Imagine a loved one suffering a traumatic brain injury (TBI) following a car accident. While it is a mild TBI, expenses are piling up and there is a chance of long-term care.
Is there a settlement value that you should expect to receive in a TBI or brain injury case?
Your brain is a highly sensitive organ that essentially serves as the command center for your entire body. A result is that brain injury cases often settle at the highest figures among all personal injury claims.1
But with that said, it is hard to provide an average settlement amount for these cases because settlement values can vary significantly. But there are five key factors that influence or determine the amount of settlement:
- the severity of the injury,
- the characteristics of the victim,
- the value of your non-economic damages,
- whether you are awarded punitive damages, and
- the financial position of the at-fault party.
Please note that brain injury victims deserve fair compensation for their injuries.
1. Will the severity of a brain injury affect settlement amounts?
Yes. In general, the value of a brain injury settlement will increase as the nature of the injury grows more severe.
For example, a severe traumatic brain injury will lead to a greater settlement value in comparison to an injury that involves a mild traumatic brain injury or mild concussion.
Serious injuries often involve greater medical expenses, lost earning capacity, and pain and suffering. All of these result in higher settlement values.
Also note that serious injuries often mean that brain injury victims will require extensive therapy and even medical care for the rest of their lives. Again, these will increase settlement values.
2. Will settlement figures vary depending on the characteristics of the victim?
Possibly, yes. The personal characteristics of a victim, such as age and family status, could affect the value of a brain injury settlement.
Example: Joe suffers a severe TBI after slipping and falling on a grocery store’s icy sidewalk. He is 30 years old, married, and has three children. Joe is the primary bread winner for his family. His accident may result in Joe’s inability to return to work, and he may have to learn new skills to take on an alternative job.
Compare this scenario to where David suffers the same injury. But David is 70 years old and retired. He has a spouse but no children. Since he is retired, David does not have to seek new work or other means to provide for his wife.
Joe would likely receive a higher traumatic brain injury settlement even though his injury is the same as David’s. Joe is younger, so his injury will likely have a longer impact on his life. Further, he has a larger family, and he was his family’s main provider. This means his injury will have a larger impact on his financial means and that of his family’s. His personal characteristics will likely result in a higher TBI settlement.
3. How do non-economic damages come into play?
Most brain injury cases will involve two types of compensatory damages. These include:
- economic damages, and
- non-economic damages.
Economic damages refer to all the losses that you can assign a monetary value to (for example, medical expenses/medical costs and property damage).
Non-economic damages refer to those losses that are more difficult to quantify. Examples include:
- pain and suffering,
- loss of enjoyment of life,
- loss of consortium, and
Brain injury settlement values will generally increase for injuries that involve large non-economic damages.
Factors that can impact the amount of these damages include the:
- severity of an injury (including whether an injury leads to a permanent disability),
- victim’s job, education, and lifestyle,
- victim’s family status, and
- length that the injury will affect the victim.
Please note that since non-economic damages are difficult to calculate, you should seek legal advice from a law firm or personal injury attorney when trying to value them.
4. What about punitive damages?
Punitive damages can impact the value of a brain injury lawsuit.
These damages are not awarded in every brain injury case. A judge or jury verdict tends to award them in extreme cases that involve gross negligence or malicious conduct on the part of the at-fault party.
Punitive damages are not meant to compensate the injury victim. Rather, they are awarded to punish the at-fault party.
No matter the reason, though, they will increase the value of a brain injury settlement when awarded.
5. Can the financial position of an at-fault party affect settlement values?
Often times, yes. There are cases where a person may cause someone to suffer a severe brain injury (for example, in a car crash). But the person causing the accident may not have the financial means to fully compensate the victim for all of his/her injuries. Here, the financial position of the party will impact the final settlement amount.
Example: John runs a red light and causes an auto accident with Lisa. As a result of the accident, Lisa suffers a brain injury that involves memory loss and ongoing memory problems.
John is not your “deep pocket” type of party. He works a “9-5” job and carries only the minimum liability insurance that is required by the state.
Even though Lisa may require expensive medical care and medical treatment, John just may not have the financial means to compensate her for all of her losses. If he cannot, Lisa would have to look to other sources to make up the difference (for example, her own insurance coverage).
- See, for example, National Safety Council (NSC) Injury Facts, “Workers’ Compensation Costs.” In reporting on the costliest workers’ compensation claims, by body part, for 2019-2020, the NSC reports that head injuries lead to the costliest workers’ comp claim with an average claim amount of $93,942.
- See, for example, California Civil Jury Instructions (CACI) 3905A – Physical Pain, Mental Suffering, and Emotional Distress (Noneconomic Damage) (2022).