What Factors Determine Brain Injury Settlements and Negotiations?

Brain Injury Settlements

Brain injuries can destroy lives in an instant. They are complex and costly to treat, leaving victims and their families deeply in debt in addition to the pain of symptoms like memory loss, personality changes, and loss of the ability to participate fully in work and family life. 

Navigating the legal process alone to win compensation is an unbearable burden when facing these challenges. Personal injury cases are adversarial, akin to entering the arena. Success requires seasoned professionals. 

Skilled attorneys understand the complexities of brain injury cases. They are legal gladiators who fight for justice for you. In such a consequential fight, engaging the right attorney isn't just beneficial—it's essential.

In this post, we explore the factors that determine brain injury settlements and negotiations. Mattiacci Law’s legal team shares the key factors in a brain injury case and how they impact the result.


Factor 1: The Ability to Establish Liability

Establishing liability in a Pennsylvania personal injury case is critical; without it, no case succeeds. It involves demonstrating four key elements:


Firstly, the plaintiff must show that the defendant owed the plaintiff a legal duty of care under the circumstances. For instance, drivers have a duty to obey traffic laws and avoid causing harm to others on the road.

Breach of Duty 

The plaintiff must prove that the defendant breached that duty. Personal injury lawyers achieve this by providing evidence of negligent behavior, such as speeding or texting while driving.


Proving a breach of duty is not enough. The plaintiff must also prove that the defendant's negligence was the direct cause of the harm. This typically requires evidence linking the defendant's actions to the injury.


Lastly, the plaintiff must demonstrate that they suffered damages due to the defendant's actions, such as medical expenses, lost wages, or pain and suffering.

The plaintiff must prove all of these elements to establish liability. The absence of any aspect derails a claim, underscoring the importance of comprehensive evidence gathering and skilled legal representation.

Evidence Is Key

To prove liability in a brain injury case, the plaintiff must present compelling evidence of the defendant's negligent behavior. For example, if the injury happened due to a car accident, evidence may include traffic surveillance footage showing the defendant running a red light or witness testimony regarding reckless driving. 

As another example, in a construction accident case, evidence could include OSHA investigation reports and findings that reveal failures by a contractor to comply with Federal safety regulations, a failure to provide necessary safety equipment, or a failure to correct a dangerous condition on a work site that then causes injury to a laborer. Expert testimony often plays a crucial role in explaining how the general contractor’s actions violated regulations and industry standards, thus demonstrating a breach of duty. Factor 2: The Severity of the Injury Determines the Settlement Amount

In a personal injury case, the severity of the injury plays a substantial role in determining the settlement amount. A minor injury–such as a sprain that heals properly–may cause temporary inconvenience and discomfort but not permanently disrupt the victim's life. Therefore, the settlement in such a minor injury case may be tempered by those facts.

On the other hand, serious injuries drastically harm the victim, causing massive treatment expenses, loss of income, and agony. Severe injuries range from traumatic brain injuries to spinal cord injuries, severe burns, loss of limbs, and other major medical problems and disabilities. Severe brain injuries necessitate extensive medical treatment and long-term or even lifelong care. They can permanently affect the victim's ability to work, participate in family life, and enjoy cherished pastimes.

The Value of Serious Injuries

Because of the extensive impact serious injuries have on a victim's life, they are associated with large settlements, making the case more valuable. The cost of treating and managing a serious injury over a lifetime can run into millions of dollars.  Expenses may include hospital bills, medication, physical therapy, assistive devices, home modifications, and home health or nursing home care.

Furthermore, if the injured person cannot work due to their injury, they may be entitled to compensation for lost income and diminished earning capacity. All these factors increase the value of the claim.

Economic Damages

Economic damages compensate the victim for the quantifiable monetary losses incurred. They include medical expenses, lost earning capacity, and other out-of-pocket expenses related to the injury.

Non-Economic Damages

On the other hand, non-economic damages compensate the victim for less quantifiable losses. These include pain and suffering, emotional distress, loss of enjoyment of life, and loss of consortium. 

Unlike economic damages, non-economic damages lack an exact dollar amount tied to a medical bill or lost wages. Their valuation depends on the extent of suffering, both mental and physical, inflicted on the victim and the family. Winning full compensation for non-economic damages requires the skills of an expert personal injury lawyer.

Juries often reward more for non-economic damages than economic ones, especially in cases involving severe pain, permanent disability, disfigurement, or losing a loved one.

Punitive Damages

Punitive damages are rare in personal injury cases because most personal injury cases are based on negligence rather than malicious actions. They serve to punish defendants whose conduct was reckless, such as an assault resulting in permanent brain damage. Though uncommon, the potential for punitive damages can influence settlement negotiations in some instances.


Factor 2: Comparative Negligence in a Philadelphia Personal Injury Case

Pennsylvania personal injury law is governed by the comparative negligence doctrine. Comparative negligence recognizes that injured parties may bear some responsibility for their injuries, and the damages plaintiffs can recover are reduced by a percentage equivalent to their degree of fault.

For example, if a court finds a plaintiff is 30% at fault for her injuries, it reduces her damages by 30%. A $100,000 award would become $70,000. Proponents of comparative negligence believe it allows for a more equitable distribution of damages and ensures that a defendant is not overly penalized for an accident that was not entirely his fault.

Pennsylvania's Personal Injury Law and the 51% Bar Rule

Pennsylvania follows a modified comparative negligence system, which imposes the 51% bar rule. Under this rule, plaintiffs cannot recover damages if the court finds them 51% or more at fault for the accident. In other words, the plaintiff must be less at fault than the defendant or lose the case.

Example of a Brain Injury Case with Comparative Negligence

Consider a case where a pedestrian suffered a brain injury after being struck by a car. The pedestrian was crossing the road outside of a crosswalk at night while the car's driver was far above the speed limit. The pedestrian files a personal injury claim and goes to a jury trial. The pedestrian demands damages for medical bills, lost wages, and pain and suffering. The defense argues that the pedestrian showed comparative negligence by failing to use a marked crosswalk.

Assume that the jury awards $500,000 for the pedestrian’s claims for medical expenses, lost wages, and pain and suffering. However, when deciding the case, the jury at the trial agrees that the pedestrian was comparatively negligent and finds the pedestrian 30% at fault.

Under Pennsylvania's 51% bar rule, the plaintiff can still recover damages because the 51% bar rule is inapplicable. However, the pedestrian's comparative negligence reduces the amount of compensation. Accordingly, the court would reduce the $500,000 in damages by 30%, resulting in compensation of $350,000.


How Expert Representation Impacts Settlements and Negotiations in Philadelphia

A great brain injury lawyer is crucial in negotiating settlements that maximize their client's compensation. Key factors in achieving this include the following:

Understanding the Value of the Case 

Skilled lawyers thoroughly assess the total impact of the injury on their client. They consider medical bills, lost wages, future medical care, pain and suffering, and other damages to determine appropriate valuations.

Gathering Evidence 

Lawyers meticulously collect and preserve evidence to construct strong cases. Evidence may include medical records, accident reports, witness testimonies, and expert opinions establishing liability and damages.

Communicating and Negotiating 

The negotiation process requires assertive and strategic communication. Experienced attorneys understand how to present a case convincingly, highlight the defendant's liability, and argue for the highest possible compensation. They also know when to compromise and when to continue litigating.

Understanding Insurance Companies 

Great lawyers have experience dealing with insurance companies and understand their strategies and tactics. They know that initial offers are typically low and resist rushing to accept them. They push back against attempts to deny claims or reduce payouts.

Being Ready for Trial 

Even though most personal injury cases settle, a lawyer's willingness and preparedness to go to trial influences negotiations. If the lawyer has a reputation for successfully arguing cases in court, insurance companies are more likely to offer an attractive settlement to avoid a trial.

Brain Injury Negotiation Example

A client has been in a car accident, resulting in severe injuries and substantial medical costs. After thoroughly assessing the case, his lawyer identifies the other driver as completely at fault and communicates this effectively with the insurance company, showcasing the client's pain and suffering. 

In response, the insurer makes a low initial offer. The lawyer then provides robust evidence, showing the insurer that they are ready to go to trial and mop the floor with them. As a result, the insurer agrees to a much higher settlement.

A good personal injury lawyer uses knowledge, skills, and strategic insight to negotiate the best possible settlements for his clients.

In the complex world of personal injury law, particularly in cases involving traumatic brain injuries, the importance of having a skilled attorney on your side cannot be overstated. Experienced counsel navigates the challenges of proving liability, negotiating settlements, and taking cases to trial.

With competent legal assistance, victims can secure the compensation they deserve, regardless of the challenges that might arise during the proceedings. Whether dealing with insurance companies or preparing for a trial, having an excellent attorney can make the difference between losing your claim and winning the full compensation to which you are entitled.

Consult with a Philadelphia Personal Injury Attorney

If you or a loved one has suffered a brain injury due to someone else's negligence, it's crucial to contact a skilled personal injury attorney as soon as possible. Contact Mattiacci Law today. Don't wait—fight for your rights with Mattiacci Law.

Related Content: Understanding & Proving Duty of Care in Brain Injury Cases

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