Our brain controls just about every aspect of our body, including our ability to think and process information. So when it is damaged, even a little, the impact on our life can be severe. Unfortunately, brain injuries are not rare in the United States. In fact, the Centers for Disease Control and Prevention (CDC) reports that from 2006 to 2014, the incidence of brain injuries increased a whopping 53%—going from approximately 1.88 million to 2.88 million. So if you or a loved one suffered a brain injury, you are not alone. And if someone else’s negligence caused your injury, you have the right to compensation. But before filing a claim, there are a few things you should know.
Basis of Your Claim
The legal theory of negligence is the foundation for almost every brain injury lawsuit. Negligence essentially means that someone else’s wrongful behavior resulted in your injury, making them legally liable for your damages. In a negligence claim, the injured party (plaintiff) must prove four elements:
- Duty—the defendant had a duty to act with reasonable care under the circumstances;
- Breach of duty—the defendant failed to act with reasonable care;
- Causation—the defendant’s actions were the cause of the injury; and
- Damages—you sustained harm because of the defendant’s actions.
Any scenario where someone is negligent can result in an accident that causes a brain injury. Each negligence lawsuit falls into one of several categories, including the following.
Car accidents are a common example of negligence. When another driver acts carelessly—from texting and driving to DUI—and causes an accident with injuries, victims are entitled to compensation. Countless other circumstances fall under this category as well.
These claims spring from the idea that manufacturers who put products out into the marketplace are responsible for ensuring that those products are safe to use as directed. If there is a fundamental defect in design or application, the manufacturer may owe compensation to anyone injured by the faulty product.
Healthcare professionals are held to a higher standard of care than most, based on their level of expertise. When providing treatment, they must act as a reasonably prudent professional with their training and experience would act under the same circumstances. If they fail under that standard and it causes injury, you may have a medical malpractice case.
Any landowner or renter who invites you onto their property has a duty to keep the area safe, or at least to warn of any known dangers adequately. For instance, suppose you are in the electronics department of a local store. You walk by a stack of large boxes that suddenly collapses onto you. The impact causes you to fall and hit your head on a display rack, causing head injuries. The store is responsible for your injuries because it failed to keep its property safe for customers.
These are just a few examples of negligence that can lead to brain injury lawsuits. Now let’s examine the types of damages you can recover.
Damages You Are Entitled To
The goal of a brain injury lawsuit is to make you whole again. A judge can grant monetary awards to victims to help pay medical bills and compensate for any other losses. There are essentially three categories of damages you can seek.
Economic damages are easy to calculate because they are objectively verifiable and measurable monetary losses that resulted from your injury. Typically, plaintiffs provide receipts, invoices, and bills for such items. Medical bills, lost wages, and property damage are all examples of economic damages.
It is not as easy to calculate non-economic damages because they are less tangible. You cannot find receipts or documentation for such losses, yet their impact on your life is usually very real. The two most common types of non-economic damages recoverable in brain injury cases are pain and suffering and loss of consortium.
The pain and suffering endured by most brain injury victims is life-altering and compensable. The loss of consortium actually refers to what those around you lose when you suffer a brain injury. Perhaps your wounds impaired your cognitive function and stole years of wisdom and advice you would have otherwise provided to your kids. Or perhaps you are now unable to provide emotional and financial support to your spouse. These losses fall under the category of non-economic damages.
When a defendant’s behavior is particularly egregious, a court can award punitive damages. Judges award these damages to punish the offender and deter others from acting with gross negligence or malice in the future.
What Should You Settle Your Case For?
It is essential to realize that many factors go into determining an appropriate level of compensation in brain injury cases. For instance, when negotiating, your lawyer considers the strength of your case. If the case is strong, you have more bargaining power, and vice versa. How severe your injury is and how it will affect your future are also major considerations. For instance, if your brain injury will likely lead to early-onset dementia, this will increase the amount of compensation you should expect. Likewise, a person injured at the age of 35 and making $150,000 a year will likely get more compensation than a person in their 60’s making $50,000 a year.
Many factors determine your case’s chances of success and the amount of compensation you should seek. An experienced brain injury legal practitioner is essential to putting together your strongest case.
An Experienced Attorney Can Help
Brain injury lawsuits are often complex. Since not all brain injuries show up in scans, your case may or may not require medical testimony. Assessing an appropriate settlement amount is also complicated, as it can sometimes run into millions of dollars. With so much at stake, you should not leave your odds of success up to chance. The experienced personal injury legal team at Batson Nolan PLC have handled many brain injury cases. We know what to expect, we know how to fight, and we will protect all your legal rights every step of the way. So call us or contact us online to set up a free initial consultation today.