Can You Sue for a Brain Injury?
Yes, if someone else’s negligence caused your brain injury, you may have the right to pursue compensation through a personal injury lawsuit. For a case to be viable, you’ll need to show that another party owed you a duty of care, breached that duty, and that the breach directly caused your brain injury and the resulting losses.
What Determines Whether You Have a Case
Not every brain injury will lead to a successful lawsuit. A potential case will have the following four elements able to be strongly established:
Duty of Care
Duty of care simply means the other party had a legal responsibility to act reasonably toward you. For example:
- Drivers have a duty to follow traffic laws and pay attention.
- Property owners have a duty to keep their premises reasonably safe.
- Doctors have a duty to meet accepted medical standards.
- Manufacturers have a duty to produce products that don’t put users at risk.
Duty of care is typically straightforward to establish, though the question of who owed you a duty of care can require closer examination in certain situations. An example would be an injury caused by a third-party contractor on a job site, where multiple parties may have overlapping responsibilities.
Breach
Once duty of care is established, the next question is whether the other party breached it. The breach is the negligent act, or failure to act, that directly caused your injury. Here are a few examples of breach of duty:
- A driver who ran a red light, was texting behind the wheel, or was driving under the influence
- A property owner who failed to repair a broken railing, fix uneven flooring, or address a known fall hazard
- A surgeon who made a preventable error during a procedure
- A manufacturer who released a helmet or safety device known to be defective
- An employer who failed to enforce safety protocols on a job site where a worker sustained a head injury
Causation
The third element is causation, which has two components under Texas law. Both are required for a viable case.
- Actual cause: meaning your brain injury would not have occurred but for the other party’s breach.
- Proximate cause: meaning a brain injury was a foreseeable result of the negligent act.
Consider the example of a driver who runs a red light and causes a collision. Actual cause is established because without the driver running the light, the collision wouldn’t have happened and the brain injury wouldn’t have occured. Proximate cause is established because it’s entirely foreseeable that running a red light could result in a collision that causes head trauma to another driver.
Damages
The fourth element is damages, meaning the injury produced measurable losses. In a brain injury case, those losses can span both economic and non-economic categories:
- Medical bills, both current and future
- Lost income and reduced ability to earn in the future
- Pain and suffering
- Cognitive impairment
- Loss of activities and quality of life you had before the injury
A successful brain injury lawsuit can recover compensation for all related losses.
Types of Brain Injuries That Can Support a Lawsuit
You don’t need a severe brain injury to have a case. Injuries across the following spectrum can give rise to a personal injury lawsuit:
- Concussions, which are the most common and frequently underestimated
- Contusions, which deal with bruising of the brain tissue itself
- Diffuse axonal injury, which occurs when the brain moves inside the skull and tears nerve fibers, and is among the more severe forms
- Penetrating brain injuries, which occur when an object breaks through the skull and enters the brain tissue, and are common in workplace accidents and assaults
- Hypoxic brain injuries caused by a partial reduction in oxygen to the brain, and anoxic brain injuries caused by a complete loss of oxygen, both of which can result from near-drowning, cardiac events caused by trauma, or surgical error
Even injuries initially described as “mild” can produce lasting cognitive effects: memory problems, difficulty concentrating, mood changes, chronic headaches, and sensitivity to light or sound. If those symptoms are affecting your daily life and someone else caused them, the injury has legal weight regardless of how it’s strictly classified medically.
Who Can Be Sued for a Brain Injury?
The answer to who you can sue depends entirely on how the brain injury occurred, and identifying every liable party is what determines where your compensation comes from.
Negligent Drivers
Car, truck, and motorcycle accidents are among the most common causes of traumatic brain injury. Another driver can be held liable if their negligence caused the collision, whether it was the result of speeding, distracted driving, running a red light, or driving under the influence.
In crashes with commercial trucks, the trucking company may share liability depending on the circumstances.
Property Owners
Slip and fall accidents, falling objects, and unsafe conditions on someone’s property can all cause brain injuries. Property owners in Texas are required to maintain reasonably safe conditions for visitors, and when they fail to do that, they can be held responsible for injuries that result.
Employers
Workplace brain injuries are common in construction, manufacturing, and other physical industries. Workers’ compensation may cover work-related accidents, but when a third party like a subcontractor, equipment manufacturer, or property owner, contributed to the accident, a separate personal injury case may be possible alongside a workers’ comp claim.
Medical Professionals
Brain injuries caused by surgical errors, anesthesia mistakes, failure to diagnose a condition affecting the brain, or oxygen deprivation during a procedure fall under medical malpractice. Medical cases may require expert testimony to establish what the appropriate standard of care was and how it was violated, but they are fully actionable when supported with clear evidence.
Product Manufacturers
Defective helmets, faulty safety equipment, or vehicle components that fail on impact can all contribute to brain injuries. When a product’s design or manufacturing defect played a role in your injury, the manufacturer can be brought into a lawsuit under product liability law, regardless of whether the person using the product did anything wrong.
Proving Causation in a Brain Injury Lawsuit
When suing for a brain injury, insurance companies may try to dispute whether their policyholder caused your injury, and they use three consistent strategies to make that argument:
Treatment Gap
If you didn’t seek medical attention immediately after the negligent event, the adjuster may point to that delay as evidence the injury wasn’t caused by it or wasn’t serious enough to warrant immediate care. Delayed symptoms are a documented medical reality in brain injury cases, particularly with concussions, but a gap in treatment hands the insurance company an argument that gets harder to overcome the longer it goes unaddressed.
Imaging Results
Standard CT scans and MRIs regularly fail to detect concussions and diffuse axonal injuries. A normal scan doesn’t mean no injury occurred, but insurance adjusters will present it as though it does. Without additional documentation, a clear scan can be used to deny the injury entirely, which is why follow-up evaluations with a neurologist and a detailed symptom record carry so much weight in brain injury cases.
Prior Head Injuries and Pre-Existing Conditions
Texas follows the eggshell plaintiff rule, meaning a defendant can’t escape liability just because you were more vulnerable to injury than another person might have been. The defense will still attempt to attribute your symptoms to a prior condition rather than the negligent event, and without a clear medical record establishing the timeline, that argument can gain traction.
Countering all three requires beginning treatment immediately, following through consistently, and working with an attorney who can bring in the right medical experts to establish the connection between the negligent event and your injury.
Financial Recovery in Brain Injury Lawsuits
Brain injury cases can produce significant damage figures because the financial consequences usually extend far beyond the initial hospitalization.
Current and Future Medical Costs
Recoverable medical costs cover emergency care, imaging, hospitalization, neurologist visits, surgery if applicable, and ongoing treatment like cognitive rehabilitation or physical therapy. Future medical costs carry particular weight in brain injury cases, where a person may need continuing care, medication management, or in-home support for years or for the rest of their life. Attorneys handling serious brain injury cases work with medical experts to project those long-term costs accurately so they’re fully accounted for in any settlement or verdict.
Lost Income and Earning Capacity
If the injury kept you out of work, or changed your ability to do your job permanently, those losses are compensable. For someone whose cognitive function has been affected to the point where they can no longer perform their previous job or work at the same level, the gap in lifetime earning potential can represent a significant portion of the overall case value.
Non-Economic Damages
Pain and suffering, loss of enjoyment of activities you previously engaged in, emotional distress, and the impact on your relationships are all compensable under Texas law. Cognitive and personality changes from a brain injury, including irritability, depression, anxiety, and memory loss, affect a person’s career, relationships, and quality of life in ways that go far beyond medical bills, and Texas law allows you to pursue compensation for all of it.
Filing Your Lawsuit on Time
If you’re going to sue for a brain injury in Texas, you have two years from the date the injury occurred to file a lawsuit.
Two exceptions apply:
- The discovery rule covers situations where a brain injury wasn’t reasonably discoverable right away. If symptoms didn’t surface until weeks after the negligent event, the clock may start from when the injury was or reasonably should have been identified.
- If the case involves a government entity, a city vehicle or poorly maintained public property for example, a formal notice of claim has to be filed within six months of the accident, which is a much shorter window than the standard two-year deadline.
Suing for a Brain Injury That Resulted in Death
Spouses, children, and parents can pursue a wrongful death lawsuit when a brain injury caused by someone else’s negligence leads to death. The estate of the deceased can also bring a survival action to recover for the pain, suffering, and losses the person experienced before they died. Each carries its own requirements and timelines, and an attorney can walk you through which applies to your situation.
Considering Suing for a Brain Injury in Texas?
If the injury you suffered traces back to someone else’s negligence, you likely have more legal options than you realize. Studies show that injury victims who work with an attorney recover significantly more compensation than those who negotiate with insurance companies on their own. Loewy Law represents brain injury victims in Austin and throughout Texas, and a free consultation gives you a clear picture of whether you have a viable case and what compensation you can pursue. Call us at (512) 280-0800 to set up your free consultation. If we take your case you’ll pay nothing unless we win.
The content on this website is for general informational purposes and should not be considered legal advice. Laws change, and case outcomes depend on specific facts. Viewing this material does not establish an attorney-client relationship. For legal guidance on your specific situation, consult a qualified attorney.