Traumatic brain injury (TBI) is an acquired injury that can have a profound impact on an individual and their loved ones. After a TBI is experienced, life is forever altered due to the nature of the injury. While head injured people can recover, the reality is things are never exactly the same as they were before the TBI occurred.
TBI can result in significant injury, even if symptoms may not be physically obvious. One of the challenges many parents may find frustrating when their child sustains a TBI is showing the problems that result from the injury. Brain injury can result in a multitude of injuries, that extend beyond physically visible indicators. Problematic issues such as cognitive, behavioral and emotional problems are often commonly associated with TBI, and these issues can be much harder to demonstrate.
Much like no two traumatic brain injuries are identical, no two TBI legal cases are the same. Each case will have to be tailored to illustrate the unique nature of a TBI injury and be approached in a fashion that will demonstrate the distinctiveness of that injury. However, while details may be distinctive, there are standard steps typically followed when filing a traumatic brain injury lawsuit involving a child.
• Selecting an attorney
The first step to filing a traumatic brain injury lawsuit involving a child is to contact an attorney. As a child cannot file a lawsuit on their own behalf, the lawsuit is filed by a guardian ad litem, which is a person of legal age who can stand in to oversee the best interests of a child.
Frequently a parent serves this role; however, if the injuries are severe and the parent(s) are focused on the immediate concerns relating to the health, well-being, and perhaps even survival, of their child post-injury, another family member or person can do this on their behalf. It is not uncommon for TBI injuries to result in significant time spent in trauma facilities, ICU, and the rehabilitation environment post-accident or injury.
The attorney chosen to handle the case is critical, ideally parents, or the guardian ad litem, will want to find a lawyer who specializes in brain injuries because this can make a significant difference in the outcome of the case. An attorney who does not truly understand the nature of head injuries and/or has no specialization in this area may not be equipped to effectively handle the case.
• Contact insurers
According to legal advice website, FreeAdvice.com, once a lawyer is hired to represent the child’s case, the attorney will then contact the insurer of the person/entity responsible for injuring the child. Frequently insurers will deny the claim, refuse to pay injury compensation and then the lawsuit is formally filed.
• Proving negligence
Proving negligence is a critical part of any TBI lawsuit and this is one of the reasons why it is so vital to choose an experience TBI attorney. In order to prove negligence, there has to be a solid claim that can demonstrate where the defendant was responsible for the head injury. In some instances, depending upon the nature of the accident, this can be difficult to prove.
Legal website Nolo.com states “Understanding the legal basis of your claim will also help you gather all evidence that’s relevant to your case.” This is vital as choosing the wrong basis for negligence can result in a lost case.
• Discovery
Much like other injury cases, once the lawsuit has formally been initiated, discovery begins. This encompasses both sides of the lawsuit collecting information. Information that will need to be presented is medical and financial records, and it is not uncommon for in-person interview depositions to taken on both sides; attorneys are present during these questioning sessions. This can be traumatic for parents who are dealing with the aftermath of their child’s injury, but it is a necessary step. If a supportive family member or friend can be on hand for moral support, this can be helpful for the parent. A court reporter officially records the information written and spoken during this stage and becomes a part of the lawsuit’s record.
• Examination
The child is then examined by medical professionals in a process called the Independent Medical Examination; how this works is a doctor, chosen by the opposing side, will review the information and examine the child. It is common for video footage to be taken during this step, and if an out-of-court settlement is going to occur, this is the probable time. If the party charged with responsibility does not agree to settle, the TBI case will go to trial.
In many instances, there is liability when filing a TBI lawsuit. However, how you approach is critical. It is essential to hire an attorney who knows what they are doing and understands the nature of TBI. Understandably, this is a difficult time for parents, and in many instances, the last thing parents may be thinking of is lawsuits. However, this is where a trusted person can step in to support. In cases where liability is present, timeliness of filing a case is important as statute of limitations can expire and then a case cannot be initiated.