Proving Cognitive Damage in a Brain Injury Lawsuit Under Georgia Law

According to the Brain Injury Association of America, roughly 2.8 million Americans experience traumatic brain injuries (TBIs) every year. While some of these injuries are relatively minor and resolve with minimal medical intervention, other brain injuries can cause lasting damage to a survivor’s cognitive functioning.

When an accident victim sustains significant brain damage, they may experience significant changes in memory, mood, attention span, information processing and more. Unfortunately, despite the pervasive impact these symptoms can have on a TBI survivor’s quality of life, their invisible nature can make them difficult to prove during a personal injury lawsuit. Here’s a brief overview of how cognitive damage can play a role in brain injury cases and an explanation of how brain injury lawyers paint a picture of a victim’s symptoms to argue for fair compensation.

What is a traumatic brain injury?

A traumatic brain injury (TBI) is a type of injury that arises as the result of an outside force being applied to the head. Sometimes, this looks like an actual blow to the head or an object piercing the brain. Other times, a TBI is caused by a sudden jolt or movement that causes the brain to move inside the skull.

TBIs are very common injuries in a variety of accident scenarios, and millions of Americans visit emergency departments for TBI incidents every year. Some common TBI symptoms include:

• Headache
• Blurry vision
• Nausea or vomiting
• Dizziness
• Problems with speech
• Temporary or sustained loss of consciousness
• Ringing in the ears
• Increased sensitivity to sensory input like light and sound
• Memory problems
• Mood changes
• Changes in sleep patterns (sleeping too much or having trouble sleeping)

While symptoms of some minor TBIs – like mild concussions – resolve with the right combination of rest and medical treatment, other injuries cause long-term side effects that can impact multiple aspects of a survivor’s life. These injuries may take months or even years to fully heal and may cause additional health complications over time.

What counts as cognitive damage after a brain injury?

When we talk about TBI-related cognitive damage, we are usually referring to significant changes in a person’s mental functioning. While it’s fair to assume that many TBI survivors will experience some cognitive changes in the immediate aftermath of an accident, long-term cognitive damage often requires additional time, treatment and resources to address.

As with many other TBI symptoms, pervasive cognitive damage can take time to develop or to become apparent. In the context of a brain injury lawsuit, some types of cognitive damage that may warrant compensation include:

• Short or long-term memory loss
• Trouble concentrating, focusing or staying organized
• Changes in thought patterns or processing speed
• Impaired judgement or challenges with decision making
• Communication challenges like speech difficulties
• Significant mood, personality and behavioral changes that impact social relationships

These kinds of cognitive symptoms can have a serious impact on a TBI survivor’s quality of life and may prevent them from returning to their pre-accident lifestyle or routine. To address these cognitive symptoms, some sufferers must undergo extensive rehabilitation like physical therapy, speech therapy, occupational therapy or even mental health counseling.

All of these services can come at high costs and may significantly extend a survivor’s recovery timeline. Between these added expenses, potential lost wages and reductions in quality of life, many TBI survivors with cognitive damage find themselves strained, stressed and otherwise spread thin during their post-accident recovery process.

When cognitive damage is compensable

As with other kinds of accident-related damages, TBI survivors with cognitive damage may be entitled to compensation for their losses if they can show that their brain injury was caused by another party’s negligence or recklessness. To hold another person legally accountable for your brain injury, you’ll first need to be able to show that:

1. The alleged at-fault party owed you a legal duty of care
2. They breached that legal duty of care through their actions or inactions
3. You suffered identifiable harm in the accident
4. The harm you suffered was the direct result of the other party’s breach of care

For example, if you sustained a TBI in a car accident, you may be entitled to related compensation if an investigation reveals that the other driver involved in the crash caused the accident by speeding, driving recklessly, or following too closely – among other things. Similarly, if you were injured by slipping on a wet floor in a local store, you may be entitled to compensation if you can show that the store owner or manager knew that the floor was slippery and failed to take action to protect shoppers.

Keep in mind that Georgia follows a modified comparative negligence system when assigning fault for these kinds of accidents. That means you can only recover compensation from another at-fault party if you can show that you were less than 50% responsible for your own injuries. If your level of fault was less than 50%, you may still be entitled to compensation, but your final settlement will be reduced based on your assessed level of fault.

The challenge with proving cognitive injuries

Broken bones, cuts and bruises and other significant physical injuries are usually readily apparent after an accident. Photographic evidence, healthcare records, medical scans and other forms of documentation can all further support the presence of these injuries in court and stave off questions about the legitimacy of a survivor’s claims.

Cognitive damage, on the other hand, isn’t always as easy to visualize. Because most people don’t plan to suffer a traumatic brain injury, they may not have much documentation on hand to establish their pre-accident cognitive baseline – making it harder to show the full extent of their injury-related changes. As a result, insurance companies and opposing counsel frequently dispute claims of cognitive damage or try to downplay and devalue a survivor’s symptoms.

This is where an experienced brain injury lawyer comes in. An attorney with brain injury-specific knowledge can help TBI survivors gather the evidence they need to support their claims of cognitive damage. A brain injury lawyer can also represent their client in insurance negotiations, during mediation or even in court, should it come to that.

What kinds of evidence can support cognitive damage claims?

Even though cognitive damage isn’t as easy to prove as more surface-level injuries, there are still plenty of evidence options available to help TBI survivors argue for their right to compensation. Here are a few common forms of evidence we might consider in a brain injury case:

Neuropsychological testing

Neuropsychological testing sounds complicated but isn’t as scary as it sounds. These standardized assessments can help medical professionals evaluate things like a survivor’s memory, attention span, problem-solving capabilities, executive functioning skills and more. When the results of these tests highlight deficits in a patient’s cognitive functioning, they can help to establish a clear link between the survivor’s accident, injury and cognitive challenges.

Medical records

Medical records from neurologists, psychologists and other treating physicians can also play a major role in a brain injury case. These records can provide valuable documentation of symptoms, doctors’ visits, treatment plans and prescription medications, further supporting the validity of a survivor’s claim. These records can support the timeline of a victim’s injuries and provide a clear paper trail supporting the extent, severity and prognosis of the cognitive damage in question.

Expert and day-in-the-life testimony

Expert witnesses are often called in to testify in brain injury cases because the medical concepts involved in these claims tend to be more nuanced and difficult for judges and juries to understand. Experts like neuropsychologists, neurologists, rehabilitation specialists and life care planners can all help clarify complicated medical concepts and provide an evidence-based explanation of a survivor’s injuries and their likely long-term impact.

Sometimes, other witnesses will testify in these cases to help paint a picture of the real-world impact of the plaintiff’s TBI. Friends, family members, coworkers and mental health professionals can all speak to the more personal aspects of a survivor’s losses and provide a before-and-after account of the plaintiff’s cognitive changes. Experts can also help establish causation by linking test results and symptoms to the traumatic event rather than unrelated conditions or prior injuries. In Georgia courts, this kind of testimony is critical when cognitive deficits are disputed or minimized by the defense.

What kinds of damages are available in Georgia brain injury lawsuits?

In successful brain injury cases, plaintiffs and their legal teams may be within their rights to argue for a variety of damages related to their cognitive damage and other losses. In Georgia, this can include both economic and non-economic losses like:

• Past, present and future medical expenses
• The cost of rehabilitation services like physical therapy, speech therapy and occupational therapy
• Lost wages or reduced earning capacity when cognitive damage prevents a survivor from returning to their former work routine
• Loss of enjoyment of life
• Pain and suffering
• Mental health care costs associated with the treatment of mood changes and similar symptoms

The state of Georgia does not typically impose a cap on these kinds of compensatory damages, which means brain injury survivors are free to fight for the full value of their reasonable accident-related expenses. This is yet another reason why careful documentation is so important in brain injury cases. The more information you can provide to support the scope of your losses, the more effectively your brain injury lawyer can go to bat for a fair and appropriate settlement amount.

Final thoughts

Cognitive damage after a brain injury can have a lasting impact on a survivor’s quality of life and require major changes and investments to fully address. Failing to account for these symptoms as part of a personal injury lawsuit can leave survivors ill-equipped to fully address their past and future challenges and may lead to long-term financial, physical and emotional distress.

At Harris Lowry Manton, LLP, our brain injury lawyers understand how challenging it can be to prove cognitive damage in a Georgia personal injury case, but we know these losses are simply too significant to ignore. That’s why we work closely with medical professionals, expert witnesses and other community members during brain injury cases to provide clients with the compelling, personalized legal support they need to advocate for themselves and for their rights after an accident.

If you or a loved one experienced cognitive changes after a serious accident, fill out our online contact form to schedule a free consultation with a member of our team. We’d be happy to help you explore your possible legal options and give you the clear-headed support you need to make an informed decision about how best to pursue the compensation you deserve.