Fighting the Insurance Company After a TBI

March 16, 2024 | Ed Bernstein
Fighting the Insurance Company After a TBI

When motor vehicle operators, premises owners, and others behave negligently, serious accidents and injuries, including traumatic brain injuries (TBIs), may occur. When dealing with insurance companies as part of a personal injury claim or lawsuit, adjusters are often difficult and attempt to undervalue claims.

Because TBIs are complex injuries, insurance adjusters often misunderstand and underestimate them. Obtaining the compensation you deserve from liable parties regularly requires a fight.

The good news is that a knowledgeable and aggressive traumatic brain injury attorney can fight for your legal rights and interests to pursue the full monetary compensation you deserve for your TBI and its consequences.

Specifically, your lawyer may pursue a favorable settlement offer from the insurance company, file a lawsuit, and litigate your case in the court system.

Below is some information about why you must file insurance claims and why it might be an uphill battle to seek the compensation you deserve. The process is easier with the right legal representation.


How Do TBIs Frequently Occur?

Traumatic Brain Injury

Negligence on the part of someone else can lead to traumatic brain injuries, causing devastating consequences for the victim. When individuals fail to exercise reasonable care or disregard safety measures, they put others at risk, and the repercussions can be severe.

One common scenario involves motor vehicle accidents where a driver's negligence, such as speeding, distracted driving, or driving under the influence, can result in a TBI.

In a collision, the sudden impact can jolt the brain within the skull, causing it to hit the hard interior surfaces. This forceful movement can lead to bruising, bleeding, or tearing of brain tissues.

Occupants of the vehicle may experience rapid deceleration, exacerbating the risk of traumatic brain injuries. Failure to wear seat belts or utilize appropriate safety restraints can magnify the impact, increasing the likelihood of head injuries.

Beyond traffic incidents, negligence in various settings can contribute to TBIs.

Slip-and-fall accidents are a notable example. Property owners must maintain safe premises, and if they neglect this responsibility by allowing hazardous conditions like wet floors, uneven surfaces, or inadequate lighting, individuals may suffer severe falls leading to head trauma.

Similarly, in workplaces, employers must prioritize safety protocols to prevent accidents. Neglecting to provide proper training and safety equipment or maintaining a hazard-free environment can expose employees to unnecessary risks. Industrial settings, construction sites, or even office spaces may become scenes of TBI-inducing incidents due to someone else's negligence.

Medical malpractice is another avenue where negligence can result in TBIs. Surgical errors, misdiagnoses, or failure to follow proper medical procedures can have catastrophic consequences for patients.

For example, an oversight in administering anesthesia or a lack of attention during childbirth can lead to oxygen deprivation, causing significant harm to the brain.

The consequences of a TBI resulting from someone else's negligence extend far beyond the initial incident. Victims may face long-term cognitive, emotional, and physical challenges, affecting their quality of life.

Holding negligent parties accountable through legal means becomes essential in seeking compensation for medical expenses and rehabilitation and addressing the profound consequences of these injuries.

Complications From a TBI

When a traumatic brain injury occurs as a result of someone else's negligence, the ensuing medical complications can require extensive treatments. The immediate aftermath often involves emergency medical interventions to stabilize the patient. Head injuries can lead to bleeding, swelling, or bruising of the brain, requiring prompt attention to mitigate further damage.

Upon admission to the hospital, the victim might undergo diagnostic tests such as CT scans or MRIs to assess the extent of the TBI. Depending on the severity, medical professionals may opt for surgical intervention to address intracranial bleeding or to alleviate pressure on the brain. This proactive approach prevents additional complications that can exacerbate the initial injury.

Following the acute phase, the recovery process entails a multidisciplinary approach involving neurologists, physical therapists, occupational therapists, and speech-language pathologists.

Physical complications stemming from a TBI can include motor impairments, coordination difficulties, and muscle weakness. Physical therapy aims to improve mobility, strength, and overall functional independence, tailored to the specific challenges that the injury presents.

Cognitive and emotional complications are also common post-TBI. Memory loss, difficulty concentrating, mood swings, and depression can significantly affect a patient's daily life.

Rehabilitation may involve cognitive therapy to enhance memory and critical thinking skills and counseling to address emotional well-being.

Medication management is often part of the treatment plan for TBIs, particularly to control pain, manage seizures, or address psychiatric symptoms. Rehabilitation facilities play a crucial role in providing a structured environment for individuals recovering from TBIs. These settings facilitate consistent therapeutic interventions and support, optimizing the rehabilitation process.

Long-term complications, such as chronic pain, cognitive impairments, or behavioral changes, may persist, requiring ongoing medical care and adjustments to the treatment plan. Continuous monitoring by healthcare professionals is essential to promptly identify and address emerging issues.

The financial burden of medical care, rehabilitation, and ongoing treatment can be substantial for TBI survivors. Pursuing legal action against the party responsible for the injury becomes crucial in seeking compensation to cover these expenses and secure the necessary resources for a comprehensive recovery.

Advocacy for adequate medical care and support is paramount to improving the quality of life for individuals navigating the challenging aftermath of a TBI that someone else's negligence has caused.

Proving the legal elements of a traumatic brain injury case resulting from someone else's negligence requires a systematic approach backed by compelling evidence.

The foundation of such cases rests on establishing four key elements:

  1. Duty — First, demonstrating a duty of care involves establishing that the responsible party has a legal obligation to act reasonably to prevent harm to others. In motor vehicle accidents, establishing this is often straightforward, as drivers must drive safely and follow traffic laws. Identifying the duty of care may involve examining relevant laws, regulations, or industry standards for other situations, like slip-and-fall incidents or workplace accidents.
  2. Breach of Duty — After establishing a duty of care, the focus shifts to proving a breach of duty. This requires evidence that the responsible party failed to adhere to the standard of care expected in a given situation. Evidence, such as witness testimonies, surveillance footage, or professional opinions, can demonstrate how the negligence occurred and how the responsible party failed to fulfill the duty owed to the victim. 
  3. Causation — Causation is the next critical element. Establishing a direct link between the negligent actions and the traumatic brain injury is essential. Medical records, professional testimony, and forensic evidence play pivotal roles in illustrating that the negligence directly led to the harm the victim suffered. This often involves demonstrating that the TBI might not have occurred "but for" the at-fault party's negligent conduct.
  4. Damages — Finally, establishing damages involves presenting evidence of the actual harm and losses from the TBI. Medical records detailing the extent of injuries, treatment costs, rehabilitation expenses, and potential future medical needs are crucial in quantifying economic damages. In addition, the victim may pursue non-economic damages, such as pain and suffering, emotional distress, and loss of enjoyment of life.

Collecting and presenting this evidence effectively requires legal experience. Attorneys specializing in personal injury cases play a key role in organizing, presenting, and arguing the evidence on behalf of the injured party.

They may collaborate with medical professionals, accident reconstruction specialists, and others to build a compelling case that persuasively establishes each legal element, seeking fair compensation for the victim's losses.

Recovering Monetary Compensation for a TBI

TBI Insurance Claim

An accident victim who sustains a traumatic brain injury due to someone else's negligence may be eligible for various types of monetary compensation to address the extensive repercussions on their life.

These compensatory categories encompass economic and non-economic damages, recognizing the financial and intangible losses the victim has experienced.

Economic damages constitute the tangible, measurable losses resulting from a TBI. Medical expenses are a primary component, covering costs associated with emergency care, hospitalization, surgery, rehabilitation, and ongoing medical treatments.

The victim can seek compensation for past and future medical costs, providing financial relief for the extensive healthcare requirements often associated with TBIs.

Lost income and earning capacity also fall under economic damages. A TBI may lead to temporary or permanent impairment, hindering the victim's ability to work and earn a living.

Compensation can encompass lost income during recovery periods, as well as projected future earnings that the lasting effects of the injury have diminished. This category aims to alleviate the financial strain of the impairment's effects on the victim's ability to maintain gainful employment.

Non-economic damages address the intangible losses resulting from a TBI, seeking to compensate for the pain, suffering, and emotional distress the victim has experienced.

TBIs often lead to profound changes in quality of life, affecting relationships, mental health, and overall well-being. This compensation aims to acknowledge and provide redress for the human toll of the injury, offering financial support for the emotional challenges the victim and their loved ones have faced.

Loss of consortium is another non-economic damage category that acknowledges the consequences of a TBI for the victim's relationships. Spouses or family members may experience a loss of companionship, affection, and support due to the changes in the injured person's physical, cognitive, or emotional functioning.

The accident victim may also seek punitive damages in cases of extreme negligence or intentional misconduct. While less common, these damages serve as a deterrent and punishment for the responsible party, aiming to prevent similar actions in the future.

Securing comprehensive compensation for a TBI requires a thorough understanding of these various categories, often necessitating legal experience.

Attorneys focusing on personal injury cases play a crucial role in advocating for their clients, ensuring that the injured victim receives all appropriate compensation to provide financial support for recovery and the challenges they face after a TBI due to someone else's negligence.

Negotiating With the Insurance Company Versus Litigating a TBI Case in Court 

Deciding whether to fight the insurance company or pursue litigation in a traumatic brain injury case arising from someone else's negligence involves careful consideration of the specific circumstances, evidence, and potential outcomes.

Engaging with the insurance company is often the initial step. This typically involves filing a claim and negotiating with the insurer to obtain compensation for the TBI-related damages.

While this process may seem straightforward, remember to recognize that insurance companies are profit-driven entities whose primary goal is to minimize payouts. Victims may face challenges in receiving fair compensation, as insurers may attempt to undervalue claims or dispute liability.

Fighting the insurance company involves building a compelling case supported by evidence such as medical records, accident reports, witness testimonies, and professional opinions.

Effective negotiation skills are crucial during discussions with insurance adjusters. However, if the insurance company proves uncooperative or offers inadequate compensation, you may need to pursue litigation in court.

Litigating a TBI case entails filing a lawsuit against the negligent party. This legal process involves formal court proceedings, witness depositions, discovery, and potentially a trial.

Opting for litigation empowers the victim to present their case before a judge or jury, allowing for a more transparent evaluation of the evidence. A successful outcome may result in a court-ordered judgment that can compel the responsible party to provide fair compensation.

The decision to fight the insurance company or litigate depends on several factors, including the strength of the evidence, the severity of the TBI, and the willingness of the parties to negotiate in good faith. While insurance claims may offer a faster resolution, they may not always yield the desired outcome, leading victims to explore legal avenues.

On the other hand, litigation provides a formal legal process with the potential for a more substantial compensation award. However, it also involves complexities, time, and legal expenses.

Consult a personal injury lawyer to make an informed decision. An experienced attorney can assess the case's specific details, guide the most suitable course of action, and navigate the legal complexities to maximize the chances of a favorable outcome in the pursuit of justice and fair compensation for the victim of a TBI resulting from someone else's negligence.

Speak With an Experienced TBI Lawyer Today

If you or a person you care about suffered a TBI in an occurrence that resulted from someone else's negligence, an experienced personal injury attorney can help. Your lawyer can review your legal options, file a claim on your behalf, or litigate your case in court to pursue the financial compensation you deserve.


Ed Bernstein

Edward M. Bernstein, Esq. is the owner and founding partner of Edward M. Bernstein & Associates, and one of the most recognizable figures in Nevada. Ed is one of state’s premier personal injury attorneys and has hosted The Ed Bernstein Show for over 31 years. He has served the Las Vegas community for decades with dozens of community appointments and terms of service. In the year 2000, he was Nevada’s Democratic nominee for the United States Senate.

Ed received his B.A. from Long Island University in 1971 and his J.D. from Widener University in 1975. Since then, Ed’s professional accolades include numerous publications, honors and awards, court appointments, and has been named one of America’s Top 100 High Stakes Litigators.