A brain injury can cause significant physical and emotional challenges. It can also take a heavy financial toll. Victims of brain trauma often need extensive and prolonged medical care and become temporarily or permanently unable to earn a living or live independently.
When a brain injury occurs because of someone else’s negligent or reckless conduct, the injured victim can generally seek compensation for their losses by pursuing a lawsuit or insurance claim. The amount they can get depends on a wide variety of factors. Here’s a review of what goes into determining the value of a brain injury compensation claim and the role an experienced brain injury lawyer plays in securing money for a brain injury victim.
Brain Injury Claim Valuation
The value of a claim for damages against a party at fault for causing a brain injury usually depends on three core factors:
- The amount of compensation the victim has the legal right to claim;
- The strength of the evidence supporting a claim and the skill of the victim’s lawyer in presenting it;
- The financial resources of the party at-fault for the injury, including insurance coverage and available assets.
Here’s how each of those factors affects the amount a brain injury victim can realistically hope to obtain through a lawsuit or insurance claim.
Scope of the Legal Right to Compensation for a Brain Injury
Brain injury victims can generally demand payment for the full range of harm they have suffered. That principle reaches much further than most people realize.
The law gives victims the broad right to receive payment for:
- Past and future medical expenses in treating a brain injury and any related health complications.
- Past and future costs of physical, occupational, and mental health therapies.
- All other past and future out-of-pocket costs of goods and services needed to assist the victim in living with or adapting to a brain injury
- Past earnings the brain injury victim has already lost from being unable to work.
- Vacation time, sick leave, or other paid time off the victim has already used.
- Future income and benefits the brain injury will probably prevent the victim from earning.
- The victim’s physical pain and discomfort.
- The victim’s emotional suffering and mental health challenges.
- The inconvenience and disruption of living with a brain injury.
- The brain injury’s a negative impact on the quality of the victim’s life and personal or intimate relationships.
Brain injury victims may also have the right to demand additional punitive damages from the at-fault party if that party engaged in extreme or intentional misconduct in causing the victim harm.
The total dollar value of these categories of compensation can vary widely because they often depend on the severity of a brain injury, its impact on the victim’s life, and the prospects for the victim’s healing. As a general rule, the more severe the brain trauma, the higher the damages, although that’s not necessarily the case. Even a concussion (a so-called “minor” brain injury) can cause major disruption in a person’s life and justify a claim for significant damages.
Determining the amount of purely financial damages—expenses and lost earnings usually involves a simple tabulation of past costs and losses and a projection of them into the future. Calculating the non-financial harms, like pain and suffering, may require a more nuanced approach.
Lawyers and insurance companies sometimes use shorthand methods to calculate this latter category of damages, such as multiplying financial damages by a factor between one and five (representing the severity of an injury) or estimating a daily dollar value of pain and suffering and multiplying it by the likely duration of the victim’s impairments.
But the ultimate benchmark for them is how a reasonable jury might weigh the life impacts of a brain injury, which can depend on factors as diverse as the victim’s age, living circumstances, lost opportunities, and future prospects.
Effect of the Strength of Evidence and the Lawyer’s Skill
The amount of compensation a brain injury victim has the legal right to receive represents the starting point, not the endpoint, in determining the value of a brain injury claim. It’s the maximum potential value a victim could theoretically recover. But that amount may not always be achievable due to the practical realities of how and from whom you secure payment.
To obtain any money for a brain injury, the victim’s lawyer must prove two basic facts to a judge or jury (even if the case never actually ends up in a courtroom):
- That someone’s unreasonably dangerous decisions or actions caused the events resulting in the brain injury, making them liable for the harm done; and
- That the victim sustained identifiable, compensable damages due to the brain injury that the liable party has a legal duty to pay.
Proving those facts requires evidence—information capable of being introduced in a court of law. And the evidence doesn’t simply appear out of thin air. A lawyer needs to gather, develop, hone, and present it in a persuasive manner to the people who get to decide if and how much the victim should be paid.
All of which makes the amount and strength of evidence and the skill of the lawyer presenting it critical elements in determining a claim’s value. A case supported by strong evidence and built by a skilled, experienced lawyer tends to have a higher value than one with questionable evidence or assembled by an unskilled legal practitioner.
Why? Because weaknesses in a case make it less likely that the insurance adjusters, judges, and juries who decide on liability and damages will award the victim less the full amount claimed. Or to put it another way, if the ideal case is worth 100 percent of what the victim has a right to demand as damages, a case that’s full of holes or presented by a mediocre or inexperienced lawyer might be worth only 50 percent of that amount.
Significance of the At-Fault Party’s Financial Resources
The amount of compensation realistically recoverable for a brain injury must also depend, in part, on the ability of the at-fault party to pay. You can have the most ironclad case imaginable and still receive less than the full amount of your claim if the at-fault party lacks the financial resources to cover your losses.
In many cases, the at-fault party in a brain injury case carries a liability insurance policy to pay for at least some of a victim’s damages. But insurance policies set limits on the amount the insurer will pay for a covered loss.
A brain injury claim in excess of those limits may go unpaid unless the at-fault party has separate assets available to cover the remainder. Or, to put it more simply, when it comes to claiming brain injury damages from an at-fault party and its insurers, you can’t get blood from a stone.
How Lawyers Maximize Compensation for Brain Injury Victims
Skilled, experienced brain injury lawyers have the tools, resources, and strategies at their disposal to make the most of their clients’ claims for compensation. A lawyer can never promise you full payment for the losses the law permits you to claim. But hiring a knowledgeable brain injury attorney can add significant value to your case compared to a lawyer who’s unfamiliar with brain injury cases.
Understanding and Exploring the Challenges You Face
A lawyer who has a successful track record of representing brain injury victims like you can put insights gained in prior cases to work on your behalf. In particular, an experienced lawyer already possesses an understanding of the many challenges a brain injury victim confronts. That awareness of brain injury issues allows the lawyer to identify your damages in detail, calculate their value, and gather persuasive evidence to prove why you deserve compensation for them.
Brain injury lawyers also possess a working knowledge of the medical issues common in brain injury cases, allowing them to work comfortably with your doctors and medical experts in developing your case.
Identifying At-Fault Parties and Sources of Payment
Experienced brain injury lawyers dig into the details of their client’s cases to identify every source of payment available. In some situations, they may find that several at-fault parties or insurers share liability for a brain injury victim’s damages, offering multiple avenues for obtaining compensation and increasing the odds of full payment of a claim.
Handling and Navigating Insurance Issues
The last thing brain injury victims and their family caregivers need is the stress and hassle of dealing with insurance companies. Brain injury lawyers take over all communications with insurers on their client’s behalf.
When a victim’s own insurance company resists paying a valid claim, a lawyer knows how to apply the appropriate pressure to get the claim moving again. And when an at-fault party’s insurer puts up a fight about its policyholder’s liability or the victim’s damages, a lawyer can respond to their objections and, hopefully, negotiate a favorable resolution.
Preparing Your Case with a Trial in Mind
Most brain injury cases settle through negotiations between the victim’s attorney and the at-fault party’s lawyer or insurance company. But a skilled brain injury lawyer understands that not all cases settle and that often the most effective settlement strategy consists of demonstrating that their client has a winning case to make to a judge and jury.
Lawyers for brain injury victims combine the skill of understanding the many complicated legal, medical, and financial issues that arise in brain injury cases with the ability to present clear, effective arguments about those topics in court. Preparing for that presentation helps the attorney build a strong case that maximizes the chances of achieving a favorable settlement or a top-dollar jury award.
Two Tips for Protecting the Value of Your Brain Injury Case
Lawyers understand they should not expect a brain-injured client to play a significant role in building a case for damages. But victims and their families can often avoid making common mistakes that might hurt the value of a claim by following these two tips.
Make Medical Care Priority #1
The most meaningful step any brain injury victim can take to protect the value of a claim is to seek prompt medical care and to follow their treatment plan. Few things can harm a claim more than an injured person refusing to get the care they need or to do what their doctor tells them. Insurance companies, judges, and juries consistently punish the failure to take care of oneself by slashing the amount their willing to pay or award a brain-injured accident victim.
Seeking and following medical care also protects a claim by ensuring documentation of the injury and the victim’s prognosis. Medical records can serve as critical evidence in building and proving a brain injury damages case.
Don’t Sign Anything or Agree to Any Payments
Liability insurance companies and at-fault parties occasionally reach out directly to brain injury victims or their loved ones after an accident, claiming to want to offer support and financial assistance.
Do not trust these overtures. Any offer from someone else at fault or their insurance company to pay for care or to settle a claim comes with strings attached. Chances are that whatever they offer will fall far short of what a skilled lawyer can get for you. And agreeing to their proposal could amount to giving up your valuable rights.
So never sign any papers someone else’s insurance company sends you, and never agree to a quick or informal settlement. Instead, refer anyone who contacts you with that kind of proposal to your brain injury attorney.
Contact an Experienced Brain Injury Lawyer Today
If you or someone you love suffered a brain injury under circumstances that were someone else’s fault, you likely have valuable rights to claim compensation. The amount of compensation you might receive will depend on various factors. But you can maximize your claim’s value by hiring a personal injury attorney to represent you. Contact one in your area today for a free case consultation.
Jim Holliday has recovered millions of dollars for his clients in restitution for their injuries.