• Sudden mood changes and/or violent outbursts
• Nausea
• Problem with sensory issues
• Seizures

In most mild TBI cases, the victim eventually regains his/her quality of life. However, things are more challenging for people suffering from moderate to severe brain injuries. This involves cases where the victim lose consciousness for more than an hour. The following are the symptoms of severe TBI and they usually begin to appear within days of your injury:

• Dilated pupils
• Habitual bouts of nausea or vomiting
• Irritability and/or combative behavior
• Depression
• Clear fluid draining from ears or nose
• Confusion and difficulty speaking or walking

However, it is important to consider that brain injury symptoms may not appear immediately and can take days or even weeks after the incident to show up. If you notice any physical or bahavorial changes after the incident, it is best to consult a physician to be on the safer side. A brain imaging scan and/or a neurological examination usually reveals if there is a damage to your brain’s surface.

2. Calculating Head Injury Damage and Settlement

After consulting a doctor, the next step is to talk to an injury attorney to calculate the damage. Your attorney will also negotiate the claim on your behalf. In general, a plaintiff can claim for two types of damages in traumatic head injury cases general damages and special damages. The general damages are claimed for non-economic losses for which money is just a substitute. It is typically equal to 1.5 to 5 times the amount of special damages. These include compensation for physical pain and suffering, mental anguish, embarrassment and/or humiliation, loss of consortium, loss of reputation, emotional distress and loss of social life and companionship etc.

Special damages, on the other hand, signify the economic losses and money here is a comparable substitute. It is therefore also referred to as “out-of-pocket” loss rule. A plaintiff can claim these kind of damages for lost wages, medical expenses, lost earning capacity, property damages and funeral and burial expenses in case of a wrongful death caused by the brain injury.

The compensation amount of a traumatic brain injury cause is usually more than $100,000, although there are instances where the claims are in the millions. In fact, a South Carolina man was awarded $26 million after suffering from brain damage and paralysis due to “a rollover crash during a 2009 missionary trip in Montana.”

3. Understand the Expenses Involved

While the settlement amounts of brain injury cases are really high, they also involve a number of expenses that you need to take into account. First thing first, you need to appoint a brain injury lawyer to negotiate the settlement value with the insurance company and/or at-fault party as well as to represent your case in the court, if required. Brain injury lawyers usually work on a contingent fee basis, meaning that they will charge you a fee only if the lawsuit is successful. Other expenses of a TBI case include fees for medical experts, fees for economic damage expert, court expenses and cost of interviewing witnesses.

In most cases, your lawyer advances the fees for medical experts and other cases related expenses. As a result, lawyers working on a contingent fee take only those brain injury cases which they feel have excellent chances of winning.

4. Who is Liable?

In order to be successful in your brain injury lawsuit, you need to prove liability. It can be proven by means of intentional wrong, strict liability or negligence. Intentional wrong includes act(s) that the wrongdoer inflicted on the victim. A classic example of intentional wrong is a case of assault and the plaintiff just need to prove that the intention of the defendant was to cause him/her harm.

Negligence, on the other hand, applies to cases where the defendant wasn’t trying to harm the victim intentionally but wasn’t acting reasonably as well. Finally, there is strict liability which typically applies to product liability cases where the plaintiff suffered a head/brain injury due to a defective or unsafe product. Manufacturers are held liable under this theory, whether or not they were aware of the defect. The plaintiff needs to prove two things under a strict liability lawsuit. First, the product was defective when it left the manufacturing unit and second, the brain injury was caused due to this defect.


If you or a loved one has sustained traumatic a brain injury, the first thing you need to do is contact a brain injury attorney. A seasoned attorney who has experience in such cases can not only advise you of your legal rights, but also help you claim the damages your lawfully deserve.

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