A head injury may be minor or traumatic -- easily perceived, such as bumps or open wounds, or completely invisible to naked eye. Head injuries also might accompanied by damage to the brain, such as memory loss, cognitive impairments, and emotional and behavioral changes that might significantly impair your standard of living.
If you have sustained a head injury as part of an accident, at some point you will want to consider how much you would be willing to accept to settle your claim with the at-fault party. Resolving your claim by way of a voluntary settlement may be more efficient and beneficial to you (and the defendant) because it saves both parties the time and cost of litigation. Since the injury can be severe, calculating damages for a head injury settlement can be difficult and is dependent on a variety of factors, which we'll examine here.
We've also listed a few recent cases where various types of head injuries were sustained by the plaintiff.
There are two basic types of damages in head injury cases: special damages and general damages.
Special damages (or economic losses) are damages for which money is a comparable substitute for what was lost. This is also known as the "out-of-pocket" loss rule. Special damages can include:
General damages (or non-economic losses) are losses for which money is only a rough substitute. General damages include:
To calculate your damages for a head injury settlement, you should:
1. Calculate special damages. This is easy to do for medical expenses and lost wages, but more difficult for future wages or lost earning capacity. It is a good idea to keep detailed records of your injuries and every doctor or physical therapist visit, as well as all medication that you take as a result of the injury.
2. Calculate general damages. Often, general damages equal 1.5 to 5 times special damages, depending upon the severity of the injury. A minor bump on the head or scrape will not garner nearly as much in pain and suffering damages as a concussion or brain injury. It helps to keep a diary where you can document the effect of your injuries on your everyday life. Make notes of any pain you suffer, like headaches or emotional harm, as well as other head/brain injury symptoms and effects like memory loss, dizziness, fatigue, soft-tissue scarring, etc.
3. Add special and general damages together. The sum of your special and general damages is the total value of your claim.
(See our settlement calculator for an easy way to tally up your damages).
4. Adjust the value to reflect savings. Next, adjust the sum of the special and general damages down based upon the expenses you will not incur, as well as the risks that you will avoid, by not going to trial. The extent to which you will adjust the value of your claim will depend on a number of factors, such as whether or not the other party is clearly at fault.
5. Compare to recent jury verdicts. Finally, supplement your damage analysis with awards or settlements from other head injury cases in your jurisdiction. Almost everyone involved in head injury litigation -- including both plaintiff and defense counsel, as well as the insurance adjuster or representative-- do so, so you should too. To do this, consult databases of past jury verdicts. Usually a combination of a Westlaw or Lexis search, along with some other book or online resource at your local law library will be sufficient.
There are many other factors that can affect the value of your head injury settlement. Other factors to consider: