After an accident that causes a brain injury, the victim and their family may file a suit for damages against the at-fault party. Brain injury lawsuits may be settled out of court in structured mediation. If both parties cannot reach a fair agreement, then the case moves to trial.
What is a brain injury?
Simply put, a brain injury is damage to the brain tissue. They occur in a few different ways:
- Traumatic Brain Injury (TBI) from a traumatic impact on the head. The brain hits the skull’s interior, causing swelling, bleeding, and sometimes torn tissue.
- Penetrative brain injury, in which an object penetrates the skull and damages the brain.
- Hypoxic or anoxic brain injury, in which the brain is deprived of oxygen. The longer the brain is oxygen-deprived, the more tissue damage occurs.
- Internal causes, such as a blood clot or tumor.
Each type of injury can have an outside cause, including a tumor or blood clot. So, plaintiffs in a brain injury suit could have any one of these injuries.
Settling a brain injury lawsuit vs. going to trial
Sometimes, the defendant is so obviously to blame for the accident that caused your brain injury that their insurance company offers a settlement up front, potentially limiting the defendant’s exposure to your case. Even if this happens to your family, it’s better to consult with an experienced California traumatic brain injury lawyer before signing a brain injury settlement offer – once you accept a settlement, you give up your right to file a lawsuit.
This isn’t the only time that your brain injury case can settle. The plaintiff and defendant can settle the case anytime between when your brain injury attorney filed the lawsuit for damages and when the trial starts.
However, if the defendant challenges the estimated cost of future medical treatment or the settlement offer in general, the case goes to trial. If you win your case, you receive an award according to the jury’s decision.
Factors that impact your brain injury settlement
The purpose of a brain injury lawsuit is to return the victim to the financial state they were in before the accident and injury occurred. It includes paying for all medical treatment and related costs, from home modifications to accommodate someone with changed abilities, to lifelong care in a memory treatment home.
Several factors affect the amount of your brain injury settlement:
- How severe the injury is
- What your maximum medical improvement (MMI) will be – if you aren’t expected to make a full recovery, your case is worth more
- Whether you will be able to work again
- Whether you are permanently disabled
- If you need to move into a memory care home
Essentially, the more your cost of treatment and aftercare, the higher the settlement should be.
A final factor in your settlement amount is whether a judge assesses punitive damages against the defendant. Punitive damages are a financial judgment on the defendant meant to punish the defendant for their negligent or wrongful conduct, but are rare in a negotiated settlement.
Suppose a trial judge deems the defendant’s actions excessively reckless or negligent. In that case, they award the plaintiff punitive damages as a deterrent to other parties who may be tempted to cut the same corners the defendant did.
Advantages and disadvantages of settling out of court
Trial is unpredictable. That’s usually one of the biggest advantages of a mediated settlement. In mediation, you are in control of the terms of the settlement. If a case goes to trial, you have to live with the jury’s decision – and they could vote for the defendant.
Other advantages of a settlement include:
- Less expensive than a trial, so your legal fees are less
- Time – a trial can take months to prepare
- Privacy, as the terms of the settlement and your identity are usually sealed
Some advantages of a trial you may wish to consider are:
- There’s a good chance you’ll be awarded punitive damages if you win your case
- You receive a better sense of closure
It’s your decision whether to settle or go to trial. As your brain injury lawyers, we provide legal guidance and information so you can evaluate your options.
Don’t accept a brain injury settlement without seeking legal advice
Ernst Law Group is a team of skilled California brain injury lawyers who understand the complexities of treating these injuries – and how much it costs. We work with you to negotiate the maximum settlement for your injury to ensure you have access to the high-quality rehabilitation services you need for recovery. Contact us today at (805) 541-0300 for a free case review.