Average Settlement for a Traumatic Brain Injury

Thursday, February 29, 2024

Average Settlement for a Traumatic Brain Injury

Written by Malman Law, reviewed by Steve J. Malman.

A traumatic brain injury can have devastating effects. Tasks that were once simple may become challenging, and in severe cases, a person may be left in a vegetative state.

One in every 60 people is living with a disability related to a traumatic brain injury (TBI). This means that one in every 60 people may depend on others and will likely require some assistance.

The brain injury attorneys at Malman Law know that a TBI can cause long-term disabilities. To give you a better idea of what a fair settlement may be in your situation, below we discuss the factors that should be considered in a brain injury case.

Is There an Average Settlement Value?

No figure represents a traumatic brain injury’s ‘’average’’ settlement value. Instead, the value of the settlement substantially depends on the circumstances of the case,  including medical expenses, financial loss, and the psychological impact of the injury.

However, an attorney can evaluate the facts of your case to create an estimated value of your traumatic brain injury claim. Based on the assessed value, an attorney can negotiate for a fair settlement value for your injury-related losses.

Mild Traumatic Brain Injury Settlements

It is common to be diagnosed with a mild traumatic brain injury immediately after an accident. Symptoms of traumatic brain injuries might even occur a few days or a few weeks after getting involved in an accident.

Interestingly, most people do not get the connection between getting hurt and their physical symptoms and remembering and thinking issues. While many people sustain mild symptoms such as fatigue or confusion, a mild traumatic brain injury can also trigger severe medical conditions.

A mild traumatic brain injury can develop complications such as:

  • Seizures: It is possible to develop seizures in the early stages of a mild traumatic brain injury. If you develop recurrent seizures, you can be diagnosed with post-traumatic epilepsy.
  • Infections: A mild traumatic brain injury can cause a skull fracture or penetrating wounds, which can tear the protective tissue that surrounds the brain. Consequently, the bacteria can enter the brain and cause an infection. Unfortunately, an infection in the meningitis could spread to the rest of the nervous system if not treated.
  • Headaches: Many people develop frequent headaches after a traumatic brain injury. They usually begin a week after the injury and could persist for several months.
  • Intellectual Problems: Some people who experience a mild traumatic brain injury will experience changes in their thinking skills. The affected victims find it difficult to focus and take longer to process their thoughts. They may also develop cognitive problems that affect their memory, judgment, reasoning, and learning.
  • Behavior Change: A victim of mild traumatic brain injury may experience changes in behavior, such as difficulty with self-control, risky behaviors, and challenges in social situations.
  • Post-Concussion Syndrome: A post-concussive syndrome occurs when symptoms of a mild traumatic syndrome last longer than expected. In most people, symptoms of mild traumatic brain injury occur 7-10 days after an injury and may go away within three months. Unfortunately, they can last for more than a year or more.Symptoms of post-concussive symptoms include:
    • Dizziness
    • Fatigue
    • Headaches
    • Loss of memory or concentration
    • Anxiety
    • Irritability
    • Sleeping too much
    • Blurry vision
    • Light and noise sensitivity
    • A reduced sense of smell and taste— although rare
  • Minimally Conscious State: A minimally conscious state develops when a victim develops severely altered consciousness but with a level of self-awareness and an understanding of the environment. It is often a transition state from a coma or vegetative state into recovery.
  • Emotional Changes: A mild traumatic brain injury can trigger emotional changes such as depression, anxiety, mood swings, anger, insomnia, lack of empathy for others, and irritability.

Insurance Settlement Factors

Most people who file a TBI claim will settle out of court. When negotiating with an insurance company, there will likely be a lot of back-and-forth before both parties reach a settlement agreement.

It is almost impossible to come up with an “average” settlement amount since each brain injury case differs. Insurance companies look at certain factors before calculating a settlement offer, and these can vary widely based on the circumstances of your injury. The settlement factors considered are:

Fault and insurance coverage

If there is a question of who was at fault, then the insurance company may be unwilling to pay out as much as you deserve or anything whatsoever.

For example, if you were in a car accident caused by another driver, the other driver’s insurance would be responsible for paying for your vehicle damage and other accident-related expenses, like your medical bills.

If there was a dispute on who caused the accident, then the other driver’s insurance may be unwilling to pay out the full amount on your claim. In Illinois, if you are found partly liable for an accident, then your claim will be reduced by your degree of fault. For example, if you are found 20% liable for the accident, but you submitted a personal injury claim for $100,000, insurance will only compensate you for $80,000.

In another scenario, while the other driver may be found entirely at fault for the accident, your injuries may exceed policy limits. According to Illinois law, drivers are required to carry minimum liability coverage of $25,000 for injury or death of one person, $50,000 for injury or death of two or more people, and $20,000 for injury to or destruction of another person’s property.

In this case, the insurance company may be unwilling to settle your claim over the limit amount, even if your claim is reasonable. If you believe the insurer is acting in good faith, you may need your attorney to send a policy limit demand letter requesting a settlement demand. You may need to take your case to court if that doesn’t work.

The severity of your injuries

An insurance company will look at what extent your injuries keep you from performing daily tasks and returning to your normal life.

Two people who suffer from a mild concussion may have completely different outcomes. While one person may only experience temporary effects, another may suffer from concentration and memory problems that last for weeks or months, in what is known as post-concussion syndrome.

Long-term care and medical needs

The insurance company should take into consideration any physical, behavioral, or cognitive impairments, and if a physician believes that these impairments may be permanent. This will likely result in a higher settlement offer.

If your TBI causes a permanent disability, there is a significant chance that you will need long-term care. Depending on your condition, you may need outpatient rehabilitation for a period of time after your initial hospital stay. For patients who require care for an extended period, you may be admitted to a skilled nursing facility (SNF).

No matter your needs, the cost of long-term care is expensive. An experienced Chicago brain injury lawyer will be familiar with the costs of different care options and will work with you to determine a fair settlement amount.

Ability to work

A brain injury can keep you from work for an extensive period. If your injury happened while on the job, you should file a workers’ compensation claim.

No matter how your TBI occurred, you will likely be missing time from work, resulting in lost wages. While lost wages are straightforward, if your brain injury requires you to take a lower-paying job, the insurance company will compute your diminished earning capacity.

If someone suffers a severe brain injury, he or she may be unable to work at all. In this case, the insurer will calculate the person’s lost earning capacity. An attorney knows how to make these calculations and will not allow the insurance company to cheat you financially.

Your mental and emotional health

Besides your direct economic losses, a settlement should compensate you for how the brain injury has affected your life. These are known as noneconomic losses and will include how the injury has impacted your mental and emotional health, your relationships with your family and friends, and your general outlook on life.

Compensatory Damages

A TBI survivor will suffer economic and noneconomic losses, known as compensatory damages.

Economic damages reflect the financial losses that a person has endured. Each economic damage is intended to cover the dollar amount of that particular loss.

Examples of economic damages:

  • Lost wages
  • Loss of earning capacity/diminished earning capacity
  • Rehabilitative therapy
  • Long-term care
  • Hospital stays and ambulatory services

In contrast, noneconomic damages are losses that do not have a financial component. Noneconomic damages are intangible losses that affect a person’s ability to live a quality life. These may include:

  • Pain and suffering
  • Negligent infliction of emotional distress (NIED)
  • Disfigurement
  • Loss of consortium
  • Loss of society

Noneconomic damages often stem from economic losses. If a person is not working, the individual may feel less valued and become depressed. This loss of self can impact the individual’s emotional and mental well-being, making it difficult to maintain healthy relationships.

Thankfully, Illinois does not have a limit on either economic or noneconomic damages that a person can receive in a personal injury case.

How a Personal Injury Attorney Can Increase Your Settlement Value

Working with a personal injury attorney has several benefits, including enhancing your chances of obtaining compensation and fair settlement for your losses. For instance, an attorney will negotiate for the maximum possible settlement value instead of accepting the first settlement offer tabled by an insurer.

Since the insurer’s goal is to minimize the payout as much as possible, the attorney will apply their knowledge and skill to demonstrate that a victim deserves better.

Here’s how an attorney can increase your settlement value:

Proving Financial Liability

The first step in recovering compensation is proving that the at-fault party is financially responsible for your injuries. The attorney will demonstrate that the insured party acted negligently, which caused the accident and resulted in injuries.

An attorney can demonstrate the following elements of a negligence claim:

  • The at-fault party owed the injured victim a duty of care: For instance, a car driver had to drive carefully to avoid causing harm to others.
  • The at-fault party breached the duty of care: Negligence occurs when an at-fault party fails to adhere to the duty of care, which means taking actions that fall below the expected standards. For instance, a driver who speeds, drives while drunk, or fails to yield to a pedestrian in a zebra crossing.
  • The at-fault party’s breach of duty is the direct cause of the injury: If a person acts negligently but doesn’t cause an injury, they may not be held liable for the injury. An attorney can prove that the defendant’s failure was the direct cause of injury to the plaintiff to be held responsible for the negligence.
  • The victim suffered a loss due to the at-fault party’s negligence: An attorney must prove that you suffered a loss due to the defendant’s actions. An attorney can pursue compensation for various losses, including medical expenses, loss of income, emotional anguish, and reduced quality of life.

Demonstrating the Extent of Your Injuries

Medical expenses comprise a substantial part of a traumatic brain injury claim. However, you must show the extent of your injuries to obtain a fair settlement value for your losses. Without evidence, it may be challenging to ascertain the seriousness of your injury, leading to a lower settlement offer.

An attorney can compile the following pieces of evidence to prove the extent of your injury:

  • Medical records, including doctor’s notes, imaging studies, medical bills, and hospital records
  • Witness testimony
  • Specialist report
  • Expert testimony
  • Police report
  • Incident report

Negotiate With the Insurance Company

An attorney may send a demand letter to the insurance company after determining your losses, including lost wages, medical expenses, and long-term care. An attorney mainly demands a settlement value close to the insurance policy limit.

The insurer will likely table a lower settlement proposal in response to the demand letter. An attorney comes in to negotiate for a value that represents your losses. An attorney can hold their ground if you have a strong case where you can obtain a favorable ruling in court.

The attorney can threaten the insurer with a court action if they refuse to negotiate. The lengthy court process and legal expenses can pressure an insurer to table a higher settlement offer.

Factors that influence the settlement for a Mild Traumatic Brain Injury

Working with an experienced Chicago brain injury attorney can enhance your chances of obtaining a fair settlement for a mild traumatic brain injury. An attorney can compile medical records, including hospital bills, or involve a specialist to prove the extent of your injury.

More importantly, an attorney will advise you to wait until you obtain maximum medical improvement before filing an insurance claim or a lawsuit. An attorney will pursue compensation that covers various injury-related losses such as medical expenses, emotional anguish, loss of income, and pain and suffering.

Here are the factors that influence the amount of compensation for a mild traumatic brain injury:

  • Type of Complication: The value of settlement increases depending on the complication of your traumatic brain injury. You’re likely to obtain a hefty compensation amount if you fell into a lengthy coma compared to someone who developed headaches that eventually disappeared. The substantial compensation caters to the mounting medical bills, lost wages, long-term care, and the psychological loss associated with the injury.
  • Medical Documentation: You will likely obtain a fair settlement value for an adequately documented injury. A victim of a mild traumatic brain injury requires the immediate attention of a healthcare provider who also notes the injury. Healthcare providers apply technologies like magnetic resonance imaging (MRI) to spot hidden issues like blood clots.
  • Length of Medical Treatment: Your attorney may demand a substantial settlement if you spent several months undergoing treatment. A lengthy treatment period means several doctor’s appointments, medical prescriptions, physical therapy, ongoing care, and out-of-pocket expenses.
  • Financial Position of At-fault Party: If the insurance limit is limited, you’re less likely to obtain sufficient compensation for your losses. You may have to look at other options, including insurance coverage, to cover your injury-related losses.

Contact a Chicago Brain Injury Lawyer Today

There is no way to calculate an “average” settlement for a traumatic brain injury. At Malman Law, we will take all measures to win you the settlement that you deserve. Contact us today to schedule a free consultation.

 

Steve Malman

Malman Law’s founder Attorney Steven Malman has over 30 years of experience handling personal injury, nursing home, medical malpractice, truck accidents, car accidents, premises liability, construction, and workers’ compensation cases in Chicago, IL.

Years of experience: +30 years
Illinois Registration Status: Active and authorized to practice law—Last Registered Year: 2023

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