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Filing a Brain Injury Lawsuit? Here’s What You Need to Know

Filing a Brain Injury Lawsuit? Here’s What You Need to Know

You’d be surprised to know traumatic brain injuries (TBIs) make up close to 30 percent of the United States’ injury deaths. As of 2017’s estimates, about 153 Americans die from TBI every single day, while those who survive have to deal with a lifetime of its after-effects that often include long-term memory loss, impaired movement of limbs and compromised sensation. In some cases, it could also lead to emotional impairment, leading to depression and sometimes even personality disorders, depending on how grave the injury is. It is not simply an injury an individual suffers but an entire family has to go through long periods of disruption and turmoil.

If you or a loved one have suffered from a traumatic brain injury in an accident or due to another individual’s or organization’s negligence, you are entitled to compensation under the law, no matter how severe or mild the head injury. The following are a few simple tips and steps to follow if you’re looking to file a lawsuit for a brain injury.

What Is Negligence?

Any careless or reckless behavior that leads to or contributes to an accident or injury is described as ‘negligence’ in legal terms. An individual is negligent when he or she had a responsibility to act with care and failed to follow through. In general, every individual is expected to act with a general care that will not lead to injury for those around them.

For example, if a person drives through a signal or doesn’t stop at a stop sign, leading to an accident or injury of another driver or pedestrian, the driver was being negligent.

To take another example, if you went to the movies and tripped and fell in the dark hall because a fellow moviegoer kept their leg stretched out in the aisle, they were being negligent. If you remain unharmed you could simply exchange words and move on. But if the fall led to you hitting your head and sustaining an injury, the other person can be held liable for the injury. But for any case of injury or accident, negligence has to be proven. An individual has to be found to be negligent to be held responsible and pay damages.

Finding an Expert

The first thing to do in order to prove negligence in a case of accident or injury is to seek legal expertise. You may represent yourself too but it’s best to go with someone who has experience and expertise in such cases. The defendant or party that you’re suing could be anyone – a negligent driver, careless medical aid or a tight-fisted insurance company. Brain injury lawsuits can have complicated and severe medical and legal consequences, so ensure you’re speaking to the right people when looking for help. There may be several personal injury law firms out there but find one that can relate to you and you feel comfortable with. You can never come to an adequate settlement if you’re not on the same page as your legal representatives.

Gathering Evidence

While prepping for your case your lawyer will ask you a number of questions to gather evidence. This may be complex or strenuous if the brain injury has resulted in you feeling disoriented or experiencing a loss of memory. This is where the act of taking notes as described above becomes very important. It’s also important to be as honest and forthcoming with your lawyer as possible. There may be details you can’t recall immediately after the accident or injury but your honesty with your lawyer will help them piece together the missing pieces through other sources like newspaper articles, witnesses and police reports.

What also complicates matters slightly is that it’s easier to diagnose more obvious injuries like a broken leg. Symptoms of brain injury, however, may start manifesting even a week or month after the accident. You may start feeling sudden oscillation in moods, depression or loss of memory. There have also been cases of individuals being misdiagnosed at the emergency room immediately after the accident. You are entitled to compensation even for a failed or delayed diagnosis.

Preparing a Solid Case

It’s not all that simple to prepare a winnable case. Simply alleging negligence will not hold in a court of law, it has to be substantiated with legitimate evidence. To prepare a solid case you or family members and friends supporting you must make detailed notes of evidence. It helps to take notes about everything that you can about your accident or the incident that led to the brain injury. What were you doing when the accident happened? What happened immediately after the accident? Whom did you speak to about the accident? What injuries did you sustain? Here’s a handy guide to taking notes after an accident or injury.

Identifying Legal Liability of Your Case

The legal liability of your case is determining the extent of negligence, if at all, on the other party’s end. It is decided by carelessness coupled with one or two of the following scenarios:

  • Duty to Be Careful: If you were at a place you were not supposed to be, or where you were not expected to be, leading to the accident, the person who caused the accident may not be liable since they did not have a responsibility to be careful toward you at the time. For example, if you were crossing the road on a freeway at the height of peak traffic time, the duty to be careful is on you.
  • Comparative Negligence: If you’re also partly at fault for the accident or the injury, then the liability on the person who caused the accident may be reduced. For example, if you suddenly braked during traffic and a car hit you from behind, it’s partly your carelessness that caused the accident. But the car behind should also not have been driving so close to you at such high speed.
  • Negligent Employer: If you were injured by a negligent person while they were working for someone else, the employer may also be liable to pay compensation. For example, if you were injured at a factory because another individual did not follow through with safety procedures, the individual, as well as the organization that employed them, may be liable.
  • Dangerous Property: If the injury or accident occurred at a property that is in poor condition or is poorly built, the owner of the property is liable for negligence for not maintaining the property even if they are not responsible for its poor construction or dangerous condition. For example, if you fell because of a broken staircase at a resort, the owner of the resort can be held liable.
  • Defective Product: If your accident or injury has been caused by a defective product, both the manufacturer and the seller may be held liable even if you personally don’t know if the defect occurred during manufacturing or retail. For example, if a defective pair of roller blades caused a fall and subsequent injury, the manufacturer and seller are both liable.

What If It Was Partly Your Fault?

There are a few different ways things may play out if the accident or injury was partly your fault.

Comparative Negligence
As mentioned above, if you were partly responsible for the accident, the liability on the defendant may reduce, known as comparative negligence. You may still be compensated even if it was partly your fault. In some states, the extent of negligence on the defendant’s end is calculated in comparison to your own negligence. For example, if you were 30 percent negligent and the other person was 70 percent negligent, they or their insurance agency owes 70 percent of the fair compensation to make up for your injuries.

The percentage of negligence has to be negotiated with the insurance adjuster. There’s no hard and fast rule about how to come to a consensus. For every one percent of the defendant’s negligence you claim, the opposing party has another repartee. This can go back and forth for a long time, with the insurance adjuster bringing in other factors to determine how much the claim you’re making is worth.

Contributory Negligence
In some states, however, if your negligence substantially contributed to the accident, you may be barred from seeking compensation. This is known as contributory negligence. In more accommodating states, if your contribution to the accident or carelessness was more than 50 percent or more, you are barred from seeking compensation.

In less generous states, if your contribution to the accident or carelessness was any further than ‘slight’, you are disallowed from filing a suit. Again, the percentage of the contribution must be negotiated with the insurance adjuster. It is yours or your legal representative’s job to prove greater negligence on the defendant’s part.

Physical Limitation That Made the Accident Worse

If you have a physical limitation that made the accident worse or increased the chances of an injury – perhaps a limp or compromised vision – you are still entitled to compensation. Every individual has the right to navigate the world on their own terms and without unnecessary danger. For example, if a bad ankle caused you to fall on a broken staircase, the owner of the property is still liable for not having carried out proper maintenance. Even if someone with stronger legs may not have fallen on the staircase, it is the responsibility of the property owner to ensure the safety of all individuals invited or are reasonably expected to be on their property.

Case Studies

The following are some instances where negligence was proven and the aggrieved party were paid a handsome compensation. The identities of the plaintiffs and defendants have not been revealed but a short summary of the incident and case should help you understand such cases of personal injury.

Safe Spaces

During a physical education class in a private school in the US, a 16-year-old teenager sustained a traumatic brain injury when a golf ball hit by another student struck her in the head. The school (the defendant) argued that the case should be dismissed claiming that duty of care was not theirs and that the student had assumed the risk of injury. The plaintiff argued that it was the responsibility of the school to provide a safe environment. The teenager was only where the accident took place because the school required her to be. The federal judge hearing the case eventually denied the school’s request for dismissal and the case was later settled for $10 million.

Defective Work Equipment

When a grain elevator that had a history of explosions blew up at a farm, a farmer was caught in the blast. The accident left him in a persistent vegetative state. The same elevator had blown up three years before. The liability of negligence was found with the elevator company and a settlement of $9 million was negotiated out of court. It was the responsibility of the manufacturer to provide a product that was safe for use and did not inhibit the safety of the user or those nearby. The elevator company was therefore held responsible for the defective equipment.

Final Thoughts

Finally, a brain injury can cause a lot of physical and emotional damage to you and your family, even if it does not lead to death. The extent of your head injuries can also vary. Not all of them may be severe traumatic brain injuries. Perhaps the one you or a loved one sustained was only a mild concussion. But no matter the extent of the injury, it resulted in inconvenience, put you at great risk and perhaps cost you an expensive trip to the emergency room. If the injury was caused by somebody else’s negligence, then it is only fair you are compensated for the trouble you have been put through.

An average American may know their legal right to sue in case of negligence, but not the nitty-gritty or the fact that you can sue for damages even if it was partly your fault. So educate yourself about your rights and don’t take personal injuries caused by another’s negligence lightly.

Please contact us to discuss a strategy that can help ease the financial burden caused by such a loss.

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