Tbilaw.com has been at the cornerstone of the web advocacy of the Brain Injury Law Group since it went online in 1996.For a full treatment of the topic of brain injury, and recovering adequate compensation for those who have survived such injury, please visit our other pages.
Waiting.com, a page designed to assist those with issues regarding coma, especially in the acute phase when the doctors are saying "I just don't know."
Vestibulardisorder.com addresses vertigo and dizziness resulting from trauma as well as information and resources for vestibular disorders.
Subtlebraininjury.com focuses on all aspects of concussion and non-coma injuries.

Damages for a permanent brain injury, even one which does not involve a significant period of coma, will almost always be above $100,000, often into the millions, perhaps in excess of $10,000,000. As with most personal injury cases, damages fall into primarily the following categories:

1) Medical Bills, including past and future;

2) Vocational Damages, including past and future lost earnings;

3) Life Care Costs;

4) Loss of Enjoyment of Life/Hedonic Damages; and

5) Pain and Suffering.

1) Medical Bills. If there was an extended hospital stay and rehab, medical bills will typically range above $100,000, and often approach half a million. Getting medical bills paid is usually the financial issue that causes the most anxiety for the family members of the survivor. But don't fall prey to the insurance adjuster who shows up within days of the injury, with the seemingly generous offer of taking care of the medical bills. Insurance adjusters are not to be trusted. They are your adversaries; think of them as the enemy. Such a promise comes at a cost; they will want you to waive your claim for other damages. Never sign anything without talking to an experienced brain injury attorney first.

In most situations, urgent and critical care must be provided to the survivor regardless of ability to pay, and medical insurance and medical assistance are there as primary sources of payment of medical bills.

One common mistake that is made with brain injuries that do not involve coma, is that people, including inexperienced plaintiff counsel, are fooled into thinking that because the short term medical bills are not substantial, that the damages are not either. Insurance adjusters like to multiply medical bills in valuing a case. Never do this, or let your lawyer do it, in a brain injury case. There is no relationship between the size of the medical bills and the extent of the disability and damages in a brain injury case.

2) Vocational Loss. We use the term "loss of earning capacity" rather than the term "lost wages." A plaintiff is clearly entitled to all of his or her lost earnings, as an element of damages. The tricky part is measuring how much that loss is going to be in future terms, especially if the survivor has returned to work, or was a child who had never entered the employment market.

With brain injured persons, the employment losses are often subtle, as the survivor frequently has success in getting jobs, especially is they don't disclose the injury. Rarely will a physician place specific functional limitations on what a brain injury survivor can do in the workplace. And if a survivor deficits are too subtle to be noticed by prospective employer, they often have success in getting hired.

Unfortunately, they typically do not have the same success in retaining employment. Fatigue, disinhibition, poor anger control and the inability to learn and adapt to an ever changing job will often result in short job tenure. It is like what Mark Twain said about smoking: I can quit anytime I want, I have done it a thousand times. The survivor can always get a job, they have done it dozens of times. The problem with employment and quitting smoking is the same, making it stick.

Another element to consider in evaluating a survivor's loss of earning capacity is the likelihood that the survivor will be prematurely disabled as a result of his or her disabilities. Statistically, if a person meets the definition of occupationally disabled, they will have a shorter working career. With even a mildly brain injured person, this shorter working career can add up to numbers into middle and high six figures.

For example, if you were making $50,000 a year in a profession in which you can no longer work, and you had a work expectancy of 30 years, you would have a $1,500,000 loss of earning capacity. But let's say you were a college student who would have made $50,000 a year at age 30, and would have worked until 65. As a result of a brain injury, you can only make $15,000 and you meet the definition of occupationally disabled. Instead of a steadily increasing income, you now have no prospects for advancement. Statistically, you will likely to be out of the job market by age 45. Your loss would be the difference between what you are making and are likely to make in the future, and what you would have made had you not been injured. Now your earning capacity for your lifetime is $375,000 versus $2,250,000, if you had not been injured. Your loss of earning capacity, which you should be able to persuade a jury to accept, is $1,875,000.

It is imperative that the vocational expert understand the nature of the future losses, even if you are working at present, for you to get the maximum recovery. The vocational loss is perhaps the most important number in valuing a case, even if it is not the biggest number. Juries are very sympathetic to this type of "hard" number. A simple question in selecting the jury: "Sir, what would it cost your family to replace your weekly earnings over your lifetime," helps the jury understand that this number is concrete. If the vocational loss extends into the middle or high six figures, the jury will likely be sympathetic to valuing the rest of the elements of damages comparably.

3) Life Care Plan. Life care costs are often classified as future medical bills, with a physician testifying as to the amount. However, we believe that is a terrible mistake. First, physicians are not economists. They do not take this part of their testimony seriously, and are clueless as to the true magnitude of the future costs. Second, life care costs are more than medical bills. They represent the out of pocket and imputed costs that come with guaranteeing the highest quality of life to the survivor. They include rehabilitation, substitute household services, even the value of the time invested in care by the family members and spouses of the loved ones. Too many lawyers do not understand that the plaintiff still has suffered this type of damage, even if family members provide all this care. Such care has a value, regardless of who is providing the service. The outstanding life care expert, not only is able to quantify the extent of the life care cost, he or she can open the jury's eyes to the full extent of the survivor's loss.

4) Loss of Enjoyment of Life or Hedonic Damages. The term hedonic, from the Greek word meaning pleasure, is used to describe damages stemming from a survivor's loss of enjoyment of life. In a brain injury, the loss of enjoyment and satisfaction of life is often the single biggest element of damages, especially if the survivor does not have significant pain as a result of the injuries suffered. The hedonic damage expert uses a comparison to what value our free market has placed on a human life, to quantify, in terms of dollars, usually millions of dollars, what the brain injury has cost the survivor in terms of quality of life. The hedonic damage expert also plays an important role in focusing the jury's attention on the quality of life the survivor had before the accident, and how the accident has changed that quality of life.

5) Pain and Suffering. Pain and suffering is always the hardest number to predict in any case, and unfortunately, it is largely dependent on the individual values of the jury members. Rather than relying on the jury to choose a large pain and suffering number based upon an impassioned closing argument, we believe that the magnitude of the other damages should direct the jury as to the value of pain and suffering. If we have proven a vocational loss of $1,000,000, a hedonic loss of $1,000,000, a life care cost above $1,000,000; we believe the jury will value pain and suffering in the same range. Without those other elements, the jury may think that an award of $250,000 to someone with a permanent brain injury, is generous.

Conclusion. Do not sell your case short, or let your lawyer do it. Damages in TBI cases can be multi-million dollar, but only if your lawyer understands the special problems faced by the survivor, and employs the best experts to help him prove those damages. Not every lawyer can be Clarence Darrow, but he can and must hire the best, the very best experts, on the issues outlined above.

• Getting Medical Bills Paid
• Understanding Why You Hurt
• Non-Obstacles to Recovery
• Choice of Lawyer
• About Insurance
• Car Insurance
• Independent Medical Exams

NEXT: GETTING MEDICAL BILLS PAID

"No head injury is too severe to despair of, nor too trivial to ignore."- Hippocrates

 

Understanding Subtle Brain Injury

View our video series on concussion.

The concussions that disable, are almost always more symptomatic at 24 hours, than at the 2-4 hour time frame when injured persons are evaluated in the emergency room. Brain injury symptoms escalate over the first 24 hours, because brain injury involves a cascade of events. It is critical that if you are still symptomatic the day after your injury, go back to the same Emergency Room, don’t wait for a doctors appointment. It is critical that the Emergency Room personnel see that the symptoms still persist or have gotten worse.

 

Contact the
Brain Injury
Law Group
1- 800-992-9447

This site is brought to you by the advocates of the Brain Injury Law Group, a community of plaintiff's trial lawyers across the United States united by a common interest in serving the rights of persons with traumatic brain injuries and a common commitment to fully understanding the anatomic, medical and psychological aspects of TBI.

The Brain Injury Law Group is involved with a network of plaintiff's trial lawyers across the United States united by a common interest in serving the rights of persons with traumatic brain injuries and a common commitment to fully understanding the anatomic, medical and psychological aspects of TBI, so we may be of better service to the survivors of brain injury. This network of lawyers are not part of a national law firm. We have separate law practices and are licensed to practice only in our home states.

The Brain Injury Law Group is here to listen and for that reason we maintain an 800 number and a staff willing to discuss your case and legal information where appropriate. There is no charge to call. We only represent people on a contingent fee basis and charge a fee only when we recover for the client. For more on Attorney Gordon Johnson, click here.