Feb 25, 2023

Should I Accept a Traumatic Brain Injury (TBI) Settlement?

A traumatic brain injury (TBI) can have a profound impact on your life, causing memory loss, difficulty concentrating, the inability to perform certain tasks or work, loss of enjoyment in favorite activities, and extensive medical bills and other expenses. If you suffered a TBI due to someone else's negligence, you may be entitled to compensation through a fair insurance settlement or trial.

However, it's important to note that accepting the first offer presented by the insurance company may not be in your best interest. Determining a fair settlement amount can be complex, and settling for less than what you need can result in financial and personal difficulties in the future. Negotiating a TBI settlement is important, but it's also a risky process. Before accepting any offer, ensure that it will provide sufficient support for your needs by consulting with a personal injury attorney.

Should I Accept a Traumatic Brain Injury Settlement

What Exactly Is A Traumatic Brain Injury?

Traumatic brain injury (TBI) refers to damage sustained by the brain due to external physical force, resulting in temporary or permanent functional or structural damage. It is a major cause of death among youth in industrialized societies, and can range from mild to severe. TBI encompasses a heterogeneous group of pathologies with varying mechanisms and survival consequences. These injuries can be classified as closed or penetrating, with the latter typically resulting from gunshot or stab wounds, and blast injuries being a rare pattern. TBI are different than anoxic and hypoxic brain injuries which are caused by brain damage from a lack of oxygen to the brain. In a TBI, the initial injury causes brain tissue destruction with intracerebral hemorrhage, axonal cutting, and parenchymal impairment.

What To Do Before Accepting A Traumatic Brain Injury Settlement

People involved in accidents often are eager to finalize their personal injury claim and secure money that is usually needed to help restore their lives and sense or normal. However, there are some best practices that you should do and things to consider before accepting a head injury settlement, which include the following.

Understand Your Injuries

The more you understand traumatic brain injuries and their effects on injury victims, the more you can protect yourself against the underhanded strategies and tactics of the insurance company and its claim examiners. Furthermore, understanding the associated health risks is also important in order to aid your doctor in making the right diagnosis and determination. Most people that sustain serious head trauma are often unaware of that sensations that are experiencing can be related to a mild, moderate of severe brain injury. The proper detection and management of a concussion is not easy and requires a knowledgeable physician and cooperative patient. Arming yourself with understanding will aid in protecting your health while also arming you with the information neccessary to better see why certain offers of compromise by the insurance company might are wholly insufficient.

Consider Future Medical Necessities

Traumatic brain injury (TBI) can cause both immediate and long-term consequences that result in permanent and behavioral alterations that can impair an individual's daily functioning. Although victims of TBI's receive initial hospitalization and inpatient rehabilitation, almost 50% of TBI victims are likely to experience a decline in their everyday lives or even a decreased life expectancy if in cases of severe concussions. However, certain health complications associated with TBI can be prevented or minimized, so your settlement should consider chronic disease management to enhance the quality of your life while you deal with the TBI.

The management of traumatic brain injury (TBI) can involve a multidisciplinary approach aimed at aiding a patient in getting better. This can include prompt medical attention, neuroimaging, and the use of medications to stabilize the patient's condition. In addition, a team of healthcare professionals may be involved, including neurologists, neurosurgeons, physical therapists, occupational therapists, and speech-language pathologists. Treatment may also include cognitive and behavioral therapies, as well as assistive devices such as wheelchairs or communication aids. Rehabilitation and long-term care may be necessary to help the patient regain as much function as possible and to manage any ongoing medical or cognitive issues. Overall, TBI management requires a comprehensive and individualized approach to ensure the best possible outcome for the patient.

The cost of concussion treatment can also be influenced by factors such as the location of the treatment facility, the availability of insurance coverage, and any related costs such as transportation or time off work. In some cases, the cost of concussion treatment can be significant, and it is important for plaintiffs and their families to carefully consider the these costs when evaluating any offers of settlement related to their injury claim.

Allow An Attorney To Review The Offer

Do not accept a settlement for a head injury claim without consulting with a qualified attorney to determine whether the offer fully compensates you for your injuries. It's important to be aware that insurance companies typically pay far less than what is adequate on concussion-related claims, and this is largely because companies intentionally manipulate the computer software programs that creates the offer numbers.

Although liability insurance is designed to restore the injured party to their pre-loss financial position by compensating them for their damages. This indemnity principle is often not satisfied unless an attorney is present to advocate for the victim. Although you are forced to hire legal counsel, consider having an attorney review the offer to ensure you are being fully compensated for your general and special damages.

Traumatic brain injury (TBI) can cause both immediate and long-term consequences that result in permanent disabilities, which can ultimately leading to increased long-term mortality rates and reduced life expectancy.

If you accept a settlement before fully understanding the extent of your injuries, waive all rights to seeking additional compensation in the future. That's why it's crucial to consult with a personal injury attorney before accepting any offers.

Negotiate To Determine The Case Value

If you don't negotiate your TBI settlement then you are accepting far less than you're entitled to under the law. Insurance companies sometimes utilize the strategy of their first offer appearing high or even gracious, to conceal the true value and disarm the claimant. However, do not fall for the gamesmanship. Negotiation is the give-and-take process required to obtain a just and fair compromise from both sides. Although negotiation can't be performed without concessions, you have to engage in the dialog to obtain a mutually beneficial agreement. Don't worry about the initial offer being removed if you contest it, insurance companies aim to have claims settlement and know that withdrawing offers creates a high likelihood that a lawsuit with be filed against their insured.

Consider Whether the Offer Is Right For You

It's important to note that each settlement is unique and that an amount that works for another claimant might not work for your circumstance. The compensation an individual receives can vary greatly depending on the merits and facts of their case, with the most impact factor being the how the concussion has impact you, specifically. Understanding the value of your claim is necessary to have a clearer idea of the damage amount that you feel would make you whole.

When reviewing a traumatic brain injury settlement you should compare the quality of your life before and after you experienced that act of negligence or intentional conduct that caused your resulting injuries. Were you able to return to your job after the sustaining the head injury? Has the quality of your relationships with friends, family, or loved ones changed? How about your daily activities, have they been altered? Although all civil lawsuits have settlement ranges, the average minimum and maximum value are often vastly different, so it is important to analyze your life with the TBI in order view offers of settlement from the insurance company with the right perspective.

Factors that Effect Traumatic Brain Injury Settlements & Payouts

When it comes to the success and value of an injury claim, there are many factors that can have a direct impact of the settlement potential a person is entitled to.

Liability Disputes

One of these factors is the liability dispute, as a clear fault for the car accident can result in a higher settlement value. Conversely, if there is a dispute surrounding fault, the defendant may not offer a fair settlement.

Multiple Defendants

Additionally, cases involving multiple defendants may create issues regarding how much each defendant should pay, potentially forcing the claimant into litigation to receive meaningful offers. Head injuries caused by trucking accidents might allow the innocent party to recover against several defendants, including the commercial driver, fleet owner, maintenance shop, or product manufacturer, depending on what actions contributed in causing the crash.

Characteristics of the Claimant

Other variables that may affect the value of a traumatic brain injury settlement include the ages and lines of work of both the claimant and defendant, as well as their likeability and the claimant's prior medical history. Compelling stories regarding how the brain injury has impacted the claimant's life may also increase the settlement value.

Related Medical Complications

Victims of brain injuries often experience related medical complications that can further complicate their recovery and overall health. Crush injuries, for example, can occur when the head is subjected to a forceful impact that causes the skull to fracture or collapse. Blunt force to the head is also experienced by the neck and can case spinal cord damage or even paralysis. Catastrophic injuries such as these can result in loss of motor and sensory function and greatly effect the degree recompense a plaintiff is entitled to.

Punitive Damages

Finally, egregious conduct by the defendant, such as drinking and driving, may provide additional leverage to increase the value of a mild TBI settlement through the potential for punitive damages. While these are not the only factors that can affect the success and value of an injury claim, they are some of the most important to consider.

Make Sure The Offer Includes The Possible Damage Categories

Personal injury settlements include three types of damages categories: economic, non-economic, and exemplary. Together, these three categories in the following common types of damages.

Lost Wages

These may include lost wages, which account for the income lost due to injuries preventing a person from working, as well as any work benefits or paid off time utilized. Future lost income may also be factored in if injuries are severe enough to prevent returning to work.

Medical expenses

Such as diagnostic exams, hospital stays, prescriptions, and necessary medical accessories like wheelchairs and crutches. Medical expenses can also include future needs such as concussion clinics, psychologist,

Damaged property may be covered for repair or replacement costs. Additionally, emotional harm and pain and suffering caused by the accident can result in compensation. Funeral expenses for a late loved one can also be recovered if their death was due to negligence. Depending on the situation, it may be possible to seek additional losses.

Physical pain and suffering

Pain and suffering are two related but distinct concepts commonly recoverable in civil lawsuits. Pain refers to the physical sensation or discomfort caused by head trauma. It is a subjective experience that varies from person to person and can be acute or chronic. Suffering, on the other hand, is a broader term that refers to the mental distress that can accompany physical pain or other forms of adversity. Related to a TBI this can include, sadness, fear, anger, or helplessness and can result from a range of factors, including physical or emotional trauma, chronic illness, or social isolation.

Emotional or mental anguish

Mental anguish damages specifically refer to compensation for the emotional distress caused by the defendant's wrongful conduct. This can include compensation for anxiety, depression, fear, humiliation, and other psychological impacts of the injury.

Loss of consortium

Loss of consortium damages are intended to compensate the spouse or partner for the harm caused by the injury to their loved one. TBI's can often result of a loss of emotional support, the inability to engage in activities or hobbies together, and can effect intimacy or sexual relations with a partner.

Loss of companionship and society

Loss of companionship and society damages are intended to compensate the plaintiff for the loss of the injured or deceased person's company, guidance, and emotional support. This can include the loss of shared experiences, conversations, and other forms of companionship, as well as the loss of emotional and psychological support provided by the injured or deceased person.

Disfigurement

Disfigurement damages are intended to compensate the plaintiff for any physical disfigurement or scarring caused by the defendant's actions. This can include injuries that result in visible scars to the head, disfigurement of facial features, or other visible physical changes.

Impairment

Impairment damages include loss of function or ability caused by the TBI. This can include injuries that result in a loss of mobility, loss of senses such as hearing or vision, or other physical impairments that affect the plaintiff's ability to perform certain activities.

Loss of enjoyment of life

Loss of enjoyment of life damages are intended to compensate the plaintiff for the loss of the ability to participate in hobbies, sports, social activities, and other enjoyable aspects of life that they could enjoy prior to the injury. This type of damage is intended to recognize the intangible aspects of a concussion injury that can have a significant impact on a person's quality of life, such as the inability to engage in leisure activities, attend social events, or pursue other interests.

Reasons Why Settling Too Soon After a TBI Can Be Risky

Accepting a settlement related to TBI event can be risky and potentially harmful because traumatic brain injuries (TBI) are life-altering events and prevent a person from returning to pre-injury life. However, sometimes the pressure of mounting medical bills and lost wages may lead to the temptation to settle a TBI claim early.

Settling a TBI claim too soon is not a good practice for the several reasons:

Delayed Onset Of Symptoms

Insurance adjusters are trained to engage victim's in settlement discussions as quickly as possible, which often results in a concussion victim accepting an offer even before they visit with a neurologist. It is imperative to that understand post-concussive symptoms are often less pronounced in the initial days following an accidents and can continue to slowly increase in severity for weeks and even months after an incident. Associated symptoms such as headaches, impaired judgement, aggression, memory loss, an inability to concentrate, vision impairment, and ability to multitask might emerge much later during the brains healing process. Health complication in the forth of chronic traumatic encephalopathy (CTE), early onsets of Alzheimer's and other progressive degenerative brain diseases can also take form months after blunt head trauma. Therefore, it is crucial to be aware of the signs and symptoms of a concussion and allow yourself time to obtain sufficient medical care from a neurologist or neuropsychologist before

Brain Injury Severity

TBIs can have long-term effects that may not be apparent in the immediate aftermath of the injury. Settling too soon may result in a settlement that does not fully account for future medical expenses, lost income, and other damages. Even cases involving mild traumatic brain injuries can surpass $1,000,000, while severe traumatic brain injury cases can exceed $10,000,000 if the injured person requires extensive medical treatment and lifelong care.

It is important to remember that settlement values vary greatly depending on the individual case's unique factors. Although severe traumatic brain injury cases typically result in higher settlements than mild traumatic brain injury cases, the injury's severity alone does not determine the settlement value. The totality of the damages, the circumstances, and any long-term effects are also considered.

For example, a mild traumatic brain injury can result in vastly different settlement values for two individuals. Victim A might suffer from short-term memory loss and headaches and require a week off work, but otherwise has no long-term symptoms, resulting in mostly medical expenses and lost wages. Victim B might develop post-concussion syndrome, leading to long-term symptoms such as migraines, noise and light sensitivity, dizziness, narcolepsy, and memory problems that make it impossible to return to work, leading to a far higher settlement value.

In the case of Victim B, the settlement value would include long-term medical care, lost earnings, reduced earning capacity, and diminished quality of life. Thus, relying on the average settlement value for a concussion from a car accident would not be helpful in determining an individual's case's worth.

Pressure from insurance companies

Insurance companies may offer a quick settlement in the hopes of avoiding a larger payout later on. They may use high-pressure tactics to get victims to settle quickly, making it difficult to fully assess the value of the settlement.

Low Ball Offers

Early settlements may not fully account for all the damages that a TBI victim has suffered, including ongoing medical care and lost income. Victims who settle too soon may end up with inadequate compensation that does not fully cover their needs.

Waiving the right to pursue further legal action

Once a settlement is accepted, the victim usually waives the right to pursue further legal action against the responsible party. This means that if their condition worsens or they incur additional expenses down the line, they may not be able to seek further compensation.

Lack of legal representation

Victims who settle too soon may not have the benefit of legal representation to help them assess the value of the settlement and negotiate on their behalf. A skilled TBI lawyer can help ensure that the victim receives a fair settlement that fully compensates them for their losses.

TBI Case Values Have Increased

Although juries have traditionally awarded less money for injuries they can't see, due to the advent and increased diffusion tensor imaging (DTI) technology, brain injuries are no longer considered invisible. With DTI, we can now present brain imaging evidence to jurors that supports the existence of a brain injury. While DTI findings aren't conclusive evidence of a TBI, they're significantly more persuasive than just asking the jury to take your word for it that you're injured. This makes brain injuries less subjective, more verifiable, and more valuable in settlements and verdicts.

The groundbreaking discovery of chronic traumatic encephalopathy (CTE) also transformed the medical and sports industries, as well as the value of head injury claims. Perhaps you're familiar with the movie "Concussion," in which Will Smith portrayed Dr. Omalu. This film altered public perception and acceptance of this otherwise invisible injury. The public includes your potential jurors. As the public's views on an issue shift, so do potential jurors' views. This shift is perspective is more accepting and supportive of your brain injuries, which has lead to much higher settlements ranges or verdicts awards for concussion clients.

For these reasons, victims of TBI should be cautious about settling too soon and seek the advice of an experienced TBI lawyer before accepting any settlement offers.

What To Do When An Insurance Adjuster Reaches Out

When an insurance adjuster reaches out to you with an offer of settlement and compromise you should be careful to not verbally accept any sum and instead consult with a personal injury lawyer. Even if the settlement offer seems fair or adequate, you are not in an immediate rush to respond. It is important to have a legal professional carefully review the settlement offer to ensure you that you are not waiving your rights to obtain more money or damages from the liable person or company responsible to causing your injury condition.

What Happens If I Don’t Accept The Offer?

In short, nothing. Declining a settlement offer does not necessarily mean that your case will immediately proceed to trial or the the offer you declined in now off the table. Insurance companies know that litigation can be a time-consuming and expensive process, which is why insurance companies prefer to resolve claims through settlement agreements outside of court. Trying to negotiate a settlement on your own may lead to minimal compensation. You should hesitate of accepting any offers and hire a personal injury lawyers well-versed in insurance companies' strategies. An attorney with experience litigating head injury cases can advocate for your best interests while striving to obtain maximum settlements or court judgments. While some injured parties may need to take their case to court in certain circumstances, these scenarios are rare.

Settlement Are Final And Complete Waiver Of Your Rights

Settling a claim typically involves voluntarily and permanently waiving your right to pursue further compensation at a later time. It's crucial to understand that once a settlement has been reached and the check has been cashed, there is no recourse for a do-over, even if the funds run out before all expenses are covered, or future medical care is required.

How Do I Know If The Amount Offered Is Fair?

Unfortunately, fairness is subjective so it is impossible to know if the offer you're receiving is fair based on your circumstance. However, just compensation is often determined by considering the potential amount you could receive through a court judgment. Then, both sides negotiate a compromise that saves both time and the case expenses required in order to reach a jury verdict. For this reason, it is essential for victims to hire an attorney who possesses knowledge of the resolution of personal injury cases involving brain trauma in the courts, and can apply this expertise to the negotiating process.

What Is The Average Settlement For A Traumatic Brain Injury

In order to recover compensation for a brain injury, there are two options available: a settlement or a verdict. Settlements occur when both parties agree to resolve the case outside of court, while a verdict is reached by a jury in court. Jury verdicts are made public, but settlements are not, making it difficult to determine an average compensation for a brain injury.

In 2022, Jury Verdict Research found that across the United Stats the median brain injury verdict was around $1,500,000. However, jury verdicts are often higher than settlement amounts, and the defendant's lawyer and the liable entities insurance company must consider the likelihood of a jury ruling in favor of the plaintiff when negotiating a settlement. While a higher jury verdict is possible, it can take much longer to recover compensation and may result in higher expenses related to a trial.

Understanding the average returns for specific case types can also be helpful to a seeing the value of a brain injury claim, as the insurance policy limits available to a person changes depending on the type of accident.

How Does An Attorney Push An Offer Higher?

Beyond negotiation tactics and properly quantifying a clients grievances, brain injury attorneys push claims higher in a few other important ways. First, insurance company's understand that once a person has legal representation, a breakdown in settlement talks can quickly result in a civil lawsuit being filed against their insured. The threat of litigation and the costs associated with the legal process often force insurance companies to act in good faith when attempting to resolve a claim pre-litigation and anytime prior to a jury's deliberation.

A second way attorneys increase the sums being given by the at-fault party is through drafting a detailed personal injury demand letter. Although the style of a demand letter changes from one law firm to another, they often include applicable case law, prior jury verdicts, expert reports, and life care plans. Information regarding your incurred and future medical costs, possible nursing care, and increasing costs of daily living speak to the gravity of your needs and strengthen your arguing position.

Lastly, attorneys are able to research defendants, investigate insurance coverage limits, and work to determine the policy limits involved your legal matter. Oftentimes they might draft a policy limits demand requesting the maximum dollar amount that an insurer has for losses under an insurance policy.

Although the actions mentioned here are not exhaustive, these are common ways plaintiff attorneys increase the numbers insurance company offer in order to reach a mutually agreeable sum.

Consult With An Attorney To Determine Whether You Should Accept A TBI Settlement

Individuals who have sustained traumatic brain injuries often have questions regarding their legal rights and entitlements, and require assistance to determine whether or not they should accept a settlement. At Sneed & Mitchell, our attorneys specializing in traumatic head injuries are committed to securing the compensation our clients deserve, and provide personalized guidance to ensure their recovery and well-being.

To have the settlement offer properly reviewed, find a good lawyer near you that possesses specialized knowledge and experience in neurolaw and handling cases related to traumatic brain injuries. Just as a person with a traumatic brain injury requires treatment from a specialist, they also need representation from a traumatic head injury lawyer who is an expert in this field.

During consultations with a traumatic head injury lawyer, it is important to inquire about their experience in handling such cases, their publications or lectures related to traumatic brain injury, and most importantly, their understanding of the unique challenges faced by victims of traumatic brain injuries. Additionally, it is advisable to review the qualifications of the traumatic brain injury lawyer, including whether they are board certified by the state bar or Supreme Court, or by the National Board of Trial Advocacy. It is also worthwhile to check if the traumatic head injury lawyer is listed in the National Directory of the Brain Injury Rehabilitation Services and the American Bar Association. Lastly, always make sure that the attorney handles cases on a contingency basis prior to the attorney-client relationship.