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Traumatic Brain Injury Lawsuits: Is There Hope After TBI?

Traumatic brain injury (TBI) is widely recognized as one of the most severe forms of trauma a person can sustain. Broadly defined as any external injury that disrupts brain function, TBI can cause a wide range of debilitating symptoms, many of which affect the core aspects of an individual's personality.

Brain Icon

The brain plays a part in literally every function of the human body, and since it can be damaged in numerous unique ways, TBI will have a different effect on each patient. Some people lose core motor function, and have life-long difficulties with walking and movement. Others suffer harm more difficult to see, emotional or cognitive impairments that affect their lives in essential, and often devastating, ways.

Why Should I File A Traumatic Brain Injury Lawsuit?

Traumatic brain injury is a complex area of medical research. Less than two decades ago, the medical community was certain that victims who didn't lose consciousness were protected from brain damage. We now know that's not true. In the 1800s, doctors believed that trauma to the right side of the brain invariably led to certain cognitive disabilities, but damage to the left side didn't. We now know that the brain's two hemispheres are interlinked far more than that, but the myth of "left-brained" and "right-brained" people remains.

Our understanding of the brain has only begun, and many physicians still struggle to diagnose and treat the effects of brain trauma. Patients struggle, too, in ways both obvious and not. Beyond the physical, emotional and cognitive changes directly caused by a brain injury, many patients are met by significant challenges finding the support they need.

Beyond the acute care of emergency medical professionals, insurance companies are generally unwilling to pay for the costs of TBI recovery. Patients are left to navigate this intricate system alone, a significant source of frustration for people who may already suffer from severe disturbances in cognition and mood regulation.

There is another option open to people after a traumatic brain injury. Filing a lawsuit offers patients the possibility of securing long-term compensation, damages to cover medical treatments and on-going therapies far into the future. A verdict or settlement can also cover the income lost in being disabled, or unable to work for some other reason. Lawsuits may even be able to secure support for a patient's family members, who are affected by traumatic brain injury in myriad ways.

What Kind Of Lawsuit Can I File?

That all depends on how you were injured.

Personal Injury

Most traumatic brain injury lawsuits fall under the heading of "personal injury law," a broad category of civil action that includes the 4 leading causes of TBI:

  1. car accidents,
  2. construction accidents,
  3. slip and fall accidents and
  4. criminal assaults

In most of these cases, attorneys will attempt to demonstrate that another's "negligence" caused, or substantially contributed to, an accident. Negligence is a basic ethical concept, that certain people, like other drivers or business owners, owe us a duty of care. Drivers owe it to other drivers to follow the rules of the road. Business owners owe it to their customers to maintain a reasonably safe premises.

When someone violates this duty of care, and another person is injured, the victim has every right to file a lawsuit.

Medical Malpractice

While less common than personal injury lawsuits, some TBI claims come under the category of medical malpractice. Surgical mistakes can damage the brain's ability to function, as can some diseases that are either improperly treated or not treated at all.

In these cases, patients may be eligible to file a medical malpractice lawsuit, claiming that a medical professional failed to uphold their profession's accepted standard of care.

Malpractice lawsuits can also be filed on behalf of children who suffered a brain injury as a result of trauma sustained during labor or birth.

Wrongful Death

TBI-related deaths are as tragic as they are common. In fact, a full one-third of all injury fatalities involve traumatic brain injury to some degree.

After a loved one's passing, family and friends continue to suffer, as they attempt to cope with the emotional trauma of loss and struggle to meet the burdens of debt or outstanding medical expenses. For these survivors, a wrongful death lawsuit can provide necessary compensation in their time of need.

How Much Can I Recover?

We can't answer that question without thoroughly investigating the circumstances of your accident and the effects brain trauma has had on your life. The verdict in any particular case will always be the result of complex factors, too numerous to predict at the out-set, and negotiation often comes into play when patients are interested in settling their lawsuit out of court.

With that being said, traumatic brain injuries are often severe, and even minor cases that result in no loss of consciousness can have drastic effects on a patient's well-being down the road. Few Plaintiffs demand less than $100,000 and multi-million dollar jury verdicts are far from unheard of.

How Long Do I Have To File?

Filing your lawsuit as soon as possible is the best policy, but that can be extremely difficult since brain trauma often harms the life of a patient in subtle ways. Cognitive impairments may become apparent over time, not immediately.

Every state has its own "statute of limitations," a time limit for filing suit that usually begins counting down from the date of a person's accident. There aren't statutes of limitations for TBI lawsuits, so the deadline that holds in your case will depend on whether you're filing a personal injury lawsuit or a medical malpractice lawsuit.

For example, New York State allows accident victims up to three years from the date of their injury to file a personal injury lawsuit. Injured patients have 2.5 years to file a medical malpractice lawsuit, but that deadline begins either on the date of malpractice or at the end of a continuous course of treatment related to the malpractice.

Cases involving death will also be governed by their own statute. In New York, survivors have 2 years from the date of a loved one's passing to file a wrongful death lawsuit.

To acknowledge the difficulty in diagnosing and treating complicated injuries, many states have supplemented their statute of limitations with a "discovery rule." This rule allows victims extra time to discover the effects of a negligent act, essentially extending the statute of limitations for a certain amount of time. Unfortunately, there's no discovery rule in New York.

5 More Things Every Patient Should Know

As with any area of the law, the domain of personal injury affecting patients with TBI is intricate. We urge you to research your options thoroughly. Here are 5 key points that every person should know about the road to recovery from a traumatic brain injury.

1. Insurance Companies Don't Want To Compensate People With TBI

Insurance companies routinely exploit the complexity of a TBI's effects to deny their customers necessary coverage. Most auto and health insurers are focused only on the emergency measures required to save someone's life, but leave patients unprotected as they begin the long, vulnerable process of true recovery.

Insurers stoop to new lows in handling traumatic brain injury. One tactic, commonly employed by health insurance companies, involves calling a patient after an accident and simply speaking to them. After a claim is filed, the company will use a recording of the conversation to "prove" that their customer is fine. Of course, that's not proof of anything, since many people will suffer no impairment in their language capacities after brain trauma.

This "lack of coverage means that thousands of patients are discharged each year from hospitals to nursing homes or to languish in their beds during the critical early months when their brains are most receptive to healing," reports USA Today.

Garry Prowe, whose wife sustained a severe TBI in a car accident, called America's health care system "unkind and shortsighted" in his 2012 book Successfully Surviving A Brain Injury: A Family Guidebook. We think it's a moral outrage. Patients with brain trauma require intensive therapies to rebuild their lives; insurance companies just don't seem interested in that.

2. Recovery Can Take A Long Time - Or Not

While head trauma professionals are probably asked how long a recovery will take more than any other question, long-term predictions are impossible. Six months after an injury, educated guesses enter the equation, but the logic behind brain trauma is still light-years ahead of medical research.

Some minor concussions change patients forever. People who have suffered major traumas, and been unconscious for weeks, have done extremely well two years later.

One difficulty inherent in predicting recovery times is that every medical professional will measure "recovery" by a different standard. Expertise varies, and that means different doctors will have different definitions for getting better. General practitioners may say "around 9 months," but they're probably taking basic motor functions as their primary metric. Ask a neuropsychologist, who focuses on minute alterations in brain function and cognitive ability, and the answer may be much longer.

This uncertainty has a major effect on patient's lives, not only because it comes to bear on their day-to-day improvement. Insurance companies have a lot of difficulty weighing the benefits and risks of covering expenses when they don't know how long those expenses could last. That's probably why most insurers fail to cover rehab in the first place.

3. Treatment Will Be Expensive

While we can't say how long rehab will last, the vast majority of patients will require extensive rehabilitation after a TBI. On-going therapies are absolutely essential, but they're costly. In 2007, a paper published in the journal Medical Care found that patients' risk of filing for bankruptcy increased by 33% after suffering brain trauma. Beyond it's effect on mental and physical health, TBI shouldn't also be a financial disaster.

In 1993, Emergency Medicine Clinics of North America found that the cost to patients suffering from a mild TBI ranged from $33,284 to $35,954. For moderate traumatic brain injuries, the costs sky-rocketed, from a low of $25,174 to $81,153. The costs of treating a severe TBI are just as variable, and some estimates have placed the lifetime expense near $3 million.

4. TBI Needs To Be "Objective"

Even doctors miss the signs of traumatic brain injury sometimes. They're subtle, nuanced and many symptoms can't be seen on a CAT scan. But that's the kind of demonstrable evidence required to secure compensation from an insurance company or in traumatic brain injury lawsuits.

MRI of brain

Good TBI lawyers will focus on "objectifying" the effects of a brain injury. Imagine trying to explain brain trauma to a group of strangers. How would you prove to them that an injury had damaged your brain? Insurance companies routinely dismiss reports of psychological and cognitive effects as out-right fabrications or the results of a pre-existing condition. But they respond to hard, scientific evidence and juries do, too.

New diagnostic tests have surpassed the old standards, allowing us to visualize in detail damage to white matter and hemorrhages that are invisible to an MRI. Experienced personal injury attorneys will focus on securing this kind of evidence first and then turn to subtle changes in behavior and emotion later. Witnesses also become vital, not only medical experts but friends and associates who can testify to a change in behavior before and after the accident.

5. Our Attorneys Don't Charge Anything Until You Win

Banville Law's traumatic brain injury attorneys are dedicated to your recovery, and sensitive to the burdens that TBI can place on patients and their families. That's why we always offer our legal services on a contingency-fee basis. You pay us nothing until we win a court award or settlement in your favor. You can learn more about filing traumatic brain injury lawsuits in New York with a free consultation.

Further Reading

Laurence P. Banville
Date Published: December 14, 2015
Laurence P. Banville is the managing partner of Banville Law. As an experienced personal injury attorney, Mr. Banville helps clients recover compensation from those responsible for his clients' injuries. Our firm is located in New York City, serving clients from the five boroughs: Manhattan, Brooklyn, Queens, The Bronx, and Staten Island.
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