Learn About Brain Injury Laws Throughout the United States

Traumatic brain injury can drastically affect your life. Find laws that apply to your situation that can help support your injury claim.

Traumatic brain injury (TBI) can be a serious consequence of many different incidents. Motor vehicle accidents, fistfights, slip and fall accidents, and more can cause TBI.

Many brain injury cases are mild and only need a bit of medical treatment. But not all brain injury victims are so lucky. In its most severe cases, TBI can cause brain damage, coma, and death.

TBI is a serious public health issue. For example, look at professional athletics. According to the National Institutes of Health, approximately 1 in 5 professional boxers have suffered chronic traumatic brain injury. In particular, experts say that frequent head injuries may have contributed to Muhammad Ali’s case of Parkinson’s disease.

Professional football players often suffer from chronic TBI. In one high-profile case, San Diego Chargers guard Kris Dielman suffered a concussion and a seizure as a result of a late-game hit. Due to the negative health consequences, Dielman retired only a few months afterward.

It shouldn’t be surprising that lawmakers across the United States are trying to help. Every state has enacted some kind of law to address the problem by preventing TBI and treating it early.

This article will take a look at the various types of injuries. It will also highlight some of the laws that are designed to address the problem. We’ll also look at different types of TBI personal injury claims. Finally, we’ll discuss ways to resolve them in and out of the courtroom.

Types of Traumatic Brain Injury

Doctor discussing X-ray results with a patient

The term “TBI” encompasses a broad range of injuries and conditions. There’s a broad scope of possible injuries that can result from head trauma.

1. Closed-Head Injuries

A closed-head injury is a TBI where the victim suffers a blow to the head that does not break the skull. These injuries are usually not as serious as penetrating injuries. They can still be life-threatening, though. Both Muhammad Ali and Kris Dielman suffered these kinds of injuries and had serious consequences.

Closed-head injuries include the following:

  • Concussion: A concussion is a brain injury resulting from a blow to the head. Concussions can cause loss of consciousness and acute or lasting cognitive impairment.
  • Contusion: A brain contusion happens when there is swelling on the brain. That can cause anything from nausea to more serious cognitive effects like seizures.
  • Hypoxic or anoxic injury: This is an injury that results from reduced oxygen to the brain. In more severe cases, there is a complete lack of oxygen.

A closed-head injury might only be a mild traumatic brain injury. But the mere fact that a person’s skull is intact does not mean that they’re okay. Closed-head injuries are serious and can be debilitating or life-threatening if left untreated.

2. Penetrating Injuries

A penetrating brain injury happens when the skull is broken. You may see this in a victim who is shot or is in a high-speed automobile accident. They are much rarer than closed-head injuries. Penetrating injuries are more serious and often fatal.

Besides the problems caused by closed-head TBIs, penetrating injuries include:

  • Skull fractures: A broken skull is a key feature of penetrating TBIs. They can be caused by a weapon, a fall, impact from an auto accident, or many other factors.
  • Foreign objects in the brain: In some circumstances, a bullet or other object can become lodged in the brain. This may cause cognitive problems or brain damage.
  • Brain lesions: Injuries to brain matter can cause devastating brain damage. Some, like diffuse axonal injury (DAI), can also result from closed-head injuries.

Examples of Brain Injury Laws

Kansas State Capitol Senate Chambers

The problem of TBIs has been addressed by lawmakers all over the United States. Over the past decade, states have passed bills to combat the prevalence of TBIs to keep society safe.

1. Return to Play Laws

The most common laws relate to sports injuries and concussions. According to the Centers for Disease Control and Prevention (CDC), all states have “Return to Play” laws for injured youth athletes.

These laws require that any athletes suspected of sustaining a concussion be removed from play or practice. They must then be cleared by a physician or medical professional before returning.

Return to play laws do not necessarily create new lawsuits. However, they may establish a standard of care for coaches who observe young athletes. This may in turn support a negligence claim against a coach who did not act to protect an athlete.

Why is a Standard of Care important?

Basically, a standard of care is what would be expected from a reasonable person who is responsible for the health or safety of others. For example, a doctor who prescribes penicillin for a patient should try to ascertain that the person is not allergic to that drug before prescribing it. The failure to even ask may violate the standard of care and thus be negligent.

Similarly, a return to play law may establish a new standard of care for coaches, who now need to watch their athletes for signs of TBI. Just like the doctor who failed to ask about allergies, a coach who fails to look for symptoms of TBI may also be found to be negligent.

2. Educational Requirements for Doctors

There are many laws addressing the qualifications and behavior of doctors and other medical professionals assessing potential TBI cases. Ohio, for example, has enacted a law ensuring minimum standards for doctors who assess athletes under the return to play law. The failure to meet these requirements may lead to negligence liability.

3. Police and Public Services Training Laws

Some states, like California, are mandating peace officer training regarding the effects of TBI and PTSD on returning veterans and other members of the public with whom those peace officers may interact. South Carolina’s law also provides advocacy and support to victims of TBI and their family members/caregivers.

Resolving Brain Injury Claims

Lawyer talking to his clients while holding his glasses and a sheet of paper

In the most serious TBI cases, you will have significant damages that may even extend into the millions of dollars. In that case, you will likely have to hire a brain injury lawyer and file a lawsuit in order to recover.

Insurance companies are loath to pay out money in any situation, let alone one where the injured person will need constant medical care for the rest of their life.

But what if your injury, though serious, is not as life-changing? Maybe you had a concussion with some cognitive deficits and memory loss, but you can mostly get back to your pre-accident activities. In this case, it may make more sense to resolve your claim directly with an insurance company or through alternative dispute resolution.

Negotiating a claim with the at-fault party’s insurance company will require a great deal of organization and evidence on your part, usually beginning with a demand letter detailing your healthcare costs and other damages.

You’ll have to do a fair amount of back-and-forth negotiating with the insurance company, which can be time-consuming and intimidating. For this reason, you may prefer to have an experienced attorney handle your brain injury claim.

Another possibility that you can pursue with or without a lawyer is alternative dispute resolution like mediation or arbitration. Mediation is essentially a guided negotiation with a neutral third party, and in arbitration, an agreed-upon person hears and decides your case, much like a private judge.

Both mediation and arbitration can be cheaper and faster than filing a lawsuit. Mediation can be helpful especially if you don’t have a personal injury attorney. The presence of the neutral third party can ease some tension and stress that might be there if you were dealing with the other side directly.

Arbitration, with its host of rules and technicalities, would be best to pursue if you have a lawyer. In either case, it’s wise for you to have a free consultation with an attorney before deciding on an option.

Addressing a Public Health Crisis

TBIs can destroy your livelihood and peace of mind overnight. It’s critical that you get proper medical attention, but do not overlook the fact that you have the right to be made whole after someone causes you to suffer a TBI. If you cannot work or function because of someone else’s negligence or bad behavior, carefully look at your options and consider what to do next.

If you or a loved one has suffered a TBI, take action as soon as possible. Contact a qualified personal injury attorney or law firm in your state for a free consultation and case evaluation.

Matthew Carter, Esq. has been a licensed attorney since 2004. He’s admitted to practice law in California and Nevada, where he was awarded the Martindale.com rating of AV – Preeminent. Matthew has successfully handled a variety of personal injury and wrongful death cases, as well as trials, appeals, and evidentiary hearings throughout state and federal... Read More >>