When Can I Sue for Brain Injuries?

Understand the types of brain injury and when you can sue

By Canaan Suitt, J.D. | Last updated on July 10, 2023 Featuring practical insights from contributing attorney Jason M. Lichtenstein

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According to the Center for Disease Control and Prevention (CDC), tens of thousands of people suffer a brain-related injury every year. Many traumatic brain injuries result in disability or death. 

In addition to lifelong medical consequences, brain injuries can bring severe financial burdens due to medical expenses, lost wages, and lost earning potential. 

If you or a loved one has suffered a brain injury, it’s possible to get compensation. This article will give an overview of the types of brain injury and when speaking with an attorney is a good idea. 

How Does a Brain Injury Happen? 

Brain injuries can occur during many everyday activities. Some of the most common causes include: 

  • Car accidents 
  • Falls (learn more about slip and fall lawsuits
  • Sports injuries 
  • Workplace accidents 
  • Physical violence (including domestic abuse and gun injuries) 
  • Medical malpractice 

The cause of a brain injury will partly determine the kind of legal action you take to recover. For example: 

  • If you are injured while working for your employer, you can pursue a workers’ compensation claim or a personal injury lawsuit 
  • If you or a family member were injured during surgery or another medical operation, you could pursue a medical malpractice claim 
  • If a defective product (such as a defectively made tire causing a vehicle accident) was responsible for your head injuries, you could pursue a products liability claim 

Regardless of the type of claim you bring, brain injury lawsuits generally involve proving someone acted negligently and their negligence was the cause of your injuries.  

A “brain injury claim is no different from any other type of personal injury claim. It constitutes an injury that’s no different in the eyes of the law than a fracture of a bone, an injury to the spine, or scarring and disfigurement,” says Pennsylvania personal injury lawyer Jason M. Lichtenstein

As with other personal injury claims, “the elements of negligence have to be proven: there was a duty, there was a breach of that duty, and the breach caused an injury,” he says.  

Learn more about how to prove liability in brain injury lawsuits.

A brain injury claim is no different from any other type of personal injury claim. It constitutes an injury that’s no different in the eyes of the law than a fracture of a bone, an injury to the spine, or scarring and disfigurement. The elements of negligence have to be proven: there was a duty, there was a breach of that duty, and the breach caused an injury.

Jason M. Lichtenstein

What Are the Most Common Types of Brain Injury? 

The most general category of brain injury is called “acquired brain injuries.” Acquired brain injuries are not hereditary or congenital and are due to some cause after birth. 

Common causes of acquired brain injuries include: 

  • Oxygen deprivation (anoxia) 
  • Infection 
  • Stroke 
  • Brain tumors 
  • Damage during brain surgery 
  • Traumatic brain injuries (TBI) 

TBIs are caused by some external force or impact, such as hitting one’s head on a stationary object (hitting the floor in a fall) or getting struck by a moving object (falling material on a job site). TBIs are divided into “mild TBI” and “severe TBI”; the difference is simply how serious a doctor determines the injuries to be.  

Even though brain injuries are treated the same as other personal injury claims, Lichtenstein says they “can be much more complicated in determining values.”  

This is because “unlike a fractured bone, which is clearly defined in an X-ray, or a spinal issue that’s clearly defined in a CT scan or MRI, very few brain injuries rise to the level of a brain bleed or something that can be picked up by radiographic means. In addition, the “vast majority of brain injury cases are concussions and post-concussive syndrome. These are difficult because there’s no definitive radiographic test to prove that you sustained a concussion,” says Lichtenstein.  

While “concussions are absolutely brain injuries,” you “generally need a doctor who specializes in concussions… to give an opinion that the trauma in question caused the injury,” he adds.   

Getting medical attention as soon as possible is therefore essential. 

What Are the Symptoms of a Brain Injury? 

Brain injuries can have immediate and long-term impacts depending on the type of injury. 

Sometimes it can take months or years for the negative consequences of a brain injury to become apparent and for doctors to properly diagnose the injury. Some of the more immediate symptoms of a brain injury include: 

  • Severe headaches 
  • Loss of consciousness 
  • Drowsiness or extreme weakness 
  • Confusion or dizziness 
  • Slurred speech 
  • Loss of vision 
  • Nausea and vomiting 

More permanent brain damage includes memory loss and cognitive impairments.  

“The brain controls many different functions of your body,” says Lichtenstein. “So, someone with a concussion might have intractable headaches; someone else may get very dizzy all the time; another may have sensitivity to loud noises or bright lights; another might have none of these symptoms but have emotional symptoms because their injury was in the area of the brain where emotions are controlled.” 

Some brain injury victims are “more prone to depression and anxiety,” he adds.  

Because of the many problems that can result from brain injuries, “it’s imperative to get to a medical specialist who concentrates on brain injuries as soon as possible.”  

In some cases, brain injuries can result in death. In these cases, survivors may pursue a wrongful death claim depending on the circumstances of the injury. 

Why You Should Speak With a Brain Injury Lawyer 

If you or a loved one has experienced a brain injury, it’s essential to seek legal advice from a brain injury attorney as soon as possible. There are a couple of main reasons why this is important: 

  • Statute of Limitations. Every state has a law called a statute of limitations. These laws say how long someone has to bring a lawsuit after an injury. The exact timeframe varies from state to state and ranges from a year to several years. Once you miss the deadline, you are not allowed to file a lawsuit to recover money for your injuries. It’s essential to speak with a lawyer to understand your state’s statute of limitations. 
  • Navigating the legal process. The process of filing a lawsuit and going to trial is very complex and time-consuming. This is especially true in brain injury cases, where medical experts and evidence will be needed. It is best to have an experienced attorney handling your case to ensure the best outcome. 

Fortunately, many attorneys give free consultations. These meetings are an excellent resource for both attorney and client because they allow the attorney to hear the facts of the case while the client can determine if the attorney and law firm meets their needs. 

Questions for a Brain Injury Lawyer 

The best way to decide whether an attorney is the right fit is by asking informed questions. Here are some good questions to ask during your initial conversations: 

  • What are your attorneys’ fees? 
  • What billing options do you offer? 
  • What is the statute of limitations for a brain injury claim? 
  • What is my brain injury claim worth? 
  • Will my medical bills be covered? 
  • What are the chances of a brain injury settlement? 

Once you discuss your case with a lawyer, you can decide whether to hire them and begin an attorney-client relationship. 

Finding the Right Attorney for Your Needs 

It is essential to approach the right type of attorney—someone who can give you legal help through your entire case. You can visit the Super Lawyers directory and use the search box to find a lawyer based on your legal issue or location.  

For brain injuries, look for a personal injury lawyer with experience in brain injury cases

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