Common Accidents That Result in Head and Traumatic Brain Injuries
Accidents that could potentially cause head and brain injuries include anything that involves a traumatic blow to the head or violently shaking back and forth, causing the brain to strike the inside of the skull. These incidents include:
- Vehicle collisions
- Motorcycle accidents
- Bicycle accidents
- Pedestrians struck by vehicles
- Slips and falls
- Falling from a ladder or scaffolding
- Injuries caused during sports
There are various types and degrees of head and brain injuries.
- Mild TBI: Symptoms include loss of consciousness, headache, nausea or vomiting, fatigue or drowsiness, problems with speech, difficulty sleeping or sleeping more than usual, dizziness or loss of balance, blurred vision, ringing in the ears, a bad taste in the mouth or changes in the ability to smell and sensitivity to light or sound
- Moderate to severe TBI: The symptoms of a mild TBI plus persistent headache or one that worsens, repeated vomiting or nausea, convulsions or seizures, dilation of one or both pupils of the eyes, clear fluids draining from the nose or ears, being unable to awaken from sleep, weakness or numbness in fingers and toes, lost coordination, profound confusion, agitation, combativeness, slurred speech, coma and other disorders of consciousness
- Skull fracture: A break in one or more of the cranial (skull) bones. It often occurs with head injuries, including a concussion or other brain injury. The brain can be affected by a skull fracture directly by damage to its tissues and bleeding, which can compress the brain tissue against the inside of the skull.
- Closed head injury: An injury to the brain but the skull is intact
- Open brain injury: It occurs when an object fractures the skull, creating an opening in the skull, directly damaging brain tissue or the surrounding membranes. Since it’s an open wound, infection and contamination can be serious complications.
- Frontal lobe injury: The frontal lobe of the brain controls cognitive skills including emotions, memory, problem solving skills, judgment, language, and sexual behavior. Such an injury can cause changes in emotional control and aggressive behavior usually results
- Brain bleeding/hemorrhage: A type of stroke caused by an artery bursting and causing bleeding in the surrounding tissues. This bleeding kills brain cells
- Brain damage: An injury causing the destruction or deterioration of brain cells. It can be spread throughout the brain or just in a particular area. A mild brain injury may be temporary, causing headaches, confusion, memory problems, and nausea. In a moderate brain injury, symptoms can last longer and be more pronounced. Severe, permanent brain damage may cause life-changing and debilitating problems
- Concussion: A TBI caused by the brain striking the inside of the skull, affecting brain function. Effects are normally temporary and can include headaches, problems with concentration, memory, balance and coordination. Usually caused by a blow to the head or violent shaking the head and upper body. One concussion can make the person more susceptible to future ones
Head and Brain Injury Compensation
There are several types of damages you could seek through an insurance claim or brain damage lawsuit, depending the harm involved.
- Economic damages: Past medical bills and payment for reasonably expected, future medical treatments; lost income since the accident and the income you may be expected to lose in the future due to your injuries; damage to, or the loss of, your vehicle and out-of-pocket expenses incurred because of the accident
- Non-economic damages: Pain and suffering caused by the accident, injury and your recovery; the negative impact on your relationships; mental or emotional harm caused by the accident and injuries
These damages could be shown by:
- Copies of bills and receipts
- Establishing the market value of your automobile
- Expert opinion as to what medical treatment will be needed in the future
- Testimony from family members and a mental health professional on the emotional and psychiatric impact of the injury
- Tax records could show past earnings while expert opinion could establish what you would’ve been expected to earn if there was no accident and what should be expected afterward
Economic damages are easier to calculate because they’re hard figures. Non-economic damages are more difficult to prove, but are often far, far greater than economic damages. The difference between skilled trial counsel and the typical lawyer is the ability to recovery full non-economic damages.
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Proving Negligence in Head and Brain Injury Claims
Negligence is a legal theory used to establish liability in accident cases. The plaintiff (the injured party) has the burden of proving that the defendant (the party accused of being responsible) is, more likely than not, legally responsible for the harm done to the plaintiff. You would need to show the defendant,
- Owed you a legal duty or obligation (not to drive in a dangerous way in a reasonably safe vehicle; or have a reasonably safe surface for customers to walk on)
- That duty or obligation was breached (the person drove while intoxicated, was distracted by a smart phone, drove through a red light; the floor was known to be slippery but not cleaned)
- That breach is the factual and legal (or proximate) cause of the accident
- The accident caused you harm
- Under state law the defendant is obligated to compensate you for the harm you suffered
Often in accident cases both sides disagree on who’s at fault and by how much. In Texas there is a modified comparative fault rule that follows a 51% bar rule. The plaintiff can’t recover compensation if he or she is found to be 51% or more at fault for causing the accident.
If it’s shown the defendant is more at fault than the plaintiff, plaintiff’s recovery is reduced by the share of his or her fault. If a jury decides a plaintiff is 40% at fault and there are $100,000 in damages, plaintiff’s recovery will be $60,000.
New Mexico follows a different system, pure comparative negligence. There’s no need to show the defendant was at greater fault than the plaintiff. He or she can recover from a defendant the defendant’s share of culpability, whatever it may be. If the defendant’s share of the blame for the accident is a third, the plaintiff can recover a third of his or her total damages.
Establishing damages is a critical part of the case. If that can’t be done, there will be no compensation and no point in filing a TBI lawsuit. It’s critical that all medical care be documented so the insurance company and a jury fully understand your past and current medical situation and what it’s expected to be in the future.
Filing a Head and Brain Injury Claim
If we’re retained, we will start an investigation into what happened, why, what caused the accident and who is responsible. After that, we will contact the responsible parties (those who played a role in causing the accident), who normally put us in contact with their attorney or insurance company.
There could be many responsible parties. If:
- A road where an accident happened was poorly designed or maintained, a party could be a government entity
- The accident happened in a parking lot, the owner or entity maintaining it may be responsible
- The driver causing the accident did so while on the job, had a long history of accidents but his or her employer allowed the driving to continue, the employer may be a responsible party
- An on the job injury involved safety violations;
- Your child suffered a brain injury while playing a sport in an organized league due to rough play that was banned by the rules but the league didn’t take steps to control it, the league may be responsible
The vast majority of head and brain injury claims settle, either before a brain damage lawsuit is filed or afterward. Insurance companies won’t take an attorney seriously if they’re not known to be ready to go to trial. We have a deep understanding of Texas and New Mexico brain injury laws, we work with top medical experts, and we know how juries respond in these cases. We are aggressive and well-prepared negotiators. If an insurance company refuses to offer what’s fair, they know we will not go away and will take your case to trial.
Head and Brain Injury Settlements
Based on our investigation we will submit a demand to the responsible party’s insurance company. They may ask for additional information in response. They may deny liability or offer less than the demand. We normally enter into negotiations, which, in most cases, are successful. If an insurance company isn’t being fair or reasonable, we will file a head injury or brain damage lawsuit. Most of them settle as well.
When deciding how to handle negotiations, you need to think about all the harm done since the accident and the expected, future harm. You also need to consider the downsides of going to trial, including the risks your case may be dismissed or your damage award may be less than expected. The uncertainties that come with having a trial decide the outcome of a claim is a major reason why both sides choose to settle.
Negotiations are based on the needs of both parties and the ability to establish trust and work together. Mistakes by either party can be:
- Not acting in good faith
- Seeing negotiation as a test of wills or a game
- Failing to fully understand the strengths and weaknesses of a case and factoring them into what to offer, demand and accept
Preparing a Head and Brain Injury Lawsuit
If a lawsuit is filed, part of the litigation process is discovery, where both parties normally find all the critical facts, which can speed up negotiations. Both sides ask each other questions in writing and under oath, exchange documents and information. Often the parties, after discovery, get a full picture of the important facts, understand the value of the case and reach an agreement.
During the investigation and litigation phase we often use experts. These are highly educated and experienced professionals who often work on lawsuits and can give their opinions in court. We use accident reconstructionists to help us determine the cause of accidents and who is at fault. Medical experts can explain the nature and extent of injuries and how long limitations are expected to last.
This is all part of trial preparation, which starts when we’re retained by a client. Every step in the process is taken with the attention and seriousness needed to prove a client’s case in court. Our level of effort is the same, whether we’re negotiating with an insurance company or at trial.