How Are Brain Injury Settlements Determined?

Brain injuries are highly complex. No two are exactly alike. The legal process involved in a brain injury claim is equally complicated. Achieving a fair settlement may take assistance from an experienced Omaha brain injury lawyer. A variety of factors can impact a brain injury settlement value, including the severity of the injury, the impact it has on the victim’s life and the circumstances surrounding the accident. 

What Is Involved in a Settlement Determination?

Understanding the potential value of a brain injury settlement starts with realizing that no “average” case value exists. What one brain injury case settles for is not necessarily indicative of another case. Settlement values can vary widely depending on numerous factors that are unique to the individual. 

Determining factors can include:

• The severity of the brain injury
• The victim’s prognosis for recovery
• The length of the victim’s recovery time
• The cost and extent of necessary medical care
• The impact the brain injury will have on the victim’s life and future
• The victim’s age and overall health
• The number of liable parties
• The amount of insurance coverage available (policy limits)
• Any pre-existing injuries or health conditions
• Any percent of comparative negligence allocated to the victim

In general, victims with traumatic brain injuries that involve permanent or substantial impairment are entitled to greater compensation than those with mild brain injuries. This is because the extent of harm resulting from severe brain injuries is greater than the harm caused by mild to moderate traumatic brain injuries.

Types of Damages Available in a Brain Injury Case

The next step in determining a fair settlement value for a brain injury case is making a list of the victim’s damages or compensable losses suffered. Damages can encompass any type of harm caused by the accident and brain injury. 

The damages that may be involved in a brain injury case include:

• Medical expenses and hospital bills (past and future)
• Ongoing therapy or rehabilitation
• Long-term or permanent disability, including cognitive impairment
• Lost wages and future earning capacity
• Property damage
• Pain, suffering and emotional distress
• Psychological trauma
• Loss of consortium
• Loss of enjoyment of life
• Wrongful death damages, such as funeral costs

The two main categories of damages are economic and noneconomic. Economic damages reimburse specific, measurable financial losses suffered by the victim, while noneconomic damages compensate a victim for subjective and intangible losses.

Calculating Economic Damages From a Brain Injury

Economic damages, also referred to as specific damages, can be objectively quantified. They describe tangible losses, such as a diagnosable physical injury and related medical costs. During a brain injury case in Nebraska, a victim’s economic damages are calculated using concrete evidence, such as bills and receipts. All monetary losses suffered by the victim from the date of the accident to the date that the claim was filed will be included in this calculation.

An economic damage award can also include estimations and projections of future necessary costs associated with a brain injury. If a victim’s prognosis is of long-term or permanent physical or mental impairment, experts can be used to accurately estimate the patient’s future expenses. These may include ongoing medical treatments, nursing care, physical therapy, occupational therapy, medications, medical devices, around-the-clock care and lost earnings.

How Are Pain and Suffering Damages Calculated?

The value of noneconomic damages, or pain and suffering, is more difficult to calculate than economic damages. Noneconomic damages are invisible and do not have an exact dollar amount. They are calculated based on evidence showing how an injury has impacted the victim’s everyday life – such as the amount of physical pain, emotional distress, mental anguish and inconvenience caused by the injury.

In a brain injury case, one of two main methods may be used by a jury to calculate an accurate value for pain and suffering:

• The Multiplier Method: the total amount of economic damages awarded is multiplied by a number between 1.5 and 5. The value of the multiplier chosen will depend on the extent and severity of the victim’s brain injury. The Multiplier Method is the most common equation used, especially in cases involving long-term and permanent injuries.

• The Per Diem Method: a daily value is assigned, typically equivalent to the victim’s average daily wage, and multiplied by the number of days the victim is projected to experience pain and suffering. This method is most commonly used in cases where the victim is expected to make a full recovery within an estimated timeframe.

Note that the courts do not require jurors to use either of these equations or any specific equation at all to calculate noneconomic damages. Ultimately, a jury can assign a value they feel is appropriate based on the evidence and testimony provided. A judge will typically approve a value assigned in pain and suffering damages by a jury unless it is deemed unreasonable or exceeds an applicable damage cap.

Tips for Maximizing Your Brain Injury Settlement

It is a mistake to believe you have no control over the value of your brain injury settlement as a claimant. You have more power than you think – especially if you seek legal advocacy from a skilled brain injury attorney. The steps you take after your accident and how you handle negotiations with an insurance company can affect the overall value of your case. 

While every case and client is unique, below are some general things not to do during a brain injury case in Nebraska:

• Don’t stay quiet – tell someone about your accident right away.
• Don’t wait to seek medical care.
• Don’t admit fault for the accident or injury.
• Don’t leave the scene without documenting it by taking photos.
• Don’t post about your accident or injury on social media.
• Don’t trust insurance claims adjusters.
• Don’t give a recorded statement to the insurance company.
• Don’t sign anything sent to you by the insurer.
• Don’t rush to accept a fast insurance settlement.
• Don’t accept the first settlement offer.
• Don’t settle your case until you’ve spoken to a brain injury attorney.

The most important thing you can do to improve the value of your settlement as the victim of a brain injury in Nebraska is to consult with a lawyer. A brain injury attorney can carefully review your case to assess its potential value. If you hire a lawyer to represent you during settlement negotiations, he or she can aggressively advocate for your rights and best interests. Your lawyer will fight for maximum financial compensation on your behalf. For more information about how brain injury settlements are determined in Nebraska, request a free consultation at Knowles Law Firm.