What is Brain Injury Law?

Should you, or can you, pursue legal action?

By Super Lawyers staff | Reviewed by Canaan Suitt, J.D. | Last updated on January 27, 2023

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A brain injury can be life-changing, though the effects of a brain or head injury can take time to appear and impact your quality of life. The first thing you should do if you suspect you or a loved one has suffered a traumatic brain injury (TBI) is to seek immediate medical attention. After you are armed with knowledge about your condition, you may find yourself wondering if you should or can pursue legal action. According to the Center for Disease Control and Prevention (CDC), the common causes of TBI are bumps or blows to the head and penetrating injuries to the head. Depending on their severity, TBIs are classified as Mild TBI, Moderate TBI, or Severe TBI and may result in either short-term or lifelong neurological injuries. The law recognizes many avenues through which you can receive compensation for your brain injury, which may cause brain damage, and you may also be entitled to compensation for ongoing medical care and medical bills. You may find yourself feeling overwhelmed by the medical and legal waters you now must navigate, and an experienced brain injury lawyer can help you evaluate your case and weigh your options. The following information is designed to help you feel prepared to speak with an attorney should you choose to hire one.


If you or a loved one has suffered a traumatic brain injury (TBI), the law you will use to prove a brain injury victim claim can vary depending on what caused the injury—though your claim will most likely fall under negligence or products liability. Auto accidents, truck accidents, and slip and fall cases are common examples of negligence cases. Car accidents can also lead to products liability cases if your brain injury was caused by a defect—like a defective airbag—in your car. Each legal theory is briefly discussed below, though, because all brain injury cases are unique, you may benefit from speaking with an attorney to determine the best legal option for your specific personal injury law case.


If your injury was caused by someone else’s negligence, you or your brain injury attorney will need to prove the four classic elements of negligence: duty, breach, causation and damages. Put another way, you will need to prove that the other party owed you a duty of care, which they then breached, causing your injuries and damages.
A duty is a legal relationship between two people. Generally, we all owe one another a duty of reasonable care. This means that we all must act reasonably, and, if we don’t, we will be legally responsible for any injuries that our unreasonable actions cause. The level of care owed varies by situation, as well as the identity of the actor. For example, the standard of care in medical malpractice cases is determined by how other medical professionals would have acted in a similar situation; the standard of care is different in other circumstances.
If the person who caused your injuries failed to exercise reasonable care, then they have breached the duty of care they owed you. You must prove the breach to succeed in your brain injury claim.
You must also prove that the other party’s breach caused your injuries. It is not enough that the other party acted unreasonably and you were injured. Causation has two parts, and both must exist for you to successfully prove the other party was the cause of your injuries.
  • Actual cause: To prove actual cause, you must show that because the other party acted unreasonably you were injured. Legally, this is referred to as the “but for” cause; but for the other party’s breach, you would not have been injured.
  • Proximate cause: Also referred to as legal cause, proximate cause is a question of foreseeability–meaning, the other party can only be held responsible for injuries that were foreseeable. This does not mean that the other party is not responsible if they didn’t think your injuries would happen. It just means that once the chain reaction of their breach comes to a reasonable end, the other party cannot be held liable for subsequent injuries.
Finally, you will need to prove that you suffered harm addressable by the legal system. In a brain injury case, the injuries to your brain are your harm. You or your traumatic brain injury lawyer or personal injury lawyer may also request other relief, such as help with ongoing medical expenses or compensation for pain and suffering.

Products Liability

If your brain injury was caused by a product, you will need to show either that the product was defective or that the product was dangerous and there was inadequate warning of the danger. You can prove the defect or lack of warning was a result of negligence (discussed above), or you can use a legal theory called strict liability to prove your claim. In a strict product liability case, you or your attorney will need to prove that a product was shown in an unreasonably dangerous condition or with an inadequate warning, that the seller expected the product to reach the consumer without changes, and that you were injured by the defective product or lack of warning.

Other Considerations

If you fell at work and hit your head, you may also want to investigate a claim of workers’ compensation. You might want to consider discussing your options with a traumatic brain injury attorney to make sure pursuing workers’ compensation does not affect any other legal claims you might have.

Common Questions for an Attorney

Below are some common questions you might want to consider when meeting with an attorney for the first time.
  1. What kind of compensation can I receive after a severe brain injury or head trauma?
  2. Will compensation cover my healthcare or medical treatment costs?
  3. Who can I sue for my brain injury lawsuit?
  4. What do I need to do to make sure I get the most compensation possible?
  5. Can I bring a case on behalf of a family member?
  6. Will a workers’ compensation claim affect other claims I may have against my employer?
  7. What are the most common types of brain injuries and how do you prove them?

Finding the Right Attorney for Your Needs

It is important to approach the right type of attorney so you can hire someone who can help throughout the entire traumatic brain injury case. To do so, search the Super Lawyers directory, using the search box to find a lawyer based on your legal issue or location. To help you get started, you may want to consider looking for a personal injury attorney who specializes in brain injury law. You may also find it valuable to speak with an attorney with experience in workers’ compensation or products liability. Many provide free case evaluations.

Why Should I Talk To a Lawyer?

Brain injury cases and personal injury cases are complex, and there are many legal theories you can pursue. Both the type of case you decide to bring, as well as your success, will be dependent upon the facts of your specific case—where you were injured, how you were injured and the extent of your injuries. An experienced lawyer is in the best position to evaluate all the facts of your case and decide on the best course of action. Legal representation will also be able to anticipate potential problems with your case and advise you on how to approach them. They may even be able to help you avoid potential problems altogether, as well as keep track of deadlines and file all the paperwork with the necessary courts and agencies, giving you one less thing to worry about.

What do I do next?

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