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Elements Needed To Prove Negligence With A Brain Injury

Negligence happens when someone fails to exercise the required standards of care, harming others. For example, it could be a driver who fails to obey traffic rules and crashes into a school bus, consequently harming the kids.

Negligence can also happen due to omission, such as failing to act as required. For example, not helping victims and fleeing the scene after you caused them harm.

What Are the Elements of Negligence?

In personal injury cases, the plaintiff has the burden to prove the defendant acted negligently. Some elements are needed to prove negligence with a brain injury. As such, you and your lawyer must prove the following:

Duty of Care

The first element is determining if the defendant owed the plaintiff a duty of care. This could be through a working relationship outlined in a legally binding agreement that shows one entity owes the other some duty of care.

Employers are required by Occupational Safety and Health Administration (OSHA) to ensure workplace safety, including repairing machinery, training workers, and providing safety gear. Your attorney will investigate whether your employer has a history of cutting corners regarding safety.

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Breach of Duty

Once you establish a duty of care, the next step is proving the person breached this duty. They failed to act the way a reasonable person in that position would do, subsequently harming you. You must show that they knew their actions could inflict harm, or they could have done something different in that situation.

For example, the employer was aware of malfunctioning machines on the factory floor, but they kept postponing repair and maintenance. As your legal representatives, our expert investigators will unearth such a pattern of behavior to prove they breached their duty of care.


The next important step is proving that breaching the duty of care led to your brain injury. In the above example, the factory manager may have known—from the company’s safety protocols—the machine will malfunction and harm the employees handling it. Therefore, the company’s failure to repair a faulty machine directly led to your brain injury.


Computing the damages incurred is the last element of proving negligence. A brain injury could have resulted from a high-impact blow to the skull, which launched a series of medical emergencies. You may have become comatose, undergone brain surgery, or done rehabilitation and other medical treatments to save your life.

Some patients don’t respond well to treatment, or their cognitive abilities decline over time. Your lawyer will compute economic and non-economic damages sustained due to the ordeal and demand financial recovery from the defendant.

How Can a Lawyer Help?

Traumatic brain injuries can have catastrophic outcomes that change your life forever. Going up against the at-fault party, especially if it’s an employer, is an uphill battle as they might use intimidation tactics to dissuade you from seeking compensation.

Your attorney will do the following to help your case:

  • Investigate the incident and gather the necessary proof for a claim
  • Hire medical experts to attest to your injuries and how they occurred
  • Compute the total damages and present a settlement offer
  • Negotiate with the at-fault’s insurance carrier and their lawyers
  • Represent you in court if you don’t get a fair settlement
  • Prepare a mass tort if there are more victims in a similar predicament
  • Ensure you get the best treatment possible for your brain injury
  • Offer emotional comfort during this trying time
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What Are the Recoverable Damages for Brain Injury?

The treatment process of brain injuries can be lengthy and expensive, and not every patient survives despite the best medical interventions. The American Association of Neurological Surgeons (AANS) reports roughly 50,000 fatalities yearly due to brain injury.

Darryl “The Hammer” Isaacs will seek the following damages on your behalf:

  • Medical bills and prescriptions
  • The cost of seeing specialists
  • Lost income, now and in the future
  • Diminished quality of life
  • Funeral and interment expenses
  • Loss of consortium
  • Wrongful death, if you lost a loved one due to a TBI

What Is the Aftermath of a Traumatic Brain Injury?

The brain is a sensitive organ, and it could suffer irreversible damage when harmed. Patients can experience other conditions that require medical attention, thus prolonging the recovery process.

The aftermath may include:

  • Loss of hearing
  • Vision problems
  • Mental disorders like anxiety
  • Infections
  • Damage to blood vessels
  • Impaired memory
  • Coma
  • Sensory issues
  • Migraines
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