What Is Brain Injury Law?

Use these links to jump to different sections:

• What Are the Most Common Causes of Traumatic Brain Injuries?
• How Do You Prove a Brain Injury Lawsuit?
• What Are the Elements of a Negligence Claim for Brain Injuries?
• What Is a Product Liability Claim for Brain Injuries?
• What Is a Workers’ Compensation Claim for Brain Injuries?
• Finding the Right Attorney for Your Needs
• Brain Injury Attorney FAQs

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.

What Are the Most Common Causes of Traumatic Brain Injuries?

According to the Centers for Disease Control and Prevention (CDC), the most 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 feel 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.

How Do You Prove a Brain Injury Lawsuit?

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. Auto accidents, truck accidents, and slip and fall cases are common examples of negligence cases. Car accidents can also lead to product 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. However, 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.

What Are the Elements of a Negligence Claim for Brain Injuries?

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.

1. Duty

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.

2. Breach

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.

3. Causation

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.

4. Damages

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.

What Is a Product Liability Claim for Brain Injuries?

If a product caused your brain injury, 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 resulted from 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.

What Is a Workers’ Compensation Claim for Brain Injuries?

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.

Finding the Right Attorney for Your Needs

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.

To find the right type of attorney, visit the Super Lawyers directory and search for personal injury attorneys who specialize in brain injury law. Many provide free case evaluations.

Brain Injury Attorney FAQs

Below are some common questions you might want to consider when meeting with an attorney for the first time:

What kind of compensation can I receive after a severe brain injury or head trauma?

Compensation in personal injury cases often covers your medical expenses, rehabilitation costs, pain and suffering, and lost wages. Precise compensation will depend on your injuries and other facts of your case.

Will compensation cover my healthcare or medical treatment costs?

Yes, personal injury compensation typically covers medical expenses, including current and future treatment costs related to the brain injury. An attorney can give you a better idea of potential compensation based on your case.

Who can I sue for my brain injury lawsuit?

Liable parties may include individuals, companies, or government entities whose negligence or intentional actions caused your brain injuries. An attorney will work with you to indentify potentially liable parties.

What do I need to do to make sure I get the most compensation possible?

Document your injuries, medical treatments, and expenses. Seek out and follow the legal advice of an experienced attorney as soon as possible.

Can I bring a case on behalf of a family member?

Yes, if the injured person can’t pursue legal action due to their injuries, a family member or legal guardian may be able to bring a lawsuit on their behalf.