Brain Injuries

More than one million people in the US each year sustain a traumatic brain injury (or TBI). There are nearly 200,000 people in North Carolina with traumatic brain injury. A brain injury can be sustained in an automobile accident, or from being struck by an object, such as a golf ball. It can also be caused by medical malpractice. A TBI can be a devastating injury. In addition to purely cognitive problems (e.g. memory, concentration, processing speed), persons with TBI often have behavioral problems (e.g. irritability). These injuries are often difficult to handle because there are often no visible signs of brain injury. Handling a case involving a brain injury raises several complicated issues.

One issue facing a person with a TBI in North Carolina is establishing the nature and extent of the injury. This is often done by various cognitive tests, which can ascertain the subject’s ability in various areas and can sometimes confirm a brain injury. The test results can also sometimes be compared with previous tests, or previous performance levels (e.g. grades or standardized tests). In some cases, imaging can corroborate a brain injury, or at least that significant trauma to the head occurred.

Another issue in TBI cases in North Carolina is determining the future limitations and needs of a person with a traumatic brain injury. A person with a head injury may need ongoing cognitive testing, special education, assistance with employment, counseling, and prescription medication.

Legal issues surrounding brain injury cases in North Carolina include the following: whether the plaintiff’s doctors, psychologists, and other experts are qualified to testify as to causation and other issues; the effect of a prior brain injury; the difficulty of determining the plaintiff’s prior cognitive level; the significance of MRI’s or other scans that are negative (i.e. do not show objective evidence of a brain injury).

The following is a list of cases that have been litigated in North Carolina involving brain injuries.

  • In a case decided in 2001, a jury awarded more than $1.5 million to a child who sustained a skull fracture in a car accident. The child was two at the time of the accident. She presented expert testimony that she would not be able to attend college. The plaintiff presented several experts who said that the child sustained a brain injury, and the defendant presented multiple experts contesting these conclusions. The court held that the evidence was sufficient to establish a traumatic brain injury and loss of future earnings.
  • In a case tried in Durham in 2005, the jury awarded $500,000 to a boy who sustained brain damage when a large, heavy door fell on him at a retail store. The boy had learning disabilities prior to the accident.
  • In 2004, a jury in Fayetteville rendered a verdict of $2.5 million to a woman who fell to the floor during a mammogram and sustained skull fractures. She sustained cognitive deficits, in addition to other injuries.
  • In a workers compensation case from 1970, the employee worked as a cab driver. His passenger struck him in the head with a pipe, fracturing his skull. Portions of his brain (occipital lobe) had to be removed, and he had an extensive hospital stay. The dispute was whether the employee was permanently and totally disabled from working. The worker’s primary problem following his recovery was that he could not control his temper. The court ultimately ruled that this change in behavior was sufficient to render the worker permanently disabled under workers compensation laws.
  • A case from Buncombe County in 1990 raised the issue of a pre-existing brain condition. In this case, the plaintiff’s vehicle collided head-on with a tractor-trailer. The plaintiff was in a coma, and a CAT scan revealed a blood clot or a hemorrhage in the brain. There were cuts to the face, but no skull fracture. The hemorrhage was removed during surgery. The doctor also discovered and removed a blood vessel abnormality (arteriovenous malformation), which was congenital. He suffered brain damage. The parties disputed the role of the abnormality in causing the hemorrhage (with the defendant arguing that the hemorrhage occurred spontaneously). The appellate court ruled that the jury should have been instructed on the “thin skull” rule, which generally holds that the defendant is liable for the plaintiff’s injury even if the injury is greater due to a pre-existing condition.
  • For more examples of successful brain injury case results, please visit the Case Results page of this website.

John Kirby has represented clients with traumatic brain injury (or “closed head injury”) and has defended several of these claims in litigation. He obtained a recovery of more than $1,000,000 (one million dollars) for the victim of a car accident, caused by a driver who ran a red light at forty-five miles per hour and T-boned the victim. He has defended a claim where a motorist on a scooter fell onto the roadway, and where a victim was struck by a golf ball, in addition to other cases where the victim alleged a brain injury from an automobile accident in North Carolina. He has also received education specific to cognitive psychology, including the study of the anatomy and functioning of the brain. He has also represented persons sustaining post-traumatic stress disorder (PTSD) and has defended against such claims.