Traumatic Brain Injury Car Accident Claim: How It Is Built

Traumatic brain injury is graded by severity. Mild injury, usually concussion, involves brief or no loss of consciousness and normal imaging, and most people recover. Moderate injury involves loss of consciousness of minutes to hours, confusion lasting days, and often abnormalities on CT or MRI. Severe injury involves prolonged unconsciousness or coma, structural damage on imaging, and lasting physical, cognitive and behavioral impairment. This page is about moderate and severe injuries; concussion claims have their own considerations.

What makes these claims different is the nature of the loss. A broken leg heals or does not, and its cost is measurable. A brain injury changes who the person is: memory, attention, judgment, emotional control, the ability to plan and to work. The injured person often cannot fully describe their own deficits, which is why the accounts of family members and colleagues, and objective testing, carry the claim.

The costs are lifelong. Rehabilitation, therapy, medication, equipment, home modifications, supervision, assisted living, and lost income over a working lifetime add up to figures that no ordinary auto policy covers. The claim is built to prove those costs with expert evidence, because an insurer will not accept a projection it cannot test.

Imaging comes first. CT and MRI showing bleeding, contusion, diffuse axonal injury or atrophy document structural damage, and in moderate and severe injury they usually show it. Newer imaging techniques are sometimes used to demonstrate injury that conventional scans miss, though their admissibility varies. The hospital record of the initial Glasgow Coma Scale score, the duration of unconsciousness and post-traumatic amnesia, and the course of recovery are the baseline.

Neuropsychological testing is the central evidence of cognitive loss. A neuropsychologist administers a battery of standardized tests over several hours, measuring memory, attention, processing speed, language, executive function and emotional functioning against normative data, with embedded validity measures that detect exaggeration. The resulting report describes the deficits objectively, relates them to the injury, and projects their effect on work and daily life. Insurers respect it because it is quantitative and because their own experts use the same tools.

The treating specialists, a neurologist, a physiatrist, a neuropsychologist and often a psychiatrist, provide opinions on diagnosis, causation, prognosis and permanency. Family members and employers describe the person before and after. Together these establish what was lost; the life care planner and the economists establish what it will cost.

Suppose you were a passenger in a car struck broadside at high speed by a driver who ran a red light. You were unconscious at the scene, spent nine days in intensive care with a brain contusion and subdural bleeding on CT, and three weeks in inpatient rehabilitation. A year later you have returned home but have significant memory and attention deficits on neuropsychological testing, cannot manage your own finances, have had two episodes of impulsive behavior that ended friendships, and have not returned to your work as a project manager.

Medical bills in the first year were $420,000. A life care planner projected the cost of ongoing therapy, medication, periodic neuropsychological reassessment, case management and, in later life, supervised living, at several million dollars over your life expectancy. A vocational expert concluded you could not return to project management and might sustain part-time work in a structured setting; an economist calculated the lost earning capacity from your pre-injury salary over the remaining working years.

The at-fault driver carried $100,000, paid immediately. The claim then turned to every other source: your own and your household's underinsured motorist coverage, the driver's employer because the driver was on a work errand, and an evaluation of the vehicle's side-impact protection. The claim was litigated, because no insurer pays a seven-figure projection without testing the experts. All figures are hypothetical; the structure is typical of a serious brain injury claim.

The injured person usually cannot manage the claim. A family member does, and the steps in the first weeks decide much of what follows.

• Obtain the complete hospital record including the ambulance report, the initial Glasgow Coma Scale score, imaging reports and the rehabilitation discharge summary.
• Keep a daily journal of the injured person's symptoms, behavior, sleep, mood and what they can and cannot do, from the first week; it becomes the record of the change.
• Ask the rehabilitation team for a referral for neuropsychological testing once the acute phase has passed, and again at intervals.
• Collect accounts from the employer, colleagues and friends of the person's abilities and personality before the injury.
• Identify every possible source of coverage in the first week: the at-fault driver's policy, every household auto policy for underinsured motorist coverage, the driver's employer, any product or road-design question.
• Consider a guardianship or power of attorney if the injured person cannot make decisions; it is often needed to pursue the claim and manage the recovery.
• Do not accept any early offer; a brain injury's course is not known for a year or more, and the life care plan cannot be prepared before the picture stabilizes.

No-fault thresholds are met by any moderate or severe brain injury. In Florida, Michigan, New York and New Jersey, personal injury protection pays initial bills, and in Michigan the PIP coverage level chosen on the policy, which can be unlimited or capped, determines whether lifetime care is funded by the injured person's own insurer or must be recovered from the at-fault party. That difference can be millions of dollars and is the first question in a Michigan brain injury claim.

Damage caps on non-economic damages, where they exist, generally have exceptions for catastrophic injury, and severe brain injury usually qualifies, but the cap's wording in the specific state decides it. Comparative negligence applies, and the contributory negligence states, Alabama, Maryland, North Carolina and Virginia, bar recovery for any fault on the injured person's part. Where the injured person cannot give an account of the crash because of the injury, the fault evidence comes from elsewhere.

Deadlines run from the crash: one year in Tennessee and Kentucky, two in Texas, California, Florida and Georgia, three in New York and North Carolina. Some states toll the deadline for a person who is legally incapacitated, but the rule varies and should not be relied on without advice. Claims against government bodies for road or signal defects require notice within months.

A serious brain injury claim is worth more than almost any auto policy, so the search for coverage is the practical heart of the case. The at-fault driver's liability policy is paid first, usually at its limit. Underinsured motorist coverage on the injured person's own policy, and on the policies of household members, is often the largest source, and whether it stacks and how it offsets depends on the state and the policies.

Other defendants are examined: the driver's employer if the driver was working; a bar or host that served an impaired driver; the owner of the vehicle if different from the driver; a vehicle manufacturer if a safety system failed; a government body if the road or signal contributed. Each brings its own coverage and its own rules. Health insurance, Medicare and Medicaid pay treatment in the meantime and hold liens that must be resolved from the recovery.

A structured settlement, which pays the recovery over time rather than as a lump sum, is common in brain injury cases where the injured person cannot manage money, and a special needs trust may be needed to preserve eligibility for public benefits. These are decisions made with the attorney at settlement, and they affect the family for decades.

A brain injury claim is a specialist claim built on expert evidence over a year or more, against insurers who know what it is worth and defend accordingly, with coverage that has to be found from multiple sources. The questions to answer early are what the imaging and hospital record show, who all the responsible parties and policies are, and whether the family has the authority to act for the injured person. Most personal injury attorneys work on contingency, and serious brain injury cases are handled by those with experience in them.

Ask Legal Matters is a free claim-review request service, not a law firm. Requests may be shared with independent attorneys and legal services partners who handle inquiries in your state, and an attorney must evaluate the facts before anyone can say what the claim is worth. If a family member suffered a brain injury in a crash caused by someone else, you can request a free claim review on their behalf.

• Car Accident Claims in the United States: The Complete Guide
• Truck Accident Claims: Liability, Federal Rules and Compensation
• Wrongful Death Claims: Who Can File, Deadlines and Damages
• Airbag Did Not Deploy in a Crash: Can You Sue, and Whom?
• At Fault in a Car Accident? Comparative Negligence Explained
• What Is the Average Car Accident Settlement? What Sets the Value
• Back and Neck Injury Settlement After a Car Accident: Factors
• Bicycle Accident Claim: Hit by a Car While Riding
• Broken Bone Car Accident Settlement: What Drives the Value

Need local rules? Choose your state from the injury law guides hub or read the statute of limitations by state.