Determining and Proving Liability in Brain Injury Lawsuits Staff Profile Picture
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Of all injuries, damage or trauma to the brain is the most likely to cause severe injury, disability, and death. Unfortunately, brain injuries are also relatively common. According to recent data collected by the Centers for Disease Control and Prevention, for example, there are approximately 611 hospitalizations and 190 deaths caused every day by traumatic brain injuries. These numbers represent thousands of victims and families whose lives will be forever altered by the long-term effects of severe brain injury.

In some cases, the incident that caused a severe brain injury is determined to be purely accidental. However, if there is clear evidence that another party was liable (i.e., legally responsible) for causing the accident, the victim and their family are entitled to sue those responsible and seek fair compensation for their losses.  

How Your Brain Injury Attorney Proves Liability

In any injury lawsuit, the legal representatives of the plaintiff and defendant will seek to prove whether or not the defendant can be considered legally liable for the plaintiff’s injury. In brain injury lawsuits, however, the question of establishing liability can quickly become complicated due to the complexities surrounding trauma to the brain. While most attorneys seek to establish liability through negligence, there are various strategies for proving liability that a brain injury attorney may consider when constructing their case. 

Use Negligence to Prove Fault

A brain injury attorney's primary objective is to establish negligence as the basis for proving the defendant is liable for the injury sustained by their client. “Negligence” is a term used in personal injury law to describe an individual’s failure to act ethically in accordance with their role. In order for the court to rule that the defendant was negligent, a brain injury attorney must establish that:

  1. The defendant owed the plaintiff a “duty of care.” In other words, the plaintiff was legally obligated to uphold a standard of reasonable care. 

  2. The defendant failed to uphold this “duty of care,” thereby neglecting their ethical and legal responsibility toward the plaintiff.

  3. This negligence directly caused the plaintiff’s brain injury.

There are many different ways that the negligence of an individual, group, or corporation can result in severe brain trauma. Whatever the details of the circumstance, if the above conditions are proven, the defendant is considered legally and financially liable for the consequence of their negligence.

Other Ways to Prove Fault and Liability in Court

While proving the defendant’s negligence is the primary mode of establishing fault and liability in a brain injury case, attorneys may also exercise other strategies. For example, an attorney may seek to establish intentional conduct. “Intentional conduct” refers to accidents caused by an individual’s conscious effort. For example, assault and battery would fall under the umbrella of intentional conduct. If the plaintiff has sustained brain injury as a result of the defendant’s intentional choice to act violently, their attorney may seek this method of proving fault.

Additionally, an attorney may argue that the brain injury case should be governed by the terms of “strict liability.” In a strict liability claim, the defendant’s negligence does not need to be proven for the plaintiff to seek damages. Strict liability is commonly applied in product liability cases (especially in class action lawsuits). If their client’s brain injury was caused by a defective product, an attorney may seek to prove the defendant’s fault by arguing for the strict liability standard of proof.  

Who Is Most Commonly Held Liable for Brain Injuries?

In order to determine the most common parties held liable in brain injury lawsuits, it is helpful to think of the most common causes of brain injuries nationwide. For example, most brain injuries occur due to medical malpractice, automobile collisions, defective products, and slip-and-fall accidents. In all of these examples, it is often immediately clear who was responsible for causing the victim’s brain injury. 

Hospital or Facility

Medical professionals such as doctors, nurses, and surgeons have a duty to exercise the utmost care when treating their patients. Unfortunately, even a minor mistake can result in severe, life-altering injury. For example, improperly administered anesthesia or failure to promptly diagnose a brain injury can result in extensive damage to a patient’s neurological functioning. If a medical provider’s negligence resulted in their patient suffering brain damage, the provider is considered to be legally liable for the injury. When a medical provider causes injury to a patient, the patient may be eligible to file a medical malpractice claim against the provider or their employer.

Driver Responsible for Collision

Automobile accidents are one of the top causes of death and severe injury in the United States every year. These accidents commonly result in severe trauma to the brain and spine, often leaving victims with long-term injuries and necessitating extensive recovery time and medical attention. If the injured person were wholly responsible for the accident that resulted in their brain injury, the other driver would not be considered liable for these injuries. However, if the other driver was wholly or partially responsible (for example, if the driver was speeding or driving while intoxicated), they are considered to be liable for the victim’s injuries.

Defective Product Manufacturers

While most of the products we engage with every day would not seriously injure us if they were to malfunction, there are numerous products whose reliability is essential to ensure the user’s safety. For example, the functionality of automobile parts can play an important role in protecting the brain during a collision. Additionally, the producers of safety gear like helmets or headgear must ensure that their product has been through all necessary safety checks before it is available for purchase by consumers. If a producer or manufacturer is negligent in making a reasonable attempt to ensure consumer safety, they may be considered legally liable for any resulting brain injuries.

Negligent Property Owners

Finally, property owners can be held liable for injuries caused by their own negligence in safely maintaining their properties. For example, uneven or slippery surfaces are a major risk for slip-and-fall accidents resulting in injuries to the brain. If a property’s wet floors, crowded walkways, or uneven stairs resulted in injury to a visitor, customer, or client, they could be held financially liable for their negligence.  

Defendants in a Brain Injury Case

If you have been sued for damages in a brain injury lawsuit, your attorney will need to construct a defense to prove that you should not be held legally or financially liable for the plaintiff’s injury. The following examples demonstrate some of the most common defenses in brain injury lawsuits. However, your attorney will carefully review the details of your specific suit to ensure your case is as strong as possible.

Plaintiff Liability

In some cases, the plaintiff may be genuinely liable for their brain injury. For example, if a person is even partially to blame for the circumstances that caused their accident, the total amount of compensation they can expect to claim is significantly less than if the defendant was entirely at fault. If a defense attorney can prove that all of the fault for the accident lies with the plaintiff and none with their client, the defendant would not be considered financially or legally liable for the plaintiff’s damages.

Plaintiff’s Assumption of Risk

Additionally, an attorney may argue that the plaintiff in a brain injury case was fully aware of the potential risk of brain injury before agreeing to engage in an activity. In this case, the defense would rely on establishing the plaintiff’s assumption of risk. To successfully argue this defense, an attorney must also prove that their client thoroughly explained any potential risks to the plaintiff in advance.

Third Party Liability

Finally, a brain attorney may argue that neither the plaintiff nor the defendant is at fault but another party altogether. As explained above, liability issues in brain injury lawsuits can be highly complicated, and it is not unusual to see brain injury claims with complex questions of fault. An attorney may focus their defense on casting sufficient doubt on their client’s liability by establishing the liability of a third party.  

How To Find the Best Brain Injury Attorney

Whether you are the defendant or plaintiff in a brain injury lawsuit, hiring an experienced attorney who is knowledgeable in the intricacies of brain injury liability is a necessity. conducts a thorough review and selection process to connect you with attorneys with the specialty practice areas you need. To find a qualified brain injury attorney in your area, visit’s extensive database of experienced personal injury attorneys.

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