Many people who have experienced a recent traumatic brain injury wonder if they have a case. After all, it is natural to wonder, “How did this happen?” When the causes of injury are obvious, such as in an auto accident, it is common to question the fairness of your plight.
No specific formula will tell you without a doubt that you have a claim. It is helpful to understand some of the factors your brain injury lawyer uses determine eligibility. Laws vary by state, so the following guidelines may be slightly different where you live.
You may be legally entitled to compensation if all of the following are true:
- Someone else is to blame for your traumatic brain injury (liability)
- There is a direct link between the other person’s action and your injury (causation)
- You encountered expenses because of your injury (damages)
Liability is listed first because you cannot sue yourself. Likewise, if your brain injury was unavoidable, sometimes called an “Act of God,” there is no one to pursue for damages. In these cases, you are not eligible for injury compensation. However, if someone else’s actions contributed to or worsened your injury, the court might hold that person legally accountable.
Deciding if someone contributed to your injury is not always a simple matter. Did that person behave like any other “reasonable and prudent” person? If so, it may be difficult to win damages. However, if the person made a clearly negligent mistake that goes against common and usual practices, you may be eligible for compensation.
What is negligence? Essentially, it is a failure to do what one is supposed to do. We all have certain responsibilities and duties in life. When driving, we each have a duty to obey the rules of the road. If someone fails to obey the rules, there is a “breach” of that duty, or a failure to act as one should. When that happens, there is negligence, making the person who failed to act appropriately liable. However, one can only pursue a claim if damages result from the negligence.
Causation is another important facet of negligence. One must show a clear connection between the injury and the actions that caused it. It is important to explain exactly how the injury happened, and who was at fault. You must show clear proof through medical records and witness testimony. This is often a difficult matter when it comes to mild traumatic brain injuries that can nonetheless result in serious permanent injuries.
After a brain injury, you probably have medical bills, lost wages and other concrete expenses that you can prove with bills and expense receipts. These are called “special damages.” Other damages called “compensatory” damages provide consolation for the pain and suffering stemming from the brain injury and resulting impairments. “Punitive” damages are sometimes awarded when the behavior of the at-fault person was exceptionally careless, reckless or evil.
If you or someone you love is thinking about filing a claim for damages following an injury, contact our office. We will provide a free consultation and give you expert advice regarding your claim.