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Brain Injuries Caused by Medical Malpractice

Written by Berkowitz

Brain injury written on a board.

According to the U.S. Centers for Disease Control and Prevention (CDC), nearly a third of all injury deaths can be attributed to brain injury. Although most of these injuries are caused by sudden impacts, a significant percentage of them are caused by medical malpractice. Still more cases involve an initial accident followed by substandard medical care.

Because of the catastrophic nature of many brain injuries, verdicts and settlements can be high or even astronomical. In October 2015, for example, a brain injury patient in Oregon was awarded a jury verdict of $12.2 million after he was given nearly 20 times the prescribed dose of medication following surgery. It’s not as much as it seems, however, because such a patient will likely require care for the rest of his life.

Traumatic vs. Non-Traumatic Brain Injury

Brain injury can be divided into two classes: traumatic and non-traumatic.

  • Traumatic brain injury (TBI) is caused by an external impact such as a blow to the head, penetration by an foreign object, or violent shaking. Examples of TBI include concussions, diffuse axonal injuries, and hemorrhaging (bleeding in the brain).
  • Non-traumatic brain injury is caused by conditions within the body such as lack of oxygen, infections, or tumors. This type of brain injury is particularly likely to have been caused by medical malpractice.

Symptoms of Brain Injury

Many symptoms characterize brain injury, and different types of brain injury can result in different types of symptoms. Unfortunately, many of these symptoms are shared with other medical and psychological conditions that can sometimes make it difficult to diagnose brain injury. Some of the most common symptoms of brain injury include:

  • Difficulties with balance, vision and hearing
  • Memory loss
  • Difficulty concentrating and reasoning
  • Difficulty speaking or “finding the right word”
  • Lack of bodily coordination
  • Weakness in the arms and legs
  • Paralysis
  • Emotional problems, mood swings, aggression
  • Depression
  • Anxiety

How Medical Malpractice Can Cause or Exacerbate Brain Injury

There are probably as many ways to cause or worsen brain injury through medical malpractice as there are doctors in the world. The following, however, are some of the most common:

  • Misdiagnosis or failure to diagnose a blood clot, aneurysm, brain bleed, pulmonary embolism, stroke, or heart attack, thereby allowing the misdiagnosed condition to cause brain damage
  • Surgical errors, particularly during neurosurgery
  • Untreated or undiagnosed infections, including but not limited to brain infections
  • Lack of oxygen to the brain
  • Medication errors
  • Anesthesia errors
  • Failure to diagnose or treat excessive bleeding
  • Failing to properly intubate a patient
  • Failure to properly monitor a patient under anesthesia
  • Failure to properly treat a patient with breathing problems
  • Failure to properly treat a patient with severe burns
  • Permitting kernicterus (high levels of bilirubin) in a newborn baby
  • Failure to treat medical problems in the mother prior and during childbirth
  • Failure to monitor a fetus during childbirth or to respond to symptoms of fetal distress
  • Failure to perform a C-section when one is called for
  • Improper use of delivery instruments such as forceps during childbirth
  • Failure to provide oxygen to newborns when necessary
  • Nursing home abuse

In addition to the foregoing, the following diseases can cause brain damage on their own. Without proper treatment, they can cause additional brain damage:

  • Abscesses
  • Cerebral cysticercosis
  • Encephalitis
  • Meningitis
  • Mumps
  • Myelitis
  • Toxoplasmosis
  • Trichinosis
  • Rubella
  • Rabies

Special Case: Sepsis

Sepsis is a special case because it is a disease that is often contracted at hospitals (sometimes through medical malpractice, sometimes not). Sepsis frequently causes organ failure, and the brain is often the first organ to fail. Risk factors for sepsis include a weak immune system, a chronic illness, severe burns, and severe wounds.

The most common ways that a patient develops sepsis in a hospital setting include bacteria entering the body through a catheter and surgical-site infections. In many cases, the development of sepsis can be traced to unsanitary conditions in the hospital. Sepsis also frequently occurs in nursing homes when bedsores are allowed to develop and fester.

The Financial Burden of a Brain Injury

The financial consequences of a serious brain injury are frequently long-term in duration and catastrophic in magnitude, which is why it is so important to accurately calculate future compensation and to aggressively pursue every dime of compensation you are entitled to. If you run out of money years down the road, there will probably be no way to come back to court or the settlement table to ask for more money.

Some of the possible long-term expenses of a brain injury include nursing home care, medical devices, and physical therapy. Moreover, a brain injury survivor might experience additional, secondary medical problems arising indirectly from the initial brain injury (such as infections) that require additional medical treatment. A top-tier medical malpractice attorney with experience in brain injury cases can help you calculate your future damages.

Proving Your Case: Connecticut Malpractice Law and Brain Injury

To win a lawsuit under Connecticut medical malpractice law, you must comply with both procedural and substantive requirements. More or less the same requirements apply if you want to negotiate a private settlement (the way that most medical malpractice claims are resolved), because a healthcare provider is unlikely to be willing to settle with you unless you can show that you have a good chance of winning in court if he doesn’t settle.

The Certificate of Good Faith

An abundance of frivolous medical malpractice lawsuits prompted Connecticut to impose a procedural barrier to filing medical malpractice lawsuits that many states do not impose. It is called a Certificate of Good Faith, and it must be filed with the initial complaint that kicks off the lawsuit.

In a Certificate of Good Faith, either you or your lawyer must certify that you conducted a reasonable inquiry into the validity of your claim, and that the evidence led you to a good faith (sincere) belief that it has merit. You must also provide a statement signed by a medical expert, most likely a doctor, asserting that, in his opinion, your injury was caused by medical negligence. The expert’s statement must also provide the grounds for this opinion.

Without a Certificate of Good Faith, your lawsuit will probably be dismissed. If you do submit it and it is found to be frivolous, you could be subject to sanctions.

The Statute of Limitations

The statute of limitations sets a deadline by which you must file the Complaint and the Certificate of Good Faith. If you miss the deadline, your claim will become worthless immediately. In Connecticut, the deadline is two years after the date that the malpractice actually occurred. This deadline can be extended for up to an additional year (for a total of three years) if you did not discover the malpractice immediately through no fault of your own.

Elements of a Medical Malpractice Claim

Connecticut defines malpractice as “…the failure of one rendering professional services to exercise that degree of skill and learning commonly applied under all the circumstances in the community by the average prudent reputable member of the profession with the result of injury, loss, or damage to the recipient of those services.’”

For medical malpractice, that means:

  • You must prove that a doctor-patient relationship existed (which is normally quite easy to establish);
  • You must use expert witness testimony (typically from another doctor) to prove the professional standard of care applicable to your case;
  • You must prove that your health care provider failed to meet that standard in your case; and
  • You must prove every dime of the damages that you are claiming, even intangible claims such as “pain and suffering.”

The exact standard of care is very fact-dependent and individual to your case. If, for example, your doctor failed to diagnose a blood clot that later led to your brain injury, this failure may or may not amount to medical malpractice, depending on how obvious and typical your symptoms were and depending on the level of expertise possessed by your doctor (a neurosurgeon will be held to a higher standard of care than a general practitioner, for example).

Damages under Connecticut Personal Injury Law

Under Connecticut law, you are entitled to all of your damages, both economic and non-economic. What that means in practice is that you are entitled to far more than simple reimbursement for your medical bills. Some of the most commonly claimed bases for compensation include:

  • Past and present medical bills
  • Future medical bills
  • Lost earnings (often over a lifetime)
  • Rehabilitation expenses
  • Expenses for residence in a nursing home or other long-term care facility
  • Disability (non-economic)
  • Loss of enjoyment of life (non-economic)
  • Pain and suffering (non-economic)

Connecticut Wrongful Death Law

Brain injuries are far more likely than other injuries to result in the death of the victim. When that happens, the victim’s personal injury claim does not die with him. Instead, under Connecticut’s wrongful death statute, it is transformed into a wrongful death claim in favor of the victim’s probate estate. Eventually, the money is distributed to the beneficiaries of that estate.

A wrongful death lawsuit must be filed by the personal representative (executor) of the state, usually a close relative who is named in the victim’s will or, if there is no valid will, appointed by the probate court. In most cases, a lawsuit must be filed within two years of the victim’s death – although, in some cases, exceptions apply that could push the deadline out for up to five years after the victim’s death.

Wrongful death damages can include compensation for:

  • Funeral and burial expenses;
  • Medical expenses;
  • Lost earning capacity;
  • Pain and suffering; and
  • The loss of the ability to enjoy life’s activities.

A successful wrongful death claim can result in damages that are proportional to the amount that the victim would have received had he survived the injury.

Today Is the Day to Begin

If you or your loved one has suffered a brain injury that you believe may have been caused by or exacerbated by medical malpractice, now is no time to sit around. The sooner you begin pursuing your claim, the better your chances will be. Your case needs to be investigated so that, if it turns out to be valid, a formal claim can be filed on your behalf. We can help you do this just as we have done for many other brain injury victims.

Telephone the personal injury/wrongful death attorneys at Berkowitz Hanna today or contact us online for a free initial consultation. We take cases from all over Connecticut through our offices in Stamford, Bridgeport, Danbury, and Shelton.