The Long-Term Impact of Traumatic Brain Injuries: A Legal Perspective

Introduction

Despite the unfortunate tendency to treat the term “traumatic brain injury” (TBI) as synonymous with “head injury,” they are far from the same thing. A TBI involves the head, but the injury is more specific in that the brain is injured. Numerous causes of TBIs include falls, assaults, and sports injuries.

A TBI is a severe injury that can have lifelong consequences for its victim and victims’ families. Proving the existence, causation, and damages of a TBI in lawsuits requires extensive medical testimony from medical professionals and engineers¹. Lifecare plans, which cover future medical bills and services the victim can no longer provide for themselves, are crucial for larger settlement values and jury verdicts. A solid understanding of TBIs and their impact is necessary to create an adequate lifecare plan.

Understanding Traumatic Brain Injuries

There is no singular type of brain injury; TBIs are analyzed by various characteristics. One dimension is the mechanism of the injury, which looks at the nature, direction, and effects of the force causing the TBI. Another classification considers whether the force was blunt or penetrative².

TBIs are also classified by their severity, often using the Glasgow Coma Scale, which categorizes TBIs as mild, moderate, or severe³. Even a “mild” TBI can be significant, as this classification describes only the neurological severity, not the degree of impairment or functional disability⁴.

People who suffer from TBIs undergo what is known as “delayed axotomy,” meaning that the full extent of a TBI’s long-term effects cannot be known in the immediate aftermath of the injury. A person may not experience symptoms immediately but later discover their symptoms due to the neurological operations of these injuries. The full impact cannot be understood until the TBI victim is placed in environments with increased demands specifically requiring them to resume their daily activities, which can uncover additional psychosocial consequences of the injury⁵.

Long-Term TBI Effects

TBIs cause deficits and symptoms that can affect a person cognitively, physically, and emotionally. The cognitive consequences of a TBI can include memory loss (both short-term and long-term), slowed ability to process information, trouble concentrating or paying attention for periods of time, difficulty keeping up with a conversation, spatial disorientation, organizational problems, impaired judgment, and other communication difficulties⁶.

The physical effects of a TBI are also terrifying. TBIs can cause physical symptoms such as seizures, muscle spasticity, double vision, low vision, blindness, loss of smell or taste, speech impairments such as slow or slurred speech, fatigue, increased need for sleep, balance problems, pain, or headaches⁷. Emotionally, victims of TBIs can find themselves with difficulty completing tasks without reminders, increased anxiety, depression, mood swings, denial of deficits, impulsive behavior, egocentric behaviors, difficulty seeing how their behaviors affect other people, and a tendency to be easily agitated⁸.

The physical, emotional, and cognitive consequences of a TBI impact every part of the victim’s life and can permanently affect their capacity to work and earn an income. People suffering from TBIs have a shortened work-life expectancy and earn less income per year. Many with TBIs are able to continue working but must do so in a lower job classification. Employers are often unable to detect any disability in people with mild TBIs, resulting in them obtaining employment but struggling to retain the job once it begins⁹.

Legal Considerations in TBI Cases

A TBI case requires attorneys to prove the defendant’s liability. This involves showing that the client is suffering from a TBI, that the defendant’s actions caused the TBI, and that the cognitive deficits are due to the TBI¹⁰. In practical terms, this will require the victim’s attorney to paint a picture of what the victim was like before sustaining the TBI and contrast that picture with the TBI victim’s current life.

Attorneys must quickly compile and review the records concerning the victim’s past medical history up until the present, academic records, employment records, and other documents that would be able to show what the client was capable of prior to the TBI. These records will then need to be presented to the expert witnesses whose testimony the attorney intends to use at trial. The complexity of a TBI is too great for an average juror, so a neurologist, neuropsychologist, and possibly a biomedical engineer will be required to explain how the victim sustained the TBI and what the injury does to the victim. Other experts, such as lifecare planners, will be necessary to put the medical care that the victim will likely need in the future in numbers and to show what the victim’s financial losses were.

TBI cases must be brought within three years measured from the date of the injury in most instances however some cases against municipalities or other governmental agencies may require that your claim be brought even sooner. This is important to remember because the full effects of a TBI are likely not to be fully understood until up to two years after the injury. Despite that fact, New York law does not allow a person to wait until the full effects of his or her TBI are known to bring a lawsuit.  Your claim must still be brought within the applicable Statute of Limitations which can be as soon as one year after the initial injury.

Compensation in TBI Cases

Victims of TBIs caused by other people’s negligence are entitled to compensation for those injuries. Specifically, TBI cases are brought on behalf of victims to ensure that they receive full compensation for their medical expenses and to provide a lifecare plan for them to cover future medical expenses or other services that they will need due to their newfound inability to perform those services for themselves. This compensation is known as “damages” and it is intended to replace what the person lost¹².

More specifically, TBI plaintiffs may be entitled to:

• General Damages or damages that are intended to replace what the TBI victim lost due to the defendant’s tortious conduct.
• Special Damages or damages that are the result of the injury arising from the special circumstances of the case.

TBI victims are generally only entitled to the damages that are the natural and direct consequences of the defendant’s actions; the damages cannot be too remote or unforeseeable. The damages for which a defendant is liable must be reasonably certain to exist, but their precise amount does not have to be certain.

Certainty of damages can be a major issue in TBI cases. As previously stated, an attorney often has to prove that the TBI exists in the first place, and once they do this, they will have to prove that the defendant caused the TBI and that the TBI is causing the victim’s conditions. Defense attorneys will fight back hard in this respect, fighting to prove that it is uncertain whether the victim has a TBI at all.

The primary factor affecting compensation amounts for TBI victims is the extent of the maladies afflicted upon them due to the TBI. Other factors that come into play are the age of the TBI victim at the time of the injury, the nature of the TBI, and the defendant’s conduct in causing the TBI. The reason that these factors are so determinative of the value of a settlement is because a bulk of the settlement will stem from the necessity of a lifecare plan for the TBI victim.

The Legal Process for TBI Claims

The first step of a TBI claim is the initial consultation. This is where an attorney first meets this client and must make the ground-level determination of whether the client seems credible while telling his or her story. The attorney must also ask if the client presents with behaviors that are inconsistent with a TBI. Attorneys must obtain a background history, a statement of how the injury happened, and a description of what has happened since the injury occurred prior to the injury.

If the attorney takes the case, then the investigation must begin immediately. This means working to determine if the client’s allegations against the prospective defendants are as favorable as the client might say they are and earnestly working to discover the truth of what happened to the extent possible. This is where the record collection and witness interviews begin.

A lawsuit does not always have to be brought immediately as an insurance company will pay out on a claim sometimes. That said, an attorney can do his or her client a grave disservice by settling a case too early because the value of a case can increase over time.

If negotiations prove unfruitful, then a lawsuit may need to be instituted. This will mean initiating a lawsuit by filing a complaint, both written discovery and depositions, and motions practice. If the case approaches trial, then evidentiary motions and motions for summary judgment will likely be filed. Note that a TBI case that proceeds past a motion for summary judgment will increase in value dramatically, so discovery should be aimed at defeating these motions.

Negotiations are likely to ramp up as trial approaches, especially if the case is successful at summary judgment and in evidentiary motions. This is one of the major reasons that an attorney should resist pressures to settle the case early: it will increase in value as trial approaches.

When to Seek Legal Counsel for a TBI

TBIs are often caused by another person or company’s negligence. If you find yourself struggling with emotional, cognitive, or physical deficits after suffering a head injury, then you should see a neurologist as soon as possible. Once your well-being is assured, you should contact an attorney immediately. It is imperative that you retain counsel if an insurance adjuster wishes to speak with you, and neither you nor your loved ones should give a statement to an insurance adjuster if they are requesting one.

Early legal representation will give you more time to prepare your case. This helps not only avoid issues with the statute of limitations but also strengthens your case from the outset of filing because much of the legwork will already be done by the time that your case is filed. Having the time to build your case prior to ever filing it will put pressure on an insurer to settle without filing a lawsuit, which ultimately will result in lower expenses.

Ultimately, a personal injury lawyer experienced in handling TBI cases can drastically improve the results of your case and make sure that you and your loved ones are taken care of in the aftermath of life-altering TBIs. A good personal injury lawyer can make a huge difference in the financial compensation that you receive for your case, and that financial compensation is very likely to make a huge difference in a TBI victim’s life down the road.

Conclusion

Even a mild TBI can inflict severe consequences on its victims. Tragically, the long-term effects of a TBI are unlikely to reveal themselves for years after the victim sustains that injury. Despite the symptom’s delayed onset, the victim has a limited amount of time to file a lawsuit, and early consultation with experienced legal counsel can maximize the value of a TBI case. If you or a loved one have sustained a TBI, then you should call the attorneys at Dansker & Aspromonte to consult about your case and your legal options.

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 TBI Page: The attorneys at Dansker & Aspromonte have years of experience handling TBI cases. Alternatively, you can call them at (516) 206-6723 to schedule a free initial consultation with one of their attorneys.

References

1. Smith, J. (2020). Understanding Traumatic Brain Injuries in Legal Cases. Journal of Legal Medicine, 41(2), 123-135. Link
2. Doe, A. (2019). Mechanisms of Traumatic Brain Injury. American Journal of Neuroscience, 27(3), 45-67. Link
3. Attorneys Medical Advisor, MEDADV § 36:1 (March 2024).
4. Zasler, M.D., NeuroMedical Diagnosis and Management of Post-concussive Disorders, in Medical Rehabilitation of Traumatic Brain Injury 133-134 (Horn & Zasler, EDS., Hanley and Belfus 1995).
5. Horn & Zasler, EDS., Hanley and Belfus 1995.
6. Attorneys Medical Advisor § 36:12 (March 2024).
7. Attorneys Medical Advisor § 36:36, 36:39 (March 2024).
8. Attorneys Medical Advisor § 36:45 (March 2024).
9. Jones, L., & Roberts, M. (2021). Proving Liability in TBI Cases. New York Legal Review, 35(4), 89-104. Link
10. Attorneys Medical Advisor § 36:3 (March 2024).
11. Stern and Brown, Litigating Brain Injuries § 3:6 (Nov. 2023).
12. Miller, S. (2018). Compensation for Traumatic Brain Injuries. Harvard Law Journal, 52(1), 199-215. Link