Unfortunately, many victims of medical malpractice incidents suffer severe brain injuries. In order to recover compensation for a brain injury, a plaintiff must establish that the medical provider was acting negligently. A negligence claim has four elements: duty, breach, causation, and damages. Each state has enacted its own procedures and rules for bringing a personal injury claim against a defendant, and each applies its own rules regarding the amount of damages a plaintiff can recover from a negligent medical provider.
In general, each of us has a duty to act with the same ordinary care and skill that a reasonably prudent person would use in similar circumstances. In the context of a medical malpractice incident, the duty of care requires medical providers to use the same practices and procedures that other medical professionals in their specialty and their geographic location would use for a patient with similar conditions and demographics.
To establish the second element, the plaintiff must show that the defendant failed to act according to this standard of care. For example, a breach of the standard of care may occur when a medical professional fails to diagnose a patient’s condition or fails to provide timely care. In both situations, a medical provider’s breach of the standard of care can cause the patient to suffer a brain injury. After establishing duty and breach, the plaintiff must show that the defendant caused the plaintiff’s injuries. A defendant is the legal cause of a plaintiff’s damages if the plaintiff would not have suffered the injury but for the defendant’s breach of the standard of care.
In a medical malpractice case, it is critical that the patient see another doctor as soon as possible in order to diagnose the extent of the injuries caused by the defendant doctor’s malpractice. Due to the nature of a brain injury, the severity and scope can be difficult to detect, assess, and diagnose. Brain injury symptoms include loss of memory, confusion, disorientation, headache, dizziness, and blurred vision. Brain injuries frequently lead to other physical complications, including sleep issues and loss of motor function. It is also important to determine the nature in which the brain injury occurred. Brain injuries can result when the brain is deprived of oxygen for a specific period of time or in situations where the patient suffers a stroke.
A brain injury victim can recover damages for injuries and expenses that occurred as a result of the defendant’s breach. Brain injuries can involve many different types of treatment, including psychiatry, cognitive impairment, physical manifestations of the injury, or even brain surgery. Some brain injury victims who experience cognitive impairments have issues returning to work in the same capacity. In a negligence case, a plaintiff may seek compensation for medical expenses, physical therapy, long-term care, and medication.
If the victim has been forced to step down from his or her position at work, or to take a different position that pays less, he or she may be entitled to recover compensation reflecting the plaintiff’s lost wages. Unfortunately, some brain injury victims are unable to return to work at all due to the extent and severity of their injury. In this instance, a defendant may be liable for the plaintiff’s loss of future wages and earning capacity.
In many states, a spouse or close relative of a brain injury victim may make a claim for loss of consortium. This claim acknowledges the loss of society, companionship, and love that the spouse or close relative experiences as a result of their loved one’s injuries.