Every year, up to 1.4 million people in the U.S. suffer a brain injury, according to estimates from the Centers for Disease Control and Prevention (CDC). Brain injuries can be caused by anything from car accidents to sports activities. If you or a loved one has been in an accident and suffered a head injury -- such as severe concussion or brain damage -- you may be entitled to compensation under the law. This article outlines the steps to take if you are considering legal action. (To learn more about how to recognize brain injury and common brain injury symptoms, read Nolo's article Brain Injury Basics.)
If you think someone is legally liable for your head or brain injury and you want to file a lawsuit -- or even if you're negotiating with an insurance company, making a workers' compensation claim, or applying for other benefits -- the first thing you should do is speak with a qualified personal injury lawyer who specializes in brain injury litigation. Brain injury cases raise complex legal and medical issues, so it's really important to speak with someone who is qualified and experienced.
For help finding a lawyer and in deciding when to get expert help rather then going it alone, read Nolo's articles Personal Injury Claims: When You Need a Lawyer and Finding a Personal Injury Lawyer. Go to Nolo's Lawyer Directory for a list of personal injury attorneys in your geographical area (click on the "Types of Cases" and "Work History" tabs to find out about the lawyer's experience, if any, with brain injury cases).
It's important to understand the legal theory on which your case will be based, as this will dictate what you will have to prove in order to win your lawsuit or settlement. Understanding the legal basis of your claim will also help you gather all evidence that's relevant to your case.
Most brain injury lawsuits are based on a legal theory called negligence. A negligence claim requires the person bringing the lawsuit (the "plaintiff" in legalese) to prove that the party they are suing (called the "defendant") is legally responsible (or "at fault" for) the injury.
To succeed in a legal action based on negligence, a plaintiff must show all of the following:
(For more information on negligence and proving fault, see Nolo's articles Proving Fault in Personal Injury Accidents: General Rules and Who's at Fault for an Accident FAQ.)
Proving that a brain injury occurred and linking that injury to the defendant's conduct (for example, showing that the defendant's bad driving -- and not some other event -- was what caused the plaintiff's brain injury) can be a tall order in a lawsuit. Brain injuries are often more complicated and difficult to detect than other types of injuries. So gathering as much evidence as possible about the nature of the brain injury and the accident will help to prove your case. (For more information on how to recognize brain injury, see Nolo's article Brain Injury Basics.)
Driver Adel's car is hit head-on when Driver Dan swerves out of his lane and into oncoming traffic. Dan's blood alcohol content ("BAC") is twice the legal limit. Adel's head and body are propelled into the windshield of her car, and she suffers severe head injuries. Her cognitive functioning is permanently affected, and she suffers debilitating headaches following the accident. Adel would bring a personal injury lawsuit against Dan based on negligence, arguing that his negligent driving caused her brain injury.
A brain injury lawsuit may also be based on a defective product liability claim. If you believe that your brain injury occurred because you used a product that was defective or dangerous, you may be able to sue the companies involved in the distribution of that product. For more information about defective product liability claims, read Nolo's articles Defective Product Claims: Theories of Liability, Types of Defective Product Liability Claims, and Product Liability FAQ.
Driver Adel (who was hit by Dan the drunk driver) believes that her injuries would not have occurred (or would have been much less severe) if the driver's side airbag in her car had inflated the way it was supposed to. In addition to suing Dan for negligent driving, Adel could bring a defective product claim against the airbag manufacturer, the car maker, and any other parties who may be responsible for distributing the vehicle's airbags.
Betty's 3-year-old daughter Emily is experiencing severe developmental delays and learning difficulties. Medical tests reveal that lead levels in Emilys system are well above the normal average. Betty believes that Emily has been exposed to toxic levels of lead by playing with toys that have been tainted with lead paint. Betty could bring a product liability claim on Emilys behalf against ABC Company, the toy manufacturer, and any other parties involved in the distribution of the defective toys.
In preparing your case, an experienced attorney will ask you questions about how your head or brain injury occurred. He or she is likely to ask you what you remember of the accident, how it happened, where you were and what you were doing at the time, and the medical treatment you received. It's common for brain injury sufferers to experience memory loss when it comes to the events surrounding the injury, so don't worry if you can't recall details of the accident. The important thing is to be completely honest with your lawyer and gather as much information as you can from other sources like witnesses, accident reports, and newspaper articles. To learn more about what you and family members can do immediately following an accident to help with your case, read Nolo's articles Take Notes After an Accident or Injury and Personal Injury Accidents: Preserve Evidence.
While it's easy to diagnose a broken leg, symptoms of brain injury -- like changes in concentration, memory, emotion, and behavior -- can be subtle and may take some time to show up (these are called "delayed onset" symptoms). It's also possible for a brain injury to be misdiagnosed or missed at the emergency room visit following an accident. (If your medical provider negligently failed to diagnose your injury, you may be entitled to compensation. For more about medical wrongdoing read Nolo's articles Medical Malpractice Basics and Damages in Medical Malpractice Cases.)