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New York Brain Injury Lawyers
Brain injuries can be severe and can cause lifelong consequences. These types of injuries can be difficult to diagnose and therefore difficult to treat as well. If you’ve experienced a brain injury and believe it’s the result of someone else’s negligence or a result of medical malpractice, you may be eligible to recover monetary compensation from the responsible party.
If you find yourself in this situation, it’s a good idea to contact New York brain injury lawyers as soon as possible to discuss your options. The attorneys at Morgan & Morgan have been handling brain injury cases for decades and will do whatever it takes to ensure that you receive the justice and compensation you deserve. As the largest personal injury firm in America, we have the resources needed to give you the best chance of success. Contact Morgan & Morgan today to set up a free and confidential consultation.
Common Types of Brain Injuries
Brain injuries often happen very unexpectedly, sometimes from playing sports, car accidents, or due to a medical mistake. Two of the most common categories of brain injuries that lead to civil lawsuits include the following:
Traumatic Brain Injury
A traumatic brain injury occurs through an external factor that causes damage to the head and the brain. Examples include a blow to the head, penetration of an object, or a sudden and violent jolting or shaking. A concussion is one of the most common types of traumatic brain injuries that we hear about in day-to-day life. A concussion can be a mild traumatic brain injury or more severe, in some cases leading to coma or even death.
Acquired Brain Injury: An acquired brain injury, sometimes referred to as a non-traumatic brain injury, is one that occurs due to internal factors, such as a lack of oxygen during birth, exposure to toxins and chemicals, and other situations that cause injury to the brain without a direct hit to the head or body.
Regardless of the type of brain injury you or a loved one has suffered, there should be recourse if someone else was responsible. Make sure you talk to a lawyer to discuss your options.
If you or a loved one suffered a brain injury as a result of medical malpractice, it’s important to understand what you need to prove to be successful in a civil claim. To show that you deserve compensation, you will be required to show that a medical professional was negligent, and their negligence caused you to suffer an injury. There are 4 main elements that must be proven to fulfill this requirement.
Duty. First, you must show that the medical professional owed you, the victim, a duty of care. This means that there must have been a doctor-patient relationship; the medical professional agreed to treat you, and you agreed to be treated by the professional. This is typically the easiest element to prove, as most people who are injured due to medical malpractice have established a clear doctor-patient relationship with the provider.
Breach of Duty. Next, you must show that the medical professional breached the duty of care. This means that their actions fell below the standard of care that they are required to provide to you as the patient. Examples of a breach of duty include a failure to diagnose, surgical errors, failure to treat an injury or illness, and a failure to order tests, among many others. The fact that a doctor fails to do any of the above-listed things doesn’t automatically mean you have a successful medical malpractice claim. The standard of care typically refers to how any other qualified medical professional would have acted in similar or identical circumstances. Therefore, if most other competent doctors would have failed to diagnose or failed to order certain tests for some reason, you likely won’t be able to satisfy this element. The breach must be below the standard level of care.
Causation. The next element that must be proven is that the breach of duty actually caused your injury. It’s not enough to simply show that you suffered harm as a result of a medical procedure or some other medical error. If the doctor failed to order certain tests, but the harm you suffered was in no way related to that fact, then there won’t be causation, and this element won’t be satisfied.
Damages. Finally, you must prove that the injury you suffered actually caused you harm and monetary damages. Examples of damages include medical expenses you incurred as a result of the breach, lost wages and lost future wages from missed work, and other expenses related to your injury. This often includes emotional damages as well, such as pain and suffering, emotional distress, and loss of quality of life.
If you are filing a brain injury claim based on a personal injury rather than medical malpractice, the elements that must be proven are essentially identical. Instead of proving that a medical professional’s negligent conduct fell below the standard of care, you will just need to prove that whoever owed you the duty of care breached that duty. For example, if you are in a car accident, every driver on the road has a duty to take reasonable precautions to keep other drivers safe. The act of being in a car accident with another driver will satisfy the first element, establishing a duty. Examples of a breach of this duty include speeding, reckless driving, driving under the influence, and texting while driving, among many other things.
Statute of Limitations
The statute of limitations refers to the amount of time that you have to file a lawsuit. If you don’t file it by the specified deadline, your case will almost always be dismissed and unable to go forward, and you won’t be able to receive any compensation at all, regardless of how strong your case would have been.
If you are filing a brain injury case due to medical malpractice in the state of New York, you must file your claim within 2.5 years from the date of the injury.
If you are filing your brain injury claim because of another type of personal injury, you must initiate the lawsuit within three years.
There are some exceptions to the statute of limitations, including the following:
Discovery Rule. The discovery rule states that the statute of limitations doesn’t run until the injury is actually discovered or until the victim reasonably should have discovered the injury. This allows individuals who are injured but aren’t aware of it within the 2.5- or 3-year limit to still recover the compensation they deserve.
Minors. If the victim is a minor, the statute of limitations typically doesn’t begin to run until the minor turns 18. This means that if the victim suffers a brain injury at the age of 5, they would have until the age of 22.5 or 23 to file their lawsuit, depending on how their brain injury came about.
There are other exceptions, but these are two of the most common ones. Make sure you take note of the different deadlines and the potential circumstances that could affect the statute of limitations. It’s always a good idea to speak with experienced New York brain injury lawyers about this so you don’t miss out on the financial compensation you deserve.
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What if I Was Partially at Fault for My Injury?
In many cases, you might suffer a severe brain injury that is at least partially your responsibility. If you were in a car accident and were speeding, some legal responsibility could be attributed to you, even if you were t-boned by another driver who was drunk and ran a red light. When this happens, many people are left wondering if they are no longer able to collect monetary compensation through a personal injury claim. Fortunately, you are still able to recover compensation in New York even if you are partially at fault.
New York is governed by pure comparative negligence, meaning whatever percentage you are deemed to be at fault will be reduced from any monetary award you receive through trial. For example, if it was determined that you were 20 percent responsible for the car accident and you were awarded $100,000 in damages, you would take home 80 percent of that award, or $80,000.
What Are Punitive Damages, and Are They Ever Awarded?
When a victim is successful in a personal injury or medical malpractice claim, they will be awarded certain monetary damages. The most common types of damages are economic and non-economic damages. Economic damages are those that can be quantified into monetary terms easily, such as medical expenses and lost wages. Non-economic damages are those that are harder to quantify, such as pain and suffering and emotional distress. The purpose of these damages is to reimburse the victim and attempt to make them whole again, as they were before the accident.
Punitive damages, on the other hand, are not awarded based on the need to compensate the victim. They are awarded to punish and deter the defendant and others from behaving in similar behavior in the future. Punitive damages are quite rare, as they are only granted if the defendant engaged in particularly egregious and reckless behavior. Their behavior must qualify as willful and wanton in order for punitive damages to be granted.
For example, in a car accident case, you could be awarded punitive damages if you can prove that the other driver intentionally caused the crash. Additionally, if the other driver was under the influence and the injuries you suffered were severe, punitive damages may be awarded in this case as well due to the deliberate and conscious negligence and indifference that the defendant demonstrated by driving under the influence.
Contact Morgan & Morgan for Help
Brain injuries should always be taken seriously, as they can have long-lasting effects. While your first thought after an accident probably isn’t about lawsuits, it’s important to know your rights and realize that you might be entitled to monetary compensation. If you find yourself in this position, Morgan & Morgan is always here to help. We have been handling brain injury cases for decades, and we will do whatever we can to make sure justice is served. When you hire us, you’re hiring a firm that cares about your case as much as you do. Contact Morgan & Morgan today for a free consultation.