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.
Causes of Action
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:
- Medical bills (unless the victim died instantaneously);
- Funeral and burial expenses;
- Lost earning capacity;
- Pain and suffering prior to death, and
- Loss of the capacity to enjoy life’s activities.
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.
Employer Liability and the “Deep-Pockets” Strategy
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).
How Much Should You Demand in Settlement Negotiations or at Trial?
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:
- Your medical bills, including estimated future medical bills;
- Your lost earnings, which could include lost earnings until your retirement age if your injury prevents you from ever working again;
- Related expenses, such as childcare, that you incurred as a result of your brain injury; and
- Loss of consortium: Loss of financial support and/or household services by the victim’s spouse due to the injury (this claim is filed by the spouse of the victim, not the victim).
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:
- Pain and suffering: Your pain and suffering is worth something. In fact, it is not unusual for a court to award pain and suffering damages that easily exceed all of your economic damages combined.
- Loss of consortium: A loss of consortium claim is filed not by the victim, but by the victim’s spouse or on behalf of the victim’s minor children. It refers to the loss of love, companionship, sexual relations, emotional support, etc., (for a spouse) and the loss of parental care, instruction, love, and companionship (for a child). Loss of consortium claims cannot be filed on behalf of minor children in wrongful death claims.
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 relative strength of your claim: The stronger your evidence is, the more you are likely to be able to win a high damages award – at least to a point. If your claim is weak, you may be better off settling for less in order to avoid the risk of losing in court.
- Your age and income: If you were permanently and totally disabled by your brain injury, you are 30 years old, and you were making $100,000 a year before your accident, you will probably be entitled to more in lost earnings than if you were 60 years old and making $40,000 per year before the accident.
- The particular court that will hear your claim if the case goes to court: Some courts award more damages than other courts do, and the amount you are likely to be able to settle for is closely related to how much you are likely to win if the case goes to trial.
- Other factors that are too numerous to mention here: Speak with your lawyer about which factors might impact your particular claim.
Some General Commentary
The following are some general observations about brain injury litigation:
- Brain injury litigation is often scientifically complex, and you may need expert witnesses to establish your claim.
- Brain injury damages awards can run into seven figures (and rarely, even eight figures) in cases of catastrophic injury.
- In some cases of serious brain injury, there is little objective medical evidence. Brain injuries do not always show up on MRIs or CT scans.
- Brain injury increases your risk of dementia later in life, which is something you deserve compensation for.
- Your brain injury, itself, may prevent you from realizing the true extent of your impairment.
- A brain injury can cause drastic negative personality changes and even criminal behavior in some patients.
All of these possibilities should be taken into account when determining the value of your claim.
Filing a Brain Injury Lawsuit
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.
Beware of the Statute of Limitations Deadline
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.
Now Is the Time to Take Action
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.