Can You Claim for a Concussion?

Slip and fall accidents, street fighting and contact sports can all cause concussions. In fact, in one sport, boxing, the object of the game is to give your opponent a concussion by knocking him out. Motor vehicle accidents, however, are the most common cause of concussions. Like other forms of personal injury, it is possible to demand compensation for a concussion. Winning your concussion claim, however, involves certain issues that are specific to this type of injury.

Concussion-Related Symptoms

Some head injuries cause death, while milder injuries can result in maladies that might seem “only psychological,” such as PTSD and depression. The typical symptoms of a concussion-related injury are as follows:

Symptoms of a Concussion

The following are the typical symptoms of a concussion:

• Headaches
• Difficulty concentrating
• Impaired memory
• Impaired judgment
• Impaired balance and coordination
• Unconsciousness

Just because you don’t experience all of the foregoing symptoms doesn’t mean you don’t have a concussion. Many people, for example, do not lose consciousness after a concussion.

Symptoms of Post-Concussion Syndrome

Post-concussion syndrome is a group of related symptoms that arise in about 10 percent of concussion victims. It may persist for weeks or even months after an initial concussion. These symptoms include, in addition to the symptoms listed above:

• Dizziness
• Fatigue
• Insomnia
• Irritability
• Anxiety
• Sensitivity to light and noise
• Changes in personality and behavior

Medical researchers are still not sure exactly what causes post-concussion syndrome or why some people get it and some people don’t. More ominously, doctors do not always agree on whether a particular person is suffering from post-concussion syndrome or whether the symptoms are related to the concussion. This state of affairs makes it easier to collect compensation for a concussion than for post-concussion syndrome.

Second Impact Syndrome

Second impact syndrome is a dangerous condition in which someone experiences brain swelling after suffering a second concussion before fully recovering from the first. The condition is usually fatal. It is also highly likely to be the result of negligence – a football coach sends his player back out onto the field after a head injury, for example, or a boxing trainer sends his fighter back into the ring after a knockout instead of taking him to the hospital.

When a fatal case of second impact syndrome is a consequence of negligence, a wrongful death lawsuit against the responsible party (and in some cases, his employer) is likely to be justified. Connecticut wrongful death claims are filed by the probate estate of the deceased victim, and most, if not all, of the compensation is awarded to the estate for eventual distribution to estate beneficiaries.

The Elements of a Personal Injury Claim

Most personal injury claims consist of the following four legal elements, all of which must be proven to win:

• Duty of care: The defendant must have owed you a duty of care. All drivers have a duty to drive with reasonable care, for example, while a doctor is subject to a higher duty of care with respect to his patients. This requirement explains why a boxer cannot sue another boxer who knocks him out. By agreeing to the fight, he consented to being assaulted – at least within the boundaries of the established rules of boxing.
• Breach of duty: The defendant must have breached his duty of care. A driver who runs a red light, for example, has breached his duty of care towards drivers, passengers, and pedestrians.
• Proximate cause: The defendant’s breach of his duty of care must have been a substantial cause of the concussion you suffered, and it must have caused your concussion in a reasonably foreseeable manner. Without proximate cause, a defendant cannot be held liable – even if he was negligent.
• Damages: You must have suffered damages (medical bills, pain and suffering, etc.), and you must prove them with admissible evidence. Although hospital records are a good way to prove medical expenses, some items of compensation can be trickier. How do you estimate future medical expenses, for example? How do you put a number on pain and suffering?

Special Concern for Concussions: Medical Evidence and the Issue of Causation

It is likely that the most challenging issue in your case, whether it is settled at trial or (more likely) at the settlement table, will be the issue of causation. If you broke your leg in a car accident, it will be hard for the insurance company to argue that it wasn’t caused by the accident. If you are suffering from headaches and memory loss, on the other hand, it will be much easier for them to deny liability, especially if you have no external head wounds.

The issue of causation is normally decided through expert witness testimony – doctors, in other words. If your doctor believes that your symptoms are real and that they were caused by the accident, your chances of winning a verdict or settlement might be fairly good. Of course, it is likely that the insurance company’s own doctors will disagree, but their testimony is typically unpersuasive in court given the obvious conflict of interest.

Pitfalls for the Unwary: The Fishing Expedition

Imagine this scenario: The insurance company hands you a bunch of “routine” documents for signature, and you sign them without consulting your lawyer first. Later, you discover that one of these documents granted the insurance company blanket access to all of your medical records – even from years before the accident.

The insurance company then examines your records with a microscope and discovers that you were briefly treated for migraines four years before the accident. They are now denying your claim by asserting that your headaches were caused by a pre-existing condition, not by the accident.

This is a common insurance company trick to avoid liability. Don’t let it happen to you.

Compensation for Your Pain and Suffering

You are entitled to compensation for any physical pain and suffering that resulted from your concussion. Pain and suffering damages are not an afterthought. In fact, in many cases, this form of compensation adds up to more than half of the total damages awarded. It is best to retain a lawyer to seek pain and suffering damages for two reasons:

• Pain and suffering damages are hard to prove directly. Your testimony, although important, is unlikely to be sufficient on its own. This is because of your obvious financial stake in the matter. Testimony from your doctor would be far more persuasive.
• Pain and suffering damages are difficult to quantify. It is relatively easy to break medical expenses down into dollars and cents. But how much are daily headaches worth? Pain and suffering damages are typically calculated on a per-day basis or as a multiple of total medical expenses.

Calculating the Value of Your Claim

One of the biggest disadvantages you will face, negotiating with an insurance company without a lawyer, is calculating the true value of your claim. By all means, don’t let the insurance company do this for you! The following are some of the possible components of your claim, each of which needs to be assigned a dollar value, if it applies:

Economic Damages

• Lost wages (past and future)
• Medical expenses (past and future)
• Property damage (in a car accident case, for example)
• Incidental expenses (childcare expenses during your recuperation period, for example)
• Funeral and burial expenses (claimed by the victim’s probate estate in a wrongful death case)

Non-Economic Damages

• Pain and suffering
• Mental anguish
• Emotional distress
• Loss of consortium (claimed by your spouse or family member under certain circumstances)
• Loss of society and companionship (claimed by the victim’s probate estate in a wrongful death case)

The Arithmetic

Once you have managed to place a dollar value on every element of your claim that applies, the next step is to calculate the settlement value of your claim by:

• Adding together your economic and non-economic damages to come up with a single dollar value.
• Subtracting any expenses that you will avoid by not taking your case to court.
• Subtracting an amount to reflect the likelihood that you will lose at trial or that you will receive less than the amount you asked for (your lawyer can help you with this). The more unclear the defendant’s liability, the more money you should subtract. This is your discounted total.
• Comparing the discounted total with recent jury verdicts in Connecticut for concussions of similar severity, and then adjust the total upward or downward based on this information.

Other Factors That Might Influence the Value of Your Claim

Even after you perform the above calculations, many different factors might influence the value of your claim, including:

• Your prior medical history.
• Whether there is more than one defendant.
• The defendant’s personal financial resources, if he is uninsured.
• Your age, if you are forced to retire for your injuries. The older you are, the less you are likely to receive in future lost earnings.
• Whether you were partly to blame for your condition (if you failed to follow the doctor’s instructions, for example).
• Whether the defendant’s conduct was outrageous (because outrageous conduct raises the specter of punitive damages, which increases your bargaining leverage).

Most of the foregoing factors may apply to the value of your claim both at trial and at the negotiating table. And by the way, at Berkowitz Hanna, we will be happy to negotiate a settlement on your behalf. Ultimately, however, only you can authorize a final settlement.

Take Decisive Action Today

If you suffered a concussion that was caused by the wrongful behavior of someone else, you don’t have to suffer in silence – you can fight back. With the help of top-tier personal injury law firm, Berkowitz Hanna, it will be possible to calculate the real value of your claim and pursue it to a settlement or a court decision.

Contact Berkowitz Hanna today by calling us, or by filling out our online contact form to schedule a free initial consultation. We serve clients from all over Connecticut through our offices in Stamford, Bridgeport, Danbury, and Shelton. Remember – if we don’t win your case, you won’t owe us a dime.