According to the Centers for Disease Control and Prevention (CDC), 1.7 million people in the U.S. sustain a traumatic brain injury (TBI) every year. These injuries contribute to a third of the deaths caused by accidents and 75{f1f9f9c01afd80b5cbf5eb62b4dc52c71b03eb6f2de9df6e3a106729f0c3810b} of brain injuries are concussions.
Brain injuries can be caused by a number of incidents, including falls, sports activities, construction site accidents, motor vehicle accidents, pedestrian accidents, military combat, defective products, and assault.
Falls are the most common cause of brain injuries at 35.2{f1f9f9c01afd80b5cbf5eb62b4dc52c71b03eb6f2de9df6e3a106729f0c3810b}, while motor vehicle accidents cause 17.3{f1f9f9c01afd80b5cbf5eb62b4dc52c71b03eb6f2de9df6e3a106729f0c3810b}. Being struck by something – such as in sports activities or construction work – is responsible for 16.5{f1f9f9c01afd80b5cbf5eb62b4dc52c71b03eb6f2de9df6e3a106729f0c3810b} of brain injuries and assaults are responsible for 10{f1f9f9c01afd80b5cbf5eb62b4dc52c71b03eb6f2de9df6e3a106729f0c3810b}. All other causes are in the remaining 21{f1f9f9c01afd80b5cbf5eb62b4dc52c71b03eb6f2de9df6e3a106729f0c3810b}, according to the CDC.
Brain injuries are more likely to cause death in motor vehicle accidents than any other cause and TBIs from falls are more likely to happen in children under the age of 15 and adults over the age of 65.
Nevertheless, these injuries can strike anyone and they can be fatal. Actress Natasha Richardson died very quickly in 2009 at the age of 45 after sustaining a bump on the head when she fell while skiing in Quebec. She seemed fine at first and refused medical attention. But three hours later, she suffered pain and was soon in a vegetative state as a result of internal bleeding caused by the head trauma.
When a brain injury is caused by someone else’s negligence, the injured party can file a lawsuit against the person or organization that is at fault.
The Problems of Proving Fault in a Brain Injury Case
In a lawsuit, the injured party is called the “plaintiff,” and the alleged responsible party is called the “defendant.” In order for the lawsuit to prevail, the defendant has to owe the plaintiff a “duty of care.” This means that the law required the defendant to be reasonably careful in a way that could have prevented the accident. The plaintiff then has to prove that the defendant failed in providing that “duty of care,” and that failure has to be shown to have caused the brain injury.
In Natasha Richardson’s case, for example, she was not wearing a helmet at the time of the accident. The ski resort claimed that it recommends helmet-wearing to all skiers, but there was no law in effect in Quebec that mandated the wearing of helmets. Therefore, it would have been difficult for Richardson’s family to prove fault on the part of the ski instructor or the ski resort.
Proving fault can be complex in a wide variety of personal injury cases, but it can be difficult just to prove that a brain injury occurred in the first place as some of these injuries do not show up on medical scans. The plaintiff may notice detrimental effects due to head trauma, but he or she must prove that those effects did not begin until after the accident. This can require testimony from others and an evaluation of school or work records.
For example, brain injuries can cause memory problems, difficulty with concentration, and behavioral changes such as irritability and volatility, as well as trouble controlling emotions. Some of these symptoms are termed “delayed onset” if they don’t show up right away after the accident. Since delayed onset symptoms are not uncommon after head trauma, these injuries are often not diagnosed when someone visits the emergency room.
If the plaintiff has had any deficits before the accident, including an addiction, mental illness, or learning disabilities, the plot thickens because the defendant’s attorneys will do their best to prove that the symptoms are a result of preexisting conditions and not the accident. To complicate matters even further, the people who can testify as to changes in the plaintiff’s behavior or functioning obviously knew the plaintiff before the accident. Therefore, these witnesses might be accused of twisting the truth to benefit the plaintiff.
In some cases, fault is cut and dry, such as when an individual proven to have been intoxicated swerves while driving and hits another vehicle. If the other driver (or a passenger in that car) suffers clear impairments and frequent debilitating headaches after the accident, negligence on the part of the drunk driver is clear. But far too many cases do not fall into this category.
If the other driver or passenger has injuries that do not show up on a brain scan, proving fault will be more challenging. Another example of a challenging case would be one in which a brain injury is believed to have been sustained due to lead poisoning from a product. Cause and effect in this situation can be very difficult to substantiate medically.
Attorneys who deal with these types of injuries have a roster of experts available to assess the accident and injuries in order to evaluate where the fault lies. These experts supply reports that help to prove a plaintiff’s case. The defendant’s attorneys also have experts, however, and they will provide their own reports, which may contradict the plaintiff’s experts.
For this reason, a brain injury lawsuit may fail to settle outside of court. When the parties cannot agree as to fault and/or the amount that should be paid by the responsible parties, the lawsuit proceeds to court. Then, a jury or a judge evaluates the evidence and decides who is at fault and by how much. If there is more than one potential negligent party – such as two drivers in a three car accident or the manufacturer of a car if, for example, the airbag failed to deploy and allegedly contributed to the brain injury – fault may be divided by percentages. Perhaps driver number 1 will be found to be 50{f1f9f9c01afd80b5cbf5eb62b4dc52c71b03eb6f2de9df6e3a106729f0c3810b} at fault while the others responsible share less of the fault.
The party found to be primarily at fault will pay for more of the settlement than the others, and the judge or jury in a court case will determine how much each party will pay to the plaintiff. The plaintiff will try to recover money for medical expenses, lost earnings from work, pain and suffering (in states where pain and suffering money damages are allowed), and loss of the ability to function if the injuries are permanent. If the plaintiff can no longer work and/or requires care for the rest of his or her life, the costs of a brain injury can be astronomical.
