What Do I Need to Know About California Law in Cases Involving Traumatic Brain Injuries?
Traumatic brain injuries can significantly change the lives of patients and their families. To help victims and their families understand more about TBI injury claims, our California TBI attorney discusses the following topics in this article:
- Overview of Traumatic Brain Injuries
- What is Traumatic Brain Injury?
- Symptoms of Traumatic Brain Injury
- Diagnosing a Traumatic Brain Injury
- Treatment for TBIs
- Traumatic Brain Injury Laws in California
- Understanding Your Legal Rights Regarding a TBI Injury Claim
The hardship and loss suffered by victims of traumatic brain injuries (TBI) and their families can be overwhelming. The financial, emotional, physical, and mental damages can have long-term consequences that alter the lives of TBI injury victims and their families. Some victims suffer debilitating communication and cognitive problems that severely interfere with their ability to work or perform daily tasks. For some, the impairment is severe enough to require ongoing personal care.
Because the potential for loss is great with a traumatic brain injury, it is important to understand California law governing cases involving TBIs. Our California TBI attorneys handle a variety of personal injury claims involving brain injuries. Our goal is to help you recover the compensation you deserve to assist with medical, personal, and living expenses.
Overview of Traumatic Brain Injuries
According to the American Association of Neurological Surgeons (AANS), approximately 5.3 million Americans live with a TBI-related disability. An estimated 1.7 million new cases of TBI are reported each year in the United States. Sadly, eighty to ninety thousand people develop a lifelong or long-term TBI-related disability each year.
Motor vehicle accidents result in 50 to 70 percent of the TBI accidents each year. Falls, sports-related injuries, violent crimes, boating accidents, and work-related accidents are other common causes of brain injury. Some causes of TBI are the result of “accidents” in which no one is negligent or reckless.
However, some cases of TBI are the result of negligence, carelessness, or recklessness. If another person or party is responsible for the incident that led to the brain injury, that party could be held liable for the damages resulting from the accident and subsequent brain injury.
What is Traumatic Brain Injury?
The AANS defines a TBI as a penetrating brain injury or a blow to the head that disrupts normal brain function. The symptoms of TBIs are classified as mild, moderate, or severe. Mild TBI injuries may heal with time and rest. However, severe TBI cases often result in comas, permanent impairments, or death.
Symptoms of Traumatic Brain Injury
The symptoms of TBI vary greatly depending on the severity of the injury to the brain. The Mayo Clinic lists the symptoms and signs of a mild TBI as:
- Unconsciousness lasting up to a few minutes; however, unconsciousness is not required for someone to have sustained a TBI
- Loss of balance or dizziness
- Speech problems
- Vomiting or nausea
- Drowsiness, fatigue, difficulty sleeping or sleeping more than usual
- Sensitivity to sound or light
- Blurred vision, bad taste in the mouth, ringing in the ears, or changes in smell
- Mood swings
- Changes in mood
- Concentration or memory problems
- Anxiousness or depression
It is important to remember that you do not need to experience all the above symptoms to have a mild TBI. The same is true for the symptoms of a moderate to severe TBI.
The symptoms of a moderate to severe TBI can be classified into categories, including physical symptoms, cognitive symptoms, and mental symptoms. Therefore, in addition to the above symptoms, a person with a moderate to severe case of TBI may have one or more of the following symptoms:
- Repeated bouts of nausea or vomiting
- Lack of coordination
- Unconsciousness up to several hours or coma
- Seizures or convulsions
- Chronic headaches or headaches that increase in severity
- Extreme confusion
- Slurred speech
- Numbness or weakness in the toes or fingers
- Dilated pupils
- Clear fluids draining from the ears or nose
- Combativeness, agitation, or strange behavior
- Inability to awaken from sleep
Again, it is important that you understand you do not need to experience all the above symptoms to have sustained a TBI.
Children who sustain a TBI may exhibit different signs and symptoms. If your child sustains a head injury, you should also pay close attention to:
- Changes in nursing or eating habits
- Changes in sleeping routines
- Inconsolable crying
- Easily irritated or unusually irritable
- Changes in attentiveness
- Loss of interest in favorite activities or toys
- Depression or sadness
Diagnosing a Traumatic Brain Injury
Physicians use several methods to diagnose a TBI and determine the level of severity. For example, the medical staff may begin with the Glasgow Coma Scale (GCS) to determine a person’s level of function related to speech, movement, and ability to open his or her eyes. A score of eight or below on the GCS scale indicates a severe TBI.
In addition to the GCS, doctors may utilize a variety of other diagnostic tools including imaging tests, language & speech tests, neuropsychologic tests, cognition tests, intracranial pressure monitor, and other measurements for assessing the level of TBI.
Treatment for TBIs
As mentioned above, a mild TBI may heal with time and rest. However, even a mild brain injury should be monitored very carefully for any signs that the brain injury is becoming worse. Doctors may also prescribe a variety of medications. For severe cases of TBI, physicians may need to perform surgery to drain fluid from the skull to relieve pressure. Surgeons may also need to repair skull fractures, stop bleeding in the brain or remove hematomas.
Physical therapy and rehabilitation are often prescribed for severe TBI cases. The person may need to learn to talk, walk, and perform basic personal care tasks. One or more therapists may be required to provide therapy for a TBI patient, including an occupational therapist, physical therapist, rehabilitation nurse, speech pathologist, neuropsychologist, vocational counselor, and TBI nurse specialist.
With time and therapy, a patient with TBI may re-learn some skills. However, many patients suffer life-altering impairments because of the TBI.
Traumatic Brain Injury Laws in California
Several laws might apply in a TBI injury claim.
- Statute of Limitations
The first California law related to TBI claims is the Statute of Limitations. A statute of limitation restricts the time to file your TBI injury claim. If you fail to file a lawsuit before the time expires, you lose your right to recover compensation from the parties responsible for your injuries.
In most legal proceedings, you have two years from the date of the accident to file a personal injury lawsuit. The two-year statute of limitation applies in motor vehicle-related accidents, premises liability cases (slip & fall accidents), product liability claims (defective products), assault, wrongful acts, or negligent acts. However, there are exceptions to this general rule; therefore, it is best to contact an experienced California TBI injury lawyer as soon as possible to discuss your case.
For instance, claims involving TBIs resulting from medical malpractice must be filed one year from the date you are aware of the injury, but not more than three years from the date of the injury, whichever is earliest. Another exception would be cases involving most government entities. If you fail to file a claim within six months from the date of injury, you lose your right to pursue a claim against the government.
Some exceptions could extend the deadline to file a claim; however, those exceptions are exceedingly rare, and you should not assume an exception would apply in your case. The most common exception to the statute of limitations involves a minor. If a minor is a victim, the statutory period for filing a personal injury lawsuit is extended for two years after the child turns 18 years of age. Another exception might involve a victim that is mentally incompetent, or the injury was unknown and not discovered until later.
As mentioned above, it is best to consult with a California TBI injury lawyer as soon as possible because once the deadline passes, you may be unable to recover any compensation for your injuries or damages.
- Proving Fault and Liability
California is an “at-fault” state for personal injury claims. In other words, you must prove that a party was “at fault” or caused the incident that resulted in your brain injury. Proving negligence can be complicated, depending on the type of TBI claim and the facts of the case. In most cases, you must prove that the person acted in a manner that contradicts how a person would reasonably be expected to act given the same or similar circumstances.
For instance, if you are alleging the TBI was sustained because of a car crash, you must prove that the other party’s actions were reckless or careless and those actions were the proximate cause of the accident. You must also prove that the accident was the cause of your injury and you suffered damages because of the injury.
Without proving cause, fault, and liability in a TBI injury claim, you are unlikely to recover compensation for your injuries and losses. However, working with an experienced California TBI injury lawyer can help increase your chance of recovering full compensation for your damages. An attorney experienced in handling TBI injury claims understands how to investigate a claim to determine the cause and identify the party or parties responsible for causing the accident or incident that led to your brain injury.
- Pure Comparative Fault Standard
As discussed above, a person or a party must have caused the incident or accident that led to an injury to be held liable for that injury. In other words, the party must be “at fault” for the cause of the injury. However, what if the victim is partially responsible for the cause of the accident. For instance, what if the victim was speeding at the time another driver turned left in front of the victim’s vehicle. Is the victim barred from recovering compensation for his or her injuries?
In the past, a victim may have been barred from recovering money for a TBI injury claim if the defense could prove the victim was partially responsible for the accident or incident. However, California currently uses a pure comparative fault standard in personal injury cases.
Under a pure comparative fault standard, the victim’s negligence in causing his or her injury does not automatically prevent the victim from recovering compensation for a TBI injury claim. The comparative fault laws allow for a victim to recover compensation; however, if the victim is judged to be partially at fault, the victim’s compensation is reduced by his or her percentage of fault.
In our example above, if the accident victim is judged to be 30 percent at fault for causing the crash, any compensation awarded to the victim for the TBI injury claim is reduced by 30 percent. Even though the standard has been criticized because it theoretically allows a victim who is mostly at fault for the injury to recover compensation from the other party, it is none-the-less the current law in California.
Therefore, you should always consult with a California TBI injury lawyer before assuming you cannot recover money for your brain injury. Insurance companies like to use comparative fault to frighten a victim into a settlement agreement. Do not fall for this tactic. Talk to an attorney before signing a settlement agreement or other document for the insurance company or attorney for the other party.
Understanding Your Legal Rights Regarding a TBI Injury Claim
Your first priority is your health. You need to take steps to protect your health and take care of your family. However, you also need to protect your legal right to hold the party who committed a wrongful or negligent act accountable and liable.
Your brain is a complex organ of the body that makes you the unique person that you are because it stores all your memories. Your brain also controls your thoughts and actions. Any injury to the brain can disrupt normal thinking and functions. A minor TBI can have lasting effects and serious physical, cognitive, emotional, and financial implications for you and your family. A TBI injury settlement can be quite substantial, especially if you suffered a permanent impairment that diminishes your quality of life.
If you have sustained a TBI because of another person or party’s negligent or wrongful acts, you deserve to be compensated for damages including:
- Economic harm and financial loss, including medical bills and lost wages
- Non-economic harm, such as emotional scarring, mental anguish, PTSD, depression, loss of enjoyment of life, permanent impairment, scarring, and physical pain
- Future loss of income, loss of earning capacity, and ongoing medical care
Our California TBI injury lawyers want to help you maximize your recovery. In addition, we want to give you a voice to speak your truth and tell what happened to you. We help accident victims just like you stand up for their rights and use California’s TBI injury laws to help them seek the compensation they deserve from the party or parties who caused their injury.
Contact California brain injury attorney Bobby Thompson if you or a family member has been diagnosed with a brain injury as a result of an accident.