Steps in the Process of a TBI Lawsuit

Updated on January 26, 2021

The Centers for Disease Control and Prevention (CDC) reports that almost 1.5 million people suffer a brain injury each year. Many of these involve a Traumatic Brain Injury (TBI) that greatly diminishes the injured person’s quality of life. 

If you have suffered a brain injury for an accident or a faulty product, your first step should be to find specialized legal help to assess the damages in a brain injury case. Brain injuries raise complex medical and legal issues that require someone who is experienced and qualified to handle brain injury litigation. There are several steps in the process of TBI lawsuits.

Determine the Legal Basis of Your Case

Most TBI lawsuits involve a claim of negligence. A negligence claim entails the person bringing the lawsuit (the plaintiff) to proving that the party they are suing (the defendant) is legally liable for the injury.

Several things are required to prove negligence, including:

  • The defendant was legally responsible to be careful. This is called a “duty of care”.
  • The defendant neglected to act with sufficient care of the plaintiff.
  • The defendant’s action or inaction caused the plaintiff’s injuries.
  • The plaintiff’s injuries and/or losses are “measurable under the law”.

The reason you should obtain an expert attorney is because of the complexity of a TBI lawsuit. Demonstrating that a brain injury occurred and associating that injury with the defendant’s conduct – showing, for example, the defendant’s poor driving, and not something else, caused the plaintiff’s brain injury –  can be a lengthy and complicate task. Brain injuries are often more difficult to detect than other types of injuries, so collecting as much evidence as possible about the nature of the injury and the mishap will improve the strength of your case.

Collect Evidence about Your Injuries and the Accident 

 An experiences brain injury attorney will ask you questions about how your injury occurred. It is common for those who suffer TBI to experience memory loss, especially about details of the accident. 

A qualified TBI attorney will seek to understand all you remember about the accident and at times refer you to a specialist that can help you recover those details.

Often, your attorney will ask your permission to speak to family members and witnesses of the accident to get better picture of what actually occurred. During this time of discovery, your attorney may instruct you to take the following steps. If your injury prevents this, your attorney will follow these steps in your place:

Return to the Scene

You may be surprised to find something you were not conscious of when the accident happened but may help clarify what happened, like a traffic light that doesn’t work. You or your attorney may find a person who witnessed what happened is aware of other accidents that occurred at the same spot.

Find Physical Evidence

Fault may be  established by a piece of “physical” evidence — an item  you can touch or see, rather than  description of what occurred. 

Physical evidence can also help establish the extent of an injury: physical damage to a car can prove the force of the impact, for example, and bloodied or torn clothing can demonstrate your physical injuries dramatically. 

Document Your Injuries

A lack of early medical records of all your injuries will make it more difficult to convince an insurance company that you were injured to the degree you claim. Visible injuries heal don’t look as severe later on.

You may also be directed to write down everything that happened. This gives you and your attorney a record to refer to throughout negotiation and possible trial. 

Settlement Factors

Brain injuries are far more complicated than a broken leg. They are often accompanied by memory loss, cognitive deficiencies, and behavioral and emotional changes that can radically impair your standard of living.

If you suffered a head injury, you will at some point have to consider how much you are willing to accept to settle your claim. Because the injury can be severe, determining damages for a Traumatic Brain Injury can be problematic and depends on an array of factors.

A personal injury attorney will help determine what your damages are and might be in the future. This includes:

Special Damages

Special damages are economic losses that are a comparable substitute for a person was lost because of the TBI. This is also known as the “out-of-pocket” loss rule. Special damages can include:

  • Lost wages
  • Medical treatment (past and future) cost
  • lost earning capacity
  • Funeral and burial expenses (in a wrongful death case)
  • The cost of replacing or repairing damaged property

General Damages

General damages are non-economic losses for which money is only a rough replacement. General damages include:

  • pain and suffering
  • mental anguish and shock  
  • emotional distress
  • loss of enjoyment of life
  • loss of companionship 

It is important to note that mitigating factors may limit your attorney’s ability to negotiate the settlement you desire. 

If you are considering filing an insurance claim or lawsuit after a Traumatic Brain Injury, your best first step is to consult with a personal injury lawyer that specializes in TBI lawsuits.

+ posts

Throughout the year, our writers feature fresh, in-depth, and relevant information for our audience of 40,000+ healthcare leaders and professionals. As a healthcare business publication, we cover and cherish our relationship with the entire health care industry including administrators, nurses, physicians, physical therapists, pharmacists, and more. We cover a broad spectrum from hospitals to medical offices to outpatient services to eye surgery centers to university settings. We focus on rehabilitation, nursing homes, home care, hospice as well as men’s health, women’s heath, and pediatrics.