How are TBI Settlements Calculated?

If you’ve suffered a traumatic brain injury (TBI) in the Denver area, you’re likely experiencing emotions, medical appointments, missed work, and uncertainty about your future. The physical and emotional toll of a TBI can be overwhelming, and you may be wondering how you’ll manage the financial burden that comes with it. At Fuicelli & Lee, our Denver traumatic brain injury lawyers are prepared to help you. 

Most traumatic brain injuries in the U.S. are the result of car accidents and falls, and Denver is no exception. Car accident injuries in Denver are on the rise, and so are the number of TBIs. Falling risks, sports and recreation-related hazards, and all the other ways an individual can sustain a TBI are present throughout Denver and the broader metropolitan area.

At Fuicelli & Lee Injury Lawyers, we know about TBIs and all the hardships and challenges they present, not only to the survivor but also to their family. Our team of dedicated TBI attorneys is committed to helping you ease your burdens and get you the compensation you deserve. One of the questions our TBI clients occasionally ask is, “How are TBI settlements calculated?”

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Denver Traumatic Brain Injury Guide

• The Prevalence of Traumatic Brain Injuries
• Our Founder’s Comeback from a TBI
• How Negligence Determines TBI Settlements
• Factors Considered in Determining TBI Settlements
• Calculating Damages for a TBI Settlement
• How Defendants May Challenge Your TBI Claim
• What Happens if You Can’t Reach a Fair TBI Settlement?
• Discuss Your Case with A Fuicelli Lee TBI Lawyer Today

The Prevalence of Traumatic Brain Injuries

Understanding how common TBIs are and how devastating they can be is another reason that motivates us to fight for TBI survivors and their families. According to the Centers for Disease Control and Prevention (CDC):

• Approximately 1.5 million Americans sustain a TBI each year.
• TBIs contribute to about 30% of all injury deaths in the United States.
• There were about 70,000 TBI deaths in the U.S. in recent years.

While specific data for Colorado is limited, the Colorado Department of Human Services (CDHS) reports:

• TBI is a leading cause of injury-related deaths and disabilities in Colorado.
• In one recent year, there were 1,218 TBI-related hospitalizations in Denver and other parts of Colorado. 
• Over 500,000 adults in Colorado have suffered a TBI and live with impairments caused by their injury. 
• Colorado ranks in the top ten U.S. states for TBI deaths and 13th for TBI hospitalizations. 

Our Founder’s Comeback from a TBI

Keith Fuicelli, our firm’s founding partner, understands what you’re going through because he’s been there himself. In 2007, a devastating car accident left Keith fighting for his life with a severe traumatic brain injury. He faced the fears, uncertainties, and challenges that you or your loved one may be experiencing right now.

Keith’s journey from the brink of death to full recovery spanned two and a half years. He endured days on life support, two weeks in a coma, and a long, arduous rehabilitation process. He now uses his experience to fight passionately for TBI survivors.

Keith’s battle with TBI has given him and all of our personal injury lawyers the drive and commitment to help our clients struggling with these horrible injuries. We know the difference full, fair, and complete compensation for a TBI will make in your life, and we are ready to fight for you. 

How Negligence Determines TBI Settlements

Establishing negligence and liability is the bedrock of every personal injury case, including those involving traumatic brain injuries. While laws may vary between jurisdictions, the core principle remains consistent: to hold another party responsible for your TBI, you must prove they acted negligently.

Negligence is any failure to exercise reasonable care that results in harm to another person. In the context of a TBI case, this could involve a driver who ran a red light, a property owner who failed to address a safety hazard, or a skier who violently collided with another skier on the slopes. Establishing negligence is not always straightforward, but it’s a challenge our experienced attorneys are well-equipped to handle.

To determine negligence, we must establish four key elements. First, we must establish that the defendant owed you a duty of care. This means the at-fault party had a duty to you to act in a way that didn’t put you at risk of personal injury. For instance, you wouldn’t drive a car wearing a blindfold, nor should you drive after drinking alcoholic beverages, because doing so would put others in harm’s way.

Next, your Denver brain injury lawyer must show that the defendant breached (or failed) this duty with their actions or inactions. This might involve gathering evidence such as surveillance footage, witness statements, or expert testimony.

The third step involves demonstrating that this breach directly caused your traumatic brain injury. This causal link is critical and often requires medical evidence and expert opinions to establish. 

Finally, we must prove that you suffered actual damages as a result of the injury. In TBI cases, these damages are often substantial and can include medical expenses, lost wages, pain and suffering, and more. 

Be sure to contact a Denver TBI lawyer no matter what you believe to be the cause of your injuries. TBI cases are usually complex, and there may be important avenues of compensation and other considerations that could affect your TBI claim and its value.

Factors Considered in Determining TBI Settlements

When calculating a TBI settlement, several key factors come into play. Each case is unique, and the final settlement amount will depend on the specific circumstances surrounding your injury. Here are the primary elements that attorneys and insurance companies consider:

Medical Expenses

The cost of medical treatment is often one of the most substantial components of a TBI settlement. These expenses include:

• Emergency medical care
• Hospitalization
• Surgeries
• Rehabilitation services
• Ongoing therapy (physical, occupational, speech)
• Medication
• Medical equipment
• Future medical needs

It’s crucial to account for both current and future medical expenses, as TBIs can require long-term or even lifelong care.

Lost Wages and Income

If your TBI sidelines you from work, the financial impact may be severe. Lost wages and income encompass more than just your regular paycheck. They include overtime, bonuses, and other work-related benefits you lose while recovering. Every day of work missed also represents missed opportunities, delayed career progress, and mounting stress.

Your claim should account for all income lost due to your injury from the day of your injury until you can return to work. Lost income may cover the following:

• Regular salary or hourly wages
• Missed overtime
• Lost commissions or bonuses
• Sick days and vacation days you used for recovery
• Benefits like health insurance contributions or 401(k) matching

Support this part of your claim by gathering pay stubs, tax returns, and a letter from your employer confirming all of your missed work.

Diminished Earning Capacity

Some individuals must cope with more catastrophic injuries that leave them unable to perform as they once did or return to their previous jobs. If you or a loved one has suffered a TBI that has impaired your job performance or ended your livelihood completely, your diminished earning capacity will likely be a major part of your TBI case’s worth.

Pain and Suffering

Unlike medical bills and lost wages or income, pain and suffering damages stemming from your TBI can be more difficult to quantify. However, these symptoms should never be underestimated or undervalued. 

• Physical pain
• Emotional distress
• Loss of enjoyment of life
• Depression and anxiety
• Sleep disturbances
• Cognitive impairments

While there’s no fixed formula for calculating pain and suffering, your Denver traumatic brain injury lawyer will work with you to accurately account for these serious damages and how they have affected your life. 

Lifecare Expenses

For severe TBIs, you may need ongoing care and assistance with daily activities. TBI lifecare expenses can include:

• In-home care and rehabilitation expenses 
• Modifications to your home or vehicle
• Assistive devices
• Transportation costs for medical appointments

If you or a loved one receive lifecare to help you cope with a TBI, all of the expenses related to that care should be a substantial part of your settlement. 

Insurance Policy Limits

Insurance policy limits play a key role in determining the potential value of a TBI settlement. These limits represent the maximum amount an insurance company will pay out for a claim, regardless of the actual damages incurred. In TBI cases, where damages can be substantial, policy limits can significantly impact the settlement’s value.

If the at-fault party’s insurance policy has low limits, it may not fully cover the extensive damages typical in TBI cases. Low policy limits can leave victims under-compensated for their injuries and ongoing care needs. In auto accident cases, if the at-fault driver’s policy limits are inadequate or if they have no auto insurance, our Denver brain injury lawyers may turn to your policy’s uninsured/underinsured motorist protections for additional compensation.

Knowledge of policy limits informs our negotiation strategy. When limits are low, we work to identify and pursue other avenues of compensation. Maximizing compensation in the face of policy limits is another reason why hiring a highly skilled and experienced lawyer can greatly increase the value of your TBI settlement.

Punitive Damages

In some cases, when the defendant’s actions were particularly reckless or egregious, punitive damages may be awarded. These are meant to punish the wrongdoer and deter similar behavior in the future. Punitive damages are relatively rare and subject to specific legal standards.

How Defendants May Challenge Your TBI Claim

In TBI settlement negotiations, defendants may try to challenge or weaken your claim. Fuicelli & Lee’s TBI attorneys understand and anticipate these challenges. We enter settlement negotiations well-prepared for these defense strategies. Their strategies may include:

• Questioning the severity of your TBI: Defendants may attempt to downplay the seriousness of your TBI, suggesting that the injury isn’t as severe as you claim. They might argue that you’re exaggerating your symptoms or malingering.
• Disputing the Cause of your TBI: The defendant may challenge the link between the accident and the TBI. Defendants might argue that the brain injury resulted from a pre-existing condition or an unrelated incident. They may scrutinize your medical history, looking for alternative explanations for the symptoms.
• Disputing liability: Disputing responsibility for the accident itself is a fundamental defense strategy. Defendants may argue that they weren’t at fault or that other parties bear responsibility. Attempting to share blame can involve complex investigations of the accident and could also pull additional parties into the legal proceedings.
• Arguing contributory negligence: Another common defense strategy is to shift some blame onto the plaintiff. Defendants might argue that the victim’s actions contributed to their injury, such as not wearing a seatbelt or failing to wear a helmet. If they can show you are partially to blame for the accident, they can lower or even invalidate your claim under Colorado’s modified comparative negligence rule. Under this rule, your compensation is lowered by your percentage of fault for the accident. If the court finds you are 50% or more at fault, you will not be eligible for compensation. 
• Questioning medical evidence: Defendants may question the reliability and interpretation of medical evidence. They might dispute the accuracy of diagnostic tests or argue that brain imaging results are inconclusive. This approach seeks to create uncertainty about the TBI’s existence or severity.
• Attacking your credibility: Defendants may try to undermine your credibility by digging into your past and searching for inconsistencies in medical records, behaviors, or statements. They may also scour your social media accounts for posts that could contradict your claims about your TBI, using this information to suggest you’re being dishonest.
• Disputing your TBI’s long-term impact: The defendants might argue that you will recover more fully or faster than predicted or that proposed future medical needs are unnecessary. Defendants could bring their own medical experts to counter your physician’s prognoses for your recovery.
• Challenging expert testimony: Defendants may attack the qualifications or methodologies of any expert witnesses who testify for you. 
• Arguing that you assumed risk: In some situations, defendants argue that the plaintiff knowingly engaged in a risky activity and bears responsibility for the TBI. Assumption of risk arguments are particularly relevant in sports-related TBI cases or recreational activities.

What Happens if You Can’t Reach a Fair TBI Settlement?

In some cases, the defendants may refuse to settle a TBI claim for an amount that adequately covers the TBI survivor’s damages. If settlement negotiations fail to yield a fair deal for your TBI case, Fuicelli & Lee’s TBI attorneys are prepared to take your case to trial. We are all seasoned trial lawyers, and we never shy away from courtroom battles when it’s in our client’s best interest.

At Fuicelli & Lee, we prepare every case as if it’s going to trial from day one. This approach not only positions us for success in the courtroom but can also lead to better settlement offers as the defense recognizes our readiness to litigate. We do not back down until we secure your full, fair, and complete compensation. 

Discuss Your Case with A Fuicelli & Lee TBI Lawyer Today

If you’ve suffered a TBI in the Denver area, you don’t have to face this challenging time alone. Seeking the help of a skilled attorney can make a significant difference in the worth of your TBI case. Fuicelli & Lee’s Denver brain injury lawyers will properly value all of your expenses and suffering, and we will fight for the compensation you deserve.

Call us today at (303) 444-4444 or fill out our online form for a free, obligation evaluation of your case. Let our skilled lawyers advocate for you and negotiate a TBI settlement that puts you on the path to recovery.