Proving Your Brain Injury Lawsuit

While proving the severity of a brain injury can be challenging, our attorneys focus on these key factors to build a compelling case:

• Evidence of what your life was like before and after your brain injury
• Stories from friends, family, and colleagues on your life before and after a brain injury
• Testimony from medical experts on the severity and nature of your brain injury

Let’s consider the challenges of proving brain injuries and what steps attorneys take to demonstrate the impact the brain injury has had on your life. We’ll also look at why certain types of evidence can be helpful in building a strong and persuasive brain injury lawsuit.

Key Takeaways:

• Brain injury lawsuits can be challenging because the full extent of your injuries is not always visible on the surface
• To prove a brain injury, lawyers will consider your medical history, employment, and education before and after the injury
• In addition, lawyers can prove the severity of your brain injury by speaking with friends, family, and co-workers and getting their assessment of you before and after the injury
• Consulting the right medical experts (e.g., neurologists, cognitive therapists, vestibular therapists, endocrinologists) can add credibility to your records and the stories from your support network

The Challenges of Proving a Brain Injury Lawsuit

How do you prove something is real when it can’t be seen? This may sound like a deep philosophical question, but it’s a question any attorney has faced when representing a brain-injured client. Consider the difference between a broken leg and a concussion. While they have few similarities at all, perhaps the biggest difference is that one is likely to be pretty obvious, and the other is hard to spot.

A person with a broken leg may have a cast or a boot; they may use a scooter or crutches to help them get around. But the signs and symptoms of a head injury can include things like:

• Changes in personality or mood
• Mental fog
• Tinnitus
• Difficulty falling asleep

All of these may wreak havoc on the brain-injured person’s daily life, ability to work, and interpersonal relationships. None, however, is visible to the eye. So how will these symptoms and their impact on daily life be proven to an insurance company or to a jury?

Evidence of Your Life Before and After Brain Injury

When proving a brain injury case, it is vitally important for your attorney to obtain as much information as possible to show your pre-injury status. They will want to gather information to show your capabilities prior to sustaining the injury and objectively quantify your level of function at that time.

Medical History and Records Before and After the Brain Injury

Sit down with your attorney and work together to recall as much history as you can, from birth to present. Create a detailed history of every medical provider that you have seen in your lifetime. This includes not only primary care records, but also records from eye doctors, therapists, dentists, etc.

Your attorney will order your medical records for as far back as possible.

Don’t fail to report any prior loss of consciousness or other head trauma and concussions. The medical literature indicates that repeated mild traumatic brain injuries cause cumulative damage to the brain, which can cause memory loss and learning dysfunction. Your medical history can also help to prove that you did not previously have the symptoms that you are now experiencing.

Additionally, providing a complete medical history ensures that your attorney will not be surprised by anything unexpected that shows up in the records. Surprises are best avoided in litigation.

Employment and Educational Records Before and After the Brain Injury

Your attorney will also want education records, including test scores, from as far back as possible. They are likely to request employment records, not only evidencing wage loss, but also reviews and production documents.

These documents contain helpful information about who you were before suffering a brain injury, and whether there is any black and white documentation on how well you were doing at school or work before the injury, for comparison to your abilities after the injury.

By gathering objective evidence of your pre-brain injury capability and function, your attorney can show the difference in level of function after the brain injury and persuasively argue how the brain injury has impacted your life. Additionally, these documents can help medical and vocational experts provide knowledgeable opinions on causation.

Your Support System Pre-Brain Injury and Post-Brain Injury

To effectively prove a brain injury, your attorney should get to know your pre-injury and post-injury support system. Your attorney needs to talk with your family members, friends, and co-workers who have spent significant time with you before and after the brain injury.

People close to you may have a better understanding of the changes you’ve gone through due to the brain injury. They can recount how the injury has affected your life, your personality, and your behavior.

Your attorney will gather stories from friends and family members regarding specific examples of your behavior in the past and how it has changed since the accident.

• For instance, friends or family members may report that you are more irritable since suffering a brain injury, and even small noises (such as the ticking sound of a turn signal in a vehicle) can trigger you.
• Or perhaps you were very active in the community and regularly volunteered for local charities before the injury, but after the injury, you are no longer capable of doing those things.

These stories about you before and after your injury will paint a picture for the jury of who you were and can help them to become invested in the challenges you now face. Such stories help a jury to empathize and understand the full weight of what you’ve experienced.

The smallest details or examples of how your life has changed due to the brain injury may end up being the most convincing facts and testimony.

The Importance of Medical Experts in Brain Injury Lawsuits

Your attorneys must develop a rich understanding of your injury itself and the best providers available to assist you with your symptoms. The types of medical professionals who may be involved in your care include:

• Neurologists
• Neuro-psychologists
• Physical medicine and rehabilitation specialists
• Otolaryngologists (ENT)
• Neuro-optometrists and neuro-ophthalmologists
• Cognitive therapists
• Speech therapists
• Vision therapists
• Vestibular therapists
• Psychologists
• Endocrinologists

Not all brain injuries will require every specialty, but your attorney should be armed with the knowledge of not only who specifically in those communities is fully capable of understanding brain injuries, but also what kind of specialist may assist you most effectively in healing.

Your attorney will equip key medical providers, those whose expert opinions will be used to help prove your case, with additional tools and information to inform their opinions on diagnosis, causation, apportionment (assignment or allocation of responsibility for your injury), and prognosis (the forecast for your recovery). Such tools might include the police report, relevant prior medical records, relevant post-collision records, and other documents specific to their specialty and their opinions.

Bringing the Full Extent of a Brain Injury Into Clear Focus

Let’s consider how these different elements function together in proving your brain injury.

• By investing the necessary time and effort to know who you were before your injury and who you are now, your brain injury attorney prepares to effectively advocate for you.
• Your brain injury lawyer can help compile the most compelling and persuasive before-and-after stories from your family, friends, and co-workers
• The right medical professionals can lend significant weight to the stories from your support network, demonstrating causation and the impact on your daily life

Your attorney can build a case that brings your brain injury into clear focus for the insurance company that likely prefers not to see it. If the case proceeds to trial, a jury will be presented with enough information to conclude that invisible damage has real-life consequences, including physical and emotional pain and economic loss.

If you need to discuss your brain injury with proven legal professionals, we’re ready to listen. For a free consultation, contact Ogborn Mihm today.