Proof of Damages
The amount of recovery in a permanent brain injury case could has potential to exceed a million of dollars, but as TBI cases are difficult to prove with proof of damages, they can have a very high degree of unpredictability. The experience of the personal injury lawyer with brain injuries will likely be key to the result.
Proof of damages in a TBI case fall into primarily the following categories:
- Medical Bills;
- Vocational Damages;
- Life Care Costs, including future medical bills;
- Loss of Enjoyment of Life; and
- Pain and Suffering.
1) Medical Bills Proof of Damages
If there was an extended hospital stay, medical bills will typically range above $100,000, and often approach half a million. What to do about the medical bills paid is usually the economic issue that causes the most stress for the family members of the brain injury survivor. But don’t let that anxiety induce you to consider settlement in exchange of offers to pay all the bills. No such offer would be made if the insurance company didn’t think the exposure to pay far more existed. Never sign anything without talking to an experienced attorney first.
In the United States acute and critical care must be provided to the brain injury survivor regardless of ability to pay. Further, medical insurance and medical assistance (Medicaid) are there as sources of payment of medical bills.
2) Vocational Loss – Loss of Earning Capacity Proof of Damages After Brain Injury
The term “loss of earning capacity” is used rather than the term “lost wages.” A plaintiff is entitled to recover all of his or her lost earnings, as an element of proof of damages. The challenging part is measuring that loss for the future, especially if the TBI survivor has returned to work. Cases of children are also complicated, but not necessarily difficult to prove.
With brain injured survivors, the employment impact is often subtle. Survivor often have success in getting jobs, as it is not obvious that they have a brain injury. Rarely does a physician place specific workplace limitations on a TBI survivor. Deficits may be to subtle to be noticed by new employers.
Unfortunately, those with brain injury deficits, do not have the comparable success in keeping jobs. Fatigue, poor anger control, other behavior issues, particularly disinhibition, and the inability to adapt to an ever changing workplace, often result in frequent firings of TBI survivors. It is like the author Mark Twain said about quiting smoking: “I can quit anytime I want, I have done it a thousand times.” The brain injured survivor can always get a job, he or she may have done it dozens of times. The problem with work is the same as quitting smoking, making it stick.
3) Life Care Plan Proof of Damages– Future Medical Needs
Life care costs and future medical needs should not be determined by treating doctors. First, medical doctors are not economists. Second, life care damages involve more than medical bills. Life care damages include the out of pocket costs and imputed value that needed to guaranteeing the highest quality of life to the brain injury survivor. This includes rehabilitation, household services, the value of the time of the family members and spouses who are providing care. The plaintiff still has suffered this type of damage for care, even if family members provide the care. Care has a value, regardless of who is providing the care. The life care expert also needs to open the jury’s eyes to the full extent of the brain injured survivor’s loss.
4) Loss of Enjoyment of Life
In a brain injury, the loss of enjoyment of life is often the single biggest area of intangible proof of damages, especially if the survivor does not have significant pain as a result of the injuries suffered. Loss of independence is a particularly important aspect of this loss of enjoyment of life proof of damage. It is important to focus the jury’s attention on the quality of life the survivor had before the wreck, and how the wreck has changed that quality of life.
5) Pain and Suffering
We believe that the magnitude of the economic proof of damages should direct the jury as to the range of a pain and suffering award. A with a vocational loss of $1,000,000, a life care cost above $1,000,000; we believe most juries will value pain and suffering and loss of enjoyment of life in the seven figure range.
Brain injury cases can have seven figure value, if all of the stars align, so to speak. But critical in having the best chance in Court is an attorney understands the unique problems faced by the brain injury survivor. Qualified experts are key to proving economic damages. and employs the best experts to help him prove those damages. Not every lawyer can be great, but he can and must hire the best expert witness, the very best on the damage issues laid out here.