Brain Injury Law Information Center

 

A Brain Injury Attorney’s Guide to Head Trauma and TBI Claims

 

Head trauma and the long-term consequences of traumatic brain injury (TBI) have received increased attention in the past decade. This focus follows reports of concussions in athletes at all levels (youth sports, high school, college, and professional such as the NFL, NBA, NHL, and MLB) and in military veterans.

 

Spurred by increasing knowledge of the effects of traumatic brain injury, states have passed laws to protect young athletes who suffer sports concussions, and TBI survivors have filed more lawsuits seeking damages for head trauma caused by another’s negligence. For example, former players settled a class action against the National Football League and NFL Properties LLC for head trauma or injuries during their careers causing long-term neurological problems.

 

Further, head trauma causing brain injury is a leading cause of workers compensation claims and Social Security disability applications.

 

This article gives an overview of traumatic brain injury law, linking to commentary on the medical and legal issues you must prove and overcome to recover money for your damages in civil actions or workers comp benefits.

 

Brain injury is one of the most challenging areas of personal injury and disability law. Understanding the medicine is vital to winning your case.

 

Keep reading to learn more.

 

Then call our brain injury law firm at (804) 251-1620 or (757) 810-5614 for more information on protecting your rights when a workplace accident, car crash, tractor-trailer collision, or slip and fall causes a TBI.

 

 

What is Mild Traumatic Brain Injury?

 

Most traumatic brain injury litigation involves mild TBIs. There are two reasons for this.

 

First, mild TBI is the most common type of head injury.

 

Second, mild TBI cases are the most difficult to prove and the ones that rely most on the plaintiff’s credibility to win for the reasons discussed in this article. Defendants are quick to settle moderate and severe brain injury cases because there is often little they can dispute about the injury or damages.

 

A committee of the American Congress of Rehabilitation Medicine (ACRM) has developed a definition of mild traumatic brain injury. 

 

A person with a mild traumatic brain injury has had a traumatically induced physiological disruption of brain function shown by at least one of the following: 

 

  • Loss of consciousness lasting from a few seconds to 30 minutes

 

  • Posttraumatic amnesia (loss of memory of events shortly before or after the accident)

 

  • Any alteration in mental state at the time of the accident, such as feeling confused, dizzy, dazed, or disoriented

 

  • An initial Glasgow Coma Scale (GCS) score of 13-15 after 30 minutes 

 

ACRM’s definition includes:

 

  • The head being struck 

 

  • The head striking an object.

 

 

Mild traumatic brain injury does not include tumor, stroke, or encephalitis. 

 

What are the Symptoms of Brain Injury?

 

The type and severity of symptoms depend on the type of acute head trauma you suffer and the location of the brain damage. 

 

Traumatic brain injury survivors often experience behavioral, cognitive, emotional, and physical symptoms that result in disability. Let’s examine each of these categories.

 

Cognitive Changes after Traumatic Brain Injury

 

Cognitive changes are some of the most disabling symptoms resulting from head trauma. These changes may include difficulty with attention, concentration, executive functioning, learning new skills, making sound judgments, memory, organizing thoughts, and speech and language.

 

Behavioral and Emotional Changes after Brain Injury

 

Common behavioral and emotional symptoms of traumatic brain injury include:

 

  • Alterations in emotional responses 

 

  • Irritability

 

  • Mood swings (emotional lability)

 

  • Quickness to anger

 

Depression and Post Traumatic Stress Disorder (PTSD) are common after traumatic brain injury.

 

Physical Changes after Brain Injury

 

Common physical symptoms of head injury include:

 

  • Blurred vision

 

  • Chronic fatigue

 

  • Decreased stamina

 

  • Headache

 

  • Migraine

 

  • Nausea

 

  • Sensitivity to light or sound

 

  • Sleep disturbance and difficulty

 

  • Vision changes

 

What are the Leading Causes of Traumatic Brain Injury?

 

There are many causes of traumatic brain injury. Any action that causes a blow or sudden movement to the head can cause brain damage.

 

Common causes include:

 

 

  • Motor vehicle crashes (car accidents, truck accidents, motorcycle accidents, pedestrian accidents, heavy machinery and forklift accidents at work) – especially among young adults ages 15 to 35

 

 

 

  • Military actions (combat, training, etc.)

 

  • Sports (football, soccer, basketball, hockey, rugby, etc.)

 

  • Intentional self-harm

 

Traumatic Brain Injury Statistics

 

Traumatic brain injury is a significant cause of permanent disability and death in Virginia and throughout the United States of America. For many age groups, it is the leading cause of death. 

 

According to data from the Brain Injury Association of Virginia:

 

  • In 2016 alone, there were more than 5,000 traumatic brain injury hospitalizations and 1,600 deaths in Virginia.

 

  • Hundreds of thousands of Virginians live with a disability resulting from traumatic brain injury.

 

These numbers are consistent with data from the National Institute of Health (NIH). The NIH estimates that millions of Americans suffer from physical, emotional, and cognitive impairment because of traumatic brain injury. 

 

The frightening thing is that traumatic brain injury is likely underdiagnosed, with hundreds of thousands of adults and children suffering head trauma but not receiving treatment. 

 

What is the Cost of Medical Treatment for Traumatic Brain Injury? 

 

No amount of money can bring back your health.

 

But you can put a price tag on how much medical treatment for a TBI may cost.

 

Different studies estimate that treating brain injury costs anywhere from $80,000 to $3,000,000 depending on its severity. This is a lot of money – particularly if you have no insurance or inadequate insurance coverage – or if your private health insurance refuses to pay for the best treatment. Stress and medical expenses from a traumatic brain injury can quickly drain a family’s emotional and financial resources.

 

Typical medical treatment costs associated with traumatic brain injury include bills for:

 

  • Hospitalizations

 

  • Diagnostic imaging tests

 

  • Doctor visits

 

  • Prescription medications

 

  • Home accommodations, such as railings, shower chairs, stairlifts, and ramps

 

  • Assistive devices such as wheelchairs, crutches, and canes

 

  • Neurological rehabilitation

 

  • Psychological evaluations

 

  • Behavioral and cognitive therapy

 

  • Caregivers, such as CNAs and home companions

 

  • Adulty daycare facilities

 

  • Long term care facilities

 

The CDC estimated that the economic costs of traumatic brain injuries in 2010, including direct and indirect medical expenses, were approximately $76.5 billion. Roughly 90 percent of these costs were related to severe TBIs that resulted in hospitalization and even death. TBI-related stays are often longer than hospitalizations for other conditions.

 

Given the population increase since 2010, technological advances in brain injury research and treatment, and rising health care costs, the economic cost of medical treatment TBI in the U.S.A. is likely higher now.

 

There is another reason the actual costs of traumatic brain injury reported by the CDC is likely higher. 

 

Many TBIs go untreated and unreported. For example, one study found that less than half of high school football players who had a concussion reported it. This also happens in the National Football League (NFL), where players do not want to report a concussion because they will be taken out of the game and lose playing time and even their spot on the team. 

 

Can Mild Traumatic Brain Injury Result in Severe Damage?

 

Yes. A mild head injury can have severe complications that affect every area of your life. 

 

Much of the confusion surrounding brain injury cases has to do with the three classifications used to describe the injury: mild, moderate, and severe.  

 

The majority of acute head injuries result in mild traumatic brain injury. Moderate and severe traumatic brain injury is less common. 

 

The term mild traumatic brain injury can make the damage seem insignificant or not dangerous. But the modifier “mild” describes only the initial neurological response to the trauma, not the disability or permanent impairment you may have. 

Many mild TBI victims have severe impairments that disrupt their lives – at home, at work, and socially. 

 

Can Mild Traumatic Brain Injury Cause Permanent Disability and Impairment?

 

Yes. 

 

Traumatic brain injury – including mild traumatic brain injury – is sometimes a permanent condition. The CDC reports that almost half of all TBI victims still have a disability, or work restrictions, one year after the initial head trauma. 

 

Though some of you will have a good recovery, others will experience long-lasting complications. When the symptoms continue for one month or more, your medical providers may diagnose you as having post-concussive syndrome.

 

Further, TBI is a risk factor for Alzheimer’s disease, mood disorders, depression, headaches, migraines, stroke, and epilepsy. 

 

Traumatic brain injury is even a risk factor for alcoholism and substance abuse due to cognitive functioning changes, depression, and mood disorders related to head trauma. Treatment for these conditions is expensive and not always productive.

 

Can You Have a Concussion without Loss of Consciousness?

 

Yes. It’s a myth that you must lose consciousness to have a brain injury. 

 

Though some claim adjusters, insurance defense attorneys, and even physicians and other medical professionals believe you must lose consciousness to have a concussion, that’s not true. The Congress of Neurological Surgeons and other leading health care professionals, including neurologists and neuropsychiatrists, have concluded you can have a concussion without loss of consciousness. 

 

Can You Suffer a Concussion without Striking Your Head? 

 

Yes. It’s possible to sustain a brain injury even if you don’t strike your head or have your head struck by an object. 

 

Can Diagnostic Imaging Tests Rule Out Brain Injury?

 

No – in many cases.

 

Though MRIs, CT scans, and EEGs can sometimes detect traumatic brain injury, they can often not. Negative diagnostic imaging is typical in concussion cases. 

 

The lack of positive diagnostic imaging doesn’t mean your medical providers can rule out a mild traumatic brain injury. 

 

Will I Experience the Symptoms of Traumatic Brain Injury Immediately after the Motor Vehicle Collision or Workplace Accident? 

 

Maybe not. The effects of traumatic brain injury sometimes take days or weeks to notice. 

 

There are two reasons for this. 

 

First, some axons’ disruption does not occur until six to twelve hours after the initial trauma. Axons are essential parts of your brain cells. Damaged axons result in difficulty transmitting messages through your nervous system. 

 

Second, you may overlook cognitive, behavioral, or emotional difficulties until you return to work or your routine. At this time, you may have trouble performing the way you could before the head trauma. 

 

Why are Traumatic Brain Injury Cases Difficult to Prove?

 

There are several reasons that brain injury cases are difficult to win, particularly compared to cases involving rotator cuff tears, herniated discs, amputation, or hip or hand fractures. The top reasons include:

 

  • There is often a delay in diagnosing mild traumatic brain injury – particularly when you suffer physical injuries (i.e., spinal cord trauma or another type of orthopedic injury) in the same accident. Your medical providers may focus on physical injuries first. 

 

  • Insurance adjusters, defense attorneys, judges, and juries have difficulty reconciling your reported symptoms and restrictions with negative diagnostic images. 

 

  • Few adjusters and defense attorneys are knowledgeable or familiar with how the brain works. Ignorance creates disagreement over case value. 

 

  • Traumatic brain injury affects many areas and requires treatment from multiple healthcare providers in different specialists. A lack of coordination between healthcare providers can result in confusion and inconsistent medical evidence,

 

  • You may look healthy, which causes judges, juries, and insurers to devalue your claim. 

 

  • You may not be aware of or admit the extent of your symptoms until you try to return to work. The insurer may argue that this delay in reporting symptoms is a sign that you are malingering. 

 

Damages Available Through Traumatic Brain Injury Litigation

 

A brain injury often results in a disability that reduces your employability, ability to take care of your family, and overall quality of life. These losses are in addition to the costs of medical bills, rehabilitation, and maintenance costs. 

 

Whether it’s through settlement or trial, a top-rated traumatic brain injury attorney will work with expert witnesses to help you recover compensation for the following damages:

 

  • Past wage loss

 

  • Diminished earning capacity 

 

  • All medical expenses (ambulance, hospital bills, surgery, follow up appointments, diagnostic tests, etc.)

 

  • Rehabilitation expenses (physical therapy, vocational rehabilitation, occupational therapy, speech therapy, vision therapy, etc.)

 

  • Pain and suffering

 

  • Property damage if you suffered a TBI in an auto accident

 

  • Interest on judgments

 

How to Choose a Brain Injury Lawyer

 

Having the right brain injury lawyer can be the difference between losing your claim and walking away with nothing, or receiving a settlement or verdict that provides financial security and healthcare.

 

Here is a list of some of the qualities to look for when choosing the best traumatic brain injury attorney for you and your family.

 

  • Experience handling traumatic brain injury cases: Brain injury claims are unique and require a different skillset from other types of personal injury claims. You do not want an attorney who is using your TBI case as a learning experience.

 

  • Recognition from other attorneys and past clients: Before choosing a traumatic brain injury attorney, ask whether the attorney has been voted one of the best TBI lawyers by U.S. News and World Reports or Super Lawyers, or a Top 100 High Stakes Litigator. It would help if you also read reviews from past clients – both the best and the worst. If any concern you, ask the attorney about them.

 

 

  • Reasonable caseload: Top-rated brain injury lawyers are in high demand. It’s unreasonable to expect an attorney to spend all their time on your case – and a sign that the attorney is not sought-after. However, you want an attorney with enough time and resources to spend on your claim. Don’t be afraid to ask the lawyer how many cases they work on at once or if they can devote enough attention to your lawsuit.

 

  • Willing to work on a contingency fee basis: When you’re disabled by traumatic brain injury, the last thing you should have to worry about is how to pay for legal services to recover damages. Many of the best brain injury attorneys in Virginia will handle your case on a contingency fee basis, meaning they don’t get paid unless you get paid.

 

  • A good fit for your personality: Do you want a compassionate lawyer to handle your traumatic brain injury claim? Or do you want a lawyer who will fight the insurance company over every issue, no matter how trivial? Make sure that you hire a TBI attorney whose strategy is meant to get the best possible result for you, not to stroke their ego.

 

 

 

  • Dedication to educating you throughout the claim process: Some clients want to have a role in every decision in their case. Other clients rely on their brain injury lawyer to make all the decisions besides whether to settle. No matter where you fall on this range, you should look for a TBI attorney who wants to keep you informed and who takes the time to explain all the issues in your claim.

 

Additional Resources for Traumatic Brain Injury Litigation

 

As a brain injury attorney, I believe it’s crucial to provide TBI survivors and their families with as much information as possible.

 

The articles below address specific issues that arise after traumatic brain injury in more detail. 

 

 

 

 

 

 

 

 

Community Organizations that Help Traumatic Brain Injury Survivors

 

The following organizations provide information and help to TBI survivors and family members in Virginia:

 

 

Contact a Traumatic Brain Injury Attorney Today

 

My law firm focuses on helping brain injury victims recover benefits and damages through personal injury claims and the workers compensation and Social Security Disability systems. You can see our results here.

 

We are knowledgeable about all types of head injuries and are up to date on the science and technology used to diagnose and treat traumatic brain injury. You can use our network to get the medical attention you need while your case is pending.

 

We also know how to deal with insurance claim adjusters, insurance defense attorneys, and medical providers who do not understand that a closed head injury or seemingly minor concussion can result in long-term problems. We will not let the insurance carrier use common misunderstandings about traumatic brain injury to prevent you from obtaining fair compensation.

 

There is no fee unless we recover money or benefits for you through an insurance settlement, jury award, or administrative decision. Call now to see if we’re the right fit for your brain injury case: (804) 251-1620 or (757) 810-5614. No matter where you live in Virginia, we can help.

Corey Pollard
Follow me