The brain is the body’s executive command and control center. Damage to the brain can result in a variety of serious symptoms ranging from obviously physical maladies, such as pain, to “only psychological” symptoms, such as depression or difficulty concentrating. Since a high percentage of brain injuries cause serious injury or death, lawsuit damages (and private settlement values) tend to be high.
A cause of action is a set of facts that allows you to bring a claim against someone (demand a settlement from them or file a lawsuit). Depending on how you were injured, you might assert one or another of the following causes of action (this list is not necessarily exhaustive).
A common example of an ordinary negligence claim would be a claim against someone for causing a car accident that injured you because he was texting while driving. The defendant’s conduct must amount to negligence (a certain degree of carelessness), and this negligence must have operated as a substantial cause of your brain injury.
Medical malpractice occurs when a medical professional, usually a doctor, diagnoses or treats you in an incompetent manner, thereby causing injury or death. Suppose, for example, that a neurosurgeon botches your operation and thereby causes you brain damage. This might constitute medical negligence, but so also might failing to properly diagnose a medical condition, leading to a stroke because of the misdiagnosis.
Suppose that an escalator in a department store malfunctions, causing you to lose your footing, slip and fall, and sustain brain damage. Since the store was open to the public, you might be able to win a lawsuit against the property owner by claiming that he failed to keep his premises safe for visitors.
Brain damage can also be caused by a dangerous product such as a defective drug, malfunctioning brakes, etc. When this happens, you can file a product liability claim against the manufacturer or distributor of the defective product. In many cases, you can win damages without even proving that the defendant was at fault (in such cases, you only need to prove that the product was defective and unreasonably dangerous and that you were injured by the defect).
What happens if the victim of a brain injury dies from his brain injury? In that case, a wrongful death lawsuit rather than a personal injury lawsuit is appropriate. A wrongful death lawsuit is filed by the court-appointed administrator of the victim’s probate estate, and any damages awarded goes to the estate itself. Damages can be awarded for:
A court can award double or triple damages if the death was caused by a motor vehicle accident and the offending driver caused the accident, at least in part, by acting in reckless disregard of traffic laws. The problem here is that most drivers do not carry enough insurance to pay such a large award of compensation.
The “deep pockets strategy” is the strategy of finding a defendant who can actually afford to pay the claim. Fortunately, you can generally sue an employer for the on-duty wrongful behavior of one of its employees. This principle is useful if, say, you were injured by a negligent on-duty pizza delivery driver who cannot afford to pay a large judgment. In this case, you are much more likely to be able to obtain a large compensation award from the employer than from the employee.
Most of the time, you cannot hold a trucking company liable for the negligence of a commercial truck driver, because commercial truck drivers usually work as independent contractors rather than as employees. This limitation usually doesn’t matter, however, because commercial truck drivers are required by law to carry large amounts of insurance (sometimes in the millions of dollars).
The quest for brain injury compensation usually starts at the negotiating table, not in court. And most brain injury claims are indeed resolved through private settlement. If a settlement cannot be reached, the victim might file a lawsuit and continue negotiating. Negotiations can continue right up until the court issues a final decision. In some cases, negotiations might continue through the deadline for an appeal or even during the pendency of an appeal.
You will be at a terrible disadvantage, in negotiations or in court, if you do not recognize the true value of your claim – especially if you underestimate it. The calculation of the settlement value of a brain injury claim is complicated, however. The following is a general overview of the components of such a claim:
Economic damages include:
Non-economic damages are compensation for intangible losses that you suffered as a result of your brain injury. Two of the most commonly awarded forms of non-economic damages in Connecticut are:
In Connecticut, punitive damages in a personal injury lawsuit can be awarded in addition to economic and non-economic damages “when the evidence shows reckless indifference to the rights of others or an intentional or wanton violation of those rights.” Punitive damages are not commonly awarded, but may be awarded in certain situations – if your injury was caused by a criminal assault, for example, or by a surgeon operating on you while intoxicated.
Purely legal considerations are not the only determinants of the value of a claim. Factual and practical considerations play a role, too. The following are some examples.
The following are some general observations about brain injury litigation:
All of these possibilities should be taken into account when determining the value of your claim.
Filing a brain injury lawsuit is more complex and detailed than simply asserting a claim with a defendant or an insurance company. A lawsuit is commenced by filing a formal written complaint with the court clerk. In a Complaint, every sentence has consequences. Your lawyer should be the one drafting your Complaint for you.
In Connecticut, the statute of limitations deadline for filing almost any type of personal injury lawsuit, including a brain injury lawsuit, is two years after the date that the injury occurs. This calculus can get surprisingly complicated, however. Suppose, for example, that your doctor fails to diagnose a brain tumor. Said tumor subsequently grows and causes your brain damage. On what date did the injury occur? There are also limited exceptions to the two-year deadline.
If the victim of the brain injury dies from the injury, the statute of limitations deadline is two years after the date of the victim’s death – limited exceptions apply in this case, too. Consult your lawyer if the statute of limitations deadline seems likely to become an issue in your case.
If you have suffered a brain injury that may have been someone else’s fault, or if your loved one died from a brain injury, now is no time to hesitate. Call Berkowitz Hanna today or simply contact us online for a free initial consultation. We serve clients throughout Connecticut from our offices in Stamford, Bridgeport, Danbury, and Shelton. And remember: you will owe us nothing, not even a dime, until and unless your case is won.