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Can You File a Lawsuit After Experiencing a Brain Injury?

Can You File a Lawsuit After Experiencing a Brain Injury?

Despite its remarkable capabilities, the brain is vulnerable to a number of life-altering injuries. Any experienced personal injury attorney will tell you that cases involving brain injuries are among the most difficult. As a result, most brain injury victims do not file lawsuits, however, this should not be the case.

If you have experienced a traumatic brain injury, you may be wondering whether or not you can file a lawsuit. In some cases, you may be able to receive compensation for your injuries. However, it is important to speak with an attorney to determine if you have a case. Each situation is different, and an expert brain injury lawyer can help guide you through the legal process.

Understand the Legal Basis of Your Case

If you want to win your case, you need to have a solid grasp of the legal theory on which your case will be based. Understanding your legal basis is crucial since it will dictate the evidence you will have to gather, how your brain injury lawyer will present it, and what arguments they will use to win your case.

  • Negligence is the legal basis for most brain injury cases.

The most common legal basis in brain injury lawsuits is negligence. Here, you and your personal injury lawyers will aim to prove that the responsible party was negligent and that their negligence resulted in the injury.

The law requires that when another’s negligence has injured someone; they must prove four things for their case to be successful.

  1. The plaintiff was owed a “duty of care” by the defendant
  2. The defendant failed to treat the plaintiff with due care
  3. The defendant’s actions directly or indirectly caused the plaintiff’s injuries
  4. The plaintiff experienced legally measured injuries and/or losses


  • A defective product liability claim may also form the basis of a brain injury case.

The other basis you may use is defective product liability. This applies in instances where your injury results from a defective product. In such cases, you can sue the company that sells or supplies the product. Your case will likely be much stronger if the company falsely advertised its products.

For instance, if a furniture company advertises its bookshelves as child-friendly, but when you get home, it topples over and leaves your child with a permanent brain injury, you can sue the company that manufactures the furniture.

The purpose of your legal basis is to prove that the injury was not merely an accident; rather, it occurred due to the defendant’s negligence, malice, or even misleading information. Without a solid legal basis, the defendant’s legal team can quickly unravel your case.

What You’ll Need to Do

Once you have established that the brain injury was either a result of negligence or defective products, you can then proceed to the following steps;

Step 1: Hire A Personal Injury Attorney

If you or your loved one suffered a traumatic brain injury due to someone’s negligence, you should hire a qualified personal injury lawyer to handle your case. You do not want to take on a lawsuit alone, whether the negligent party is your employer or a reckless truck driver.

Be sure to equip your lawyer with all the details surrounding the accident or the defective product used. Your lawyer will want to know the accident dates, how long you have been using the faulty products, and how long it has taken to recover.

Step 2: Prepare The Evidence

At every stage of your injury, you will need to keep logs, receipts, and any other documents that will build your case.

Do you have pictures of your injuries before you sought medical help?

Do you have any receipts for the payments you have made so far?

Such documents will come in handy when proving your case and getting your compensation. Keep all the medical records and prescriptions until your lawsuit is over.

Also, remember to gather evidence that may prove the guilty party’s negligence. Your lawyer will help you determine what information may count as valuable evidence in your lawsuit.

Step 3: Find Out The Statute Of Limitations

Healing from a traumatic brain injury while fighting a lawsuit at the same time is almost impossible, depending on the severity of your injury. However, never lose sight of the statutes of limitations. The general time limit for filing brain injury lawsuits is two years. However, if it is a medical malpractice lawsuit, you only have one year to file your lawsuit.

If the injured party is your loved one and is incapacitated, you can file a lawsuit on their behalf. To do that, you will need to become their legal guardian. Your personal injury lawyer can guide you on the proper guidelines to follow in such cases.

Step 4: Avoid Interactions With Adjusters

Once you have handed the case over to your brain injury attorney, it is best to steer clear of the defendant’s insurance adjusters or legal team. In most cases, they may come after you with more lucrative offers than before. Remember that you may get more fair compensation if the court orders it compared to the deal they may offer you in an out-of-court settlement.

Let your personal injury attorney take care of any interactions you need with the defendant.

Getting a Fair Settlement

Suppose you got hit by a faulty forklift at work, which resulted in your brain injury. Your employer’s insurance may want to rush you into signing a settlement. While the amount they offer may seem tempting initially, it is best to hold off their offer until you discuss it with your brain injury attorney.

In most cases, the negligent party just wants what’s best for themselves. Offering you an out-of-court settlement is easier for them and may cost them less if you do not object to the amount they offer you. Here are some of the critical factors that go into play when negotiating your fair settlement;

1. Current Medical Bills

A fair settlement will take all your bills into consideration. This includes the visits to specialists and neurosurgeons and the prescriptions that you will take. If your injury interferes with your mobility, then the settlement should cater to your disability tools such as wheelchairs and crutches. The same applies to injuries that cause other disabilities, such as deafness or blindness.

2. Future Medical Bills

If you have suffered from Traumatic Brain Injury (TBI), your path to healing may be rather long. You may need lots of additional procedures and physiotherapy to regain your health. Your personal injury lawyer should factor this into your settlement agreement.

3. Pain and Suffering Incurred

With a reasonable personal injury attorney by your side, you can get compensated for the “less physical losses” you may incur. For instance, if your injury affects how you relate with your loved one, or if it affects you psychologically (which it often will), your lawyer should petition for compensation on that ground.

4. Missed Opportunities

This includes the lost wages or any workplace promotions you may miss due to your injury. The key to getting such compensation is to prove how the injury has affected your chances of attaining those opportunities.

5. Gross Negligence

Was your injury a result of malicious activities or utter disregard for safety guidelines? If so, you stand a chance of getting a higher settlement on the grounds of gross negligence. The court will often use this to deter a repeat of such negligence.

6. Severity Of Injury

Your level of injury will affect your compensation. Your settlement will be much lower if you suffer a minor brain injury. With the help of a brain injury lawyer, you can establish how much compensation you will get. Without a lawyer, insurance adjusters may want to take advantage of your ignorance and award you a lower settlement than you deserve.

7. Legal Representation Fees

Many people often forget to include the legal fees in their settlements and compensation negotiations. It is essential to include this since you may spend a lot of resources and time building up your case and seeking legal services. You should not have to cater to your legal bills. With the perfect lawyer, you can add this to your compensation.

How Much Compensation Can You Get?

A common question we get from our brain injury clients is, “How much compensation can I get?”

While it is not possible to give an exact figure of how much your compensation will be before the lawsuit is over, you may expect a minimum of $100,000 as compensation. That figure will, however, depend on the kind of personal injury lawyer you get for your case.

Traumatic brain injuries often attract millions of dollars in compensation due to the intense damage they leave on the patient. To get to a reasonable amount for your compensation, your brain injury lawyer will work with other medical and insurance professionals and determine what settlement is acceptable given all the factors at play.

Contact Our Personal Injury Attorney Today!

If you have suffered a traumatic brain injury and are skeptical about filing a lawsuit, do not settle! Fighting a legal battle may seem intimidating, but our personal injury attorney can assure you support throughout the process. With multiple years of experience, we have helped numerous clients get the compensation they deserve. We boast millions of dollars in settlements and hope to help you become another satisfied client.

At The Burkett Law Firm, we will ensure that you get the best brain injury lawyer for your case. Our lawyers promise each client the proper compensation they deserve. With our skilled services, you don’t have to worry about shrewd adjusters taking advantage of you and your loved one at this challenging time of your healing journey. Well, if they try to get to you, they will have to go through us first!


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