Should I Accept a Traumatic Brain Injury Settlement?

by Thomas A. Crosley
Crosley Law

A traumatic brain injury (TBI) can radically change the course of your life in an instant. It can lead to memory loss, problems with focus and concentration, loss of ability to work or perform certain tasks, loss of ability to enjoy your favorite activities, and much more—not to mention a pile of medical bills and other expenses.

If you’ve suffered a traumatic brain injury and someone else was responsible, you are likely entitled to compensation for your injury. That means either reaching a fair settlement with an insurance company or fighting for that compensation at trial.

But while most people with TBIs who file a brain injury claim do settle out of court, that doesn’t mean you should take the first (or even second or third) offer the insurance company puts in front of you. Figuring out a fair settlement amount isn’t always straightforward, and settling for a payout that’s far less than what you need to support your needs can lead to significant financial and personal hardship down the road.

In other words, while negotiating a TBI settlement is important, it’s also very risky. Before agreeing to anything, make sure you are confident that the payout will be sufficient.

What Is an Average Settlement for a TBI?

Because TBIs can vary so significantly in terms of their severity—and eventual payout—trying to calculate an average settlement value isn’t especially useful. While most settlements and jury verdicts for mild-to-moderate TBIs start in the low six-figure range, and it’s not unusual for cases to ultimately settle in the millions of dollars.

A few examples from our own practice:

• $329,000 after a car accident caused a concussion and post-concussion syndrome that led to headaches, dizziness, and memory problems. Read more about this case.
• $4.9 million after a trucking accident caused a TBI that led to permanent and severe impairments to memory and communication skills, personality changes, and more. Read more about this case.
• $16 million after a collision with a wrong-way driver caused an initially undetected TBI responsible for severe mood and behavior changes, struggles to complete simple tasks, and loss of ability to work as a master plumber. Read more about this case.

There’s quite a range in possible recoveries. And that means special care needs to be taken before agreeing to any settlement. While $1 million (for example) might seem like an amazing offer, the long-term costs of care for someone with a TBI can be massive and settling for $1 million when your case is actually worth $5 million or more would be a very bad deal for you and your loved ones.

How Are TBI Settlement Values Determined?

Some key components that factor into calculating settlement values include:

• Severity of your injury: Every brain injury is different. Someone with a mild concussion might experience symptoms for a few months, but another person might develop post-concussive syndrome that lasts a lifetime. The more serious your injuries, the higher your settlement might be.
• Your medical and long-term care needs: Because TBIs often produce lifelong impairments, individuals who are younger may get higher settlement amounts. This is because their TBI is likely to affect them over a longer timeframe and will require more follow-up care.
• Your ability to work: You can (and should) demand compensation for your lost income after a brain injury. This can include claims for lost wage-earning capacity if you can return to part-time work or a simpler, more routine job, but lost much of your earning potential due to your injury.
• Pain and suffering: Many TBIs produce symptoms that affect victims in ways not directly tied to costs or wages—like personality changes, social challenges and loss of friendships, inability to perform or enjoy, and hobbies.
• Liability issues: In most states, your ability to recover your damages may be proportionally reduced (or in some states, even eliminated) if you were partially at fault for your accident.
• Gross negligence: If the at-fault party behaved in an especially reckless way or with malicious intent, punitive damages may be added to your settlement or jury verdict as a deterrent.
• Insurance policy limits: No matter how severe your injuries are, you cannot expect to settle for more than the combined coverage limits of the insurance policies that apply to your case. A TBI lawyer can help you identify all the policies that might cover your claim.

Reasons Why Settling Too Soon After a TBI Can Be Risky

Insurance companies often pressure people with TBIs and their loved ones to settle early on. However, this is not always in your best interest. Here are a few specific factors that make settling your TBI personal injury claim too soon a potentially risky proposition:

Brain Injuries Are Hard to Diagnose

Brain injury cases are often complicated. In the early weeks after a car crash or other traumatic incident, it can be hard to tell long-lasting and severe the symptoms will be, how much medical treatment you’ll need, and whether you’ll be able to return to work.

You may also be experiencing symptoms that are very real to you, but can’t be completely confirmed by typical scans or medical tests. As a result, the insurance company may claim your TBI symptoms are fake or exaggerated.

This is exactly what happened to Jerry, our client in the $16 million case above. Because his MRI came back “normal,” he was diagnosed with a mild TBI. We had to help him get a brain scan using a magnetoencephalography (MEG) machine, an extremely sophisticated device far more precise than an MRI or EEG, to conclusively show the severity of his injury.

Jerry’s case went to trial, and that evidence was crucial in helping him get a much larger verdict than the insurance company settlement offer.

You Might Not Fully Understand the Extent of Your Injuries Yet

It’s easy to underestimate your future medical and care needs—especially if you are in the early stages of your recovery. You might optimistically think that you’ll be back to work and daily life within a matter of months or a year.

However, if complications arise, you could face a lifetime of lost income and medical expenses. When you work with a lawyer, they will consult with your doctors and other experts to help them estimate your future needs—the insurance company will never do this (or will skew the numbers in their favor).

Insurance Companies Don’t Have Your Best Interests at Heart

Unfortunately, the insurance company’s priority is figuring out the lowest possible offer you’ll take—not making sure the offer is enough to meet your long-term needs. Their eyes are on their bottom line, not on your healing.

In most cases, the insurance company’s first offer will be less than what your case is worth, and less than what the insurer is ultimately willing to pay.

Settlements Are Final

When you settle a claim, in almost every case you voluntarily and permanently give up your right to pursue additional compensation later. Even if that settlement check dries up long before your bills are paid and with future medical care still needed, there’s no way to get a do-over.

Talking With a Personal Injury Attorney Can Help You Protect Yourself and Your Family

TBI victims who are represented by an attorney usually recover higher settlements on average than those who choose to go it alone.

How a TBI Lawyer Evaluates a Case’s Settlement Value

Let’s examine these factors in more detail. Traumatic brain injuries can have many causes, but car accidents are one of the most common. Suppose you were t-boned by a drunk driver. During the collision, your seatbelt detached, and you suffered a severe traumatic brain injury. Unfortunately, the reckless driver had a minimal insurance policy, covering only $50,000 worth of medical bills, lost income, and other damages.

You call a BIAA Preferred Attorney, worried because you already have hundreds of thousands in unpaid medical bills. Here’s what your lawyer might do:

• Calculate your damages: Your lawyer will add up all your existing damages. Then, they will consult with experts, including doctors and economists, who can pinpoint how much care and financial support you will need in the future.
• Investigate the claim: You might have claims against the seatbelt or car’s manufacturer if it detached due to a defective design or was improperly manufactured. Additionally, if a bar or restaurant knowingly over-served the drunk driver, you might have a negligence claim against the establishment.
• Review your own insurance policies: You might have insurance coverage that will supplement your settlement. Many drivers have their own uninsured and underinsured motorist (UI/UIM) coverage and personal injury protection (PIP) policies, which might apply to their claims.
• Negotiate with the insurance companies: Next, your lawyer will send a demand letter to the insurance companies. It will outline the strengths of your case and demand fair compensation for your injuries. From there, they will negotiate back and forth with the insurance adjuster.

If you and the insurance company cannot come to an agreement, your lawyer can file a lawsuit and present your case to a judge or jury.

Imagine trying to go through that yourself, while still dealing with the effects of a TBI, and trying to negotiate with the insurance company (or in many cases, multiple insurance companies) at the same time. It’s no wonder so many people quickly get overwhelmed.

Of course, only you can decide whether working with an attorney is the right choice for your situation—and if so, which attorney you should choose. However, if you are considering it, there are a few things you should know:

• Most personal injury lawyers charge a contingency fee, so you never pay them out of pocket. Consultations are free, and any legal fees and costs are paid out of your settlement. That also means that if you don’t win, you don’t pay.
• The Brain Injury Association of America’s list of Preferred Attorneys can help you find a lawyer in your state who is experienced in dealing with TBI cases. While you certainly don’t have to pick a lawyer from this list, it can be a great starting point if you’re not sure where to turn.

Talking with a lawyer who has worked on TBI cases in the past can give you and your family members peace of mind at an especially difficult time. At your free consultation, your lawyer can advise you on whether you have a case, whether the settlement you’re being offered is fair, or whether it might be in your best interest to seek higher compensation through legal action.

You Are Not Alone

A TBI can turn your life upside down. But you do not have to walk this path alone. Your local Brain Injury Association office can help connect you with doctors, attorneys, specialized rehabilitation services, caregivers, community-based services and support groups, and others who can help you and your family navigate forward and return to as normal of a life as possible.

There are so many people who are willing to fight for you. If you or a loved one are struggling, don’t hesitate to reach out.

About Tom Crosley

Tom Crosley is a nationally recognized leader in personal injury and traumatic brain injury law. He regularly teaches other lawyers about traumatic brain injury litigation and has been a featured presenter at both national and statewide legal education programs. In addition to recovering record-breaking settlements for his clients and their families, he has earned a reputation for his compassionate, client-centered approach. In 2021, his peers voted him the Best Personal Injury Lawyer in the Austin/San Antonio area, according to Texas Lawyer magazine.

The content provided here is for informational purposes only and should not be construed as legal advice on any subject.