Traumatic brain injury claims and lawsuits have many similarities to other types of injury cases. However, several key factors distinguish them legally from claims involving most other types of incidents. A TBI attorney will want to discuss these three issues with the client and eventually include them in any filing with an insurer or court.
Foremost, brain injury cases tend to be far more likely to involve catastrophic harm to the victim. While the medical consequences of a catastrophic injury are important to cases, there are also legal ramifications for the defendant.
Typically, insurance policies impose coverage limits on non-catastrophic injuries. Suppose someone suffers a slip-and-fall in a store because no one mopped up a wet patch. The long-term consequences of breaking their forearm are likely quite different from the consequences of cracking their skull and suffering a traumatic brain injury. Forearm injuries usually heal well and don't leave people with lifelong nursing needs. Conversely, a TBI could leave a victim with headaches, neurological issues, and motor control problems for the rest of their life.
Likewise, many states have caps on certain types of injury compensation. Once more, there are almost always exceptions when the injuries are catastrophic.
A brain injury attorney will focus on this fact because the catastrophic nature of the medical issues means the client can likely pursue an uncapped claim. They can seek compensation for all of their medical bills both current and future. Also, they can seek compensation for the loss of long-term earnings, enjoyment of life, consortium, and parenting ability. Notably, each of these claims is only applicable to their life circumstances at the time of the injury.
The major challenge of bringing a TBI claim is proving a form of harm that may not always be visible. Such cases often require greater consultation with medical specialists to document how a victim is suffering. A doctor may run batteries of tests to determine how much mental capacity and motor control a person has lost due to an accident. Similarly, they often do scans to see if they can identify damage in the brain.
If the person can handle daily tasks and has reasonable mobility, they might have limited employment prospects due to issues with concentration, motor functions, or speech. Even if there are some potential medical interventions, these are often extremely expensive. Also, the vast majority of interventions only restore some ability.
From a legal viewpoint, these are all compensable damages. A TBI attorney will want to recover every penny possible because the client will likely need years or decades of care.
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