How to Prove a Traumatic Brain Injury Lawsuit
If you’ve experienced a brain injury, you may be facing a difficult decision of what to do next. It is likely that the suffering, costs of medical care, and lifestyle changes make it difficult to take any more steps towards potential recovery. However, there is legal recourse, and you could be entitled to compensation. For legal assistance, contact a Charleston brain injury attorney for an initial free consultation.
Proving Negligence in Traumatic Brain Injury Cases
To recover compensation for a traumatic brain injury, you must prove that another party was negligent and at fault for your injuries. To establish negligence, it’s essential to prove the four elements: duty, breach, causation, and damages.
1. Duty of Care
First, you must establish that the defendant owed you a duty to protect you from harm. For example, a property owner has a duty to ensure their premises are safe for invited guests.
2. Breach of Duty
Next, you must show that the defendant breached the duty of care by failing to act reasonably. To prove breach of duty, you should collect evidence detailing the defendant’s careless behavior. For instance, provide evidence that a property owner was aware of a broken handrail but never took the time to fix it.
Establishing causation requires proving that the defendant’s breach of duty directly led to your traumatic brain injury. In other words, you must demonstrate that your TBI would not have occurred but for the defendant’s negligence.
Finally, you must prove that you suffered damages as a result of the defendant’s negligence. Damages can include medical expenses, lost wages, pain and suffering, and emotional distress.
Key Types of Evidence to Gather
Some of the key types of evidence you should gather include:
Medical records: These provide details about treatments received, diagnoses, and prognosis, as well as expert testimony on the severity of your injury.
Accident or police reports: These reports can help document the incident leading to your TBI and may include valuable information on the parties involved and potential witnesses.
Eyewitness accounts: Testimonies from people who saw the accident can provide crucial evidence to support your case.
Photographs or videos of the accident scene: These can help paint a clear picture of what happened and further prove negligence.
Diary or log of daily life post-injury: A daily record of your experiences, rehabilitation progress, and pain levels can be compelling evidence in a TBI lawsuit.
Types of Quantifying Damages
In a TBI lawsuit, compensation is primarily divided into two categories: compensatory and punitive damages.
These are awarded to compensate the plaintiff for the actual harm suffered and include both economic and non-economic damages. The most common types of these damages awarded include the following:
- Medical expenses: Reimbursement for past and future medical care related to the injury.
- Loss of earnings: Compensation for lost wages due to missed work and reduced earning capacity due to the injury.
- Pain and suffering: Payment for emotional distress, physical pain, and loss of enjoyment in life.
These damages are awarded to punish the defendant for their actions and deter others from acting similarly: “punitive damages may be awarded only if the plaintiff proves by clear and convincing evidence that his harm was the result of the defendant’s willful, wanton, or reckless conduct.”
If you need legal assistance, contact Mickelsen Dalton to schedule a no-cost consultation.