How To File a Brain Injury Lawsuit [2024]

A traumatic brain injury, also known as a TBI, occurs whenever damage is caused to the brain by sudden trauma, such as a blow to the head. A TBI can be mild and temporary, like a concussion, or more severe and life-altering, like a coma. In extreme cases, TBIs can also be fatal. The CDC estimates that more than 1.5 million Americans sustain traumatic brain injuries each year, leading to around 230,000 people hospitalized due to their injuries and approximately 50,000 people dying from their injuries. Another 80,000-90,000 people are believed to experience the onset of long-term disabilities related to traumatic brain injuries. A TBI can be caused by a number of occurrences, including but not limited to:

• Motor vehicle accidents 

• Slip-and-fall accidents

• Workplace injuries

• Sports-related injuries

• Physical attacks

• Penetrating or non-penetrating (blunt) trauma

The most common causes of TBIs are falls, firearm-related injuries or deaths, assaults, and motor vehicle crashes. TBIs affect people of all ages and ethnicities, though some demographics have been found to be more impacted by brain injuries than others. 

If you or a loved one have suffered a TBI, the effects of that injury could be far-reaching and long-lasting. When faced with how to pay for a future lifetime of costly medical expenses, you may wonder how to file a brain injury lawsuit to seek compensation for your injury. The information below will help you get started. 

How Long Do I Have to File a Brain Injury Lawsuit?

The legal window of time for filing any lawsuit, also known as the statute of limitations, differs from state to state. Typically, the standard statute of limitations for a civil trial is between two and three years, and the countdown clock starts whenever the injury occurred or was first discovered. There may be exceptions to these timelines, however. 

For example, if a child is filing a lawsuit on their own behalf, the countdown for the statute of limitations would begin on their 18th birthday rather than on the date the injury was discovered. 

The circumstances surrounding the injury may also affect the timeframe. For example, if a person passes away several years after their brain injury occurred, the statute of limitations on filing a wrongful death lawsuit might be extended. Because the laws differ from state to state and can be impacted by minute details of a case, it’s important to consult a knowledgeable attorney before filing a lawsuit.

How To Start a Brain Injury Lawsuit

Depending on the circumstances of your case and the state where the brain injury occurred, the steps to file a lawsuit may vary slightly. As a general rule, however, you’ll want to use the following guidelines. 

1: Find a Qualified Attorney

In the case of a brain injury lawsuit, you’ll be looking for a qualified personal injury attorney. Consulting with a lawyer before committing to them is relatively standard. Some lawyers offer free consultations for new clients, but this is not a guarantee. Ask up front whether or not they have a consultation fee. 

Once you’ve selected the attorney best suited to your needs, you will likely enter into a formal contract with them. This may involve paying a retainer fee to lock down their services. Be sure to ask them directly about what their fee structure is. Do they work on contingency? Or do they charge a flat rate? Make sure you understand how your lawyer plans to bill you and what, if anything, you will need to pay upfront. 

2: Gather Evidence

To receive compensation for your injury, you’ll need to be able to prove that another party was responsible for your injury. Brain injury lawsuits are typically based on the idea that the party at fault is guilty of negligence. Negligence is a failure to use reasonable care, resulting in damage or injury to another. Proving negligence requires demonstrating that the following four elements have been met:

• Duty of care: The defendant was legally responsible for acting with reasonable care toward the plaintiff. 

• Breach of duty: The defendant breached that duty and thus failed to protect the plaintiff. 

• Causation: The defendant’s negligence was responsible for causing the plaintiff’s injury. 

• Damages: The plaintiff incurred one or more legitimate types of damage as a result of the defendant’s negligence. 

Work with your attorney to form an outline of what exactly happened. Were there witnesses to your TBI? If so, you’ll want them to submit written testimonies, called affidavits, of what they saw, heard, or participated in. You’ll also want to gather any related medical records and bills. 

3: Send a Demand Letter

In many states, you will be required to send a written demand letter to whomever you are suing. The letter is intended to make them aware of the impending lawsuit. When writing it, explain what injuries were incurred by the defendant(s). State what compensation you are requesting and/or how much you are willing to settle for outside of court. Provide your full contact information. The letter should be mailed via certified mail, with a return receipt requested. Before you send it, be sure to make a copy for your records. Your attorney will likely help you with all of this. 

4: Try to Reach a Settlement

Once the defendant has received your demand letter, they may make one of the following decisions:

• Agree to pay the amount of compensation that you have requested

• Make a counteroffer and begin the negotiation process

• Ignore your demand letter and/or deny the allegations

More often than not, lawsuits will go through mediation or arbitration in hopes of reaching a settlement outside of court. For both parties, this method of dispute resolution tends to be less costly and less time-consuming than a full trial. Agreements reached this way are considered legally binding. 

5: File a Lawsuit

If an agreement cannot be made through mediation and arbitration, your attorney will file all of the necessary paperwork with the appropriate court in the county where the brain injury occurred. They will also attend to any related court fees. Depending on your circumstances, you will either be filing a personal injury or wrongful death lawsuit. In either case, you will become the plaintiff, and the person(s) you are suing will become the defendant(s). Once the court has processed your lawsuit, they will notify the defendant(s).

6: Go Through Discovery

The discovery process is one of the most important steps in any lawsuit. It involves lawyers from both sides gathering as much evidence as possible through the exchange of information, sworn testimonies, witness and expert interviews, depositions, and in-depth research into injury laws. Medical records and bills that have not already been gathered will also be retrieved at this time.

7: Go to Trial

Even after a lawsuit has been filed, a defendant may decide to settle out of court. In the event that no out-of-court settlement can be reached, your case will go to trial. Evidence and testimony from both sides would be presented before a judge and jury, who ultimately decide the verdict. 

How Long Does a Brain Injury Lawsuit Take?

There is no set timeline for lawsuits nor guarantee that a settlement will be quickly reached. Every case has its own unique set of circumstances and may take months or even years to be resolved, depending on the severity and complexity of the charges. 

Will My Brain Injury Lawsuit Go to Court?

While there is always a chance that it may, it is unlikely that your brain injury lawsuit will go to court. The exact percentage is up for debate, but recent statistics suggest that the vast majority of lawsuits, perhaps up to 95 or even 97%, settle outside of court before going to trial.

Resources for Families

Learning how to live your best life in the wake of a TBI is no easy endeavor. Anyone who has suffered a traumatic brain injury may be subject to a lifetime of physical, emotional, and financial challenges. Ongoing medical expenses, cost of care, and medically necessary equipment or housing can become crippling. Filing a lawsuit to seek justice and appropriate compensation to help with these expenses may not be enough to cover a lifetime of unexpected bills. If you need help filing for disability benefits or getting financial guidance, check out some of the links below. 

Financial Guidance

As part of the National Disability Institute, the Financial Resilience Center is an online hub of information that provides guidance about becoming financially resilient during tough times for people with disabilities and chronic health issues.

Planning for the Future

The Arc of the United States is a national organization whose mission is to promote and protect the rights of those with intellectual and developmental disabilities and to actively support their full inclusion and participation within the community throughout their lives. Contact them at 202-534-3700

Help with Disability Case Management and Financial Aid

The Patient Advocate Foundation is a national non-profit organization that provides case management assistance and financial aid to Americans with chronic, life-threatening, and debilitating disabilities. You can call them Monday through Friday, from 8:30 am to 5:00 pm EST, at 1-800-532-5274

Disability and Temporary Disability Benefits

Depending on a number of factors, such as the nature and severity of your brain injury, your age, your financial status, and whether or not you will be able to work in the future, you may be eligible for government-funded disability benefits that can help with finances while you await the results of your lawsuit. 

If you meet the following requirements, you may qualify for SSDI benefits:

• You are unable to work due to a medical condition that is expected to last at least a year or result in death.

• Your disability is not partial or short-term. 

• You meet the Social Security Administration’s definition of disability. 

• You are younger than your full retirement age. 

For SSI benefits, the following requirements must be met:

• For Adults:

  • Are age 65 and older, or blind, or have a disability.

  • Have limited income (wages, pensions, etc.).

  • Have limited resources (the things you own).

  • Are U.S. citizens, nationals of the U.S., and some noncitizens.

  • Reside in one of the 50 states, the District of Columbia, or the Northern Mariana Islands. It does not include Puerto Rico, Guam, or the United States Virgin Islands. Exception: The children of military parent(s) assigned to permanent duty outside the U.S. and certain students temporarily abroad may receive SSI payments outside the U.S.

• For Children:

  • Are under age 18 and have physical or mental condition(s) that very seriously limit their daily activities for a period of 12 months or more or may be expected to result in death

  • Live in a household with limited income (benefits based on need) or resources.

To determine which of these benefits you may qualify for, you can reach the program at 1-800-772-1213 or go to https://ssabest.benefits.gov/benefit-finder/.