In the world of personal injuries, some cases require unique expertise. Brain injury claims are a classic example. You'll need the help of highly specialized legal and medical experts to know whether you have a case and, if you do, to see it through to a successful conclusion. There's no such thing as a "simple" or "easy" brain injury claim.
We begin with an overview of brain injuries and how they happen. From there, we'll walk you through the basic issues—liability, causation, and damages—that decide whether you have a brain injury case.
Brain injuries fall into two broad categories—acquired and traumatic. Acquired brain injuries result from illnesses and medical conditions like cancer or a stroke. Our concern is with traumatic brain injuries, meaning those caused by an injury to the head such as a fall or a gunshot wound.
Traumatic brain injuries (TBI) can be described as closed or open. A closed head injury is one that doesn't involve penetration of the skull or brain by an external object. They're typically caused by car accidents, falls, or being hit by a person or object, particularly while playing sports.
Common closed brain injuries include:
An open brain injury results from penetration of the skull by an external object. The usual mechanism of injury is a high-speed impact, like from a gunshot or an assault with a weapon such as a club or hammer. Any open brain injury is potentially life threatening. If the victim survives, permanent injuries and disabilities are likely.
Data from the federal Centers for Disease Control show that TBI is a serious public health problem. In 2020, there were over 214,000 TBI-related hospitalizations. More than 64,000 deaths—nearly 190 per day—were related to TBI in 2021. Age correlates strongly with TBI, especially for brain injuries caused by falls. Persons 75 years old and older account for 32% of TBI hospitalizations and 28% of TBI deaths.
Gender is another strongly related factor. Males are twice as likely as females to be hospitalized for TBI, and three times as likely to die from TBI.
In addition to age and gender, people in these groups also experience a higher-than-average incidence of TBI:
The most frequent causes of TBI vary, based largely on age and gender. The figures below are based on CDC data for 2018 and 2019. Death rates indicate the rate of deaths per 100,000 TBI-related fatalities.
Among all age groups, the highest numbers and rates of TBI-related deaths were from suicide, followed by:
Deaths from falls accounted for almost 30% of all TBI-related deaths, second only to suicide. Brain injuries from auto accidents were a distant third at 17%. Males have higher TBI death rates from all causes than females.
You don't necessarily have a brain injury case just because you suffered a brain injury. To make out a claim, you must prove that:
In most cases, the wrongful act results from negligence, meaning a failure to be reasonably careful under the circumstances. Occasionally, the misconduct is purposeful or intentional, what the law calls an intentional tort. Because negligence is the usual culprit, that's where our focus will be.
Negligence consists of two elements: A duty of care and a breach of that duty. If both elements are present, the result is negligence. If one or both elements are missing, there's no negligence.
Duty of care. The law imposes a variety of duties on all of us. One of those is a duty to behave as a reasonably careful person would under the same or similar circumstances.
Here's a simple example. The law requires all drivers to drive as a reasonably careful person would, given weather, traffic, road, and other conditions. This duty arises automatically when you get in your car, and it continues until you've finished your trip and leave your vehicle.
Similar examples include:
Breach of the duty of care. In the simplest terms, negligence is a failure to meet the applicable duty of care. Driving too fast for weather or traffic conditions? That's a breach of the duty of care. Failed to discover a dangerous condition on your property that you could have found with a simple inspection? You've breached the duty of care. Didn't warn consumers about a danger associated with a known use of your product? That too is a breach of the duty of care.
If it helps, think of it this way: Duty of care + breach of the duty of care = negligence.
But note, importantly, that proof of negligence alone doesn't mean you have a brain injury claim. To have a viable case, you also need to prove the two remaining elements: Injury and causation.
To have a viable brain injury case, you'll need to prove that you've been injured. For moderate to severe or catastrophic injuries, proving the fact of injury shouldn't be a problem. When a brain injury leads to paralysis, or profound cognitive deficits, or clear emotional changes, the resulting disabilities will be obvious. But proving the precise nature and extent of those injuries and disabilities likely will require substantial testing, evaluation, and examination.
It can be more challenging to prove a mild brain injury like a concussion. Subtle post-concussive changes might not be readily apparent. It's easy to dismiss mood swings, fatigue, lack of concentration and other symptoms as related to a variety of lifestyle or environmental factors having nothing to do with the initial brain trauma.
Finally, you'll need to show the link between your injuries and the negligent behavior. This element, called "causation," is critical. Causation is the bow that ties the other elements of your case—negligence and injury—together. In many cases, causation is obvious. If a blow to the head with a blunt object leaves you with a depressed skull fracture that leads to an intra-brain bleed, causation isn't likely to be in dispute.
In some cases, though, proving causation will be an uphill climb. When the brain injury is mild, proving that post-injury disabilities and deficits were caused by a traumatic event will require testimony from medical and other experts. Failure to prove causation can spell the end of your brain injury claim.
Because brain injury claims involve complex medical, psychological, and emotional issues, you'll need expert witnesses—maybe several of them—to make your case. An expert is someone who's qualified by education, training, or experience to offer opinions about matters that are beyond the competence of judges and jurors.
Complex legal rules and standards determine whether an expert is qualified to testify and if so, in what subject areas. It's up to the judge to decide whether an expert has the credentials and knowledge to assist the court and jury with expert testimony.
Here are some of the experts likely to be involved in a brain injury case.
You'll need a neurologist or neurosurgeon to testify about the nature and extent of your physical injuries and the mechanics of how those injuries happened. They'll also explain the care and treatment you received, why it was medically necessary, and what future treatment you're likely to require. They can also help to explain any complications you suffered from the treatments or medications they prescribed.
These experts tie your brain injuries to any resulting cognitive, motor, speech, and emotional impairments you've experienced. You'll probably undergo extensive testing and evaluation to document the extent of your disabilities and limitations. Because they deal with intangible and hard-to-measure skills and abilities, these conclusions often require subtle judgments and can be difficult to explain.
A life care planner is typically a doctor, nurse, or social worker who specializes in assessing the lifetime care needs of profoundly injured and disabled persons—like those with moderate to catastrophic brain injuries. A life care planner will work with your treating doctors, nurses, therapists, and other experts to devise a long-term plan that lays out your future medical, nursing, therapy, equipment, pharmacy, and psychological needs. The plan will also detail the costs to meet those needs.
A vocational rehabilitation expert will testify to your ability to work in the future. If you can't do the work you did before you were hurt, a vocational rehabilitation specialist will figure out what kinds of work you're able to do, the costs of any necessary job retraining, and how much you can be expected to earn from that employment.
An accountant or other financial expert will have to work with your experts to come up with bottom-line damage calculations. This can be more complicated than it sounds. For instance, you might need future medical care for the rest of your life. To compensate you for that care, these future costs must be stated in present-day dollars. If your injuries leave you unable to work, a financial expert will calculate the present value of your future lost earnings and benefits.
And lots of it. Costs will vary from case to case and from expert to expert. As a rule of thumb, though, you can count on a bill of between $10,000 and $20,000 for each expert witness who assists with your case and who testifies live at trial. Chances are your attorney will advance these costs and then deduct them from any settlement or court judgment you receive.
Expert witness costs raise an important point about the economics of brain injury cases. Experienced brain injury lawyers will carefully evaluate any potential case to estimate both the likely case value and total case costs. If the case value isn't there—if it isn't significantly more than the likely case cost—a lawyer might decide it doesn't make economic sense to take the case.
If your brain injury case is successful, you can expect to recover personal injury damages to compensate for your injuries and losses. Specifically, you'll get what the law calls "compensatory damages." As the name implies, these damages compensate you for your out-of-pocket and other losses.
Compensatory damages fall into two categories: Economic and noneconomic.
Economic damages reimburse you for expenses and losses you pay out of your pocket, or that are covered by insurance. Common examples include:
These damages are intended to make you whole for losses that don't come out of your pocket. Depending on your injuries and disabilities, they might include:
There are some personal injury cases you might be able to handle on your own, without a lawyer's help. A brain injury case isn't one of them. If you think you have a claim, your first call should be to expert legal counsel. A brief article can't take the place of advice from an attorney who specializes in brain injury lawsuits.
When you're ready to move ahead with your claim, here's how you can find an attorney who's right for you.