Understanding Brain Injuries
A lot of times brain injuries are difficult to recognize right away because we incorrectly attribute some of the symptoms to natural changes in behavior, emotions and bodily functions due to other stressors in our environment. For example, even minor brain injuries may cause changes in your ability to concentrate, memory loss, reasoning, depression, irritability and communication skills. That is why it is important to have a general understanding of how the brain should work to be able to monitor for significant changes and contact a specialist if the symptoms persist. The human brain can be broken down into three major parts, the cerebrum, the cerebellum and the brainstem, each serves a specific function and has different levels of exposure during an accident. The cerebrum is the largest and most exposed part of the brain in any accident, which is why an injury to this part of the brain would be considered to be traumatic. It is divided into a left and a right hemisphere, each controls the opposite part of the body. When people suffer a stroke, it is the cerebrum that is injured causing the opposite side of the body to become paralyzed. Damage to the left hemisphere is likely to impair speech, comprehension, math and writing abilities. While damage to the right hemisphere will affect creativity, spatial ability and visual perception. Underneath the cerebrum we find the cerebellum, which is responsible for coordination and regulation of all muscle activity. An injury to the cerebellum is considered to be mildly traumatic and likely to result in impaired balance and present issues with voluntary activity like walking and writing. Lastly, the brainstem is responsible for controlling the basic bodily functions and the flow of messages that pass between the body and the brain. An injury to the brainstem would be considered a mild traumatic brain injury that could result in erratic heart beats, difficulty breathing, and developing a speech impairment. Anybody who has experienced even temporarily just some of these symptoms knows how debilitating they can be to live with. Can you imagine having to build a negligence cause of action against the person responsible for your brain injury all while having to undergo medical treatments to deal with these symptoms? If you or a loved one is suffering from a brain injury that resulted from the negligence of another person, you do not have to face this daunting task alone. At San Diego Injury Law Office we offer you the peace of mind of knowing that you can just focus on your treatment and getting better because your personal injury claim is in the best hands with our San Diego brain injury legal experts. Do not let another day go by, call us now at (619) 663-6859 the consultation is free and our brain personal injury attorneys are standing by to discuss the specific facts in your case and provide you with the legal guidance that you need to make an informed decision about how to proceed.
Brain Injuries as a Result of Motor Vehicle Accidents
For purposes of personal brain injury claims arising from motor vehicle accidents, a vehicle includes an electronic scooter, bike, car, motorcycle, bus or truck. The standard of care that a driver of any of these vehicles owes others on the road is to drive like a reasonable prudent person would under similar circumstances. In other words, drivers owe other motorists and pedestrians the duty to exercise reasonable care to safeguard their safety on the road. This means that a driver whose conduct falls below the reasonable care standard will be considered to have breached the duty owed to fellow motorists and pedestrians alike. Moreover, if you or a loved one suffered a brain injury as a result of an accident with a driver who was in violation of a traffic law, then you may also have a cause of action for negligence per se. Negligence per se allows the plaintiff to borrow a safety statute to replace the driver’s duty of care, making the violation of the statute conclusive on the breach of the driver’s duty. Unlike in a regular negligence cause of action, where the plaintiff is required to prove duty, breach, factual cause, proximate cause and damages, in a negligence per se cause of action, the plaintiff only needs to prove that the defendant violated a safety statute that was meant to protect a class of persons to which the plaintiff belongs to and that had been designed to protect against the particular type of injury that the plaintiff suffered. For example, if you were in an accident where the other driver was speeding, then you would only have to show that the driver was in violation of the legal speed limit, that as a fellow driver on the road you are in the class of people that speed limits were enacted to protect and that the brain injury that you suffered as a result of the accident is the type of injury that speed limits were designed to prevent. Upon establishing these three requirements, you would be allowed to borrow the traffic statute to replace the duty of care and the driver’s conduct will automatically be considered negligent. However, it is important to note that there are two exceptions to the doctrine of negligence per se, if the defendant can prove that at the time of the accident compliance with the statute would have been more dangerous than the violation itself or that compliance with the statute was impossible then you cannot borrow the language from the statute and the standard remains the reasonable prudent person. Regardless of which negligence doctrine you choose to file your claim under, you will always be required to prove damages. Damages are the monetary compensation that the law provides for the brain injury and loss caused by the motorist’s negligence. The problem in these cases is that a lot of the times because of the adrenaline rush during the collision you may not even realize that you hurt your head and while there may be internal signs of a brain injury, like bruised brain tissue, swelling and nerve damage, the symptoms simply go unnoticed which makes it nearly impossible to diagnose and prove damages. That is why it imperative that if you are involved in a motor vehicle accident you always seek medical attention immediately following the collision and you file a police report. Otherwise, if you fail to document your injury immediately following the collision, the other driver’s insurance companies will allege that the brain injury is not connected to the accident and then you will find yourself facing an uphill battle just to prove damages alone. On the other hand, sometimes the external signs of a brain injury do manifest themselves, like a fever, vertigo, dizziness, ears ringing, headaches or loss of consciousness but people ignore these symptoms because they cannot afford to seek medical attention. This is a is big mistake, do not let your current financial situation prevent you from going to the doctor when you feel sick, an untreated condition will only make you feel worse and treatment will be more expensive later. That being said, be careful with the insurance companies involved in your claim because they are counting on you to be so financially desperate that you will agree to settle for much less than what your claim is actually worth! At San Diego Injury Law Office we want to protect the value of your personal injury claim and enforce your right to seek damages, that is why we work on a contingency fee basis, which means that we will gladly take on your case but you do not have to pay for our legal services unless and until we win the settlement agreement or jury verdict on your behalf. As part of our commitment to our clients we have also teamed up with a group of medical specialist, who like us understand that you cannot afford their services at this time but are in great need of medical assistance. They have agreed to also work on a contingency basis with our clients by using medical liens. The way that medical liens work is that you will be asked to sign an agreement giving the health care provider the right to assert an in interest in your personal injury recovery award when we win in exchange for the medical services that will be rendered to you in advance. Once the medical lien is signed, you can set up an appointment to go in for your evaluation with the brain specialist physician and discuss any symptoms that you have been experiencing since the accident so that he may diagnose your brain injury and commence the treatment to get you feeling better. On our part, we will be sending our private investigator to obtain a copy of the police report, take pictures of the vehicles, and determine road conditions at the time of the accident. We will ask our accident reconstruction specialist to review the police report and the investigator’s findings in search of factual causation that links the defendant’s negligence to the collision establishing liability for the accident. Our damages experts will then meet with your physician to review all of your medical records and discuss your diagnosis which will be used to establish the proximate cause between the defendant’s negligent driving and the brain injury that you suffered in the accident in order to prove damages for the medical issues associated with your injury.
Brain Injuries as a Result of Medical Malpractice
As professionals in the medical field, the standard of care that doctors owe their patients is to practice medicine with the same level of skill, expertise and care as practiced by the average member of the medical community performing similar services. In our vast experience handling medical malpractice cases, improper delivery of a new born, incorrectly applying anesthesia, providing the wrong diagnosis and failure to provide the right treatment all constitute examples of successful personal injury claims for brain injuries based on a negligence cause of action. It is important to point out that the doctor’s wrongful conduct can be either an affirmative act or an omission to act. It is also worth noting that in all of these incidents the doctor made a split second decision to take a deviation from the accepted uniform medical standard of care in an effort to help the patient. Yet even if these incidents had resulted favorably for the patient, the doctor’s deviation would still constitute a breach of the doctor’s duty to the patient to exercise the customary practice of the doctor’s profession. At San Diego Injury Law Office we understand that medical treatments for brain injuries are complex matters but medical standards exist for a reason, to set the customary practice that is to be followed by all doctors in and effort to ensure a uniform standard that all healthcare providers across the country must conform to. For this very important reason we are committed to holding doctors accountable for their medical decisions. For example, if you or a loved one suffered a brain injury as a result of a negligent medical provider we would use your doctor patient relationship to establish that as your doctor he owed you a professional duty to exercise the care that would have been given by an average member of the same profession performing similar services. Since this is an empirical standard that is factually grounded in reality, the best way to prove that the doctor breached the duty that he owed his patient would be by going to look at the doctor’s colleagues to establish that in his medical treatment of you as the patient he did not conform to what they were all doing in their medical practice. Of course we still have to be able to identify what exactly the doctor did wrong in the sense that it would be considered unacceptable to his colleagues. By working together with the medical specialist we will go over your clinical history to determine the extent of your brain injury and complete your diagnosis to establish the link between the doctor’s negligence, your brain injury and the issues associated to your brain injury. Upon finding evidence of malpractice our damages experts will personally meet with you to determine together the value of your claim. We will address all the medical costs associated with the negligent treatment you received, the lost wages for any time that was missed from work as a result of your brain injury. We will also meet with your family to discuss the effect that the brain injury has had and will have in your quality of life to make sure that we account for the cost of pain and suffering for the emotional instability that you have experienced.
Statute of Limitations for Filing Brain Injury Claims
Pursuant to Section 335.1 of the California Code of Civil Process, the statute of limitations for brain injury claims is two years from the date of the accident or malpractice or from when the brain injury was first discoverable. It is important that you understand this distinction because the clock does not begin to run until your brain injury was discoverable, it does not matter when it was actually discovered. This means that if you could have discovered the brain injury and failed to do so, you will still be barred from seeking damages for a personal injury claim relating to the brain injury two years from when it first became discoverable.