Things You Need To Know Before Filing A Brain Injury Lawsuit

Brain injury is one of the major medical and societal concerns in the U.S. According to the Centers for Disease Control and Prevention, 1.7 million people sustain a traumatic brain injury (TBI) annually in the country. It further estimated that, of these 1.7 million people:

  • 275,000 are hospitalized
  • 52,000 die
  • 1.365 million i.e. nearly 80 percent of the victims are treated and released from an emergency department

The Centers for Disease Control and Prevention also indicates that the total combined rates for TBI related hospitalizations, emergency department visits and deaths have increased in the U.S. over the past decade.

What is Brain Injury?

A brain injury refers a physical trauma such as a bump, blow, penetration, or shake caused to the head and brain, disrupting the brain's normal functioning. It is often referred to as “head trauma”, “head injury” or “traumatic brain injury”. In legal terms, a brain injury falls under the category of catastrophic injuries, which means “consequences of an injury that permanently prevent an individual from performing any gainful work.”

Ranging from mild to severe, brain injuries can often result in long-term (even permanent) physical or mental impairment. You don't necessarily have to be involved in any major accident in order to suffer a brain injury. Even slipping and falling can cause a serious head injury.

The following are some common causes of brain injury:

Motor Vehicle Incidents: Motor vehicle accidents are the most common cause of traumatic brain injuries. The degree of injury usually depends on various factors including but not limited to highway conditions, speed of the vehicles, whether the accident and more.

Slip-and-fall Accidents: A head injury caused by a slip-and-fall accident results from striking your head with another hard object or surface. The impact is usually forceful enough and can cause severe brain damage. In worst scenarios, such accidents can even cause serious neck and/or spinal cord injury.

Medical Malpractice: Brain injuries resulting from medical negligence and/or wrongful actions of doctors and other medical professionals are also growing in number. Medical malpractice often takes the form of:

  • Surgical error
  • Stroke
  • Birth injury
  • Failed or erroneous diagnosis or treatment
  • Sub-standard care
  • Hospital negligence or abuse

Work-related Accidents: Accidents that occur in your workplace, especially those occurring in construction sites and other hazardous premises often cause a severe brain injury. They generally occur when a worker slips or is struck by a hard or sharp object and injures his/her head.

Types of Brain Injuries

All head injuries are unique. They are classified based on the severity of the injury and the type of trauma sustained. Its classification has an impact on the way a personal injury attorney prepares a case. Broadly, they are classified into two major categories, i.e.

Closed Head Injury: They occur when your brain hits the inside of your skull. These injuries are caused by whiplash or as your head strike your car’s windshield. It often causes swell inside the skull, which can often hurt the delicate nerves or tissues, causing permanent damage. Closed head injuries are further classified into:

  • Concussion, which is a mild closed head injury that causes swelling. In general, the brain can easily recover from a concussion but if swelling continues and/or the victim remains unconscious for over a few minutes, it may result in severe brain damage.
  • Diffuse Injuries include microscopic changes scattered throughout the brain. They are often difficult to diagnose and can damage the nerve fibers, resulting in brain damage.
  • Mass Lesions refers to the localized areas of injury, which include blood clots, bruising, and bleeding.

Open Head Injury: This kind of injury occurs when any object penetrates the skull or if the skull is broken. Open head injuries not only damage the brain physically, but also invite infection that may further complicate the condition. There are two major types of open head injuries:

  • Penetrating Injuries occur when a foreign object penetrates the skull and causes serious damages to the brain. Common examples are car accidents and gunshot injuries.
  • Skull Fractures can occur anywhere in the skull. A linear fracture i.e. a crack or break in the skull is the most common example. While some are minor fractures, some may result in depressed skull fracture causing serious brain damage.

If Suspecting a Brain Injury

There are certain subtle symptoms of brain injury and they can take a while to appear. But if you suspect that you or a family member/loved one have suffered a head injury following an accident, you should first get a thorough medical check-up and treatment. In case you are considering filing a lawsuit, a proper medical evaluation is essential to establish the severity of the injury suffered.

Filing a Lawsuit

It is imperative to understand the legal basis of your brain injury lawsuit so that you can gather evidences accordingly. Most head injury lawsuits are based on ‘negligence’ and such claims require the plaintiff to prove that the defendant is at fault for the said accident that led to the injury.

Laws related to brain injury vary from state to state. It is therefore essential to discuss the circumstances of your injury with a personal injury attorney of your particular state. For example, Austin personal injury lawyers can help you navigate the laws related to injury litigation in Texas and help you pursue your legally entitled compensation.

In a head injury case, you need to prove the defendant is at fault on the following grounds:

  • Negligence
  • Comparative or contributory negligence
  • Intentional wrong such as a violent assault
  • Strict liability, which usually applies in defective product liability cases

The plaintiff can pursue monetary damages; depending on the specifications and severity of the case, a plaintiff can receive compensation for:

  • Both present and future medical expenses
  • Lost income and/or diminished earning capacity due to the injury
  • Pain and suffering
  • Long-term treatment/rehabilitation expenses
  • Property damage

However, your personal injury attorney needs to prove certain factors to claim the compensation. These include:

  • You have sustained a brain injury
  • Your injury resulted from the negligent or reckless actions of the defendant
  • The head injury not pre-existing

Also remember that each state has a statute of limitations on litigations related to brain injury. You have to take legal action against the individual or entity responsible for your injury within the established deadline. It is therefore important to speak with your attorney as soon as you suspect symptoms of brain injury, following an accident.


Proving a brain injury case is often a tall order in a lawsuit. These injuries are more complicated and difficult to detect in the first place and proving that it was caused by someone’s negligent or reckless actions is even more challenging. Besides, these cases are time-consuming. It is therefore essential that you entrust their brain injury cases to a knowledgeable, dedicated attorney to help you pursue the compensation.

Author Bio:

Paul Colley is an attorney at Colley & Colley, LLP, based in Austin, Texas. With his expertise in handling personal injury cases, Paul has recovered more than $50 million for clients and helped personal injury victims fight for their rights.

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