An alarming percentage of Americans will experience some form of brain injury every year. Brain damage can occur very suddenly, after suffering a blow or other trauma to the head, or gradually after experiencing repetitive “minor” insults to the brain. Brain injury accidents can occur in a variety of ways, but the most common injuries occur while people are participating in various employment activities, sustain serious falls, motor vehicle trauma, and recreational and sporting activities.
Each brain injury is unique, and because of the complexity in diagnosing the injury, expert medical examination and testimony is oftentimes required to obtain adequate monetary compensation for the victim or their family.
The role of the personal injury attorney is to gather and preserve vital evidence needed to pursue a claim on behalf of plaintiffs in need of monetary compensation for the pain and suffering associated with their injury as well as their gradual physical and emotional recovery. Effective representation requires a strong understanding of how brain injuries occur and the lasting effect that these injuries can have on a person’s ability to work and socialize with others. If a case not able to be settled ends up going to trial, the attorney must be able to explain to the jury the functional limitations that the brain injury will place on the survivor’s life so that the injured survivor will be awarded proper compensation.
Brain Injury Case Study( click for details )( click to close )
One serious brain injury case that involved both a jury trial and a settlement involved a 19-year-old college student (April). A little over 15 years ago, April was riding as a passenger in a car being driven by a girlfriend near Jamestown in Tuolumne County. It was raining very heavily and as April and her friend were driving along the two-lane State highway, some water was “pooling” across the roadway. April’s friend continued driving on the highway and was passing through a large “cut” section of the roadway with steep dirt embankments on either side of the road. Due to the improper drainage and poor maintenance procedures by CalTrans/State of California, the large amounts of rain which flowed down the embankments created a heavy channel of water into – and across – the roadway.
As the car in which April was riding hit the water which was encroaching past the fog line and into the traveled lane, the driver lost control of the vehicle. The car swerved into oncoming traffic and was struck by an oncoming pickup truck at high closing speeds.
Although April’s driver-friend escaped injury, April was not as fortunate: she was trapped in the crushed passenger compartment of the car for approximately 45 minutes while emergency personnel tried to extricate her from the vehicle. April was without adequate oxygen for a significant amount of this period of time, resulting in severe “hypoxia” – oxygen deprivation to her brain with resulting neurological dysfunction.
April underwent extensive medical treatment, followed by physical and occupational therapy which involved remarkable efforts by April to maximize her recovery to the fullest extent possible. However, even with her dedicated efforts and the unwavering support of her family and friends, April was left with some residual cognitive limitations which affected her speech and processing; she suffered permanent limitation on one side of her body but was able to walk slowly and with some difficulty.
Jury trial (with Stew Tabak as lead attorney for April) against the State of California was ordered by the judge to be divided into two phases: liability/responsibility for the collision being the first phase, and then the second phase to determine the extent of April’s injuries and legal damages in the event that the jury found that the State was at least partially at fault.
Numerous expert witnesses were called by both sides, including accident reconstructionists, traffic engineers and hydrologists. The State claimed that this was a freak storm which created an amount of rain run-off that had never been recorded – and thus could not have been predicted. In addition, the State was allowed to put on evidence showing that over 49 million vehicles had used that area of the roadway during the 9.5 years preceding this crash – without there having been a single reported accident.
Nonetheless, the jury determined that the State was 60% at fault for the crash (40% fault to April’s friend/driver). Rather than going through the second phase of the trial regarding April’s brain injury, an agreement was reached with the State which included the payment of a multi-million dollar settlement to April, plus payment of her litigation costs as well as payment of her medical liens being claimed for her extensive hospital/physician care and treatment.
April is still working on her recovery and is persevering – and succeeding – with her residual limitations caused by her serious brain injury.
