After a traumatic brain injury, life is rarely ever the same. Beyond medical bills and time out of work that can stack up after an accident, victims and their families are often left reeling emotionally and may have difficulty returning to their jobs.
Fortunately, the legal system in Massachusetts allows injured individuals or their loved ones to hold the responsible person or company publicly and financially accountable for the harm they caused.
Keep reading to learn step-by-step how to file a lawsuit after a TBI in Massachusetts and what our experienced Salem accident lawyers can do to help you navigate the process.
Step 1 – Identify the At-Fault Party
First, you’ll need to determine who is at fault for the accident that caused you or your loved one to suffer a brain injury. This requires establishing a series of legal elements, including:
- Showing that the person or company you believe caused the accident owed you a duty of care. This means proving they had a basic responsibility to ensure your safety. For example, all vehicle drivers have a responsibility to follow traffic laws in order to prevent accidents.
- That the duty of care you were owed was violated. Using the above illustration, if someone gets behind the wheel of a car after drinking, this would be a clear duty of care violation.
- That the violation caused an accident. The next element to prove that someone is at fault for a TBI is to demonstrate how the violation directly resulted in an accident. In the drunk driver example, this could be showing evidence that the driver was, in fact, intoxicated and that they were driving the wrong way on an interstate highway – a decision they would likely never have made while sober.
- That the accident caused a brain injury. The next element to legally demonstrate is how the accident directly caused yourself or someone else to get hurt. This is often done with medical records and expert witness statements from physicians.
- That the injury caused you to incur damages. Finally, you need to show how your TBI impacted you. This could be by showing evidence of time you spent out of work recovering, hospital bills that you now owe for medical treatment, and other directly related expenses.
Step 2 – File a Claim Against Their Insurance
If the individual or entity at fault is insured, you’ll need to submit a demand letter with all the items from Step 1 to the carrier. Depending on who is responsible, this could be an automobile insurance carrier, workers’ compensation, medical malpractice insurance, or another type of coverage. The amount you request should be enough to cover all past, current, and future medical bills as well as pain and suffering.
Step 3 – Attempt to Negotiate a Settlement
Rarely will an initial demand letter be accepted outright, so expect to go back and forth with the insurance company to negotiate payment. The stronger your evidence and the more experienced your legal team, the higher your chances of success are at this stage. Leave this part to the professionals who know how to stand up against insurers and hold them accountable to the law.
Step 4 – If No Agreement Can Be Made, File Suit
If you are unable to reach a fair settlement agreement with the at-fault party’s insurance carrier, your next option is to file a lawsuit in civil court. This often happens when the victim’s expenses exceed an insurance company’s policy limits, or they are engaging in bad faith actions in an attempt to discourage you from continuing to pursue the compensation your family deserves. Your attorney can guide you through this process towards the best possible resolution in your case.
Have You or a Loved One Suffered a Traumatic Brain Injury? We Can Help
The aftermath of a traumatic brain injury can be devastating for your family. Even mild injuries can result in lifelong consequences, like memory problems, changes in mood or speech, chronic headaches, and difficulty sleeping.
At Mazow McCullough, PC, we can help you get the full and fair compensation you deserve for the damages you incurred. Whether we’re negotiating with an insurance company on your behalf or litigating your case in court, you can trust our team to go the extra mile. Call (978) 744-8000 or toll-free at (855) 693-9084, or contact us online to book your consultation.
