As with most personal injury cases, damages in a brain injury case typically consist of past, present, and future medical expenses; present and future lost wages; and pain and suffering. Damages in a brain injury case can be significant, largely depending on the severity and extent of the plaintiff’s injuries. A careful plaintiff’s attorney should employ the best expert witnesses when proving damages, and should consider the following special challenges which plaintiff will face when calculating damages in a traumatic brain injury case.

Medical Expenses. Survivors of severe brain injury require extensive, and often costly, medical attention. In addition to the emergency medical professionals, a brain injury patient will likely need on-going or long-term care from a variety of other medical specialists. Plaintiff’s attorneys often mistakenly extrapolate total damages from present medical expenses. In reality, there is no relationship between the amount of the present medical bills and the extent of the plaintiff’s disability and total damages.

Plaintiff’s attorneys often err in classifying life care costs as future medical expenses, and employ a physician to testify to the amount. Physicians, however, rarely have real knowledge of long-term care costs, which can include rehabilitation, substitute household services, assistive or adaptive devices and transportation, etc. An expert in outstanding life care will be far more persuasive, and qualified, to testify to the extent of life care costs, and can open the jury’s eyes to the full extent of the plaintiff’s loss.

Pain and Suffering. Pain and suffering is always the hardest number to predict, and unfortunately, it is largely dependent on the individual values of the jury members. Rather than relying on the jury to choose a large pain and suffering number based upon impassioned closing argument, let the magnitude of the other damages direct the jury. The jury will likely use medical expenses and loss of earnings to gauge pain and suffering.

The Illinois House of Representatives has passed Zach’s Law—which requires soccer clubs, park districts, and other organizations with social goals, to use tip-resistant goals and to follow proper protocol to make sure the goals are anchored. Zachary Tran, the namesake of the bill, was a Vernon Hills boy who suffered a severe injury to his head on the soccer field, in 2003. Jayson Tran v. American Playground Corp, et al., the wrongful death case, settled for $2.5 million with American Playground company, $500,000 with the goal manufacturer, and $250,000 with the Vernon Hills Park District. In the lawsuit, the complaint alleges that the goalpost had no counterbalance and the ground stakes, which it relied upon for balance, were missing. This then struck Zach in the back of the head, resulting in his death.

The parents of Zachary Tran became advocates of soccer goalpost injury prevention. At the beginning stages of the litigation, the attorney for the Tran’s said they just wanted to warn people about the dangers of the goals and for this to never happen again. Zachary Tran’s family created Anchored for Safety (anchoredforsafety.org) which is a public awareness initiative for safe soccer goals. The personal injury attorney of the plaintiff in this case, Shawn S. Kasserman, assisted on the drafting of the bill, which is now waiting to be passed in the Senate (as of 4/22/11).

This bill is a step toward 1) eliminating soccer goals with a deadly design and 2) preventing severe brain injuries or even death. The bill will create the Movable Soccer Goal Safety Act and require organizations that own and control movable soccer goals to create a policy about soccer goal safety. This Act also bans the sale (and distribution) of goalposts that are not tip-resistant. Organizations will be given one year to comply with the Act.

Although recently in the news, there has been talk of a lock out, a strike and god-forbid no NFL in 2011, but that is not the only thing going on in the NFL. The NFL has created the NFL Sidelines Concussion exam, a group of tests used to evaluate balance, basic thinking skills and concentration. Along with the creation of the exam, each team will be required to use this neurologic test to determine whether a player sustained injury to his brain. The test must be given 6-8 minutes from the time the player suffered the injury. Taking these steps the NFL is trying to create a uniform standard across the board in order to assess concussions. In the past ten years, a substantial amount of data has been published, showing that traumatic brain injuries have impacted the lives of the players for years after they have left the league.

To implement this into the NFL, every player in the league will be given a test at the beginning of the season to create a baseline specific to each player. This baseline test will then be compared to the test given on the sideline to determine whether or not the player has in fact suffered a brain injury. If his performance on the sideline test is dramatically different from the baseline test, the player will be removed from the game.

When 160 NFL players were surveyed, almost half of them admitted they had a severe head injury and hid it from their team. University of Michigan’s Institute of Social Research unveiled that 6.1 percent of players that responded were suffering some form of memory disorder–Alzheimer’s or dementia. That statistic is five times the average for men their age.

Although the NFL is implementing this to track concussions, it is also clearly a preventative measure for future exposure for brain injury litigation stemming from multiple concussions in a season or a career.

Traumatic brain injury, TBI, is unlike most other injuries. Sometimes a person doesn’t even notice that they have suffered a brain injury, other times the effects are immediate. Each and every brain injury has a different recovery potential and time frame. This makes brain injury litigation and settlements one of the most difficult areas to assess. There is potential that with the right medical resources someone will recover in 6 months or someone may have permanent effects.

Congresswoman Gabrielle Giffords suffered a brain injury earlier this year, but the exact status and timeline of her recovery is still unknown. Albeit Giffords has received intensive physical therapy and has regained some speaking, writing, and mobility, it is unclear whether she will fully recover, much like other brain injury patients.

There are two categories of traumatic brain injuries: mild and severe. Mild brain injuries are identified by a person losing consciousness, having confusion or having disorientation for thirty minutes or less. Effects of mild traumatic brain injuries include: headaches, loss of memory, mood swings, and attention deficits.

Severe brain injuries occur when a person loses consciousness for more than 30 minutes and memory loss lasts longer 24 hours. Effects of severe brain injuries vary from comatose states, limited function of their limbs, loss of cognitive ability, emotional problems or abnormal language or speech.

The effects of TBI are often extensive. Some individuals that suffer severe traumatic brain injuries are left in unresponsive states for months, years, even decades. For people like Congresswoman Giffords, sufferers of severe traumatic brain injuries, long-term rehabilitation is often needed to maximize independence and motor function. Settlements of these cases can range from a few thousand to millions. For instance, a recent case in Cook County, Estate of Shamiran David v. Rush Northshore Medical Center, et al., No. 07 L 8444, settled for $5 million dollars.