How Does Traumatic Brain Injury Law Work? Here's What to Know
Injury to the brain can occur for many reasons, but when can you hire an attorney? Here's how traumatic brain injury law works, and how filing a claim can help you.
According to the statistics, an average of 2.7 million brain injuries occur, annually, from sports-related incidents. Additional types of traumatic brain injury occur as a result of daily activities, such as with being involved in auto accidents, falls, and acts of violence.
In the United States, traumatic brain injury, or TBI, is involved in 33% of injury-related deaths.
Outside of death, this type of physical trauma has been termed the “silent injury,” as the long-term effects of damage often go unnoticed and undiagnosed. Traditionally, TBI has been referred to as a concussion.
After getting past the initial unconsciousness, dizziness, headaches, and memory loss from the concussion, it was believed that a person had recovered.
We are now equipped with the knowledge that this is not always the case.
Long-term effects of TBI can manifest as persistent physical or cognitive impairment, and can even result in permanent personality changes.
What Happens in a Brain Injury?
Our brains are normally protected from coming into contact with the skull through the cushioning of a surrounding fluid.
When the head is severely impacted, the brain can be shifted so drastically that it pushes past this protective layer, and is jarred against the bone.
When this occurs, the delicate tissues and nerves of the brain can become bruised, strained, and separated.
Symptoms of a Traumatic Brain Injury
These stresses can sever the connections between the parts of the brain that are responsible for thoughts and behaviors, and the parts of the brain that are responsible for emotional regulation.
What begins as an expected, initial, physical and emotional response to the trauma can progress toward producing life-long changes in:
Those who are suffering from a mild brain injury are likely to remain unconscious for less than half an hour. In cases of moderate to severe brain injury, the victim is often unconscious for longer.
When determining the extent of the potential damage, physicians will utilize the length and depth of the coma as a marker on a “severity of injury” scale.
While this determination of severity may prove useful in traumatic brain injury law when filing a lawsuit, it does not often encompass the full extent of what a person with TBI experiences.
Recovery can take months or years, and some individuals do not ever recover full, pre-accident, functioning.
Traumatic Brain Injury Law
The prevalence of brain injury is so alarming, that there are now specific traumatic brain injury laws to address it.
As of 2015, every state within the United States has passed legislation to outline regulations for prevention, diagnosis, and rehabilitation surrounding TBI.
The traumatic brain injury law ranges from instituting safety measures, to determining that insurance and medical facilities will provide adequate coverage following such an injury.
The state of California, specifically, has instituted very detailed laws toward minimizing the occurrence of, and provide screening for, potential brain injury.
- Educational institutions are required to remove those suspected of sustaining a head injury from participating in sports activities. Such institutions are also required to receive official, and annual, medical clearance before permitting the student to return to the sport.
- Law enforcement is required to receive special training on the existence and symptoms of TBI that is often present in the local veteran populations.
- California also actively monitors health institutions which provide care for those affected by TBI, and requires that treatment providers match government grant funding for the treatment.
- Traumatic brain injury law also ensures that treatments include community resource links toward extended care; education; and vocational rehabilitation for patients.
Statute of Limitations for Brain Injuries
In California, the timeline – or statute of limitations – for filing a personal injury claim is usually two years from the date of the injury.
If the claim is involving a governmental entity, the statute of limitations for filing is only six months after the injury.
The longer lasting effects of traumatic brain injury usually show within that time frame. Due to the potential for more subtle damage to present, however, it is usually advised to consult a brain damage lawyer while considering whether to seek compensation for the injury.
How to Receive Compensation for Traumatic Brain Injuries
Recognizing the potential for brain injury is the first step in seeking compensation.
Some of the more common causes of TBI include:
- Traffic accidents
- Sports injuries
Often, the true impact of the injury is not discovered until weeks – or even months – after the event. The situation is made more tricky by the fact that becoming unconscious doesn't always happen during TBI.
If you have been involved in any accident which affects the head and brain – with or without falling unconscious – it may be worth considering screening for TBI. And, as always, stay mindful of the statute of limitations for filing a claim.
Who is at Fault?
The next step in deciding whether to file a claim under traumatic brain injury law is to determine whether another party is at fault for the injury. This fault can be in the form of direct misdeed, or indirect negligence.
In the case of negligence, it is imperative to show that the other party had a “duty of care.” This legal term refers to the responsibility of another person – or persons – to take reasonable steps toward preventing the injury.
Examples of failure to exercise duty of care include a store owner not keeping the floor clear from slip hazards, or another driver exceeding the speed limit.
Costs that can be covered during a brain injury lawsuit include:
- Objective measures, such as recovering loss of wages and money spent for medical and rehabilitation treatments.
- Subjective experiences, such as for an overall reduction in quality of life, or for addressing the amount of physical pain that has been endured during the course of the injury.
In the case that insurance is the entity responsible for paying out damages, a formula for compensation is utilized.
If another individual is ordered to pay for the damages, the situation can become a bit more tricky.
In either case, a personal injury lawyer can help you to decide whether pursuing your claim will be beneficial.