Topics: Traumatic Brain Injury, Legal

What Qualifies for a Brain Injury Lawsuit?

What Qualifies for a Brain Injury Lawsuit

Brain injuries, sometimes referred to as TBI for traumatic brain injury, are a leading cause of death, claiming 52,000 lives each year. According to the CDC, nearly 2 million suffer such an injury annually. The economic costs of such injuries are in excess of $60 billion—a figure that strains the resources of families, insurers, and even governments.

Serious brain injuries quickly lead to substantial medical costs, including surgery, rehabilitative care, occupational therapy, physical therapy, speech-language therapy, and a veritable cornucopia of other treatments. Few people can manage these costs on their own, but if your injury qualifies, a brain injury lawsuit can help you pay your medical expenses and help you begin to put the pieces of your life back together.

A good traumatic injury lawyer can help you sort through the facts of your case to determine how they comport with the law. This is why it's so important to consult with an attorney, rather than trying to manage your case on your own. To be eligible for a brain injury lawsuit, you will have to address each of the following issues.

Who Caused the Injury?

The first hurdle you must cross is demonstrating that the party you are interested in suing caused your injuries. For instance, if you got into a car accident with a drunk driver, it's fairly obvious he or she caused your injuries. In some cases—such as when an injury that occurs on a dilapidated property—the cause of the injury is not so clear-cut. In many cases, there may be multiple responsible parties.

It's important to note that few individuals, have the funds to cover the costs of a brain injury, which can easily reach millions. For this reason, most skilled lawyers will seek out a responsible party that may be able to cover the costs of your injuries. This is often an insurance company, but can also be a large business. If you suffered an injury while working on your home, for example, your lawyer might explore whether the manufacturer of the products you used could be held liable for your injuries, since this party is more likely to have the funds to cover a costly lawsuit.

If you are left suing an individual, you might not see anything, even if you win. Instead, you could be stuck perpetually garnishing this person's wages or confiscating his or her property.

What Caused Your Symptoms?

In addition to proving that you were injured and that the party you are suing caused those injuries, you must also demonstrate that your injuries caused your symptoms. This might seem like a fairly easy undertaking, but it is not something you should take for granted, particularly if you have a history of health or neurological problems.

In most cases, it's fairly easy to prove that your symptoms were caused by your injuries, especially if your injuries are severe. But if your brain injury is less severe, and you are still able to function, be careful. Ignoring your doctor's orders, pushing yourself to do more than you should, and even excessively positive social media posts could all be used as evidence that you are not as injured as you claim to be.

How Have Your Injuries Affected Your Life?

As a general rule, the more severely your injuries have affected your life, the more compensation you will be entitled to. You might hear your lawyer talk about damages. “Damages” simply refers to the monetary and other losses your injuries have caused. Some examples of damages include:

    • Medical bills: You are entitled to compensation for your medical bills, including the costs of mental health care, medical supplies, long and short-term care, doctor's bills, rehabilitation, and all other costs that resulted from your injuries.
    • Lost wages: If your injuries kept you out of work, you can sue for lost income.
    • Lost earning power: If your injuries have diminished your ability to make a living, you can sue for your lost earning potential.
    • Pain and suffering: You can assign a monetary value to the pain and suffering you have experienced. Greater pain and suffering generally produce a larger payout.
    • Attorney's fees: You can sue to recover any costs you have paid to your lawyer. In most cases, lawyers take these cases on a contingency basis, so your lawyer will add the costs of his or her services to the amount you request.
    • Court costs: You can sue to recover any costs associated with litigating your claim, including filing fees and expert witnesses.
    • Punitive damages: These are additional damages designed to punish the other party, and can only be awarded by a jury. Punitive damages are reserved for cases in which the responsible party acted especially egregiously, such as by driving drunk or committing an obvious medical error.

How Do the Facts Comport With the Law?

In the early stages of your case, you are unlikely to see the inside of a courtroom, and might not have to provide much evidence. This is because many cases are litigated on issues of law in the early stages. For instance, a government official might assert that he or she has qualified immunity for your injuries, or the other party might assert that a recent court decision forecloses a certain legal argument, or prevents you from recovering all of the damages you seek.

Issues of law are left up to the judge in your case. Once he or she rules on these issues, you will then have the chance to present your case to a jury. Juries are charged with deciding issues of fact, such as whether your injuries are as severe as you say they are.

Does the Court Have Jurisdiction?

You may only sue someone if the court has jurisdiction over them. This is usually a fairly simple hurdle, unless you were injured abroad or by someone who has special legal protection, such as a diplomat with diplomatic immunity. You must ensure you sue the other party in the correct court; usually, this is the court in the jurisdiction in which the injury occurred.

Additionally, it is critically important to ensure that your case falls within the statute of limitations, which is usually two years from the date of injury. Talk to a lawyer as soon as you are injured to ensure you don't fall outside of this critical window for filing suit.

Spinal Cord Help

Zawn Villines

Written by Zawn Villines

Zawn Villines is a writer specializing in health and legal journalism. Raised by a lawyer and lobbyist who advocated for spinal cord injury survivors, she is a lifelong advocate for spinal injury victims and their loved ones. You can connect with Zawn on Google+ below.

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