Ryan Zavodnick | January 11, 2026 | Brain Injuries
Brain injuries are often called invisible injuries because, unlike a broken arm or a laceration that requires stitches, injuries to the brain cannot easily be seen. Medical imaging tests may show medical professionals indications of these injuries, but the average person will only recognize symptoms, if they recognize anything. The “invisible” nature of these injuries can make brain injury lawsuits difficult. Moreover, depending on the cause of the injury, proving negligence can also be challenging. While it may seem daunting, this does not mean your lawsuit would be unsuccessful. What it does mean is that you may need to rely on expert witnesses, neuropsychological testing, extensive medical imaging, and detailed logs of how the injury has impacted your daily life to prove the injury, and more experts, eyewitnesses, and strong evidence of negligence by the other party to prove liability.
An experienced personal injury attorney may be able to assist you with finding experts and evidence and preparing your case for settlement negotiations or trial while you focus on your recovery. Call Zavodnick & Lasky at (302) 884-6752 to schedule a consultation and learn more about your legal rights and options.
What Is Negligence?
Negligence occurs when someone fails to exercise the level of care that a reasonable person would in a similar situation, and someone is harmed or injured due to that failure. However, one cannot simply point to another person and claim they were negligent. Instead, proving negligence requires proving four particular elements:
- Duty of Care: This element requires proving that the other person had a duty of care to the injured person. In a brain injury lawsuit caused by a car accident, it would be the driver’s duty to operate the vehicle safely. In a lawsuit caused by medical negligence, it would be the medical professional’s duty to provide competent medical care.
- Breach of Duty: This element requires proving the other party failed to meet the duty of care by not acting as a reasonably prudent person would have. In a car accident, this might prove that the other driver was speeding, texting, or otherwise distracted. In a medical context, this might prove that the provider failed to diagnose a condition, made a surgical error, or made a medication mistake.
- Causation: This element connects the other party’s breach of duty as the direct and proximate cause of the injured individual’s injuries. In other words, this proves that the other party’s actions (or lack thereof) are why the injured individual is injured. This can be the most challenging element to prove in brain injury lawsuits, and often requires expert testimony and medical records.
- Damages: This element proves the injured individual suffered actual losses, such as lost wages, medical expenses, or property damage, and proves the amount of those damages.
Understanding the legal basis for personal injury claims can help clarify when evidence is necessary for proving negligence.
What Are Brain Injuries?
Brain injuries are injuries to the brain. Many people also refer to them as traumatic brain injuries (TBI), but these are not necessarily interchangeable terms. While all TBIs are brain injuries, there are many types of brain injuries, some of which are not considered traumatic in terms of their cause.
Types of Brain Injuries
The Brain Injury Association of America indicates there are two main categories of brain injuries: traumatic, which means it was caused by external forces, and non-traumatic, which means internal factors caused it. Within those two categories are different injuries, such as concussions, penetrating injuries, contusions, or anoxic/hypoxic (lack of oxygen) injuries. Then each injury is classified by severity, ranging from mild to severe. For example, a first concussion might be classified as mild, while the seventh concussion may be classified as severe because the brain is already permanently damaged from the previous concussions or because the individual is still recovering from a concussion.
Specific brain injuries a person might sustain include:
- Blunt Head Trauma: A form of TBI, this occurs when an impact to the head jolts the brain but does not cause external injury to the head.
- Penetrating Head Trauma: Another form of TBI, this occurs when an object pierces the skull and enters the brain.
- Coup-Contrecoup Injury: Another TBI, this occurs when the brain is injured at the site of the impact and on the opposite side of the brain from the impact.
- Anoxic and Hypoxic Injury: These injuries are caused by internal factors, either a complete (anoxic) or partial (hypoxic) lack of oxygen.
- Strokes: Strokes occur when blood flow to the brain is blocked either by a burst artery (hemorrhagic) or a blockage (vascular), and while frequently caused by internal factors, strokes may also result from external forces.
- Brain Infections: These can be infections that affect the brain tissue, such as encephalitis, or the protective membranes surrounding it, such as meningitis.
- Acquired Brain Injury: This is a broad term for injuries not caused by congenital or degenerative causes, and can include both traumatic and non-traumatic injuries.
- Concussions: A mild form of TBI, concussions often involve a temporary disruption of brain function, and can be short- or long-term with varied symptoms.
Different types of brain injuries may lead to different levels of compensation in a court case.
Brain Injury Symptoms
Brain injury symptoms vary depending on the injury’s location and its severity. Some of them, such as headache or vomiting, may be easily dismissed as an illness during cold and flu season. Therefore, it is crucial that if an individual suspects they or a loved one may have a brain injury, they seek immediate medical attention. The medical records created will also be vital to proving negligence in brain injury lawsuits.
Some of the more common brain injury symptoms include:
- Headache
- Dilated pupils
- Blurred vision
- Nausea and vomiting
- Disorientation and confusion
- Loss of consciousness
- Difficulty sleeping
- Seizures
- Weakness or paralysis
- Loss of balance
- Ringing in the ears
- Emotional changes, such as anxiety or depression
- Cognitive problems, such as difficulty concentrating or memory loss
Identifying a brain injury is a crucial step towards developing a case.
Brain Injury Prognosis
There is no single prognosis for brain injuries. An individual’s recovery will depend on the type of injury, the severity of the injury, key factors at the time of injury, and the individual’s age at the time of injury. Interestingly, younger individuals may have worse outcomes in certain types of brain injuries, while older age can be an independent risk factor for unfavorable outcomes with a severe TBI.
Recovery from a brain injury can begin with regaining consciousness. Improved cognitive and motor functions, and the ability to live independently are other potential recovery goals. Mild TBIs may result in a good recovery with minimal long-term effects, while moderate-to-severe ones may result in significant disability and chronic health issues. In the most severe cases, long-term outcomes may include a persistent vegetative state or other impaired consciousness states, such as a minimally conscious state. Because so many factors can affect an individual’s prognosis, medical professionals are often hesitant to offer a prognosis early in the recovery process. While this provides the individual more hope, it can impact settlement negotiations or trials in brain injury lawsuits, as proving the injury and damages are part of proving negligence. However, Zavodnick & Lasky’s Delaware personal injury attorney may be able to assist you with moving forward with your claim even if you do not yet have a prognosis.
What Delaware Accidents Can Result in Brain Injury Lawsuits?
Many accidents can result in brain injuries and lead to lawsuits. In fact, almost any accident can cause a brain injury if the individual’s head is impacted. Some common causes of brain injuries include:
- Motor vehicle and motorcycle accidents
- Work accidents
- Refinery accidents
- Slip and fall and other fall accidents
- Sports injuries
- Assaults, including domestic violence, child abuse, and gunshot wounds to the head
- Military combat
Whatever the cause of an individual’s brain injury, they have two years from the date it occurred to file their lawsuit under 10 DE Code § 8119. Once the statute of limitations expires, the individual can no longer bring their claim. Therefore, it is essential that the individual move quickly to speak with an attorney, gather medical records and other evidence, and decide how they wish to proceed.
Can Medical Malpractice cause a TBI?
Medical malpractice can result in a TBI or other brain injury. Birth injuries, prescription errors, anesthesia and surgical mistakes are common examples of medical negligence that could result in a brain injury. While patients often sign waivers before undergoing treatment, these waivers only waive the patient’s right to sue if they experience a potential negative outcome when everything was done properly. A waiver does not prevent the patient from suing a medical professional who makes a mistake while providing care. If an individual believes their brain injury was caused by a healthcare professional’s mistake, a personal injury attorney may review their case, examine the medical records, consult with experts, and determine whether the injury was caused by negligence.
Why Should I Consider Filing a Lawsuit When I Have Insurance?
Whether it is automobile insurance in a car accident or personal health insurance in another kind of accident, people often wonder why they should think about filing brain injury lawsuits. Their reasoning seems sound initially: insurance should pay for their injuries, so why should they sue?
Insurance May Deny Claim
Insurance may deny a claim for coverage for several reasons. The company may claim that the injury is not covered by the policy or that additional treatments will not be beneficial. In cases like car accidents or medical malpractice, they may deny the claim by denying liability. While the first two denials may be argued depending on the terms of the policy, the third (denying liability) often requires a lawsuit to prove liability. Without the lawsuit, the individual may be responsible for all expenses incurred, despite their lack of responsibility for the injury.
Insurance May Not Cover All Expenses
Insurance may cover initial expenses, such as emergency room and testing costs, but then deny any additional expenses once the person is discharged. This comes back to claiming that additional treatments will not be beneficial. Alternatively, some policies only cover medical expenses. This can mean that the individual’s medical expenses are covered, but their lost wages, emotional trauma, physical pain, or home or vehicle modifications may all be uncovered. However, a lawsuit is intended to ensure the individual is compensated for all of their injury-related expenses, including current and future medical expenses, lost wages, lost earning capacity (in the event of permanent disability), lack of enjoyment of life, and lack of consortium.
Insurance May Be Inadequate
Whether it is personal health insurance, automobile insurance, or another kind of insurance, many have policy limits that do not cover the full cost of a severe brain injury, which often requires lifelong care. Insurance companies may also disagree about the value of the injury, offering to pay less than the injury will actually cost the individual. In these instances, the individual may need to file a lawsuit to get the full value of their damages.
How Do I Prove Negligence in a TBI Lawsuit?
Proving negligence in brain injuries can be challenging. Pre-existing conditions can complicate proving causation (the cause of the injury), as can previous injuries (such as a football player who sustained multiple concussions and now suffers another one in a car accident). To prove negligence in Delaware, individuals must show the injury would not have happened “but for” the other party’s actions. In other words, the individual must be able to prove that if the other party had not done whatever they did (hit them in a car accident, made a surgical error in medical malpractice, stacked a heavy box on a high shelf, etc.), the individual would not have been injured. Therefore, it is the other party’s fault.
Pre-Existing Conditions and the Eggshell Doctrine
If the injured individual has previous brain injuries or other pre-existing conditions that could cause such injuries, the other party’s insurance or attorney will likely try to argue that those previous injuries or conditions are to blame for the brain injury. However, this argument can be overcome with strong evidence, including medical records and expert testimony. Medical records may include medical imaging and neuropsychological testing showing the brain injury’s location and severity. Other evidence may consist of a log with details of how the new injury (or aggravation of a previous injury) has impacted their life, such as the hobbies or interests they have put on hold, lost sleep, memory issues, or requiring assistance from others to complete basic daily activities.
However, even in cases where the injury is not new, or there is a new injury in addition to the aggravation of a previous brain injury, the individual still has the right to recover damages. Under the eggshell doctrine, a defendant takes the victim as they find them. In other words, if the other party is liable for the accident, they are responsible for all of the injuries associated with that accident, even if some of those injuries are the aggravation of previous injuries. An attorney can assist with gathering evidence for both new and aggravated injuries to help prove both negligence and the severity of the injury.
Alternative Causation
The other party may offer alternative causes for the brain injury. Their insurance company or attorney may investigate the injured individual and look for anything they can point to as a cause. A strong investigation that results in strong evidence can rebut these arguments, but many individuals do not have the time, knowledge, or ability to conduct such an investigation, even if they were not recovering from a brain injury. An experienced personal injury attorney can hire investigators and knows what evidence to look for to prove the cause of the brain injury.
Comparative Fault
Another strategy the other party may use is to try to blame the injured individual. They may try to put all the liability on the victim, or just part of it. Delaware is a comparative fault state, which means under 10 DE Code § 8132, if the victim is partially responsible for their injuries, they may still recover damages as long as the defendant’s liability was greater, but the victim’s portion of fault will reduce those damages. This means that even if the defendant cannot persuade the court that the victim is entirely at fault, they may still be able to reduce the damages they will pay if they can convince the court that the victim is partially to blame.
What Legal Action Can I Take If My Loved One Died From a Brain Injury?
In the most severe cases, a TBI or other brain injury can result in the individual’s death. When this happens, the deceased individual cannot file a lawsuit. However, their loved ones may be able to file a wrongful death lawsuit instead. A wrongful death lawsuit allows the family to recover many of the same damages the deceased would have, such as medical expenses, lost wages, and pain and suffering, as well as funeral and burial expenses, loss of future earnings, loss of inheritance, or loss of services (the value of the guidance, care, and support the deceased would have given their family).
How a Delaware Personal Injury Attorney May Benefit You
Brain injuries are unlike any other injury. Often invisible, with complicated recoveries, they make it difficult for an individual to participate in the very legal process that can help them get the compensation they are entitled to under the law. Schedule a consultation with our Delaware personal injury attorney by calling Zavodnick & Lasky at (302) 884-6752 and learn more about your legal rights and options for proving negligence in brain injury lawsuits.
