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Sports, automobile accidents and other incidents can result in a brain injury. The CDC, or Centers for Disease Control and Prevention, estimates that 1.4 million Americans per year acquire a brain injury. Those who have brain damage or a concussion due to an accident may be eligible to receive compensation through legal channels.


Legal Expertise

An experienced personal injury attorney who has a background in brain damage litigation can help victims navigate through insurance company negotiations, workers’ compensation claims, lawsuits and benefit applications. The medical and legal issues that stem from brain injuries require the knowledge and qualifications of a legal expert who is familiar with the complexities of these cases.

Legal Basis

In order to succeed in a settlement or lawsuit, it is imperative that clients understand the legal basis of their case. The legal theory of a case not only determines the claims the client must prove, but also helps the client collect all relevant evidence.

Often, a brain injury suit is based on the legal theory of negligence. The person who files the lawsuit is known as the plaintiff, and the party who the plaintiff names in the lawsuit is called the defendant. It is necessary for the plaintiff to prove that the defendant is legally at fault for his injury.

The plaintiff must prove certain points in order to win his brain injury negligence claim. These points are:

  • A duty of care, which states that the defendant was required to demonstrate reasonable care.
  • A failure to show duty of care on the part of the defendant.
  • The inaction, or action, of the defendant caused the plaintiff’s brain injury.
  • The ability of the plaintiff’s losses or injuries to be legally measured.

Reaching a diagnosis of a broken bone is a straightforward process. However, brain injury symptoms are sometimes subtle and delayed. Altered behaviors, emotions, memory and concentration may not show up immediately, causing the emergency room doctors to initially misdiagnose a brain injury victim in some cases.

Since a brain injury is harder to detect than other physical injuries, the most seemingly insurmountable part of a traumatic brain injury lawsuit is proving the brain injury is due to the defendant’s misconduct instead of an unrelated event. However, the more evidence about the brain injury’s cause the plaintiff can gather, the easier it will be for the plaintiff to win his case.

Personal Negligence

Driver A swerves into oncoming traffic, hitting Driver B in a head-on collision. Driver A is found to have a BAC, or blood alcohol content, that is double the legal limit. During the collision, Driver B is thrown into the windshield, which results in serious head injuries. These injuries cause severe headaches and permanent cognitive impairment. Driver B is eligible to file a personal injury suit against Driver A, basing the case on negligence.


Product Liability

Personal negligence is not the only basis for a traumatic brain injury lawsuit. A liability claimdue to a defective product can also act as the basis for a brain injury suit. A person who thinks that his brain injury resulted from the use of a dangerous or defective product may have legal recourse against the company that distributed or manufactured said product.

In the previous example that involved Driver A hitting Driver B with his car, Driver B thinks that his injuries would have been less severe or nonexistent if his car’s driver’s side airbag inflated as intended. Therefore, Driver B can sue not only Driver A for negligence, but also the airbag manufacturer, automobile manufacturer and any distributors of the defective product.

Of course, automobile parts are not the only type of defective products that warrant a defective product claim. For instance, a mother is concerned about her toddler who has significant learning disabilities and developmental delays. During the course of medical testing, doctors discover that the toddler has abnormal levels of lead in his body. The mother thinks that her child had exposure to toxic lead levels from toys that are covered in lead paint. In this example, the mother has a basis for a defective product liability claim, and she can file a lawsuit on behalf of her child against the toy company that manufactured the lead tainted toys as well as other parties that distributed the dangerous toys.

Collecting Injury and Accident Evidence

In order to properly prepare for a lawsuit, a lawyer will ask the client questions regarding his brain or head injury. Some examples of these questions are:

How did the accident occur?
What does the client remember about the events of the accident?
What was the client doing when the accident happened?
What type of medical treatment did the client receive after the accident?

Memory loss is a common occurrence for brain injury victims, particularly in terms of the events that caused the injury, so the client should not be too concerned if he is unable to remember every detail of the incident. However, it is crucial for the client to be totally honest with his legal adviser as well as collect information from newspaper articles, accident reports and eyewitnesses.