Calculating Pain & Suffering in Traumatic Brain Injury Claims

A traumatic brain injury (TBI) is a type of injury that happens when an outside force causes brain damage. TBIs can result from a variety of traumatic events, including slip and falls, sports injuries, and car accidents. TBIs can be mild or severe, and the symptoms and long-term effects can also vary greatly.

There are two main categories of traumatic brain injuries:

• Closed head injury (CHI): A CHI occurs when the head suddenly and violently strikes or is struck by an object, but the object does not break through the skull. Common causes of closed head injuries include falls, motor vehicle accidents, and sports-related incidents.
• Penetrating head injury: A penetrating head injury occurs when an object penetrates the skull and brain tissue. Penetrating head injuries usually result from incidents such as shootings, stabbings, or other forms of violence.

Damages in a traumatic brain injury claim

TBIs can lead to various damages, both economic and non-economic, that impact the affected individual and their loved ones. The specific damages associated with traumatic brain injuries vary based on the severity of the injury and the individual circumstances of each case. Here are some common damages associated with traumatic brain injuries:

• Medical expenses: Costs of emergency medical care, hospitalization, surgical procedures, rehabilitation and physical therapy, medication, assistive devices and medical equipment.
• Long-term care costs: Expenses for ongoing medical care, including monitoring and management of complications, costs associated with long-term care facilities (if needed).
• Lost earnings and future earning capacity: Compensation for wages lost during recovery, future earning capacity lost due to the long-term effects of the TBI, and vocational rehabilitation expenses to help the individual return to work.
• Pain and suffering: Compensation for physical and emotional pain resulting from the injury, emotional distress, anxiety, and depression caused by the TBI, loss of enjoyment of life.
• Loss of consortium: Damages for the impact of the TBI on relationships, including loss of companionship, support, and intimacy.
• Home modifications and assistive devices: Costs associated with modifying a home to accommodate a TBI victim’s new needs, expenses for assistive devices such as wheelchairs, ramps, or home healthcare equipment.
• Property damage: Compensation for damage to personal property, such as a vehicle.
• Legal and administrative expenses: Costs related to hiring an attorney and pursuing a personal injury claim, administrative expenses associated with filing a lawsuit.
• Punitive damages: If the TBI resulted from willful misconduct or gross negligence, punitive damages may be awarded to punish the responsible party and deter similar behavior.

The damages awarded in a traumatic brain injury case will typically depend on the specific facts of the case, California law, and legal representation.

How are damages for pain and suffering calculated in a TBI claim?

Calculating pain and suffering in traumatic brain injury (TBI) claims is a complex process that involves various factors. Pain and suffering refers to the physical and emotional anguish an individual experiences due to an injury. Because traumatic brain injuries can have long-lasting and profound effects on an individual’s life, calculating pain and suffering is an extremely complex process. Here are some factors commonly considered:

• The severity of the injury: The severity of the traumatic brain injury is a crucial factor. More severe injuries that result in long-term or permanent impairments typically lead to higher awards for pain and suffering.
• Medical evidence: The medical evidence supporting the extent of the injury, treatment received, and prognosis plays a significant role. This includes medical records, diagnostic imaging, and expert opinions from healthcare professionals.
• Impact on daily life: The extent to which the traumatic brain injury impacts the individual’s daily life, including their ability to work, perform daily activities, and enjoy hobbies is considered. The more profound the impact, the higher the potential compensation for pain and suffering.
• Duration of recovery: The length of time it takes for the individual to recover from the traumatic brain injury is a factor. Prolonged recovery periods or permanent impairments may result in higher awards.
• Emotional distress: Emotional distress, such as anxiety, depression, or post-traumatic stress disorder (PTSD), resulting from traumatic brain injury, is often factored into the calculation of pain and suffering.
• Loss of enjoyment of life: If the traumatic brain injury has diminished the individual’s ability to enjoy life or engage in activities they once loved, this may be considered in the calculation.
• Age and life expectancy: The age of the injured party and their life expectancy should also be considered. Younger individuals with longer life expectancies may receive higher awards for pain and suffering due to the potential for a longer duration of impact on their lives.
• Pre-existing conditions: The presence of pre-existing medical conditions may affect the calculation. It is essential to distinguish between the effects of the traumatic brain injury and any pre-existing conditions.
• California law: Laws regarding personal injury claims, including the calculation of pain and suffering, can vary by jurisdiction. Some regions have caps on non-economic damages, while others do not. California generally has no damage caps for pain and suffering in personal injury cases. However, as of January 1, 2023, non-economic damages are limited to $350,000 in non-fatal medical malpractice claims and $500,000 in fatal medical malpractice claims.

In many cases, pain and suffering damages are subjectively determined by a judge or jury who will consider the evidence and use their judgment to determine fair and reasonable compensation.

McNicholas & McNicholas, LLP is a full-service law firm in Los Angeles, California. Our experienced attorneys represent accident victims and families who have suffered brain injuries, traumatic amputations, spinal cord damage, broken bones, burn injuries, and more. We have secured some of California’s largest judgments for our clients, including $2 million for an individual who sustained a traumatic brain injury in an automobile accident. Call us in Los Angeles or fill out our contact form and set up your free initial consultation to discuss your claim and options for recovery.

Every case is unique and fact specific, and this blog does not constitute legal advice. If you would like legal advice based on your claim, consult with a lawyer today.