It goes without saying that brain trauma is one of the most devastating injuries a person can suffer. Even a minor concussion can cause frightening symptoms such as dizziness and loss of consciousness, but a more severe traumatic brain injury (TBI) can result in permanent cognitive impairment that affects almost every aspect of life. Auto accidents are one of the leading causes of TBI in the United States, and bicyclists are vulnerable to these injuries even if they are wearing a helmet.
If you or someone in your family was diagnosed with TBI after a bicycle crash, it may be possible to recover monetary damages by filing a personal injury claim. Read on to learn the answers to a few FAQs about these cases:
1. Am I Barred from Recovering Damages If I Wasn’t Wearing a Helmet?
No. Even if the insurance company argues that your failure to wear a helmet was negligent, you may still be able to recover compensation for 100 percent of your medical bills and other damages, depending on the circumstances.
California has a pure comparative negligent law, which means even if a plaintiff is found 99 percent liable for their own damages, they still have the right to pursue compensation for the 1 percent of damages for which the defendant was responsible. As you may have discerned, the plaintiff’s damages award is limited by their own percentage of fault, meaning if the plaintiff was 20 percent responsible for causing the bicycle accident, the maximum recovery would be 80 percent of the plaintiff’s damages.
It is common for insurance companies to assert the comparative negligence defense in auto accident cases because even if they can shift part of the blame to the plaintiff, it could amount to significant savings for the insurer. In order for this defense to work, however, the insurer must prove that the plaintiff was somehow negligent and that this negligence was a proximate cause of the damages incurred.
If you weren’t wearing a helmet when the bicycle accident happened, the insurance company might say that your failure to wear the appropriate safety gear was negligent. But in the state of California, bicycle riders over the age of 18 are not required by law to wear a helmet, so if you were over 18 when the crash occurred, failure to wear a helmet would not be considered negligence per se.
Another potential way for your attorney to counter this defense would be to assert that a person of ordinary prudence would not have been wearing a helmet under the same circumstances. This might apply, for example, if you were riding just a short distance to the grocery store.
Yet another counter to the comparative negligence defense would be to assert that the plaintiff’s injuries would have been just as severe even if a helmet had been worn. After all, a rider can suffer a TBI even while wearing a top-rated bicycle helmet. To support this defense, your lawyer might bring in an accident reconstruction expert, helmet expert, and various medical experts to provide expert testimony.
2. What Are the Symptoms of Traumatic Brain Injury?
A TBI can present a wide array of symptoms depending on the specific type of injury and its severity. You should seek immediate medical attention if you notice any of the following after a collision:
- Persistent headaches,
- Loss of consciousness,
- Changes in the sense of sight or smell,
- Memory problems,
- Sleep problems,
- Slurred speech,
- Vomiting or nausea, or
- Disorientation or confusion.
3. What Are Common Types of TBI Sustained in Bicycle Accidents?
A serious bicycle accident can cause any type of traumatic brain injury. Examples include:
- Concussion: The mildest form of TBI, a concussion can be caused by a direct blow to the head or a violent jolt of the neck. While most people who suffer a concussion make a full recovery, some studies indicate that sustaining multiple concussions over the course of a lifetime can result in permanent brain damage.
- Contusion: “Contusion” is another name for a bruise, which forms when blood capillaries rupture. It is sometimes necessary for a brain contusion to be removed surgically.
- Coup-Countercoup: This diagnosis is characterized by two contusions on opposite sides of the brain. Coup-countercoup happens when the brain impacts one side of the skull and then bounces to the other side.
- Penetration Injury: When an object penetrates the skull, the resulting brain injury can be life-threatening.
- Diffuse Axonal: A diffuse axonal injury is diagnosed when the gray matter and white matter tracts of a patient’s brain have scattered lesions over a widespread area. DAI can put a patient in a persistent vegetative state. More than 90 percent of patients with a severe DAI never regain consciousness.
4. What Factors Might Influence the Potential Value of My Claim?
As you may already know, a brain injury comes with significant costs for both the patient and their family. The medical bills can be exorbitant, often exceeding $1 million for patients who require ongoing care. TBI can also prevent the victim from earning an income for several months, and it is not uncommon for such an injury to reduce a person’s income-earning capacity. Beyond these direct financial costs, there are also non-economic damages to consider such as pain and suffering, lost enjoyment in life, loss of consortium, and emotional distress.
Below are a few factors that might influence the financial recovery in a bicycle accident brain injury case:
- The severity and permanence of the brain injury;
- How the injury affects the victim’s income;
- Whether the defendant acted with malice, oppression, or fraud;
- How the injury impacts the victim’s quality of life;
- Whether the case proceeds to litigation;
- The cost of replacing or repairing property damaged in the crash; and
- Whether the victim’s spouse has suffered a loss of consortium.
Call (562) 206-1939 for a Free Consultation with a Long Beach Bicycle Accident Lawyer
Your Injuries Are Personal to Me
Attorney Michael D. Waks has many years of experience representing bicycle accident victims and a track record of success in brain injury cases. To discuss your situation in a free case review, call our law firm today at (562) 206-1939 or send us a message on our Contact Page. We will come to you if you are unable to come to us.
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