by Attorney Gordon S. Johnson, Jr.
Brain Injury Case
Brain injury cases cost money, even if you retain a lawyer who is paid on a percentage or contingent fee basis (meaning he doesn’t get paid until and if there is a recovery). What costs the serious money is the time for the expert witnesses. Most attorneys who do brain injury cases advance these costs in the brain injury cases they handle.
What this means is that the attorney is gambling anywhere from $25,000 to $250,000 of the attorney’s money, a verdict in favor of the TBI survivor can be obtained. And obviously, the gamble is also that there is a large enough verdict from the brain injury case after reimbursement of litigation expenses and medical bills and the lawyers get his percentage fee, that there is money left over the client.
Here is an illustrative example of a brain injury case: Assume an injured person in his or her mid thirties, who is making $40,000 a year, has suffered a TBI in a wreck. The TBI has made it more difficult to work and has involved $5-$10,000 in medical bills in the first 6 months after the injury. There is no recognition from treating doctors that any further treatment might be needed for the TBI.
Now if you took this brain injury case to most personal injury lawyers, they would look at the level of medical bills, perhaps try to quantify lost wages and value the case in the $50-100,000 range. A $100,000 settlement of this before a trial would be distributed as follows:
$100,000:
- $33,333 attorney fees is 1/3 (normal is 33-40%)
- $ 700 costs advanced (mostly for medical records)
- $10,000 medical bills
- $55,967 to the client
Now, if you took this brain injury case to a brain injury attorney, the result might have been different, of course depending on very difficult issues of proof.
First, that attorney should have done a detailed interview with the brain injured survivor and family members, to determine whether the diagnosis by the treating doctors, addressed all of the issues the injured person was having. The critical issue would be whether the injured person had been changed by the injury, with a particular focus on TBI symptoms.
If it was determined that problems that had not been identified, he or she would find a way to get you to a physician who understood something about concussion or MTBI. Ultimately, the client be seen by a neuropsychologist, who would give a full battery of neuropsychological tests. Unless you had a very good medical insurance policy, the attorney would pay out of his own pocket, the costs of this exam, probably approaching $5,000.
If this exam indicated significant problems which were caused by the wreck, then additional experts witnesses would be retained. These experts would be hired to put issue opinions about what would be the economic loss from the injury. Any lawyer who tries a brain injury case without such economic expert witness, expecting the jury will award enough damage for pain and suffering, will probably undervalue the claim.
Economic Damages in a Brain Injury Case:
Loss of Earning Capacity in a Brain Injury Case.
The first focus on the economic damages is the vocational expert witness. The vocational expert this is the witness who will tell the jury whether the deficits that have been diagnosed will impact the clients future “earning capacity.” If the TBI survivor has problems with fatigue, memory, background noise, concentration, balance, behavior, anger management, frustration, disinhibition, there will likely be a loss of earning capacity. Any of those deficits can negatively impact the ability to maintain competitive employment.
The loss of future earning capacity will be some percentage of the current earnings, if the person is not completely disabled. Further, even with those who go back to work, there may be a premature retirement, adding full years losses to the end of the earning capacity. This is because disabled people unequivocally leave the work force much earlier.
Now as we compare this to the nominal lost wages in the first hypothetical, we would probably have a total loss of earning capacity of something like $20,000 per year for 12 years, and $40,000 for 12 years. (This assumes the persons works at a diminished productivity until they are in their late 40’s and is totally disabled thereafter.) Now the lifetime loss of earning capacity could be as much as $720,000.
Life Care Costs in a Brain Injury Case.
A more difficult to calculate, and harder item to prove, is the need for future medical care, prescriptions and assistance with the independent living. This is what the “life care expert” will opine about. The life care expert will look at the deficits in the medical records, then calculate the costs of rehabilitation to address the disabilities. If an in-patient treatment program is called for, the costs will be substantial. The complex part is the attendant care costs. Many TBI survivors, even MTBI survivors, cannot live independently without risk. While if there is a spouse, or parent, this may not involve current out of pocket expenditures, that doesn’t mean that it isn’t compensable.
Regardless of whether these services are actually paid for out of pocket, they still have a value. Family members can’t be expected to always be there to perform there services, especially in light of the divorce rate after a TBI. Parents die and marriages end in divorce. The value of a life care plan may exceed $1,000,000, but for the sake of our example, lets assume that here it is $300,000.
Pain and Suffering and Loss of Enjoyment of Life After Brain Injury
The most significant loss after a brain injury may be the non-economic loss of pain and suffering, loss of enjoyment after brain injury. The greater the behavior problems, the greater this number will likely be, but it is very difficult to generalize a value as each brain injury is unique. Pain and suffering damages are also the hardest to predict. For this purpose, I will assume such amount is $750,000.
Now, when we do our summation for the jury, the jury hears the following damage numbers:
- $50,000 Current medical bills (because now you gotten some care)
- $720,000 Loss of Earning Capacity
- $250,000 Life Care Costs
- $750,000 Pain and Suffering
$1,770,000 Total Damages
Such an award is an exceptional result and would required not only a terrific lawyer, a case where the jury responded well to the plaintiff’s witnesses. There is always significant risk of far less being awarded.
Now, getting such a verdict doesn’t guarantee any sort of recovery because the issue of collecting on the judgment still exists. Only if there is a large insurance policy or collectable defendant such as a large corporation, is the plaintiff likely to collect such a judgment.
But when looking at what the client recovers, we have to then examine what was spent out of pocket, and other reimbursement issues. Reimbursable costs if such a brain injury case went to a jury would undoubtedly exceed $100,000.
The proceeds are variable for each and every client. In a coma case, the damages are easier to prove.
No attorney can afford to take a brain injury case if there isn’t a strong probability to recover substantial damages to pay the out of pocket costs. There also exists the risk of losing the brain injury case on liability, meaning nothing is recovered.
Republican politicians love to criticize is the contingent fee system. But without contingent fee, clients would have to pay out of pocket costs. Were that to happen, only the best cases and only the clients who could afford to hire an attorney with their out of their own pocket, would have a chance at compensation.
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Understanding Subtle Brain Injury
The concussions that disable, are almost always more symptomatic at 24 hours, than at the 2-4 hour time frame when injured persons are evaluated in the emergency room. Brain injury symptoms escalate over the first 24 hours, because brain injury involves a cascade of events. It is critical that if you are still symptomatic the day after your injury, go back to the same Emergency Room, don’t wait for a doctors appointment. It is critical that the Emergency Room personnel see that the symptoms still persist or have gotten worse.
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