Brain injuries can result from a variety of incidents, but often lead to lifelong medical complications, resulting in the need for constant care. A traumatic brain injury can occur from, among other incidents, a car accident, a slip and fall injury, an assault, or a strike to the head at a jobsite. The legal remedies available for brain injuries vary depending on how the injury was obtained.
Brain injuries resulting from car accidents or from slip and fall incidents are often dealt with similarly. Broadly, car accidents and slip and fall incidents are negligence actions, in which the injured party must prove that the offending party, such as the other driver or the owner of a store, was negligent. Negligence is a legal definition, requiring a showing of duty, a breach of duty, sufficient causation, and actual, often physical, damages. For example, a driver suffering from a traumatic brain injury as a result of a car collision must show that the other driver was speeding, that the traumatic brain injury and other injuries were caused by the accident and not by a different incident, and that the driver was actually, physically injured.
Brain injuries that result from intentional assaults and batteries, for example, are dealt with quite differently. Generally, these incidents are initially dealt with criminally: for example, the offender will be tried for criminal assault and battery. Regardless of whether the perpetrator is found criminally guilty, however, the victim may sue the perpetrator in civil court for injuries, such as for a traumatic brain injury. At this trial, the victim must show (to prove battery, for example), that the victim was touched by the perpetrator with an intent to harm the victim, that the victim did not consent to this contact, and that the victim was actually harmed. Unfortunately, however, even if a victim can prove these elements, many perpetrators lack the financial means to cover the damages caused by their acts (particularly if they are incarcerated as a result of these acts). Moreover, most insurance policies do not cover intentional acts such as assaults and batteries. As a result, many victims of attacks resulting in brain injuries may never be able to be fully compensated for the damages caused by the perpetrator of the attack.
Finally, brain injuries that result from injures on the jobsite are usually evaluated under worker compensation laws. These laws in California can be very complicated but, broadly, workers who are injured on the job will be paid out of their employer’s worker compensation insurance. In general, this insurance will cover medical care resulting from the injury, both in the past and in the foreseeable future, and limited disability benefits resulting in the lost or diminished ability to work. Importantly, workers compensation insurance often does not cover pain and suffering, and may limit compensation for future medical expenses.
In rare circumstances, however, injured workers can sue above and beyond these worker compensation policies, for example, by suing the owner of a jobsite (instead of the worker’s employer). In these circumstances, the victim may be able to recover for pain and suffering, emotional distress, and more fully for lost compensation resulting from the injury. This type of recovery is similar to what traumatic brain injury victims in car accidents, slip and fall incidents, and assaults and battery incidents, can recover.
Importantly, brain injuries frequently result in injuries that are not immediately apparent, or in future medical care that may be difficult to foresee at the time of a lawsuit. As a result, the monetary damages that may be awarded for a brain injury may be substantially lower than those necessary to fully compensate the injured party for future medical expenses. It is essential to gather as much information as possible from skilled medical professionals prior to bringing suit to fully evaluate the scope of the injury and need for future care.
Because of this concern, many attorneys that routinely deal with traumatic brain injury cases will employ the use of an expert witness, such as a medical professional experienced in traumatic brain injuries, to provide context on the extent of the damages suffered, and the amount of care that may be required in the future. If the matter goes to trial, this expert may testify as to his or her experience, expertise, and assessment of the injured individual’s injuries. Both sides at a trial might call their own expert witnesses to give competing testimony, colloquially called as a “battle of the experts.” A skilled attorney will be able to identify and retain the most highly qualified expert possible to provide accurate and compelling testimony on an injured party’s behalf, or provide briefing that can greatly aid in settlement negotiations.
Because traumatic brain injuries may develop over many years, or because the extent of these injuries may not become apparent until much later, it is important for injured parties to be aware of the statute of limitations for their injuries. In general, the statute of limitations sets a time frame during which a lawsuit can be brought. For most incidents resulting in a brain injury, an injured party has two years to bring a suit after the accident or incident. However, for a brain injury sustained at work, an injured party must inform their workplace of the injury within 30 days of the incident. In general, special rules may apply if the brain injury occurred to a minor, or in very particular circumstances and with particular parties. Because the statute of limitations for these actions is generally very short, it is essential to begin consultation with an attorney quickly, even if the full extent of the brain injury is unknown at the time.
Traumatic brain injuries can result in complicated legal resolutions, particularly when calculating damages and foreseeing future medical expenses. Skilled attorneys who are experienced in dealing with traumatic brain injuries and the underlying issue, such as a car accident, slip and fall case, assault and battery, or injury on the jobsite, are essential in bringing timely cases that can result in accurate and fair compensation for the injured party.
At the Thompson Law Offices, we understand that your ability to receive the medical care you need, your ability to support your family during your recovery and beyond, and even your peace of mind may depend on receiving the compensation you deserve. Our goal is always to recover the full value of your claim.
If you’re ready to start fighting for your rights, request a free consultation.