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The Basics – Brain Injury and Litigation

After an accident or injury affecting the brain; if a resultant disability or death was caused by the negligence or intentional acts of another, it is quite possible that a civil action will be the next step in the process, second to the immediate medical care and treatment of your injuries. However, with that said, litigation is usually the last resort because it can be a very stressful process.

If the lawsuit is against a healthcare provider due to an incident of an alleged medical malpractice in the care and treatment of the brain injury sufferer, or if it is against another individual because of their alleged negligence or intentional acts, in all probability, an insurance company will be involved in the matter in order to provide a defense for the defendant.

How Difficult is it?

Filing a lawsuit for a disability or death as a result of a brain injury can be very difficult. Insurance companies will be handling the defense in these matters, and it is more than likely that the insurance company will assume that the complainant is faking his disability or that the disability is the result of a pre-existing psychological problem. Insurance companies will start with this premise, and the injured plaintiff will have to prove, objectively, that his disabilities are real and that the defendant is liable for his damages.

Subjective Complaints vs. Objective Evidence of Injuries

Subjective complaints of injury and disability will, in all likelihood, not hold up in court. A plaintiff, in order to sustain a lawsuit for damages must prove, “by a preponderance of the evidence,” (1) that he was injured; (2) that the defendant was the cause of his injury; and (3) that the objective evidence of his injuries and damages will prove that the defendant is, therefore, liable to the plaintiff for his damages. With brain injuries, the best way to provide objective evidence of injuries and damages would be medically through either an MRI or a CT Scan of the brain.

With the advancements of medical science in the field of brain injury, it has become easier for physicians and other healthcare providers to measure the extent of any possible brain injury and to provide a prognosis as to how much recovery can be expected over a lifetime. There is still a lot to be learned about how the brain functions and what happens to it when it suffers any type of trauma. We are currently on the ground floor of this technology, but the elevator is on its way up. How far it will be able to go is anybody’s guess.

Get Legal Help

If a lawsuit becomes necessary, an experienced brain injury attorney will be your guide. Remember, the insurance company is not your friend. It is the insurance adjuster’s job to minimize your injuries and damages in order to save the insurance company money in the long run. Speak with an experienced brain injury attorney. He will walk you through the process, and make sure your rights are protected.

Brain injury leading to either disability or death as a result of brain damage is a very serious matter. To consult with an experienced brain injury attorney on this issue, or if you or a loved one is suffering from a brain injury or a brain trauma due to the actions of another, contact Levin & Perconti at (312) 332-2872 for a free consultation.