Generally, all brain injuries are a variation of a traumatic brain injury (TBI). Within the overarching term of TBI, variables include whether the injury is open or closed, and whether it is mild, moderate, or severe.
The specific type of traumatic brain injury you experience and its effects can have a bearing on how much you might receive in compensation.
Stone Rose Law represents victims of traumatic brain injuries to recover fair compensation for the physical, mental, emotional, and daily life activity consequences of TBI.
In this post, we take a deeper look at the kinds of TBIs that you might suffer from in the aftermath of an event like a motor vehicle accident or a physical assault, the considerations that go into calculating their settlement values, and offer some guidance and examples on how much you might receive in a TBI settlement or personal injury lawsuit.
To learn more about your legal options after receiving a head injury, call Stone Rose Law at (480) 631-3025 or use our contact form to schedule a free consultation.
Just How Much Might You Receive in a TBI Settlement?
We know that when you ask a seemingly simple question, the reply “It depends” can seem unsatisfying.
In the context of a traumatic brain injury, though, we have to keep in mind that because a TBI can range in severity from a mild concussion and a headache all the way up to an open wound that can lead to a wrongful death, the range of possible settlement values can be equally expansive.
So, in general terms, the compensation value of a TBI personal injury claim can range from less than $100,000 up to multiple millions of dollars. Within this range, much depends on the severity of your injury, the strength of the evidence supporting your claim, and how well your personal injury attorney represents your case in settlement negotiations, arbitration, or at trial.
To give you a better idea of how the kind of TBI you experience can affect your compensation, let’s take a closer look at TBI variations and their symptoms.
How Doctors Measure TBI Severity
Most TBIs will be the result of a blow to your head or your head striking an object, with a resulting acceleration and deceleration movement of your brain within your skull. To differentiate mild, moderate, and severe TBI diagnoses, doctors use a variety of widely accepted methods.
One such measurement system is the Glasgow Coma Scale, or GCS.
First responders and emergency medical personnel use the GCS to make an initial assessment of the severity of a TBI on your brain function. The GCS uses three criteria (eye opening, verbal response, and motor response), each having a numerical rating based on increasing severity, with 1 being the most severe (no response) up to a rating of 4, 5, or 6 being the least severe, depending on the specific evaluation criterion.
The table below shows how the GCS ratings work:
|
Rating Level |
Eye Opening | Verbal Response | Motor Response |
| 1 | Eyes do not open | No ability to speak | No response to stimulus |
| 2 | Responds to pain | Able to make sounds, but not to speak | Decerebrate posture (abnormal, involuntary body posture characterized by rigid extension of the arms and legs, with the arms internally rotated and the wrists and fingers flexed, the toes pointed downward, and the head and neck arched backward) |
| 3 | Responds to voices | Able to speak words, but not coherent expressions | Decorticate posture (abnormal, involuntary body posture characterized by the arms being flexed at the elbows and drawn inward toward the chest, with wrists and fingers flexed and hands clenched, while the legs remain extended, internally rotated, and feet plantar flexed) |
| 4 | Spontaneous eye opening | Manages disoriented conversation | Withdraws to pain (flexing the arm toward the body in response to pain, but not reaching above the nipple level) |
| 5 | NA | Can engage in normal conversation | Localizes to pain (raises an arm above the nipple level toward the source of painful stimuli, such as a trapezius pinch or nail bed pressure) |
| 6 | NA | NA | Normal response (patient follows simple verbal commands with specific and intentional responses) |
An overall GCS rating is based on adding the levels for all three criteria. So, the lower the sum, the more severe the TBI is.
Another TBI rating system is the Revised Rancho Los Amigos Scale. This rating system has nine levels, each based on the effectiveness of treatment of a traumatic brain injury. The lower the level rating, the more severe the traumatic brain injury is, even after receiving treatment. This scale is usually used in connection with moderate to severe TBI cases.
Mild TBI
A mild TBI is usually a concussion, with a GCS rating of 13 to 15. Concussions are the most common kind of TBI; depending on the information source, from 70% up to 90% TBIs are mild traumatic brain injuries.
Mild TBI symptoms can include:
- Acute and possibly chronic headaches
- Dizziness and trouble with balance
- Confusion and disorientation
- Memory problems and difficulty concentrating
- Fatigue
- Irritability, anxiety, and depression
- Sensitivity to light or noise
Most people, up to 85% or 95%, will recover fully from a mild TBI within days or weeks, and can return to normal activities within three months. Some, however, can experience persistent “post-concussive syndrome” that can last for months or years.
Moderate TBI
A moderate TBI injury has a GCS rating of 9 to 12. Moderate brain injuries often show up as contusions or bleeding on CT scans or MRI images.
Moderate TBI symptoms include:
- Worsening chronic headaches
- Repeated nausea or vomiting
- Convulsions or seizures
- Trouble waking up
- A sense of apathy
- Dilation of one or both pupils; light sensitivity
- Blurred or double vision
- Dry eyes
- Slurred speech
- Numbness or weakness in the limbs
- Chronic pain in the neck, shoulders, or back
- Coordination difficulty
- Confusion, difficulty focusing sustained attention, and judgment problems
- Restlessness and a sense of agitation
Symptoms of a moderate TBI can be long-lasting, with about one-third of moderate TBI patients still experiencing symptoms five years after their injury. About 60% of people who have suffered a moderate TBI will make a full recovery.
Severe TBI
On the GCS scale, a severe TBI is rated at 8 or less.
Symptoms of severe TBI include:
- Loss of consciousness for more than 24 hours, or prolonged coma
- Inability to awaken from sleep
- Worsening chronic headaches
- Nausea and vomiting
- Seizures and convulsions
- Significant changes in pupil size, with one pupil being larger than the other
- Pupils not responding to changes in light
- Slurred speech
- Weakness or numbness in the limbs
- Increased confusion, restlessness, and a sense of agitation
- Loss of coordination
Although mild and moderate TBI cases are “closed,” a severe TBI can involve an “open” injury from a penetrating injury that breaches the skull. This can result in deep cuts or lacerations to your scalp, as well as herniations of brain tissue or shifts in the location of one or more portions of your brain.
A severe TBI can result in long-term or permanent disabilities. These include cognitive impairments, behavioral changes, and conditions like vegetative state or locked-in syndrome. Severe TBI survivors make a full recovery in about 15-20% of cases.
Factors That Go Into TBI Settlements
Most TBI claims do not go to trial but are settled out of court.
You and your personal injury attorney will usually negotiate with one or more insurance claim adjusters and defense lawyers to reach a fair settlement value for your TBI case.
These negotiations will take into account many of the same considerations that would be considered in a court trial, except that instead of a jury deciding what you should receive, the parties work it out among themselves.
Here are some of the specific factors to include in an insurance settlement for a TBI claim.
How Easy or Hard it is to Prove Liability
The more likely it is that the defendant or defendants would be found liable at trial in a personal injury action, the more likely it is that they, and their insurers, will be likely to want to settle your claim outside of court.
On the other hand, if liability is unclear, then the chance increases that defendants and their insurance carriers will be willing to fight harder in settlement negotiations for reduced payouts or even try to deny all or part of your claim.
In a related sense, personal injury defendants will often attempt to use the doctrine of comparative negligence against you to try to reduce your possible settlement. Under this doctrine, if the defendant can show that you were partially at fault for your traumatic brain injury, then your recovery may be reduced by the same percentage of your established fault.
The Severity of the TBI
This is the most important single factor to consider. The more severe the TBI, the higher the settlement compensation value typically is. If a severe traumatic brain injury results in the wrongful death of an immediate family member, this can significantly increase the potential claim value.
Your Characteristics as a Victim
Factors such as your age, occupation, past medical history, and other considerations can affect your settlement payout.
Direct Damages You May Recover
Direct damages are those that compensate you for tangible out-of-pocket costs, including expected future expenses. Particular direct damage cost examples include:
- Ambulance transportation
- Emergency room visits
- Diagnostic testing
- Inpatient treatment costs, including surgery
- Prescription medications
- Rehabilitation, therapy, and counseling
- Assisted living
- Lost wages and lost future income potential
Possible Noneconomic Damages
Non-economic damages are for intangible factors that, unlike direct damages, do not lend themselves to proof through bills, receipts, wage slips, or other ready means of calculation.
Still, noneconomic damages can comprise a considerable portion of a TBI settlement payout, so they require careful consideration during negotiations.
Examples of non-economic damages in a TBI case are:
- Physical pain and suffering
- Mental anguish
- Loss of enjoyment of life
- Emotional distress
- Loss of consortium
- Loss of companionship
- Loss of guidance
In settlement negotiations, non-economic damages typically factor into the settlement value in one of two ways: as a multiple of the agreed-upon direct damages sum or as a per diem cost.
The multiplier method assigns a multiple of 1 to 5. The more severe the non-economic damages, the higher the multiplier.
For example, in a severe TBI settlement, the multiple might be 3. If your economic damages amount is $100,000, this would add $300,000 to that for a total settlement payout of $400,000.
The per-diem method assigns a daily value to non-economic damages and then estimates the number of days it will take to either fully recover from your TBI or reach the point of maximum medical improvement.
Punitive Damages
Punitive damages are not always available in a TBI settlement.
In Arizona, you may be able to claim punitive damages if you can prove the defendant acted with an “evil hand and evil mind.”
This requires clear and convincing evidence that the defendant intended to injure you, or knew his or her conduct was unsafe and likely to cause you harm, or engaged in conduct so outrageous that it can be assumed that person meant to injure you or consciously disregarded a substantial risk of harm.
The Negotiating Ability of Your Personal Injury Attorney
Negotiating a successful TBI settlement is serious business.
The true value of a severe TBI settlement can be more than $1 million, especially when long-term care and permanent disability are involved. Even a settlement for a mild TBI can reach six figures.
Negotiating a TBI settlement is a detail-oriented, painstaking process that requires careful factual analysis, gathering a solid foundation of supporting evidence, and a thorough understanding of the tactics and techniques that insurance adjusters use to try to minimize or deny personal injury claims.
Your attorney will be instrumental in gathering evidence, getting witness statements, obtaining expert medical witness opinions, and identifying all the possible defendants in your case. At the same time your lawyer is negotiating a settlement, he or she should also be preparing your case for possible trial, including making sure that your claims are filed in court in time to preserve your rights under the appropriate Arizona statute of limitations.
Having an experienced personal injury lawyer to represent you in settlement negotiations maximizes your prospects of receiving fair treatment and the maximum compensation you will need. Given the dollar values that are potentially at stake, negotiating a TBI claim is not something to leave to chance by trying to take on an insurance company on your own.
Have You or a Loved One Suffered a Traumatic Brain Injury in Arizona?
Because of their inherently serious nature and potential long-term complications or permanent effects, traumatic brain injury settlements and trial verdicts can be substantial, with non-economic damages being a large part of your compensation.
This is why at Stone Rose Law, we strongly recommend that you retain a highly experienced Arizona personal injury attorney to represent you. Accepting less in settlement than what you need and deserve can have serious financial consequences for you.
With a Stone Rose Law TBI attorney on your side, you have a stronger opportunity to pursue the full compensation you may be entitled to. To speak with one of our skilled personal injury lawyers, call us at (480) 631-3025 or use our contact form.
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