Brain Injury Claims in California

Our firm handles catastrophic injury cases, and Eric Young is a member of the Brain Injury Association of America. This guide explains what the law asks an injured person to prove. For crash claims in general, see our auto accidents page.

How is a brain injury claim built, step by step?

The first medical visit. The record should show the blow or jolt to the head and every symptom, even mild ones.
Follow-up care. Neurology, imaging, therapy and counseling records show how the injury develops over weeks and months.
Proving fault. The crash report, witnesses, photos and video show the other person was negligent.
Proving the link. The medical records and the treating providers connect the symptoms to the crash or fall, which is often the most disputed point.
Measuring the losses. Each item of harm is valued separately: medical care, earnings, earning capacity, and pain, suffering and loss of enjoyment of life.
Looking ahead. Future care and future earnings are estimated, often with a life expectancy figure, and future economic losses are reduced to present cash value.
Settlement or trial. Many claims are negotiated on this record; if the case goes to court, a jury follows the instructions described below.

What does the injured person have to prove?

In a negligence case, California's standard jury instruction lists three things: the other person was negligent, you were harmed, and their negligence was a substantial factor in causing the harm (CACI 400). With a brain injury, the last point often draws the most attention, because the injury cannot be seen and symptoms may build over time.

Once those points are proven, the law aims to compensate for all the harm the wrongful conduct caused, whether or not it could have been anticipated (Civil Code 3333). Jurors are told they must award damages for each item of harm, that the injured person does not have to prove the exact amount, and that they must not speculate or guess (CACI 3900).

Which losses count, and what must be shown for each?

Juries list economic and noneconomic damages separately (CACI 3902). These are the items most brain injury claims involve:

Item	What must be shown	Jury instruction
Past medical expenses	The reasonable cost of reasonably necessary care already received	CACI 3903A
Future medical expenses	The reasonable cost of reasonably necessary care you are reasonably certain to need	CACI 3903A
Past lost earnings	The income, wages or salary lost to date	CACI 3903C
Future lost earnings	The income you are reasonably certain to lose in the future because of the injury	CACI 3903C
Lost earning capacity	That the injury is reasonably certain to make you earn less than you otherwise could have, and the reasonable value of that loss. A work history is not required.	CACI 3903D
Pain, mental suffering and loss of enjoyment of life	No fixed standard: a reasonable amount based on the evidence and common sense. Future harm must be reasonably certain.	CACI 3905A

Lost earning capacity often matters most after a brain injury. The comparison is between what you could probably have earned without the injury and what you can still earn with it, and jurors may consider the career choices you had a reasonable probability of achieving. That is why it applies to students and people early in their careers, not only to people with a long work record.

Why do symptoms that show up later matter?

The Centers for Disease Control and Prevention says some symptoms of a mild brain injury or concussion may appear right away, while others may not appear for hours or days, and that changes such as feeling more emotional than usual or trouble sleeping may be noticed a week or two later. For a claim, that means the medical record should show the blow or jolt to the head from the first visit, and later symptoms should be reported to a provider as they appear.

You are entitled to copies of your own medical records, and a provider must send them within 15 days after receiving your request (Health and Safety Code 123110). A short daily log of headaches, sleep, memory problems and mood changes, kept from the first week, helps your providers and later your claim.

How are future losses valued?

A serious brain injury can affect the rest of a person's life, so future care and lost earnings are often the largest items. When damages will continue for life, the jury decides how long the person will probably live, using published life expectancy figures as evidence along with the person's health, habits, activities, lifestyle and occupation (CACI 3932).

Future economic losses, such as care and earnings, may be reduced to present cash value: the amount that, reasonably invested today, would provide the future amount (CACI 3904A). Future pain and suffering is set in current dollars at the time of judgment and is not reduced that way (CACI 3905A). Our guide on how pain and suffering is valued in California explains the rules that cap or bar it in some cases.

What changes the answer?

An earlier injury or condition. A person cannot recover for a condition they already had, but if the crash or fall made it worse, the jury must award damages for the effect on that condition (CACI 3927). An earlier concussion is one example.

A person more fragile than most. The award covers all the harm the wrongful conduct caused, even if the person was more susceptible to injury than a healthy person and even if a healthy person would not have been hurt the same way (CACI 3928).

Later medical care that made things worse. The person responsible for the injury is also responsible for additional harm from the medical treatment the injury reasonably required, even if that treatment was negligent (CACI 3929).

Your own share of fault. If the other side proves you were also negligent and that it helped cause the harm, your damages are reduced by your percentage of responsibility (CACI 405). They are not wiped out. Not wearing a seat belt is handled the same way, as our guide on recovering without a seat belt explains. For a cyclist or e-bike rider without a helmet, see our guide on e-bike class, age and helmet rules.

Steps you could reasonably have taken. Damages do not include harm the other side proves you could have avoided with reasonable effort or expense, judged by what you could do without undue risk or hardship (CACI 3930). Following your providers' advice matters.

Your age or capacity. For a child, or a person who lacks the legal capacity to make decisions, the two-year deadline is paused against a private party (Code of Civil Procedure 352), and a child's settlement needs a court's approval (Probate Code 3500).

The injury was fatal. The family then brings a wrongful death claim, which measures different losses; see what a family can recover in a wrongful death case.

What could this look like? An example

For example, imagine a 24-year-old nursing student whose car is broadsided at an intersection. At the emergency room she mentions hitting her head on the window, and the scan is normal. Over the next two weeks she has headaches, trouble concentrating and poor sleep, and she reports each one to her doctor and writes them in a daily log.

She is referred to a neurologist and later to therapy, and she drops two classes. Her claim would list her medical bills, the care she is reasonably certain to need, the pay she lost from a part-time job, and the loss of earning capacity if her path to nursing is delayed or changed, even though she has a short work history. Pain, suffering and the loss of things she used to enjoy would be valued separately. The other side might argue that a sports concussion in high school explains her symptoms; under CACI 3927 she could still recover for any worsening the crash caused. This example is made up to show how the pieces fit; it says nothing about what any real case is worth.

What evidence helps show the full effect of the injury?

Emergency, imaging, neurology and therapy records, in date order.
Each provider's notes on symptoms, restrictions and future care.
Pay records and any letters about missed work, reduced hours or changed duties.
School records for a student, if grades or attendance changed.
Statements from family, friends and coworkers who can describe the person before and after.
The daily symptom log.

What mistakes do people make with brain injury claims?

Not mentioning the head strike at the first visit because there was no cut or bruise.
Telling an adjuster "I'm fine" in the first days, before symptoms have developed.
Skipping follow-up appointments or therapy, which the other side may argue made the harm worse.
Leaving out earlier concussions when asked; they are usually found in the records anyway, and the law still covers any worsening.
Settling quickly, before anyone knows whether the symptoms will last.
Ignoring the six-month deadline when a city, county or the State may share responsibility; see how to file an injury claim against a city, county or the State.

What should I do this week?

See a doctor and describe the blow to the head and every symptom.
Start a daily log of headaches, sleep, memory, concentration and mood.
Request copies of your emergency and follow-up records.
Ask family or coworkers to write down the changes they notice.
Keep pay records and any notes from work or school about missed time.
Check the deadlines that apply to your case, including any claim against a public agency.

For the reports and insurance steps that come right after a crash, see what happens in the first 30 days after a car accident in Sonoma County.

How long do I have to file?

A lawsuit for injury generally must be filed within two years (Code of Civil Procedure 335.1), and a claim against a city, county or the State is due in writing within six months. A diagnosis that comes weeks after the crash is a reason to act sooner, not later. Our guide to California personal injury deadlines covers the exceptions.

What if the injury came from a fall, or the other driver has little insurance?

Falls cause brain injuries too, and our guide on what to do in the first week after a fall at a store or business covers the evidence to save. When the at-fault driver's policy is too small for a serious injury, your own coverage may add to it: see how uninsured and underinsured motorist coverage works.

Frequently asked questions

Can I have a brain injury claim if my scan was normal?

A normal scan does not end a claim. What matters under CACI 400 is proof that the crash was a substantial factor in causing harm, and that proof can come from the treating providers, the symptoms they recorded and the changes others saw.

Do I have to prove an exact dollar amount?

No. Jurors are told the injured person does not have to prove the exact amount of damages, but they must not speculate or guess (CACI 3900).

Can I recover for a career I had not started yet?

Lost earning capacity does not require a work history, and jurors may consider the career choices you had a reasonable probability of achieving (CACI 3903D).

What if I had a concussion before?

You cannot recover for the old injury itself, but you can recover for any way the new event made it worse (CACI 3927).

Will my claim be reduced if I was partly at fault?

Only by your share. The jury sets a percentage of responsibility, and your damages are reduced by it (CACI 405).

Where would a lawsuit be heard?

Usually in the county where the injury happened or where a defendant lives. For an injury here, our guide to what to expect at Sonoma County Superior Court in an injury case explains the court's steps.

If you or a loved one has suffered a brain injury in a crash or fall, contact Young Law Group today at (707) 343-0556 or through our contact page to schedule your free consultation and learn how we can help.

How is a traumatic brain injury proven and valued in a California injury claim?