Why Factoring in Non-Economic Damages is Essential in Brain Injury Cases

Those who suffer a traumatic brain injury (TBI) due to another’s negligence are entitled to compensation for those injuries. Brain injuries can be mild or moderate; temporarily severe or resulting in lifelong damage. Many are caused by traffic accidents, slips and falls, and sports injuries. But any negligent accident to a victim’s head can produce a serious TBI.

Injured TBI victims ask for two types of damages: economic and non-economic. Economic damages pertain to measurable dollar amounts, such as medical bills and lost income; non-economic damages are less finite and more subjective. They often include such things as pain and suffering, disability or impairment, and mental anguish.

Victims and family members of loved ones with serious TBI injury often feel justified in asking for non-economic damages because of the overwhelming effect that such a devastating injury can have on an entire family who are suddenly called to be caregivers. But generous non-economic damages maybe also appropriate to victims of less-acute but longer-lasting TBI, as their pain and suffering can be at the bottom of a variety of health problems and even curb their workplace productivity to the point where holding their job is very difficult.

Occasionally, punitive damages may be available to some brain injury victims. The purpose of punitive damages is to punish the one who caused the injury if their actions were willful or grossly negligent.

Non-Economic Damages for TBI are Unique to Each Victim

So how do we come up with that non-economic figure when dealing with an injury that offers for some the possibility of full recovery but for others a lifetime disability? As we mentioned, economic damages are not difficult to determine; a bookkeeper can compute them by adding:

• The amount of work time you lose
• The value of any company-paid benefits your salaried (or hourly) job delivers to you
• All your hospital/medical bills (existing and future, once the full extent of your injuries are known)
• And other bills associated with your injury.

This will provide a relatively indisputable amount. It is important to understand that the ultimate amount of your economic damages can serve as a general foundation to compute some of your non-economic damages.

Let’s assume a brain injury victim is disabled due to temporary or permanent blindness, or has impaired motor skills. These can directly affect one's ability to earn a living, which in turn must be considered when calculating economic damages due to reduced earning potential. And what if a brain injury’s effects are not readily detectable? In a general sense, conditions such as amnesia, headaches, mood changes and personality disorders associated with brain injury may be hard to detect by most people. Nevertheless, these “non-visible” injuries still warrant damage compensation to the victim, even if the direct physical impairment is not readily apparent.

Other factors taken into account when computing non-economic damages for a brain injury include:

• Direct pain and suffering: physical, emotional and psychological
• The injured victim’s reduced quality of life, over and above the loss of earning ability, for however long that reduction is likely to impact the victim.

When it comes to compensation for brain injuries, rarely are two alike; nor are their formulas for computing non-economic damages identical.

Damage Caps – or Limits – Have a Profound Effect on Compensation Amounts

Until the early 1980s, there were no limits to the amount of damages a plaintiff could recover from an injury in Texas. But since then, under the pretext of “tort reform,” damage caps to prevent frivolous lawsuits were passed by the Texas Legislature. The intent was to restrict injury lawsuits filed by people who were either not legitimately injured or who had an ulterior motive to their lawsuits other than legitimate compensation.

Though the hearts of many of our lawmakers were certainly in the right place, a great deal of pressure was brought to bear by special interests, especially those of the insurance industry. Over the years, caps now hobble truly fair compensation for some of our most seriously injured Texans. Today, there are several conditions in which damage caps impact damage awards in civil personal injury trials. The two that apply to brain injury lawsuits involve:

• Medical Malpractice – Injured plaintiffs may sue for the entire amount of economic damages. But non-economic damages are capped at $250,000 against primary provider defendants -- doctors and other healthcare providers such as a nurse or medical technician. Additional damage caps against any/all other indirectly involved medical care provider defendants cannot exceed $500,000. So the highest amount of non-economic damages an injured plaintiff can collect in any single medical malpractice claim or lawsuit is $750,000.

• Punitive damages - Recognized in Texas as “exemplary damages,” punitive damages designed to punish a negligent defendant for their malicious behavior or gross negligence in causing an accident that – in this case – caused the victim to suffer a brain injury, are capped in either of the following ways

• $200,000 or
• Two times the amount of economic damages plus an equal amount of non-economic damages, with a ceiling of $750,000.

So let’s say that if the accident that caused you to suffer a serious brain injury was proven to have been caused by the defendant’s gross negligence, you can sue for punitive damages. If you are awarded $150,000 in economic damages and non-economic damages which total $200,000, your exemplary (punitive) damages are capped at $500,000 (twice the economic plus the non-economic).