High-Profile Traumatic Brain Injury Settlements: Lessons Learned

The news media often reports eye-popping settlements for lawsuits claiming the plaintiff has suffered a traumatic brain injury (a “TBI”). While these settlement values may seem like astronomical brain injury compensation they are often inadequate restitution to a person suffering from a TBI. TBI settlements must compensate the victim for many things including:

• loss of income caused by the TBI victim;
• loss of capacity in the form of intellectual and physical disabilities;
• the extensive medical and psychological care they are likely to need in the future;
• the labor that their loved ones may be forced to make to care for them; and
• the extreme likelihood that the TBI victim is to suffer from mental health issues such as depression and suicidal ideation in the future.

Put in these terms TBI settlements are often not enough for the victim or the family. TBI victims face higher risks of death—regardless of cause—than members of the general population. A TBI can cause cognitive deficits mood disturbances personality changes or behavior problems.

The impact of a TBI is not limited to the TBI victim: injuries to the brain are often injuries to the family as well. Studies report that 39% of caregivers and spouses of adults with TBIs were clinically depressed one month after the injury. Thirty percent of marriages end in divorce within seven years of a severe head injury to one of the spouses—a rate roughly twice that of the general population¹.

The settlement values of TBI cases are far from outlandish once properly placed in the context of the harm TBIs cause to victims and their families. Brain injuries caused by another person’s negligence or medical malpractice are compensable in damages for the injured person’s pain and suffering loss of quality of life and the lifelong medical costs that person is bound to incur. The high-profile TBI settlements create new legal strategies and precedents put a spotlight on the severity of even so-called “mild” TBIs and help other people afflicted with TBIs receive the compensation they will need for long-term care and to which they are entitled under the law.

Overview of Traumatic Brain Injuries in a Legal Context

There is no such thing as a “type” of brain injury; instead TBIs are classified in several different ways. The most prominent characteristics by which TBIs are classified are the severity of the injury and the mechanism by which the injury-causing force was applied to the brain. It is generally accepted that TBIs fall on a spectrum with a “mild” TBI falling on one end and a “severe” one on the other. Classifying a TBI as “mild” implies that this is a trivial or insignificant thing; nothing could be further from the truth. Referring to a brain injury as “mild” describes only the initial injury but this description has no correlation with the extent of a person who suffers from a mild TBI’s short or long-term impairment or functional disability².

The other major characteristic by which brain injuries are classified—the mechanism that caused them—is typically broken into either blunt or penetrating mechanisms. A penetrating mechanism is generally a gunshot that caused the brain injury. Blunt mechanisms can come in different forms as the force applied can be direct or indirect and it can also be either an accelerating or decelerating force³.

Most TBIs are the result of motor vehicle bicycle or pedestrian-related accidents. This majority is followed by falls acts of violence and injuries caused during recreation or sport. Falls are the leading cause of TBIs in elderly people. Brain injuries can also be caused by a restriction or total deprivation of oxygen to the brain⁴.

TBIs are a silent epidemic in the realm of healthcare and personal injury law. Many states have laws prohibiting compensation for pain and suffering where the claims are based on the subjective complaint of the injured person yet a person suffering from a brain injury will experience that pain and suffering most acutely in his or her subjective mind. These acute effects are felt by the injured person but cannot be seen or experienced by a jury creating great difficulty in proving their existence and their severity. Litigating a personal injury claim in which the injury is a TBI often proves difficult because juries and courts treat medical evidence of TBIs with skepticism due to manufacturing industry lobbying and purported “professionals” providing treatment to those with TBIs despite lacking the proper training to do so⁵.

Case Study

The attorneys at Dansker & Aspromonte recently settled a medical malpractice case for an injured four-year-old boy. He was initially brought to the hospital for a routine eyelid repair. He left with severe brain damage that resulted in cognitive impairment and other medical complications.

The boy was anesthetized during the procedure. The hospital contracted out its anesthesia services to a third-party company to cut costs. That company—also looking to save money—employed nurse anesthetists instead of doctors. The nurse that anesthetized the boy was not certified and she gave the boy an overdose of halothane anesthesia.

His heart stopped due to that overdose. Doctors failed to intervene until it was too late. He went without oxygen for fifteen minutes.

The boy survived but he suffers from severe brain damage that led to cognitive impairment and other medical complications. Once his condition stabilized he went to another hospital for rehabilitative therapy—essentially learning to walk and talk again. Now he learns at a first-grade level he is unable to tie his shoes or ride a bike and his injuries prevent him from functioning as normal.

Dansker & Aspromonte attorneys were able to help the boy and his family by initiating a lawsuit presenting compelling evidence of medical malpractice to a jury and ultimately settling the care for a future payout of $50 million to them. The settlement value is high but it was ultimately influenced by the boy’s age at the time of the injury and the severity of his injuries. Due to the boy’s young age the need for lifelong care will be prolonged and the imposition of caretaking duties on the family will likely be permanent. His cognitive disabilities further influenced the verdict as they increased the level of care he is likely to need in the future and they are clear demonstrations of his loss in quality of life.

The severity of the TBI in terms of effects on the victim and the age of the person afflicted with the TBI are enormously important in determining the outcome of these cases. Tremendous losses in the quality of life—both for the victim of the TBI and their caretakers—will increase the value of cases. The proper evaluation of a case’s value and effective negotiation tactics on the part of the attorneys will further impact the resolution value to the benefit of the victims⁶.

Comparative Analysis of Case Studies

High settlement values are influenced by a variety of innumerable factors. The legal strategies employed in TBI cases are immensely important. Patience in deciding when to settle a case can lead to increased settlement values.

A good investigation of a TBI plaintiff’s claim by the attorney will make a difference as well. This means obtaining all of the past medical records including those that pre-date the injury in an effort to determine whether the complaints presented by the client were caused by the TBI or something else. These medical records not only inform the attorney of the state of the case but they will also be important evidence for medical experts to review as well.

To make these cases to a jury testimony will be required from experts in the fields of neurology life planners economists and biomechanical engineers. Without effective use of these experts many TBI cases cannot be successful.

The value of a settlement will increase as a function of the victim’s age at the time of the TBI and the victim’s long-term care needs after the TBI. Younger victims will typically increase the settlement value of the case because their long-term care needs are more prolonged and therefore more expensive. Further if the victim’s needs are generally greater due to the nature of the injury then this will also increase settlement values. The ultimate factor in producing greater settlement values is a finding of more severe levels of global handicap higher levels of executive dysfunction and of informal care time⁷.

Key Legal Strategies in High Profile TBI Cases

Establishing clear liability can be difficult because of issues in proving that the defendant’s behavior caused the injury. Ultimately establishing clear liability will depend on the plaintiff’s attorney’s ability to create a clear picture of what the person’s life was like before sustaining a TBI and then contrast that clear picture with the TBI victim’s current life. It is easier to establish liability in cases where the victim lost consciousness at the scene of the injury or has abnormal CT or MRI scans. If a person who sustained a TBI had medical issues prior brain injuries or substance abuse problems that pre-existed the TBI then it will be more difficult to establish liability⁸.

Comprehensive documentation of the TBI victim’s medical history up to the present is crucial. A client may believe his problems are causally related to the TBI; it is the attorney’s job to prove it. Gathering other records—such as school records employment records standardized testing reports and other documents that can establish the client’s baseline prior to the TBI—will help the attorney paint the liability picture⁹.

After gathering the requisite records the effective use of experts is paramount to maximizing the value of a TBI case. To that end attorneys will need to use all of the following experts:

• A neurologist;
• A life care planner; and
• An economist.

People who are seriously injured with a TBI will require a lifetime of future medical care. The victim’s ability to enjoy life and participate in past activities will be diminished and that is going to impact their families. Brain injuries should be thought of as a psychosocial behavioral and relationship issue and it is the job of a well-qualified life care planner to put this in numbers for the jury¹⁰.

Generally it is wise to exercise patience in deciding when to settle TBI cases because the value of the case is likely to increase. The increase in value can be attributed to the fact that the consequences of brain injuries are often not fully understood until two years after the injury. Attorneys representing TBI victims are likely to face pressure from the client and the client’s family to settle earlier but to settle early due to this pressure alone would be a disservice to them. At that point the full effects of the TBI are likely unknown and the value of the case is likely to increase over time¹¹.

The Role of Expert Testimony in High-Profile TBI Cases

The role of expert testimony in TBI cases cannot be overstated. Testimony from neurologists and neuropsychologists will be necessary to bolster the treating physician’s testimony concerning the TBI victim’s injury. The neurologist’s testimony will be necessary to explain the mechanism of the TBI the results of a clinical examination the insignificance of negative diagnostic testing results and to substantiate the credibility of the treating neuropsychologist. Though it sounds redundant a neuropsychologist will also be needed to explain the deficits in the victim’s brain function caused by the TBI. Neuropsychologists are the only specialists who are able to objectively document the victim’s injuries¹².

A jury is ill-prepared to grasp these neurological and neuropsychological issues absent this testimony as they cannot see or understand the nature or impacts of the injury without it. The medical providers’ jobs are to show how the TBI causes the problems that the TBI victim faces in the present.

Economic experts and life care planning experts will put a dollar value on the damage that a TBI does to the victims’ lives and those of their loved ones. An economist should be brought in for the purpose of showing how much money the TBI victim lost since the injury and how much the victim will lose in the future due to the injury.

While the economist’s job at trial is to explain what the TBI victim lost since the injury and what he will lose in the future the life care planning expert offers a different angle of financial testimony: expenditures necessitated by the brain injury. In most states an injured person is entitled to seek reimbursement for all reasonable and necessary medical costs that are causally related to the TBI. However these medical costs must be proven and the lifecare planner is the best person to properly quantify the costs of future medical care and hiring support to replace services that can no longer be performed.

The experts mentioned above are just a few examples of the types of expert testimony a TBI victim might offer to prove his case at trial but the bottom-line is compelling expert testimony in these cases can drastically alter settlement outcomes¹³.

Trends in TBI Settlements

The seeming explosion in settlement values for TBI cases can likely be attributed to a number of factors. Advances in modern medicine—specifically in how medical professionals and scientists understand the brain and the consequences of damage to it—are changing the legal landscape of TBI litigation. For example researchers are learning more and more that brain injuries specifically TBIs do not necessarily cause any specific symptom nor appear in any particular way in neuroimaging tests one hundred percent of the time. Studies are consistently demonstrating that TBIs put their victim at significantly increased risks for developing symptoms and signs of neurobehavioral disorders which are discovered by medical practitioners family members and colleagues subsequent to the victim sustaining the TBI. Put simply the data is consistent with the finding of a causal connection between these issues and TBIs even if they do not show a specific one-to-one causal connection. The new understanding that TBIs will impact different victims in different ways will revolutionize how evidence of liability is put on how damages are shown and ultimately the value of settlements¹⁴.

A new understanding of the severity of TBIs and their impacts on victims’ lives is pervasive in the media. It is very common for major media outlets to publish stories of seemingly enormous TBI settlements. When consumed by the public there is an increase in public awareness and that public awareness of the dangers of brain injuries will inflate settlement values for these cases even where the public would not have recognized the problem in the past¹⁵.

Lessons for Legal Professionals

For legal professionals the key takeaways are as follows:

• Collecting records at the outset of a case will create far better results for both the attorney and the client. Early record collection will allow the attorney to evaluate his client’s case and more accurately assess the damages to which his client is entitled. It will also assist the lawyer in preparing his experts.
• Working with a variety of experts—including neurologists neuropsychologists lifecare planners and economists—is pivotal both to proving liability and increasing settlement values. Without these experts communicating a case to juries and opposing counsel will be impossible. This multidisciplinary approach is therefore pivotal in these cases.
• Patience is a virtue once an attorney does the initial legwork in these cases. An attorney must counsel his client and their families not to accept the earliest settlement offer possible for this is likely to decrease the value of the case. Decreased case values are inaccurate reflections of the value of clients’ injuries and do the client’s a grave disservice when the lifecare planning needs to be put into place.

Implications for Healthcare Providers and Institutions

There are numerous implications for healthcare providers as well. Namely healthcare practitioners must rigidly adhere to the standards of care in their given fields. This includes respect for robust credentialing systems and strict oversight of younger medical professionals who are still learning. Cutting corners in staffing to save money is dangerous and unethical for patients.

Medical malpractice law plays a big role in regulating the conduct of medical practitioners serving to deter healthcare providers from committing medical errors in the future. While it may be advantageous to save money on procedures in the short-term cutting expenses at the cost of patient safety will not be a profitable endeavor in the long-run. Legal liability for medical errors will ultimately erase any surplus created by the cost-cutting measures¹⁶.

Conclusion

High-profile TBI settlements evince an evolving public consciousness of TBIs and the severity of the harm they do to victims and their families. As the public’s appreciation of the harm grows settlement values will grow with it. The theories to which experts have been testifying in TBI cases are becoming known more broadly changing the legal landscape in the process.

Legal professionals must stay abreast of these developments to effectively serve their clients. Cutting corners in litigating TBI cases will be no more profitable for attorneys than cutting corners in a medical context will be for healthcare practitioners. Ultimately attorneys litigating on behalf of TBI victims have high ethical obligations to those clients and they would fail to meet them by taking on TBI cases without proper preparation.

Additional Resources

Hyperlinked below are several organizations that people suffering from brain injuries or their families may contact if they are in need of information or resources:

• ADEO: ADEO provides housing and wellness resources to people suffering from brain injuries.
• The Dan Lewis Foundation: The Dan Lewis Foundation for Brain Regeneration Research is an organization supporting the creation of new pharmacologic treatments promoting neural cell regeneration, renewed synaptic plasticity and axonal regrowth to improve the lives of people suffering from moderate and severe TBIs and their families.
• Dansker & Aspromonte: The attorneys at Dansker & Aspromonte have years of experience handling TBI cases. Click here to see their page on traumatic brain injuries. Alternatively you can call them at (516) 206-6723 to schedule a free initial consultation with one of their attorneys.

Footnotes

1. Staton, Bethany. “The Devastating Impact of Traumatic Brain Injury on Caregivers.” Brain Injury Alliance. Link.
2. Attorney’s Medical Advisor, MEDADV § 36:1 (March 2024).
3. Ibid.
4. Ibid.
5. Stern and Brown, Litigating Brain Injuries § 3:6 (Nov. 2023).
6. Ibid.
7. Horn & Zasler, EDS., Hanley and Belfus, 1995.
8. Stern and Brown, Litigating Brain Injuries § 3:6 (Nov. 2023).
9. Ibid.
10. Horn & Zasler, EDS., Hanley and Belfus, 1995.
11. Stern and Brown, Litigating Brain Injuries § 3:6 (Nov. 2023).
12. Ibid.
13. Horn & Zasler, EDS., Hanley and Belfus, 1995.
14. Ibid.
15. Ibid.
16. Horn & Zasler, EDS., Hanley and Belfus, 1995.