Medical Negligence

Navigating Brain Injury Compensation Claims

February 2, 2024
Featured Image

Reviewed by Trevor Ward, Senior Clinical Negligence Solicitor and Julia Eyton, Senior Personal Injury Solicitor

Between 2019 and 2020, 356,699 people were admitted to hospital with an acquired brain injury in the UK. That’s equivalent to one person every 90 seconds. The effects can be devastating whether an accident, trauma or medical negligence causes these injuries.

From mental health difficulties to physical disabilities, brain injuries can have a significant impact on the lives of individuals and their loved ones. This can include increased financial demands to fund care and support for the injured person.

Sometimes, you may be eligible for compensation to help cover these costs. This article will explain who can seek compensation for a brain injury and the process.

How do brain injuries happen?

Brain injuries can happen unexpectedly at any time of life. They can result from external incidents, such as an accident or medical factors or conditions, such as a stroke. To make a successful brain injury claim, we have to understand what happened to you and if the injury was caused by someone else’s negligence.

If you or a loved one has experienced physical trauma due to one of the below incidents, the case could be eligible for compensation:

  • Road traffic accidents, particularly for vulnerable users like motorcyclists, cyclists or pedestrians
  • A fall at work
  • An assault or other violent crime
  • Sports-related events
  • Medical negligence – for example, a brain bleed, infection or stroke
  • Birth injury – for example, reduced oxygen supply getting to the brain

If you’re unsure whether an incident leading to a brain injury makes your case eligible for a claim, we recommend getting advice from a legal professional.

How are brain injuries diagnosed?

To make a brain injury claim, you need to get the condition diagnosed by a medical professional. This may need to be done by a neurologist, neurosurgeon, neuropsychiatrist, neuropsychologist, neurorehabilitation consultant or other specialist doctor. It could involve a variety of tests, including:

Physical scans such as an X-ray, MRI or CT to assess if there’s any swelling, bleeding or other internal damage affecting brain function

A Glasgow Coma Scale (GCS) test to assess physical and verbal responses; a score lower than 15 indicates some brain damage may have occurred

Physiological assessments to review an individual’s movement or motor capabilities

Cognitive tests to assess an individual’s mood, memory and behavioural state

As well as diagnosing a brain injury, medical professionals can create detailed reports that outline the symptoms a patient is experiencing and their severity. These reports also often include information on the type of care and rehabilitation an individual needs.

Detailed medical reports also help us to understand the level of injury you’ve experienced, and help us calculate an appropriate level of compensation for you. For example, if a doctor recommends long-term physiotherapy, part of your claim could include the cost of this physiotherapy, along with any associated future costs.

Types of brain injury

The type of brain injury you may have experienced can be categorised under one of the following definitions:

Acquired: any brain injury that’s caused by something that happens inside the body, like a stroke. This can also include a number of diseases, or oxygen deprivation to the brain

  • Traumatic: brain injuries caused by external physical incidents such as a road accident, fall or use of force
  • Congenital: these are brain disorders that develop while a baby is still in the womb and are present at birth
  • Cerebral Palsy (CP): Cases of CP usually happen during or shortly after birth and can lead to developmental delays and coordination difficulties.

During diagnosis, medical professionals may also assess a brain injury’s severity. How long a person was unconscious or experiencing symptoms of post-traumatic amnesia (PTA) plays a role in this definition. PTA often means that someone is suffering from altered cognitive abilities, such as memory loss or behavioural changes.

The below levels can indicate the seriousness of a brain injury and its impact on an individual:

  • Minor: concussion falls under this category and is when someone has lost consciousness for less than 15 minutes or suffered from PTA for less than 60 minutes
  • Moderate: if a person is unconscious for between 15 minutes and six hours or had symptoms of PTA for up to 24 hours. Cognitive and behavioural symptoms may also be apparent
  • Severe: when someone is unconscious for more than six hours or has PTA symptoms for more than 24 hours. The physical and cognitive capabilities of those with severe injuries are likely to be significantly affected

The type and severity of a brain injury will impact the compensation you can claim.

Getting started with brain injury claims

The first step to making a brain injury claim is determining whether an individual’s claim is eligible. If someone has suffered a brain injury and believes the actions of an individual or company directly led to this damage, they may be eligible to make a compensation claim.

Adults aged over 18 and with total mental capacity can make a personal injury claim up to three years after the brain injury was caused or diagnosed. If an adult lacks mental capacity then this three-year time limit does not usually apply. If a claimant is under 18 years old when their brain injury is caused, the individual can make a claim for personal injury up to their 21st birthday.

There are two main types of brain injury claims individuals can make:

  • A personal injury claim: when a person has been injured through external force, and the negligence lies with an employer, another company or a private individual.
  • A medical negligence claim: when a person has been injured through wrongful or negligent medical treatment. This means that a medical professional failed to uphold their duty of care to a patient and this has caused injury.

If a brain injury happens while an individual is under care from medical professionals, then it’s likely a medical negligence claim will be pursued. For other incidents like road collisions, accidents at work or crime-related trauma, a claim can usually be pursued for personal injury.

For example, personal injury claims are often made by motorcyclists and cyclists who sustained a brain injury as a result of a collision on the road. However, sometimes negligent medical care can also contribute to the severity of a brain injury, even after a physical injury is sustained. Experienced personal injury solicitors, like Fletchers, will be able to advise on how to proceed with your claim.

Evidence needed for brain injury cases

For a brain injury claim to be successful, the legal team needs to prove that:

  • Another person/company/entity had a legal duty of care to protect the claimant
  • Events leading to the brain injury breached this duty of care
  • This breach directly led to the brain injury

To prove the above points, lawyers gather the evidence to support their client’s case. When you start working with a legal professional, they will guide you through this process. Your legal team will need to prove the facts of the case on the balance of probabilities and calculate the appropriate level of compensation to be claimed.

The exact nature of each claim will affect the type of evidence that needs to be gathered. It may include:

  • A medical diagnosis or report that outlines the claimant’s injuries, symptoms and future care requirements
  • Proof of events leading up to the brain injury, such as eyewitness accounts, police reports or CCTV footage
  • Family or expert testimony that demonstrates the impact of the brain injury on an individual and their loved ones, including any daily or long-term care requirements
  • Neurological scans or images that show the nature of the injuries suffered by the claimant
  • Physical evidence of the events surrounding a brain injury, such as an accident report book, items or photos from an accident scene

In the initial stages of building your claim, a solicitor will listen to your story and outline the evidence you need to prove your case. They’ll also instruct on your behalf to gather this where needed, such as gaining medical records or commissioning expert reports.

Critical milestones in brain injury claims

The complexity of a case, the level of evidence required and the amount of compensation will affect the exact steps of a claims process. However, there are a few key milestones every claimant will need to go through when seeking compensation for a brain injury.

Choose the right solicitor

This should be the first step to making any brain injury claim. Finding the best solicitor for your case will ensure you get the best possible guidance.

To find the best option for your needs, ask a solicitor:

  • If they’ve undertaken any cases similar to yours
  • If they have any specialisms which could be beneficial to your claim
  • About the professional contacts in the area of brain injury, for example, medics, case managers and specialist barristers.
  • What funding options are available, including the details of any legal aid, ‘no win, no fee’ agreements or deductions they’ll take from your final compensation
  • How often and what methods will they use to keep in touch about your case

Gather evidence

As outlined above, the type of evidence you need to gather will depend on the exact claim you’re making and the facts needed to prove it. A solicitor will recommend the types of evidence required and instruct the people needed to build your case.

You may undergo medical assessments, tests or scans during this process. Your family may also be formally interviewed to determine the effect of the brain injury on an individual and their loved ones.

Determine compensation amount

To calculate the appropriate amount of compensation to claim, a solicitor will consider matters such as:

  • General damages for the emotional and physical suffering a person has experienced due to their injury
  • Ongoing medical, care or rehabilitation costs an individual will need to recover or maintain their quality of life
  • Past and future loss of earnings or general living costs such as rent for accommodation or pension contributions
  • Legal or case-related costs, such as paying insurance premiums or hiring a Case Manager

A solicitor will combine these costs into a ‘schedule of loss and damages’. This will be submitted alongside your claim and be subject to negotiation during the final settlement process.

Make and settle a claim

Once all the evidence has been gathered, a solicitor will submit your claim to the defendant, their insurers and potentially the Court. The insurers will then communicate to you via your solicitor about your case.

A solicitor should present these offers to you and give objective advice on whether it’s reasonable. The decision to accept an offer or not is entirely yours. It’s important to know, though, that most cases are settled out of court and the chances of your case going to trial are low.

Regardless of whether a case goes to Court, a judge must oversee the final settlement to ensure you’re getting a fair and proportional level of compensation if the brain injury has caused a lack of capacity or if it was suffered by a child. A Joint Settlement Meeting or Final Hearing may be arranged to reach the final settlement.

How long does the head injury compensation process take?

The time it takes to make a final settlement will depend on the complexity of a case, the amount of time it takes to gather evidence and whether a settlement is made out of court or not.

However, Court proceedings must start within three years of the injury’s cause or diagnosis. Otherwise, it will likely be considered out of time, and the claim will be out of time.

What assistance do you need for serious brain injury claims?

A transparent and trustworthy, reputable solicitor is essential to assisting your brain injury claim. Ensuring they have experience with brain injury and similar cases will give you confidence in their support. Fletchers has provided legal support to clients who have experienced brain injuries for over 30 years.

Depending on the specifics of your case, we may recommend extra assistance from a Case Manager, barrister or other independent expert(s). Rest assured that before hiring any experts for your case, we will always ask your permission to do so, as well as advise you on how the additional costs may affect your settlement.

How Fletchers handles brain injury claims

When Janice had a motorcycle accident on the way to Folkestone Harbour, she suffered severe brain injuries. This affected her cognitive abilities. She struggled to concentrate on basic narratives, lost short-term memory, and could only make basic facial gestures.

Working with her solicitor, Louise, she got the trust and support she needed to reach an appropriate financial settlement. This allowed her to return to her favourite hobbies, including looking after her birds and taking up ballroom dancing.

As specialists in medical negligence and personal injury claims for those suffering from brain injury, our friendly, professional team can help you or your loved one settle their case successfully.

We can help you

Tell us what happened to you: Call us on 0330 013 0251 Or send us an email
Request a callback when it's convenient for you to talk
Start your claim (No win - no fee)