How to Prove Negligence in a Traumatic Brain Injury Case: Thoughts from a Personal Injury Lawyer Serving Cameron, TX, and Huntsville, TX
Elements of Negligence
Duty of Care
To prove duty of care, it must be demonstrated that the defendant (the person or entity allegedly responsible for the injury) owed the plaintiff (the injured party) a duty of care. This duty is the basis of many social situations in which one party is obligated to care for the well-being of others.
For example, all drivers have a duty to adhere to traffic laws and operate their vehicles safely. Property owners have a duty to maintain their premises to keep visitors safe. Doctors have a duty to provide their patients with competent medical care.
Breach of Duty
Once a duty of care is established, the plaintiff must then show that the defendant breached this duty. A breach occurs when the defendant’s actions (or failure to act) do not align with the standard of care that a rational person would have used in a similar situation.
Examples include a driver running a red light, a property owner disregarding a hazardous condition, or a doctor misdiagnosing a condition.
Causation
Proving causation means establishing a direct link between the defendant’s negligent actions and the plaintiff’s TBI. There are two types of causation to consider: actual cause and proximate cause.
Actual Cause (or Cause-in-fact) refers to the “but for” test: “but for the defendant’s negligence, would the injury have occurred?” Proximate Cause (Legal Cause) examines whether the defendant’s actions were a foreseeable cause of the injury.
Damages
The final element is proving that the TBI caused specific harms or losses to the plaintiff. Damages in TBI cases can be extensive and may include, for example, past, present, and future medical expenses; lost wages and reduced earning capacity, pain and suffering; emotional distress; and loss of quality of life.
Medical expenses would encompass bills for hospitalizations, surgeries, doctor’s visits, rehabilitation therapies (physical, occupational, speech), prescriptions, assistive devices, and potential long-term care. Lost wages and reduced earning capacity may also be included, since a TBI can make it difficult or impossible to return to work.
Challenges in TBI Negligence Cases
Establishing Causation
TBIs can result from various incidents, such as car accidents, falls, sports injuries, or assaults. It may be challenging to definitively prove that a specific event caused the injury, especially if the plaintiff had pre-existing medical conditions or was involved in other incidents. Medical experts play a crucial role in analyzing medical history and determining the most likely cause of the TBI.
Assessing Long-term Effects
The full impact of a TBI may not be immediately evident. Symptoms can manifest over time, and the road to recovery can be lengthy and unpredictable. Thorough medical and expert evaluation is crucial to establish the long-term consequences for assessing damages accurately. Specialists like neuropsychologists will be essential in evaluating the cognitive, behavioral, and emotional changes resulting from the TBI.
Subjectivity of Symptoms
Unlike injuries with clear physical manifestations, many TBI symptoms are subjective. Pain, headaches, dizziness, fatigue, and cognitive difficulties can be difficult to quantify or verify objectively, making it harder to fully prove the extent of the suffering caused.
The Role of Expert Witnesses
Medical Experts
Medical experts are doctors who specialize in brain injuries. They can explain the diagnosis, the severity of the TBI, the short and long-term treatment requirements, and the overall prognosis. These experts may include neurologists, neurosurgeons, or physiatrists (specialists in physical medicine and rehabilitation).
Neuropsychologists
These specialists assess the cognitive, emotional, and behavioral changes resulting from the TBI, often administering specialized tests to evaluate these changes. These evaluations can help determine the extent of impairment in areas like memory, attention, problem-solving, and emotional regulation.
Vocational Rehabilitation Specialists
These experts can analyze how the TBI has affected the plaintiff’s ability to work and the potential impact on their future earning capacity. They may conduct assessments to identify transferable skills, potential vocational retraining opportunities, and the need for workplace accommodations.
Life Care Planners
Specialists in this field may be called upon to create a comprehensive plan outlining a TBI victim’s future needs, including medical care, rehabilitation, assistive devices, home modifications, and other forms of ongoing support. This plan can also project the estimated costs of these future needs, providing a crucial tool to ensure the plaintiff receives fair compensation.