California Brain Damage Claims
The Law and Brain Damage Claims
A claim to recover compensation for brain injuries and resulting brain damage requires an analysis of several factors, including decisions concerning:
Theories of Liability in Brain Injury Cases: Negligence, Intentional Tort, and Strict Liability
Which legal theory will your brain injury attorney pursue to prosecute your case? Was the person who caused your or your loved one's traumatic brain injury merely careless, or did he act with an intent to cause injury? Depending on how the injury occurred, the theories of liability a brain injury lawyer pursues will most likely include one or more of the following: negligence, intentional tort and/or strict liability.
Negligence
Most liability claims seeking damages for brain injury and brain damage will be based on an allegation that the person that caused the traumatic injury was negligent - meaning that, although the defendant (or opposing party) did not mean to cause a brain injury, his actions were nevertheless careless and did cause the brain injury. What does that mean in terms of proving your brain injury case?
Each state's standards for proving negligence is slightly different, but they all generally require the following elements to be proven by the brain injured victim or his representatives:
In order to prove negligence, all four elements of the negligence cause of action must be proven. Therefore, if just one element - duty, breach, causation or damages - is missing, the court will likely dismiss the case, with the brain injury victim recovering nothing.
A simple example of a negligence case is a car accident that results in brain damage. In such a case if a victim can show that he was struck by a car, that the defendant did something carelessly, and that the victim suffered a brain injury due to being struck by that car he has shown:
Often, issues arise in proving one or more of these elements. For example, did the driver's actions constitute breach of a duty? If the driver of the car was speeding or the accident occurred because he was not paying attention at a crosswalk where the plaintiff had the right-of-way, then the element of breach of duty will likely be established. If, however, the brain injury victim recklessly ran out from between two parked cars to chase a ball, giving the driver no time to react to the danger, the driver has not breached his duty to drive carefully, the breach of duty element is not proven and the brain injury sufferer's negligence claim fails.
Within the law of negligence are special standards for people with certain relationships to the plaintiff. Some of these are:
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The medical care provider: Because of medical care is often inherently dangerous, the standard for what constitutes "careless behavior" is different. When someone suffers brain damage due to an accident while receiving medical care, the surgeon's actions will be deemed medical negligence only if (1) the surgeon did something that was careless, and (2) if those actions fell below the standard of care to which other surgeons are held in the community where the services were rendered.
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The person in a "fiduciary relationship" to the plaintiff: Although most people are not required to do anything to prevent harm to another, someone in a so-called "fiduciary" relationship to another may have that extra duty. A fiduciary relationship exists in certain special situations where one person must rely on another. The law imposes liability for failure of a fiduciary to take care of the person who must rely on him. For example, a parent cannot sit by and fail to prevent a child from running in front of an approaching car, even though the parent was not driving the car and did not push the child into the road.
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The person who assumes a duty: Someone who assumes a duty to help another person must use reasonable care not to cause harm by his acts. For example, a pharmacist who fills a prescription may have no general duty to warn the drug purchaser that it could be harmful. However, if that pharmacist takes the additional step of advising the purchaser about the drug, he must use reasonable care not to give advice that could cause the consumer a brain injury or any other sort of damage.
Intentional Acts Resulting in Brain Injury
Not all brain damage cases require proof of the four elements of negligence. Some brain injuries and consequent brain damage are the result of acts intended to do harm. An example is if a person pushes another person intentionally and without provocation and the victim falls to the floor. In such situations, criminal charges of assault and battery may be brought, but the brain injured person may also seek damages in civil (non-criminal) court for his brain injuries and resulting brain damage. It is not necessary that the person who did the pushing actually intended for the victim to fall to the floor and hit his head. The act of intentionally pushing is enough for her to be held liable if it could reasonably have been foreseen that the victim's falling and suffering a brain injury was a likely or possible consequence of the push.
Strict Liability Actions that Result in Brain Injury
Some people and entities, such as manufacturers of certain inherently dangerous products, can be held "strictly liable" for the harm they cause, even if they are not negligent. For example, in California, a manufacturer of a defective product can be held strictly liable for damage caused by its product if that product poses a known or knowable danger in light of the best scientific and/or medical knowledge available at the time of the product's manufacture and distribution.
As an example, if a plaintiff is brain damaged by a drug that the manufacturer knew could cause strokes, but the manufacturer failed to warn of that risk, the manufacturer could be held liable for the consumer's brain injuries under the theory of strict liability. It is immaterial that a reasonably prudent manufacturer might justifiably decide that the risk of harm was so minimal that no warning was required. Therefore, if the manufacturer's own tests showed the product was safe, liability still could be proved if others' scientific studies had shown the product could cause stroke and brain damage. Such a manufacturer might escape liability for causing a brain injury under negligence principles, but might be held responsible for brain damage under strict liability principles.
Finding All Possible Defendants
An effective brain injury attorney should be able to help you identify the persons, businesses, government entities and others who might be responsible for your brain injuries. In some instances, a brain injury lawyer may help you to see that there may be more than one defendant who could be found financially responsible for the traumatic brain injury you or a loved one has suffered. For example, if you were brain injured following a car accident, potentially responsible parties would include:
The possible causes for the brain damage claim will determine the possible defendants. If it was a medical accident that led to the brain injury, doctors, nurses, hospitals, surgical equipment manufacturers and others may be responsible for resulting brain damage. If your brain injury happened as a result of a bar brawl, the person who struck you, his friends who joined in, the security guard who failed to prevent the assault and the bar owner could be at fault. Your brain injury attorney can help you to identify all potential defendants to maximize the compensation that is due to you for your brain injuries.
Seeking Compensation
The types and amounts of compensation available to brain injury victims will depend not only on what mental and physical deficits the brain damage have caused, but also on the brain injured person's lifestyle and earning capacity before the accident, and on the ability of the responsible person or persons to pay.
Your brain injury attorney can advise you as to the likely sources of compensation in your particular case. Some of the types of damages your brain injury lawyer may argue are due to you could include payment for:
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Impairment of Earning Capacity - The brain damage victim may no longer be able to perform his regular job, because of physical or mental impairments caused by a brain injury, and he may have to take a lower paying job.
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Life Care - Brain damage can rob a traumatic brain injury victim of many abilities, including the ability to care for himself. If assistance is needed to perform daily tasks, like cleaning and cooking, compensation may be awarded to the brain damage victim.
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Loss of Enjoyment of Life - Brain damage may take away many types of mental and physical abilities, leaving the open or closed-head-injury suffer with a labored walk, slow speech, incontinence or any number of other afflictions. Loss of these normal skills due to the fault of another may entitle the brain damage victim to damages.
Besides the extent of brain injury and consequent brain damage, other things can affect the amount of money you or your loved one may be awarded for a brain injury. Following are some examples:
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Earning capacity before the brain injury: It is a fact of our legal system that high earners will be compensated more for similar disabilities than those who earn less. For example, an injured person who worked as an investment banker prior to sustaining his brain injury will likely receive more compensation than the person who worked as a bus driver, even though both are living with similar pain and are unable to do the things they once did.
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Age of the brain damage sufferer: A younger victim of a brain injury may be expected to recover more for future medical care, as the need for that care may be expected to last for several more years than the care for a 76-year-old woman who suffered brain damage in a similar situation. Conversely, it may be harder to prove the future earning capacity of the younger brain damage victim, who may not have entered the workforce at the time of the accident, or who may not have achieved the higher earning capacity he would have achieved had he not been injured. For example, if the brain damage sufferer is just one year out of art school, it will be nearly impossible to prove that he would have been one of the great artists of all time (with accompanying high earnings) had he not suffered traumatic brain injury.
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The brain injured victim's own level of fault: If the accident that caused the brain injury was in part caused by the brain damaged victim himself, any award may be diminished in percentage to the amount of the victim's fault. For example, a jury might find that the brain injury sufferer was 30% responsible for his own injury because he taunted the person who punched him, so that even though the brain injured plaintiff might normally be awarded $100,000 in compensation for his injuries, he would receive only $70,000 (70% of $100,000).
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The financial health of the defendant(s): If only one person can be deemed responsible for the victim's brain injury and that person is poor and uninsured, the brain injury sufferer's options are limited. If there are several defendants, or the person responsible for the brain injury is wealthy and well-insured, the traumatic-brain injury victim's chances of being fully compensated for his losses is greater.
Obstacles to Recovery for Brain Injuries
There are difficulties to be overcome in almost all lawsuits, but brain injury lawsuits pose special problems for plaintiffs and their attorneys.
Witnesses. The best witness available in proving damage to a victim is often the victim himself. However, when the plaintiff has suffered brain damage, his memory and communication skills may be impaired. Therefore, the victim's brain injury attorney's ability to secure the help of others in proving the brain damage case is particularly important.
Cause of the brain injury. There can be many causes for mental declines, so proving that a brain injury is the cause of, say, chronic memory lapses, is not always a straightforward task. It may be that the memory problems became obvious only months after a car accident caused a closed-head injury, so that the defendant will claim the memory loss is unrelated to an accidental brain injury.
Your lawyer will likely have to assemble a team of experts to help prove that you or your loved one's brain damage was a direct result of the traumatic brain injury suffered at the hands of the defendant. This may require the attorney to engage the services of a neurologist, a psychologist, a neurosurgeon, a neuro-psychiatrist, and perhaps others.
Extent of the brain injury damages. Once the cause of the brain injury is proven, the extent of your or your loved one's brain damage will have to be shown. Your lawyer may need to bring in the testimony of experts in the fields of medicine, rehabilitation and social work to show an opposing party, his insurer and perhaps a judge or jury, the full extent of the (1) mental losses due to brain damage, and (2) the amount of money you or your loved one will need in order to live a life as close as possible to the one enjoyed before the brain injury accident. Your lawyer may also ask the brain damage sufferer's friends, family members and work colleagues to testify concerning the victim's life and capabilities before traumatic brain injury and subsequent brain damage.
Sources of recovery for your brain injuries. Finally, as previously discussed, getting payment from those responsible for the accident that caused the brain damage is not always a simple matter. Some of the responsible parties may be uninsured or otherwise too poor to pay anything near the amount the brain damage victim is entitled to. Therefore, it is very important for brain injured claimants to locate an attorney experienced in handling brain injury cases. A brain injury attorney will be able to investigate all potential responsible persons and entities who may be liable for damages, often by using the services of experts and investigators with whom the brain injury lawyer has successfully worked in similar cases.
Attorneys at The Reeves Law Group have handled thousands of personal injury claims and our lawyers have extensive experience in dealing with brain injury cases. Our brain injury lawyers will work diligently with our expertise and resources to help you obtain the highest recovery possible after a brain injury. If you or a loved one have suffered brain damage through someone else's fault, please contact our law firm at (800) 644-8000 as soon as possible for a free consultation with a brain injury attorney.
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