Negligence Claims In Brain Injury Cases

The facts and circumstances of the accident and injury will determine which legal theories and causes of action can be pursued. Since most brain injuries result from traumas such as car, truck, motorcycle, construction or other accidents, the most common theory of liability in brain injury cases is negligence.

A person is negligent when he or she fails to exercise the level of care that a reasonably prudent and careful person would exercise under similar circumstances. Negligence can be either an affirmative act or an omission to act. Whether a person acted negligently or not is a question of fact that will be decided by the jury.

In order to succeed in a negligence case, the plaintiff must generally show that: (1) the defendant owed a legal "duty" of care to the plaintiff under the circumstances, (2) the defendant "breached" or failed to perform that duty, (3) the defendant's breach "caused" the accident or injury, (4) which resulted in the plaintiff suffering "damages." Every brain injury case is different, and the unique circumstances surrounding the accident will determine the type of evidence that will be required to prove each element of the negligence cause of action.

It should also be noted that California follows the doctrine of "comparative negligence." Under this doctrine, a plaintiff who is partially liable for causing his or her own injuries may still be able to recover damages from a defendant who is also found to be at fault. A percentage of liability will be assigned to each party, and the plaintiff's recovery from the defendants will be reduced accordingly. For example, a plaintiff who is found to be 15 percent liable for causing his or her own injury will still be entitled to recover 85 percent of his or her damages from the defendants.

If the plaintiff's brain injury was caused or made more severe by the actions of a medical provider or facility, the plaintiff may be able to pursue a medical negligence claim against the responsible parties. Medical negligence claims arise when the services provided by the medical professional or facility fall below the applicable standard of care. In California, a breach of the standard of care occurs when the defendant fails to exercise the same level of knowledge, training, experience and care that would be exercised by other members of the profession acting under the same or similar circumstances. If the plaintiff can prove that the breach caused him or her to suffer harm, he or she may recover damages.

Medical negligence can take a variety of forms, but it typically involves inadequate treatment, improper diagnosis, substandard care, incorrect medication or dosage, or the failure to obtain informed consent. Examples of medical negligence that can cause or increase the severity of a brain injury may include the failure to promptly and properly diagnose and/or treat brain bleeding, intracranial blood clots or brain swelling after an accident. Negligent actions with regard to another injury or infection that results in the loss of adequate blood supply to the brain can also cause severe or fatal brain injuries.

Again, every brain injury case is unique and the circumstances surrounding medical care received, or not received, will dictate the type of evidence that will be required to prove each element of the medical negligence cause of action.