Answers To The Most Frequently Asked Questions In Brain Injury Cases
1. Who can sue for a traumatic brain injury?
Anybody, child or adult, whose traumatic brain injury was caused by somebody else’s fault.
2. Who can be held responsible for a traumatic brain injury?
Any person whose negligent or intentional misconduct caused the injury can be held responsible to the injured plaintiff. This would include a large list of potential defendants from vehicle drivers, product manufacturers, construction site operators, owners of dangerous private or public property and others. The key is to establish that there is fault on at least one of these parties or any other potential defendant who caused your traumatic brain injury.
3. What if I was also at fault for the accident which caused my traumatic brain injury?
California is a comparative fault state. A person can sue for serious personal injury even if they are partially at fault. As long as they can prove that one or more other parties are also at fault. However, the amount of a plaintiff’s recovery will be reduced by the amount of their fault. Therefore, if someone is awarded $5 million in a serious personal injury case, but are found to be 50% at fault, the recovery will be limited to $2.5 million.
4. Is it important to quickly investigate an accident which results in a traumatic brain injury?
Absolutely. Given the seriousness of the injury, you or your attorney will be doing yourselves a terrible disservice if the accident is not investigated quickly and thoroughly. A thorough investigation should include an examination of the scene, the instrumentalities involved in the accident, interviews with witnesses and the collection of reports from investigating agencies.
Further, if at all possible, the instruments that caused the accident should be maintained in their post-accident condition; i.e., motorcycles should not be repaired, malfunctioning machines and helmets, if any, should be maintained and not repaired.
The investigation will be important to establish fault on the most obviously guilty defendant; establish a lack of fault on the part of the plaintiff; and establish fault on wrongdoers other than the most clearly at fault defendant who may be in a better position to fully compensate plaintiff for an always serious traumatic brain injury.
5. Is the existence of insurance coverage important?
Yes. It is critical. It is usually unlikely that the person or entity that caused your amputation will have the assets necessary to cover your enormous potential damages. Even a company with a relatively large insurance policy like $500,000 or $1,000,000, will not cover the damages in a clear liability case in which there is a traumatic brain injury. That is one of the reasons why an early investigation is so important; that is, to develop evidence against multiple wrongdoers who, in totality, may be able to cover your damages either through assets or insurance.
6. Will my attorney need to retain experts to prove liability, causation and damages?
Almost always. Because of the seriousness of your injury, it is critical that liability, i.e., fault, is pinned down as soon as possible after an accident against at least one potential wrongdoer and hopefully more. Liability experts will help you do this. These experts include mechanical engineers, metallurgists, accident reconstruction and human factors experts who can speak to the liability factors in the accident.
In addition, if there is any issue as to whether a defendant’s wrongdoing caused your injury, the retention of biomechanical engineers and biomedical engineers can be extremely helpful.
With regard to damages, the answer is yes, always. Although the fact that you are injured sometimes may be obvious, the consequences of the injury will not necessarily be obvious and will usually be highly disputed by the defendants. At a minimum, you will need to retain at least two medical experts to testify to the medical effects of your injury, usually a physiatrist and neuropsychologist. Then, you will need a vocational rehabilitation/life care need expert to testify to your loss of earning capacity and your need for future care and treatment, and finally, you will need an economist to testify to the amount of damages which will need to be awarded to cover all of your losses.
7. What damages am I entitled to recover in my traumatic brain injury case?
Under California law a plaintiff who has suffered a traumatic brain injury is entitled to recover all of his or her past and future medical expenses and attendant care; past and future loss of income/earning capacity; past and future pain, suffering and emotional distress and in cases in which the defendant’s conduct is particularly bad, punitive damages (damages which are awarded to punish the defendant).
8. How soon after my accident must I bring a case?
You generally will have two years from the date of the accident to file a lawsuit. This time period can occasionally be extended if for some reason you were not able to discover your injury or the negligent cause of your injury for some time period after the accident. However, in a serious injury case, a delayed accrual of the statute of limitations for late discovery is extraordinarily rare.
If your case is against a government entity, a claim must be brought within six months of the date of the accident.
If the plaintiff is a minor, a minor has until their 19th birthday to bring a case unless the injury stems from medical malpractice, which has a far shorter statute of limitations period or a government claim in which a minor should bring the claim within six months of the accident, or one year at the latest.
9. Do I need to retain an attorney?
Absolutely. Given the significance of your injury, you cannot take a chance on attempting to resolve your case without the help of an attorney. An attorney, through investigation, retention of experts and litigation, will help you to establish fault against the most obvious defendant; will help you establish fault on other potential defendants; and will help minimize or eliminate any fault which would be attributed to you.
Further, an attorney will help increase the value of your case by “working up” your damages to make sure that you receive as full compensation as possible under the circumstances.
10. Will my traumatic brain injury case settle out of court?
Yes. Ninety to 95% of traumatic brain injury cases settle at some time before trial.
Most legal questions require complex answers. The answers provided here may not be complete or fully accurate but attempt to provide consumers with abbreviated answers. For more detailed answers to these questions, a consumer should check out other articles in this section of this website, research other legal articles and texts on the subject matter or consult with an attorney.