An injury to the brain is one of the most dire injuries a person can sustain. If you believe that another individual, company or entity is responsible for the infliction of your or a loved one's brain injury, you have the constitutional right to file a claim and receive compensatory damages for the financial and emotional losses you've endured.
For the purposes of this article, the attorneys at Benassi & Benassi will provide an overview of (1) Illinois' statute of limitations for brain injury claims; (2) the elements that must be included in a viable brain injury lawsuit; and (3) the types of cases that commonly involve brain injuries. For more details that are prevalent to your individualized case, you should consult with an attorney at our firm.
Filing a Claim in Illinois
The Statute of Limitations
Illinois has enacted legislation, known as the statute of limitations that dictates the timeframe that malpractice and personal injury victims are allotted to file a civil legal claim. The state enforces distinguished deadlines for specific causes of action. For example, brain injuries that are inflicted to an individual due to the negligence of a medical professional fall under the umbrella of medical malpractice. In comparison to some other causes of action, Illinois medical malpractice victims must abide by more restrictive time limits, as a claim must be filed within two years of the date that an injury has been discovered, or should have been discovered.
This two-year deadline is also applicable in cases when victims have suffered a brain injury as a result of personal injury. The state gives claimants two years from the date that an injury has been discovered to file a personal injury claim.
In Illinois, there is a separate filing deadline that is specifically applied to claimants under the age of 18. According to state statutes, a claim filed instead of a minor is required to be submitted within eight years of the date the malpractice or accident transpired.
Because of these strict deadlines, injured persons are encouraged to immediately take legal action once they realize that they have been harmed. Once the allotted time to file a claim has lapsed, courts will refuse to review your case, completely diminishing the chances of you receiving compensation for their injuries.
Elements of a Brain Injury Claim
Before you file a civil suit, you must first be able to provide evidence that the defendant(s) listed in your claim are legally liable for the injuries you've sustained. In order to successfully do so, a claim must include specific elements that substantiate your entitlement to compensation. An attorney will be able to help you establish all of the following elements to build a viable case on your behalf.
The Duty of Care
A claimant must confirm that there was a duty of care or a reasonable expectation that the defendant was expected to uphold. For example, medical professionals are expected to follow the same procedural and clinical guidelines as other professionals in their field. Motorists are expected to drive with regard to the safety of others, and companies are required to maintain safe property and workplaces for visitors and employees.
Breach of Duty
Once it has been established that a defendant is subject to operate in accordance with the duty of care, a claimant must demonstrate how this liable individual, company, or entity acted negligently or deviated from this standard.
Perhaps you sustained an injury that was inflicted in a car accident involving a drunk driver. This person's actions deviated from duty of care because they made a conscious decision to drink before getting behind the wheel, knowing that this was a risk and that it could endanger not only their life but the lives of other drivers. In cases involving medical malpractice, a medical professional deviates from the duty of care by failing to practice in the same fashion that their counterparts in the medical field would have in a similar situation.
Proving that there was a duty of care and that the defendant(s) strayed from this expectation is not enough for a case to be considered viable in a court of law. The next element involves proving that the breach of duty is directly and proximately responsible for your injuries. Of all the elements that must be established, causation is the most difficult to prove. This is why expert witnesses are sought out to provide additional evidence that further affirms that a defendant's negligence alone led to your injuries.
Addressing the fact that negligence led to damages is the crux of most viable personal injury and malpractice cases. Damages are losses that a person has experienced due to an injury. In Illinois, there are two types of damages that qualify a patient for compensation in brain injury cases: economic damages and non-economic damages.
Economic damages: These types of damages typically refer to monetary losses ascribed to an injury. Economic damages are generally straight-forward when it comes to assigning a dollar amount for the purposes of being awarded compensation. A few examples of economic damages are loss of employment, loss of past and future earnings, hospital expenses, medical fees, etc.
Non-economic damages: These types of damages consist of intangible losses you have endured as a result of an injury. Some examples of non-economic damages are pain and suffering, emotional anguish, disfigurement, the loss of the enjoyment of life, etc. The amount of compensation that is awarded for non-economic damages is calculated within the discretion of the jury.
Types of Cases that Involve Brain Injuries
Brain injuries are inflicted from a broad range of accidents, which include the following:
Birth injuries - The majority of brain injuries suffered by infants are almost always preventable. Long-term damage to the brain of a child is often attributed to injuries inflicted by a medical professional during delivery, undiagnosed conditions, or an undetected medical condition that developed during a pregnancy.
Auto accidents - Car or truck accidents caused by the recklessness of another driver - drunk driving or distracted driving - may result in a brain injury. A person can receive compensation if they fall victim to an auto accident caused by a negligent driver.
Medical malpractice - Medical negligence has become more prevalent in recent years and has been responsible for a number of brain injuries. Many patients have recalled recovering from a surgical procedure for a condition or injury only to realize that it had gone awry, and now suffer from brain damage and cognitive impairment.
Workplace accidents - A company or entity may owe you compensation if you have been harmed because they failed to maintain a safe workplace for you as an employee.
Illinois Brain Injury Attorneys
If you or a loved one has been injured as a result of the recklessness of another person, company or entity, you may be entitled to financial compensation. Contact the attorneys at Benassi & Benassi today for a free consultation.