Brain injuries kill or disable scores of people every year in California. If you suffer a traumatic brain injury (TBI) in a California traffic accident – or in any other kind of accident caused by another person’s negligence – California law entitles you to complete compensation for all of your accident-related medical treatment as well as compensation for all lost income and all other injury-related damages. While this is a general overview of brain injuries, liability, and the law, if you or someone you love suffers a traumatic brain injury, you’ll need to obtain the legal advice pertinent to your own case by consulting an experienced Orange County personal injury lawyer.

The U.S. Centers for Disease Control and Prevention tell us that about 1.7 million people sustain a traumatic brain injury every year in this country. About 52,000 of those people die each year. Another 275,000 are hospitalized. Over one million people annually are treated for brain injuries in emergency rooms and then released. Obviously, no price can be placed on the physical and emotional suffering that a brain injury entails, but the average estimated cost of a mild head injury is $85,000, the average estimated cost of a moderate brain injury is $941,000, and the average estimated cost of a severe, traumatic brain injury is $3 million.

The “value” of any particular traumatic brain injury will hinge on a variety of factors. The damages claimed in a “typical” brain injury case almost always exceed $100,000. Most brain injury claims are above $1 million. However, for the victim of a traumatic brain injury, an “award amount” is not the same as the amount you will actually receive if your lawsuit prevails. Several complications must be considered.

WHAT ARE THE COSTS OF FILING A BRAIN INJURY LAWSUIT?

In most cases, the personal injury lawyers who handle brain injury claims work on a contingent fee basis, which means that the lawyer is paid only if the lawsuit prevails and the award is actually paid. On a contingent fee basis, an attorney will advance the cost of expert testimony and other necessities for the case out of his or her own pocket. Preparation for a traumatic brain injury trial is quite costly, so personal injury lawyers who work on a contingent fee basis only take those cases that they believe will prevail.

What expenses will you and your attorney encounter if your brain injury case can’t be settled and instead goes to trial? Usually, the biggest expense is expert testimony; independent medical and brain injury experts, accident reconstruction specialists, and other experts who may be needed in court can charge substantial fees. If those experts must travel to testify, their travel expenses must also be included. Depending on the jurisdiction, there will also be a number of legal fees, filing fees, and other court expenses. If your attorney – or an investigator working with your attorney – travels on your behalf or runs up other expenses, those must also be covered.

A personal injury attorney who is representing the victim of a traumatic brain injury may advance as much as $100,000 on a brain injury case prior to the trial. An attorney who does that has plenty of confidence that he or she can succeed on a brain injury victim’s behalf and recover enough compensation to make all of the effort worthwhile for both the attorney and for the brain injury victim.

IF YOU NEED AN ATTORNEY, WHAT SHOULD YOU LOOK FOR?

Because traumatic brain injury claims can be both complicated and expensive, if you have sustained a traumatic brain injury because of another person’s negligence in Southern California, you must be represented by an experienced Orange County personal injury attorney who fully understands brain injuries and has substantial – and successful – experience representing brain injury victims. A lawyer who does not understand the extent of the difficulties you face may recommend settling for less than you deserve and less than you will need. While an attorney is deciding whether to take your case, you should also be deciding if that attorney is right for you.

An experienced TBI lawyer will talk with you and your loved ones to determine if your injury may be related to issues that your doctors haven’t addressed. Traumatic brain injuries can trigger mood swings, depression, anxiety, an inability to concentrate, and a variety of other problems. An experienced personal injury attorney will ensure that you meet with professionals who can treat your problems effectively.

A neuropsychologist or neuropsychiatrist may conduct tests that can cost as much as $4,000. Insurance usually doesn’t cover these tests, but if your attorney determines that the test results are needed as evidence to support your claim, he or she will advance the payment. Based on the test results, your attorney will ask other experts to testify on your behalf and to show the court how your injury has impacted you financially.

WHAT TYPES OF DAMAGES MAY BE AVAILABLE?

In a TBI claim, the loss of the injury victim’s earning capacity is usually the first loss considered. Brain injury victims often have difficulty concentrating, trouble controlling anger, and struggles with memory and fatigue. A brain injury victim may lose the capacity to work full-time or to work at all. Brain injury patients typically retire years earlier than they ordinarily would. If you earn $40,000 annually but a traumatic brain injury forces you to retire ten years early, your loss of earning capacity may amount to $400,000 or more.

TBI patients typically require physical therapy, medications, and sometimes help with daily activities. None of these needs are inexpensive. A life care planner can assess a patient’s needs and testify about them if necessary. Some patients may find that an emotional support animal can help and they may need writing an emotional support animal letter to landlord or their property manager. If a patient’s quality and enjoyment of life have been reduced, in some states a “hedonic damage expert” will be allowed to testify and place a dollar amount on the loss of enjoyment of life. Victims who have sustained severe or disabling brain injuries may be awarded substantial damages. Here’s an example:

  • $100,000 in medical expenses
  • $400,000 in lost earnings capacity
  • $400,000 in lifetime care costs
  • $400,000 for loss of the enjoyment of life
  • $400,000 for pain and suffering
  • Total damages: $1,700,000

Jurors may or may not finally award a TBI victim this final figure, and actually collecting the money can be another story entirely. Clearly, while a corporation or an insurer can pay that amount, an individual or a smaller company simply may not have the resources. An experienced Orange County personal injury lawyer will consider all of these factors when deciding whether or not to handle a brain injury lawsuit.

Don’t take any chances. Seek medical attention immediately after any blow to the head or if you believe that you or your loved one has suffered a traumatic brain injury. After you’ve seen a doctor, if you have indeed sustained a brain injury, arrange to meet with a personal injury attorney who can assess your claim and explain your rights and options. The period of time when you may file a lawsuit is limited, so traumatic brain injury victims should obtain sound legal advice without delay.

By: Chris Purcell

Attorney Chris Purcell is a graduate of the University of California at Santa Barbara and the Santa Barbara College of Law. He exclusively represents the victims of personal injury and wrongful death. Chris was part of the team that won California’s largest-ever wrongful death judgment – a $150 million verdict for a family devastated by a tragic trucking accident. In 2011, he received the Top Gun Award given by the Orange County Trial Lawyers Association.