Fencing Response and Seizures | How They Affect Settlement Amounts [2024]

Severe head trauma may not cause immediate external symptoms, as the injury is primarily internal. In some cases, it may not be established that someone has suffered a traumatic brain injury (TBI) until they have received medical attention. However, there are some key indicators that severe head trauma has been inflicted. For example, victims may exhibit the fencing response. The fencing response is a reflex that results in the victim of a traumatic brain injury involuntarily holding one arm out in front of them while flexing the other at the elbow. According to a 2022 study published in BMC Sports Science, Medicine, and Rehabilitation, the fencing response occurs in approximately 47% of all traumatic brain injuries. 

While the fencing response lasts only a few seconds, a seizure may last 30 seconds or more. Seizures and epilepsy (a condition that causes repeated seizures) are also common results of traumatic brain injuries that could indicate extensive damage. For example, seizures that last more than two minutes are more likely to result in a medical emergency and permanent brain damage. A victim who exhibits any of these symptoms should receive immediate medical attention to avoid further injury or death. 

If someone is liable for causing another’s traumatic brain injury, they can and should be held financially responsible. While some traumatic brain injury lawsuits go to court, it is more common for a financial settlement to be negotiated between the legal representatives of the parties involved. TBI victims often prefer to seek monetary compensation to avoid a lengthy and expensive court battle that may or may not rule in their favor. However, victims and their families may be unsure what a fair settlement for their losses should look like. 

Average Settlement for Traumatic Brain Injury

A traumatic brain injury often results in long-lasting cognitive or physical impairment, affecting the lives of victims and their families for months or years to come. As a result, victims have substantial grounds for seeking a large settlement from those responsible for their injuries. Because brain injuries vary so widely, however, financial settlements for traumatic brain injury lawsuits also differ significantly from case to case. 

So, how much compensation should TBI victims expect to receive for their injuries? Unfortunately, there is no one-size-fits-all answer to this question. While every case is different, the average traumatic brain injury settlement hovers around $1 million. However, it is also common to see victims awarded much more than this in cases where there is significant negligence or harmful intent. Even mild or moderate brain injuries that do not leave victims with long-lasting injuries often result in financial settlements of at least $100,000.   

Factors That Influence Personal Injury Settlement Amounts

In order to receive compensation for your injuries, you must be able to prove that another individual or entity is liable. While it can be tricky to determine liability in any personal injury claim, the complexities of traumatic brain injury can complicate the issue even further. Additionally, victims may suffer moderate or severe side effects from their injuries, affecting the overall compensation they are eligible to claim. Differences in personal injury laws from state to state can also affect the average financial settlement amount awarded to brain injury victims. When consulting with your attorney, they will take the following factors into account when estimating the damages you are eligible to claim and the strategy for your case. 

Jury vs. Judge

A personal injury attorney may counsel an individual suffering from a traumatic brain injury to take their case to court for many reasons. By taking a brain injury claim to court, however, victims leave it up to either a judge or jury to determine whether they have grounds for claiming compensation and how much compensation they should be awarded. There are pros and cons of both “bench trials” (where a judge alone rules on the case) and jury trials. The more complex legal jargon involved in your claim, the more likely your attorney will suggest a bench trial. On the other hand, if your case rests primarily on emotional appeals (for example, you are claiming significant pain and suffering damages), opting for a jury trial may work in your favor.

Comparative vs. Contributory Negligence

Each state has its own personal injury laws that dictate how liability is decided in any given case. The first category of liability law is known as “comparative negligence.” In states with comparative negligence laws, TBI victims can seek compensation even if they were partly at fault for their injuries. For example, if someone sustained brain trauma in a car accident after another vehicle turned the wrong way down a one-way highway, they are still eligible to seek compensation even if they were speeding at the time of the accident. However, in states with contributory negligence laws, this same victim would be ineligible to seek compensation due to their own degree of fault in the accident.

Economic Losses

People who are victimized by the negligence of another have the right to seek full compensation for their economic losses. The more severe a traumatic brain injury is, the higher the expected economic losses. For example, victims of TBI may fall into a significant amount of medical debt worsened by a temporary or permanent leave of absence from work. Additionally, the medical treatments, surgical costs, emergency care, and medications necessary to treat such a severe injury can put victims and their families into a substantial amount of debt. The more costs incurred due to a brain injury, the more victims are eligible to claim in their traumatic brain injury claim.

Non-Economic Losses

In addition to their financial losses, TBI victims and their families also have the right to seek fair compensation for non-economic damages (commonly known as pain and suffering damages). Traumatic brain injuries can affect our mobility, cognition, memory, and quality of life. Family members of TBI victims may suffer their own emotional trauma, especially if they become the primary caretaker of the victim or if their loved one’s injury results in death. While economic losses are often the first type of damage we think of, the reality is that non-economic losses are the ones that cause long-term suffering and should, therefore, be compensated accordingly. Of course, while no amount of money can make up for all that TBI victims suffer, this compensation can go a long way towards helping them adjust to their new life while acknowledging the pain they have already suffered.   

Avenues To Recover Compensation

Victims of traumatic brain injury deserve to be fairly compensated for their injuries. The best way to ensure you receive a fair settlement for your injury claim is to hire a legal representative to protect your best interests during settlement negotiations. If you are searching for an experienced personal injury attorney to represent your traumatic brain injury claim, Expertise.com offers a thorough database of qualified legal professionals in all major metros of the United States. Once you find a personal injury attorney you think is a good fit for your TBI claim, schedule an initial consultation to review your case. 

Building a Case

The stronger your personal injury case, the more likely you are to receive full compensation for your economic and non-economic losses. Personal injury law is a complex legal field that takes professionals years to fully master. For victims to receive any compensation, the defendant’s liability must be proven without a doubt. An experienced brain injury attorney has the time, resources, and knowledge necessary to gather sufficient evidence of the defendant’s liability as well as documentation reflecting the full extent of your losses.  

Filing Lawsuit

It is important that your brain injury claim is accurately filed in a timely manner to ensure that you take full advantage of your legal rights (i.e., before the statute of limitations for personal injury claims in your state). During the aftermath of a severe brain injury, the last thing victims and their families want to worry about are the bureaucratic details involved in filing a personal injury claim. Hiring an injury attorney will take the burden of filing your lawsuit off your shoulders so that you can focus on recovering from your traumatic injury. 

Negotiating a Settlement

Most importantly, it is important to recognize that the defendant's legal representatives will do everything in their power to reduce the total compensation their client is required to pay. It is the job they have been hired to do. Without an equally experienced attorney to present your best interests, it is unlikely that the defendant and their representation will offer you the extent of the compensation you deserve. Finding a personal injury attorney with experience negotiating financial settlements is the most important step in a TBI victim’s fight for fair compensation.