How are TBI Settlements Calculated?

Documenting the Full Cost of a Brain Injury

Before any calculation can begin, a legal team must establish the full scope of the harm the TBI caused. This is a meticulous process of gathering and organizing evidence to create a comprehensive picture of your losses, both financial and personal. 

A traumatic brain injury is not a broken bone that heals on a predictable schedule; it is a complex condition with lifelong implications that must be fully documented.

This process involves a deep dive into every aspect of your life before and after the injury. It is about telling a complete story, supported by facts, of what was taken from you. 

A personal injury attorney accomplishes this by collecting medical records, interviewing family and friends, and working with a team of professionals to build an unshakeable foundation for your claim.

Calculating economic damages

The most straightforward part of a settlement calculation involves adding up the tangible, verifiable financial losses you have suffered due to the brain injury. Lawyers call these economic damages. The goal is to account for every dollar you have lost or will have to spend because of another party's negligence.

Past and future medical expenses

This calculation starts with collecting all current medical bills. This includes everything from the initial ambulance ride and emergency room treatment to hospital stays, surgeries, and rehabilitation costs. 

However, for a TBI, the future medical needs are often far greater than the initial expenses. A settlement must project these costs over your lifetime. A legal team works with medical and financial professionals to accurately forecast the expenses you will face for the rest of your life. 

This detailed projection is a fundamental part of a TBI settlement.

Some of these future medical needs may include:

• Ongoing physical, occupational, and speech therapy.
• In home nursing care or assistance with daily activities.
• Prescription medications to manage symptoms like seizures or mood disorders.
• Future surgeries or medical procedures.
• Psychological counseling and cognitive rehabilitation therapy.
• Specialized equipment like wheelchairs or home modifications for accessibility.

Working with professionals to create a detailed life care plan, your attorney can present a clear, evidence-based projection of your future medical costs to the insurance company.

Lost wages and diminished earning capacity

A TBI can significantly affect your ability to work. The calculation for lost income includes the wages you have already lost while recovering. More importantly, it must address your "diminished earning capacity." 

This is the difference between what you would have earned over your lifetime without the injury and what you are capable of earning now.

To prove this loss, an attorney often retains a vocational expert. This professional assesses your physical and cognitive limitations and determines what kind of work, if any, you can perform. 

Then, an economist takes that information, along with your work history and education, to project your total lifetime economic loss. This provides a concrete, data driven figure to present during settlement negotiations.

Valuing non-economic damages

While financial losses are straightforward to add up, the most devastating impacts of a TBI are often personal. These intangible losses are called non-economic damages. 

Placing a dollar value on this human suffering is one of the most challenging parts of a settlement negotiation, and it requires a compelling presentation of how your life has been altered.

Pain and suffering

This category compensates you for the physical pain, discomfort, and mental anguish the TBI and related injuries caused. It includes the pain from the initial trauma as well as ongoing issues like chronic headaches, dizziness, and other neurological symptoms. 

To demonstrate this, a lawyer may use your medical records and even testimony from you and your family about your daily struggles with pain.

Loss of enjoyment of life

A TBI can rob you of the ability to participate in activities that once brought you joy and fulfillment. This is a distinct and significant loss. An attorney works to show, in specific detail, what you have lost.

A brain injury can take away the simple pleasures and meaningful activities that make up a life. 

A lawyer clearly communicates these losses to show the full impact of the injury.

Examples of a loss of enjoyment of life can include:

• The inability to play with your children or grandchildren.
• Losing the ability to engage in hobbies like sports, reading, or music.
• Difficulty maintaining friendships and social relationships.
• Losing the capacity for intimacy with a spouse.

Detailing these specific losses through testimony from friends and family, a lawyer can argue for compensation that reflects the profound decrease in your quality of life.

Loss of consortium for family members

In New York, the spouse of an injured person may also file a claim for "loss of consortium." This compensates the uninjured spouse for the loss of companionship, affection, and services that their partner can no longer provide because of the TBI.