Traumatic brain injury litigation involves complex medical evidence, contested causation, and damages that can span a lifetime. Brain injuries range from mild concussions to catastrophic damage requiring permanent care. The invisible nature of many brain injuries creates unique challenges in proving both injury and its consequences.
Types of Brain Injuries
Traumatic brain injury results from external force to the head. Motor vehicle accidents, falls, assaults, and sports injuries are common causes. Severity ranges from mild to severe based on loss of consciousness duration, post-traumatic amnesia, and imaging findings.
Closed head injuries occur without skull penetration. The brain impacts the skull interior, causing contusions, hemorrhage, and diffuse axonal injury. Coup-contrecoup injuries damage brain tissue at both the impact point and opposite side.
Penetrating injuries involve objects entering the skull. Gunshot wounds, industrial accidents, and debris from explosions cause penetrating injuries. Damage is often localized but severe.
Anoxic brain injury results from oxygen deprivation. Drowning, cardiac arrest, anesthesia errors, and birth complications can cause anoxic injury. The brain begins dying within minutes without oxygen.
Acquired brain injuries include stroke, infection, and tumor-related damage. While not traumatic, these injuries create similar functional impairments and litigation issues.
Proving Brain Injury
Objective evidence includes imaging studies, neuropsychological testing, and documented clinical findings. CT scans detect bleeding and major structural damage. MRI identifies subtler abnormalities. DTI and other advanced imaging can show white matter damage invisible on conventional scans.
Mild TBI poses particular proof challenges. Imaging is often normal. Symptoms are subjective. The defense argues the plaintiff is exaggerating or that symptoms have other causes.
Neuropsychological testing evaluates cognitive function through standardized tests. Memory, attention, processing speed, executive function, and other domains are assessed. Test results must be interpreted in light of pre-injury function and effort measures.
Medical records from immediately after injury are critical. Emergency room documentation, Glasgow Coma Scale scores, loss of consciousness duration, and amnesia length establish injury severity. Gaps in documentation create proof problems.
Witness testimony about observed changes establishes functional impact. Family members, coworkers, and friends can describe personality changes, cognitive difficulties, and behavioral problems they have observed.
Causation Issues
Pre-existing conditions complicate causation. Prior head injuries, learning disabilities, psychiatric conditions, and substance abuse provide alternative explanations for symptoms. The eggshell plaintiff rule means defendants take plaintiffs as they find them, but pre-existing conditions still affect damages.
Intervening factors after the injury can break the causal chain. Subsequent injuries, medical complications, or failure to follow treatment may be blamed for ongoing deficits.
Multiple potential causes require sorting out which injury caused which damage. A plaintiff with injuries from multiple accidents faces defendants each pointing at the other.
Biomechanical experts testify about injury mechanisms. Defense biomechanists often argue that forces were insufficient to cause claimed injuries. Plaintiff biomechanists establish injury mechanism.
Damages Assessment
Medical expenses include acute care, rehabilitation, therapy, medications, and equipment. Future medical needs must be projected. Life care planners develop comprehensive care plans extending through life expectancy.
Lost earning capacity may be total for severe injuries. Even mild TBI can affect job performance. Vocational experts assess how cognitive deficits limit employment options.
Pain and suffering includes physical discomfort, emotional distress, loss of enjoyment of life, and cognitive frustration. Per diem arguments break non-economic damages into daily amounts over the plaintiff’s lifetime.
Loss of consortium claims by spouses address the impact on marital relationship. Personality changes, emotional volatility, and sexual dysfunction affect marriages.
Life expectancy reduction may result from severe injury. Shortened life expectancy affects all damage calculations but also means fewer years of suffering.
Mild TBI Litigation
Mild TBI, including concussion, has become better understood but remains contested in litigation. Symptoms including headache, cognitive fog, memory problems, and emotional changes may persist long after injury.
Post-concussion syndrome describes persistent symptoms beyond expected recovery. Defendants argue PCS is psychological or that symptoms are not caused by injury.
Multiple concussions create cumulative damage. CTE research has shown that repeated head impacts cause progressive degeneration. Second impact syndrome can be fatal if another injury occurs before recovery.
Defense strategies in mild TBI cases focus on symptom exaggeration, pre-existing conditions, and lack of objective findings. Aggressive cross-examination of plaintiffs about symptom reporting is common.
Rehabilitation and Recovery
Acute rehabilitation follows hospital discharge for moderate to severe injuries. Inpatient rehab provides intensive therapy to maximize recovery. Length of stay and progress document injury severity.
Outpatient therapy continues after inpatient discharge. Physical therapy, occupational therapy, speech therapy, and cognitive therapy address specific deficits.
Neuroplasticity allows some recovery as the brain rewires around damaged areas. Recovery trajectories vary. Most improvement occurs in the first one to two years, but some recovery continues longer.
Vocational rehabilitation helps injured individuals return to work in some capacity. Job coaching, workplace accommodations, and retraining may enable employment despite deficits.
Long-term care for severe injuries includes custodial care, supervision, and assistance with daily activities. Residential facilities or in-home care may be required indefinitely.
For Service Members
Military service creates significant TBI risk from combat, training accidents, and blast exposure. The military and VA systems address service-connected brain injuries differently than civilian systems.
Blast exposure causes TBI even without direct head impact. Pressure waves from explosions damage brain tissue. Many service members have sustained blast TBIs, sometimes multiple exposures.
VA disability ratings for TBI use specific criteria. Ratings depend on cognitive, emotional, and physical symptoms. Initial ratings can be increased if condition worsens or evidence supports higher rating.
Combat-related TBI is presumptively service-connected if occurring during combat. The nexus requirement is easier to meet than for other conditions.
Feres Doctrine bars tort claims by service members against the military for service-related injuries. A soldier injured by negligent medical care for TBI cannot sue. The only remedy is the VA disability system.
Concurrent civilian claims may exist for off-duty injuries. A service member injured in an off-base car accident has civilian tort claims even if also treated through military medicine.
VA and civilian damages interact. VA benefits may offset civilian recoveries in some circumstances. Structuring settlements requires attention to this interaction.
Transition challenges affect brain-injured veterans returning to civilian life. Cognitive deficits that were accommodated in military service may be disabling in civilian employment.
A military attorney understands VA rating criteria for TBI, how Feres affects available remedies, and how to pursue claims that survive the military service bar.
Disclaimer
This article is provided for general informational and educational purposes only. Nothing in this article constitutes legal advice, and no attorney-client relationship is formed by reading this content.
Brain injury litigation requires medical experts, extensive documentation, and understanding of complex neurological issues. Every brain injury is unique, and outcomes depend on specific facts. The information presented here may not reflect current medical understanding or apply to any specific situation.
Do not rely on this article to make legal decisions. If you or a family member has suffered a brain injury, prompt medical evaluation and documentation are critical for both treatment and any potential legal claim.
Consult with a qualified brain injury attorney who can evaluate your specific situation, arrange for appropriate expert review, and explain your options.
The authors, publishers, and distributors of this content expressly disclaim any liability for actions taken or not taken based on this information. Reading this article does not create an attorney-client relationship with any person or entity.
For service members and veterans with brain injuries, the intersection of VA benefits with potential civilian claims requires counsel familiar with both systems.