A head injury is a traumatic injury to the skull, scalp, or brain. Many head injuries that result in insurance claims or lawsuits involve a traumatic brain injury (TBI). Head injuries—and especially brain injuries—often require costly and extended medical care. A TBI can have profound, life-altering consequences. For these reasons, brain injuries (including concussions) frequently have significant settlement value.
If you or someone you know has suffered a head injury, you might be wondering how the claim is valued. In this article we:
Some head injuries involve brain injuries while others do not. We begin with a brief overview of brain and other head injuries, then we'll talk about how most head injuries happen.
Brain injuries are categorized as mild, moderate, or severe. Even what are considered mild brain injuries can lead to serious consequences. For example, research indicates that repeated mild head injuries can be associated with permanent brain changes, including a condition called chronic traumatic encephalopathy.
The most common type of brain injury is a concussion, which is generally considered mild. It happens when the brain gets jostled so forcefully that it comes in contact with the inside of the skull. Other kinds of head injuries include:
Head injuries happen in many ways, but among the most common are falls, car, motorcycle, and bicycle accidents, domestic violence, and sports injuries.
Falls are one of the leading causes of head injuries, including TBI-related deaths. Falls result in over 800,000 hospitalizations each year, most for head injuries or hip fractures. A particular concern among the elderly, falls caused more than 34,000 deaths in persons 65 and older in 2019.
In 2020, an average of over 110 people died every day in automobile crashes—a total of almost 41,000 fatalities. Motorcycle accidents caused about 5,600 deaths in 2020. Head injuries are common in motorcycle fatalities. More than 130,000 bicyclists are hurt and almost 1,000 die in bicycle accidents each year. Around three out of four bicyclist deaths are caused by head injuries.
Domestic violence, sometimes called "intimate partner violence," often results in brain injuries. We don't know how many brain injuries annually are caused by domestic violence, in part because many domestic assaults go unreported. Shaken baby syndrome and other kinds of child abuse cause brain injuries in infants.
Sports and recreation cause around 10% of all brain injuries in the United States each year. The number is even higher—over 21%—for children and adolescents. Among teens, sports with the highest risk of head injury include football, ice hockey, soccer, lacrosse, and field hockey. Other sports, including ice skating, gymnastics, cycling, skiing, and snowboarding also increase the risk of head injuries.
In a head injury case, as in all personal injury cases, injuries drive case value. Injuries resulting in permanent physical, cognitive, and emotional impairments requiring long-term care will—unsurprisingly—be valued higher than injuries that heal quickly and leave no permanent disability.
Here are several factors to consider.
Open head injuries, including penetrating brain injuries, are among the most severe and life threatening of all. If death results, the victim's survivors might consider a wrongful death lawsuit. Closed head injuries involving skull fractures or intracranial bleeding can be serious and deadly as well.
Brain injuries often produce long-lasting or permanent physical disabilities like paralysis or other movement limitations, sensory impairments, or speaking difficulties. Cognitive and learning difficulties are common, as are permanent, sometimes profound emotional changes. Patients frequently report feelings of anger, frustration, resentment, fear, and hopelessness. Perhaps unsurprisingly, suicide risk is significantly higher in the months after a TBI.
As you might expect, long-term and permanent brain injuries and disabilities will be worth substantially more than those that resolve quickly. But getting fair compensation for lasting injuries isn't a simple matter. Many brain injury patients will need detailed medical and neuropsychological evaluations to determine the extent of future disabilities.
Injuries like pain and suffering, emotional distress, disability and disfigurement, loss of enjoyment of life, and loss of consortium can be some of the most devastating and compelling in a brain injury case. Because these are "intangible" losses, they are difficult to value. We'll talk more about valuing them in "Your Medical Expenses and Damages," below.
The treatment you receive is a function of the injuries you've suffered. Moderate or severe head injuries frequently require surgeries with lengthy hospitalizations. Brain injuries that result in permanent disabilities often involve extended inpatient stays at rehabilitation facilities followed by long-term or lifetime in-home care. Less severe brain injuries can require long-term rehabilitation or therapy.
These treatments can be difficult and both physically and emotionally painful. Recovery from brain injuries is slow and fraught with setbacks. Patients find it hard to cope with the reality that treatment, in many cases, will be a lifelong struggle. Lots of head injury patients need psychiatric care and medications, along with extensive counseling, to deal with post-injury life.
Valuing future medical care in a TBI case is very complicated. Medical professionals will need to create a future care plan, sometimes called a "life care plan." This plan details future medical care as well as the costs of that care. In a case as complicated as a brain injury case with extensive future medical needs, you'll want an experienced attorney to guide you through the process.
Because they play an important role in calculating the damages you can recover, medical expenses are a critical factor in valuing any personal injury claim, including head injury cases. Here's why.
In a typical head injury case, you can recover two kinds of damages. The first is called "economic" (also called "special") damages. Your medical expenses, along with other easily quantifiable losses such as lost income and medical equipment costs, are examples of economic damages. In many head injury cases, your medical expenses will be the single largest item of economic damage.
In addition, you can recover "noneconomic" (also called "general") damages. Noneconomic damages include the "intangible" injuries discussed above, like pain and suffering, emotional distress, and disability and disfigurement. In some cases, insurance adjusters and attorneys will use a multiplier to arrive at an estimate of these losses. Your medical expenses play an important role here, too.
Here's how it works. Your total medical expenses (past and future) are multiplied by the multiplier to arrive at a value for your noneconomic damages. In mild or moderate brain injury cases, the multiplier might be between four and ten times medical expenses, maybe more. For example, if your medical expenses are $25,000 and the multiplier is 6, then your noneconomic damages are $150,000.
In truly catastrophic head injury cases, multipliers and formulas probably won't be involved. In a case with those kinds of significant injuries, calculating your noneconomic damages is too difficult, and the stakes are too high, to leave it to simple, imprecise multipliers and formulas. In a case with any kind of significant head injury, you'll want to be represented by an experienced personal injury attorney who knows how to value all your damages so you can get the best possible result.
Some states have laws that put a limit, or a "cap," on noneconomic damages. Because noneconomic damages often are the largest part of a head injury settlement or jury verdict, damage caps can significantly reduce the value of your case. Check your state law for specifics.
Lost income is part of your economic damages. In many head injury cases, you'll need to calculate both past lost income and future lost income. Figuring past lost income usually is easy. But calculating future lost income—sometimes called "loss of earning capacity"—is more difficult.
You're entitled to compensation for your past lost income, as well as any vacation, sick days, or paid time off you used to cover your time away from work. Get a letter from your employer's payroll office to prove the value of your past lost income.
After even a mild head injury, you might not be able to return to work for some time. If your brain injury is moderate or severe, you could be permanently disabled from returning to work. Or maybe you can go back to work but you can't do the same kind of work you did before you were hurt.
If that's the case, you'll need witnesses—both medical and vocational rehabilitation experts—to prove your inability to work and calculate your future lost earnings or loss of earning capacity. Done correctly, these calculations are technical and complicated. As with any expert testimony, you'll need an experienced attorney to help with these witnesses.
The value of your head injury settlement or verdict is likely to be influenced by several of your personal characteristics.
Your age and your life expectancy will be important in determining future damages, including medical care, loss of earning capacity, and noneconomic damages for things like pain, suffering, and emotional distress. The longer you're expected to live, the greater these damages likely will be.
Your occupation drives your future earning potential. The more money you earn, the higher that potential will be.
These factors will be considered in determining your life expectancy. But if your overall health prior to the accident was poor or you have a long and problematic medical history, an insurance company or jury often will give these things additional weight or consideration.
This shouldn't be a factor but often is. A likable person will generate more sympathy from a jury (if the case goes to trial) than someone who isn't.
In order to hold someone responsible for your injuries and damages, you must prove that person was legally at fault for what happened. In most cases, this will mean showing that the other party was negligent. If you, too, are partly to blame for the accident, in most states your share of the fault will reduce the value of your claim.
For instance, suppose that all of your damages, both economic and noneconomic, total $500,000. If the other party was 100% to blame for what happened, then the value of your case is $500,000. But if you're 20% at fault, then you must reduce the value of your case by $100,000 to arrive at the correct value of $400,000.
Note that in a few states, if you share any fault for the accident, that will destroy your claim entirely. If you're concerned that your own fault might reduce the value of your case, consult with an experienced personal injury attorney.
These examples are provided only for illustrative purposes. You should not view these settlements as indicative of the value of head injury cases in general, or of your case in particular. Keep in mind, too, that big settlements are the ones that tend to get publicized while smaller settlements often go unmentioned.
$125 million settlement for a woman who was crushed by a falling telephone pole, which fell on her head and body. She suffered spinal injuries and a severe head injury and is paralyzed from the chest down.
$10 million settlement for a 51-year-old pedestrian struck by a municipal vehicle. The pedestrian suffered several fractures, including a skull fracture, together with swelling of the brain. He's been confined to a nursing facility since the accident and requires specialized care.
$7 million settlement for a 75-year-old who fell and hit his head after being shot by a police officer with a stun gun. He later suffered a stroke. He's wheelchair dependent and reliant on others for care.
$4 million settlement for a woman who was injured when her car plunged into a sinkhole filled with water. She suffered a TBI, post-concussion syndrome, and sight problems.
$2.75 million settlement for a woman who suffered a TBI in a rollover crash allegedly caused by a state-owned vehicle that made an improper U-turn.
We close with a word of caution. Head injury claims are among the most complicated and difficult of all personal injury cases. Because they tend to be high-dollar claims, insurance companies take them seriously. You'll be dealing with an experienced insurance adjuster and lawyers who know their way around head injury cases.
You have too much at stake to go it alone. If you're thinking about filing an insurance claim or lawsuit after a head injury, your best first step will be to hire an experienced personal injury lawyer.