How to Value a Brain Injury Case

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On November 15, 2022
Brain injury personal injury attorney, personal injury attorney, salt lake personal injury

how to value a brain injury case

Many people who are now living with a traumatic brain injury (TBI) frequently wonder about how much money they can possibly achieve in pursuing a civil case against a negligent party. The truth is that there are a vast number of different factors that can impact each and every case, so you want to speak to a Murray personal injury lawyer about your own unique case to try and get a better understanding of exactly in which kinds of financial ranges you might be involved.

The National Council on Compensation Insurance (NCCI) reports that TBIs are common kinds of head injury in workers’ compensation (WC) cases, with about 60 percent of head injury claims involving a TBI, and TBI claims being costly, with an average of about $136,000 in total incurred costs that exceeded all lost-time claims and about 2.5 percent of TBI claims exceeded $1 million. Whether your own case is worth a few thousand or several millions of dollars is going to depend on the following factors.

The strength of your case

Your case will begin with your story, specifically what you were doing when you suffered a brain injury and how that injury has impacted your life. You will need to blame the negligent party for your condition, with most motor vehicle accident cases requiring victims to prove another driver acted negligently, violated their duty of care, and caused injuries leading to damages.

The degree of negligence can be an important factor in these cases, as a traffic accident that involves a drunk driver or somebody operating under the influence of drugs can mean that a jury is more likely to award you more money to punish a driver for not obeying the law. Collisions that occur because of simple oversights by other drivers may be more forgivable and be less likely to generate a large award.

The bulk of what drives settlement negotiations and jury verdicts concerns the losses a person suffers because of their injury, a term known as damages. TBI victims must prove extensive damages in their cases to garner higher jury awards.

proving your actual damages

A court case against a negligent party will generally end in one of two ways if you are to recover any financial compensation: a verdict or a settlement. In either case, you are going to need to prove exactly the kinds of damages you are suffering because of your injury.

Economic damages are awards that give money to people for actual tangible losses. The first cost that comes to mind for most victims will be their medical bills, which are presumably hundreds of thousands of dollars.

The Centers for Disease Control and Prevention (CDC) reports that the total annual healthcare cost of nonfatal TBIs was more than $40.6 billion. The National Library of Medicine said that in-hospital costs per patient ranged from $2,130 to $401,808.

Some of the many different medical costs TBI victims have to pay include costs for:

  • hospitalization
  • surgery
  • outpatient therapy 
  • physical therapy
  • acute hospital-based rehabilitation
  • subacute and post-acute rehabilitation in a residential facility
  • skilled nursing care
  • counseling
  • long-term care
  • assisting living
  • suicide intervention
  • prescription medications

Treatment may also be provided by a care team that includes occupational therapists, physical therapists, social workers, speech therapists, neuropsychologists, rehabilitation nurses, and physiatrists. Medical treatment for a TBI can also vary depending on a person’s pre-existing conditions or injuries.

The next major cost for most people will be all of the income they lost because of their TBIs. TBI victims may be entitled to seek damages for all past, present, and future lost wages as well as a disability impacting future earning capacity.

Submitting a claim for lost wages will usually require a letter from your doctor confirming you suffered an injury that will keep you out of work, previous paystubs or other kinds of wage documents, and a letter from the employer stating that you were absent and what your rate of pay is. Determining the value of your earning capacity can again vary depending on a number of factors, including your age and life expectancy, your occupation, your professional qualifications and skills, and your post-injury earning capacity.

Many people involved in car accidents in Utah also need to submit claims for property damage because of the damage done to their motor vehicles. Additional kinds of economic damages that may also be awarded can be the costs of home modifications. This is when people need to modify their homes or vehicles to accommodate their newfound disabilities, vocational training costs, and costs of domestic services when a person needs assistance with everyday duties while recovering.

remembering non-economic damages

While economic damages provide very concrete costs for victims and insurance companies, non-economic damages become a far more subjective element of personal injury cases. People can certainly be compensated for non-economic damages, but it may be a harder sell to a jury when trying to demonstrate the damages.

The only limitation on non-economic damages in Utah is found under Utah Code § 78B-3-410. This establishes limits commonly referred to as “caps” for non-economic damages in medical malpractice cases. Non-economic damages can be awarded for various kinds of ways a person’s injury is impacting their life, with some of the most common examples including:

  • pain and suffering
  • inconvenience
  • mental anguish
  • humiliation
  • emotional distress
  • reputational damage
  • loss of enjoyment of life
  • disfigurement
  • loss of consortium
  • disability
  • loss of companionship

punitive damages

Punitive damages are much rarer than economic or non-economic damages. Utah Code § 78B-8-201 establishes that punitive damages can only be awarded when compensatory or general damages are awarded and it is established by clear and convincing evidence that the acts or omissions of a negligent party are the results of willful and malicious or intentionally fraudulent conduct, or conduct that manifests a knowing and reckless indifference toward, and a disregard of, the rights of others. A knowing and reckless indifference are defined as a negligent party knowing that such conduct will, in a high degree of probability, result in substantial harm to another party or property, and the conduct was so highly unreasonable or an extreme departure from ordinary care that a high degree of danger or harm was apparent to a reasonable person.

The purpose of punitive damages is to specifically punish a wrongdoer for extraordinary misconduct and discourage others from similar conduct. Punitive damages are thus limited only to a truly select few cases in which a negligent party really acted egregiously. Punitive damages may be possible in TBI cases involving drunk drivers who had prior convictions for drunk driving.

how most cases resolve

When the average person is seeking some form of compensation for TBI costs, they will usually submit a formal demand to the negligent party or their lawyer. The negligent party will likely decline to pay anything, but they may offer a counterproposal. 

At some point, the personal injury attorney for the TBI victim and the lawyer for the negligent party will begin negotiating a possible settlement to the injury case. The two sides usually begin pretty far apart but repeat efforts will usually lead to both sides becoming more willing to entertain lowering their demands.

When a settlement does not appear possible and time is running out, the personal injury attorney for the TBI victim can file a lawsuit in a local court to seek damages from the negligent party. Settlement negotiations can continue throughout the entire trial process.

Should the case actually go to trial, then the general TBI trial process works as follows:

  • filing and serving a complaint
  • discovery
  • pretrial motions and hearings
  • trial
  • post-trial motions and appeals

Most cases will resolve through settlements before trials can even take place because the insurance companies representing the negligent parties in these cases do not want to pay the extreme costs of taking a case to trial. Settlements become much more possible as soon as the paperwork is filed to take a case to trial.

If your TBI case does go to trial, then a judge or jury will hear your case and render a judgment. You will have the right to appeal a decision with which you do not agree.

When you win a judgment from the court in your TBI case, it is not always easy to get a negligent party to pay as ordered. There can be legal alternatives that help people obtain judgments in such cases.

call us today to speak with a Murray personal injury attorney

If you or your loved one suffer a TBI in a car accident caused by another party’s negligence in Utah, you will want to be sure that you have a skilled lawyer on your side and looking out for your best interests. Gosdis Law works very closely with every one of its clients right from the start, as we are more than willing to come to you in your hospital room or home if you cannot make it to our office.

Our firm has more than two decades of experience in personal injury cases, and we fight to win so you can be confident you will recover as much compensation as possible. You can call (385) 429-9960 or contact us online to schedule a free consultation with our Murray personal injury lawyer.

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