Traumatic Brain Injuries: How Attorneys Decide the Lifetime Value of a Case

By Emma Ascott, Top Class Actions

What is a traumatic brain injury?

A traumatic brain injury (TBI) is defined as brain dysfunction caused by an outside force, such as impact to the head. People commonly sustain TBIs from falling, firearm-related injuries, motor vehicle crashes, or assault.

TBIs can have both minor and more chronic consequences that lead to permanent disabilities, which can reduce life expectancy. The consequences of a TBI can result in various conditions, such as seizures, sleep disorders, neurodegenerative diseases, and psychiatric problems. Changes caused by a TBI can persist for months or years after the initial injury and can significantly affect a person’s quality of life.

According to the Centers for Disease Control and Prevention, TBIs account for 30% of all injury-related deaths in the United States each year. In 2019, there were approximately 61,000 TBI-related deaths in the U.S., and nearly 5.3 million survivors are now living with permanent disabilities as a result of brain injury.

Any type of trauma to the head or neck can result in a brain injury if it causes the brain to swell, bleed, bruise, or tear. A TBI can impair a person’s cognitive abilities or physical functioning. Many people are not able to fully recover from a TBI – they may have problems moving and regulating their emotions or may experience a change in personality. These effects can cause costly and significant changes to a person’s life.

According to the Brain Injury Law Center, after a traumatic brain injury, pursuing damages through a lawsuit is the most productive way to ensure the best medical attention without draining all personal financial resources.

How do attorneys decide the lifetime value of a traumatic brain injury case?

The compilation of economic damages in a TBI case is a complicated process requiring multiple experts and multiple records.

To make the vitally important decision concerning the value of a TBI in a potential lawsuit, Personal Injury Lawyer Frank Verderame, Plattner Verderame, P.C., said that he first collects all related medical records. He then contacts the doctors who are the primary treating physicians for the patient’s long-term problems related to the brain. Verderame explained that there are experts nationally who interview all doctors involved and price out the cost of the medical care for the cost of treatment needed.

“You combine the testimony of the doctor about the patient’s need with the testimony of the expert about the cost of the care and what it’s going to be over the lifetime. Then, you hire an economist to evaluate the long-term cost of that care,” Verderame told Top Class Actions.

Another aspect to consider is the affected individual’s earning capacity. “There’s a lot of components to it, depending on what they did for a living and what kind of benefits they got from their job, like health insurance, disability insurance, pension, and profit sharing plans – all those things that they lost,” Verderame said.

According to Newsome Melton Law Firm, which specializes in brain and spinal cord injury lawsuits, there are three types of damages from a TBI:

• Loss of Earning Capacity: A vocational expert will testify about how much of the injured party’s expected lifetime earnings will be lost due to the injury.
• Life Care Costs: A life care planner will assess the injured party’s possible future needs and testify about them to the jury. Physical therapy, medications, and help with daily activities need to be considered.
• Pain and Suffering/Loss of Enjoyment of Life: Hedonic damage experts will use economic studies to show that the injured party’s quality of life has been reduced by a certain percentage. An attorney will take these factors into consideration when deciding whether a case is worth pursuing.

Diane Marger Moore, a triple board-certified personal injury attorney at Baum Hedlund Aristei & Goldman, P.C., said that, when deciding the lifetime value of a TBI, objective and subjective testing by a highly competent neuropsychologist will help define the scope and extent of the injury, and newer radiological testing may also be employed. “Once a diagnosis is obtained, the deficits may be identified. Since some brain injuries may resolve, retesting a year later is critical. Thereafter, looking at the life tables, a life care plan may be developed for more severe cases. A forensic economist will help evaluate the financial loss based upon accepted economic principles,” Moore told Top Class Actions.

A life care plan is only a snapshot of what the individual needs in terms of cost, and awarded damages for a TBI can sometimes reach eight figures, according to Michael Kaplen, Professorial Lecturer in Law at The George Washington University Law School and personal injury attorney at De Caro & Kaplen law firm. “The life care plan is two parts,” Kaplen told Top Class Actions. “One part is what they need, and number two is how much those services will cost. Then, we take it a step further because those are just the costs today; they have to give that plan to an economist to predict the costs into the future.”

​​Future loss of earnings isn’t just a calculation of past loss of earnings multiplied by current income loss and number of years; it’s the capacity to earn money in the future, which has been lost. This consideration is dependent on the plaintiff’s age, education, experience, and number of years in the labor force. This can dramatically affect future earning calculations. Consideration must be given to career advancement or inability to advance because of injury and inability to find future employment because of disability. Inflation and fringe benefit losses are also analyzed.

Damages for mild-to-moderate TBIs frequently exceed $100,000. When a person is severely affected and will need lifetime care (e.g., rehabilitation, ongoing caregiving, specialized equipment), it’s not uncommon for the settlement to reach into the millions of dollars. If the vocational, life care planner, and hedonic damage experts have made a good case, a significant amount in damages could be awarded.

An example of possible awarded damages:

• Medical costs: $50,000
• Earnings loss capacity: $740,000
• Lifetime care costs: $350,000
• Life enjoyment: $740,000
• Pain and suffering: $740,000

Total damages: $2,960,000

The economic cost of brain injuries in the U.S. is estimated to be $76.5 billion, including $11.5 billion in direct medical costs and $64.8 billion in indirect costs, such as lost wages, lost productivity and other nonmedical costs.

To receive the deserved compensation for high medical bills, lost wages, and other expenses, hiring an experienced TBI lawyer and pursuing damages is recommended. For more information about lawyers who understand brain injury, visit biausa.org/attorneys.

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This article originally appeared in Volume 15, Issue 3 of THE Challenge! published in 2021.