Making a Brain Injury Claim: What to Expect

When brain injuries prevent someone from working or result in exorbitant medical bills, it’s worth considering how the injury was caused and if the victim is entitled to compensation.

Common causes of brain injury

Brain injuries can be caused by trauma to the head or medical complications due to negligence.

Physical trauma includes car or motorbike accidents, falls and injuries incurred during sport.

Brain injuries due to medical negligence can be caused by surgical errors, avoidable complications during childbirth and improper treatment of brain-related diseases such as meningitis or encephalitis.

Compensation for brain injury

To claim compensation for a brain injury, there has to be a responsible party to claim from.

In the case of medical negligence, this could be the doctor or nursing staff responsible, the hospital where the injury happened or, in some cases, the Department of Health.

When a brain injury was caused by a motor vehicle accident and the victim was not solely responsible for the accident, a claim can be made against the Road Accident Fund (RAF). This applies to injuries sustained by a driver, passenger or pedestrian.

Steps in a brain injury claim

Each claim has its own unique factors and circumstances to consider but the process for an RAF or medical malpractice claim usually follows these steps.

1. Initial consultation
   At the first meeting, your legal team discusses your injury and determines whether you have a claim.
2. Evidence gathering
   Evidence relating to your claim, such as police reports, witness statements or medical records, is collected.
3. Assessment of injuries
   A medical assessment of your injury is made.
4. Calculation of the claim
   The compensation amount is calculated based on evidence and the medical assessment.
5. Conclusion of the claim
   The claim is either settled by the defendant or proceeds to trial.

If a brain injury renders you incapable of understanding the legal processes and giving clear instructions to an attorney, a Curator ad Litem is appointed by the High Court to act on your behalf and assist you.

Cost of a brain injury claim

When you consider the costs of necessary medical assessments, as well as court and attorney fees, the cost of a brain injury claim can be very high.

But this doesn’t have to be the case. Costs can be low risk for the claimant depending on the law firm he or she uses.

At DSC Attorneys, we work on a contingency basis, otherwise known as “no-win, no-fee”. This means that the claimant doesn’t make any upfront payments. Fees are only due if we win the case.

How long does a brain injury claim take?

Like any medical malpractice claim, a brain injury claim takes time – typically years – to finalise.

For example, time is needed to:

• determine the full extent of a brain injury and its effects
• collect evidence and get expert medical opinions
• draft and issue summonses
• wait for response from the defendant
• apply for a trial date
• if no settlement is reached, proceed with a trial.

It’s wise to anticipate at least a two- to three-year wait for a claim to be resolved. In some instances, either due to the complexity of the matter or the inevitable Court processes associated with a defended action, it can take even longer.