Any lawyer would be irresponsible by purporting to tell you in advance how much compensation you can get for your head injury. Claiming to know the average head injury settlement amount or the average settlement for a traumatic brain injury can be extremely misleading.
But there are some general principles your attorney can use to estimate your head injury compensation with enough certainty to know how much to initially ask for.
Degree of Severity
Your damages will vary in general proportion to the severity of your injuries. The average settlement for traumatic brain injury, for example, will be higher than compensation for a superficial head injury. Is your injury
- A minor head injury with a quick recovery and minimal lost work time?
- Minor brain damage with some memory loss and some reduction in your quality of life?
- Moderate brain damage that impacts your ability to perform your job duties?
- Moderate to severe brain damage that forces you to retire?
- Severe brain damage that requires full-time care (in a nursing home, for example)?
The more severe your injury, the more compensation you can expect.
Compensatory Damages
The amount of damages you suffer will be the primary factor impacting the amount of your recovery. Normally, the most important components of compensatory damages are medical expenses, lost earnings, and pain and suffering.
Medical Expenses
Medical care is fairly easy to document and prove through medical records. Two things that may be more difficult to prove are (i) whether a particular medical treatment is truly necessary and (ii) the estimated cost of future medical care. In the first instance, the opposing party might question something like vocational rehabilitation or chiropractic treatment. In the second instance, the opposing party will try to take advantage of the inherent ambiguity in predicting future medical expenses.
Future Medical Care
If you are suffering long-term disability, you will need a lawyer to help you estimate your future medical expenses. You absolutely must get this one right, because if you ask for too little, you cannot come back to court or the negotiating table and ask for more money later. A skilled and experienced personal injury lawyer can help you.
Before you begin, you will need to recover to the point of maximum medical improvement (MMI). Your health care provider will determine when you reach MMI. MMI means that either you have fully recovered or your medical condition has improved as much as your doctor ever expects it to. If you make a full recovery, your future medical expenses will be zero. If some disability remains, however (epilepsy due to brain damage, for example), you will need to calculate future medical expenses.
Ongoing medical expenses might include:
- Surgery;
- Lab testing;
- Follow-up visits;
- Medication;
- Physical therapy or rehabilitation;
- Wheelchairs, crutches, or other disability assistance devices;
- Home health care aides;
- Placement in a nursing home; and
- Mental health counseling
Remember that the cost of medical care keeps increasing. You will need to estimate the future cost of these goods and services, not the present cost.
Lost Earnings
As with medical care, calculating current lost earnings is fairly straightforward. You might need testimony from your employer, of course, and you might need to calculate the monetary value of certain non-cash benefits. If you cannot return to your previous job, however, calculating lost future earnings can get tricky.
Future Lost Earnings
It should be obvious that the more you were making before the accident, and the younger you are, the greater your lost earnings are likely to be. You might need to retain a financial expert as a witness for this purpose, and an experienced personal injury lawyer will know where to find one. As with future medical expenses, you absolutely must get this amount right because you cannot demand more money later.
Pain and Suffering Damages
In New Jersey, “pain and suffering” refers to both physical and mental suffering. Most people don’t realize that pain and suffering damages often exceed total medical expenses. In many instances with the pain, suffering, and loss of enjoyment of life, damages can far exceed the economic damages
Other Types of Compensatory Damages
Other damages that may be extensive, depending on the circumstances, include emotional distress and loss of enjoyment of life. For example, imagine you used to go rock climbing every weekend and now your injury prevents you from doing so. The loss of being able to do the thing you love, and the emotional toll that loss may have taken, has value that should be compensated. New Jersey does not limit the amount of these types of damages.
Punitive Damages
Courts award punitive damages only occasionally, when the defendant acted in an intentionally harmful or willful manner (a “road rage” criminal assault, for example). New Jersey caps punitive damages at five times the amount of compensatory damages or $350,000, whichever is more. If your claim involved egregious conduct that could justify a punitive damages award, this can increase the value of any potential brain injury compensation.
Comparative Fault
Under New Jersey’s comparative fault system, an injured plaintiff may not recover if the plaintiff's own negligence is greater than the negligence of the defendant. In a two-party accident, for example, you cannot win any damages at all if your percentage of fault is 51% or higher. Furthermore, no matter how small your percentage of fault is, a court will reduce your head injury compensation in direct proportion to your percentage of fault. This means that you can expect to receive less compensation if your actions played a role in the accident.
Insurance Limitations
You can’t collect money from a defendant who doesn’t have access to any. In most cases, defendants rely on insurance companies rather than their personal finances to pay a claim. Of course, the defendant might be a wealthy individual, a company, a doctor, or an Uber driver or commercial trucker with a lot of insurance coverage. In other cases however, insurance coverage is simply insufficient, and the defendant does not have assets to pay the claim either. If that is the case, then your head injury compensation may be limited to the amount of the defendant’s insurance policy limits.
We’re Ready for Action
New Jersey personal injury and medical malpractice law firm O'Connor, Parsons, Lane and Noble is always ready for action. We have won dozens of cases in which recovery was measured in seven and even eight figures. In response, our peers in the legal profession and even our adversaries refer their loved ones to us when they suffer an injury. Call our office at 908-928-9200 or contact us online to schedule a free case consultation.
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