Liability, causationand damages are the three basic and essential elements of every injury case.  Presenting proof on each of these during a trial is the responsibility of the plaintiff (injured person).  All three must be proved for a successful case.

– Charlie Waters

Liability, causation, and damages are the three basic and essential elements of every injury case.  Presenting proof on each of these during a trial is the responsibility of the plaintiff (injured person).  All three must be proved for a successful case.

Liability essentially means “fault under the law” for what happened.  If no one was at fault under the law, or if the incident was more the fault of the plaintiff then everyone else combined, there is no recovery regardless of the amount of damages.

Liability is proven in many ways depending on the nature of the incident.  If the brain injury was caused by an 18-wheeler accident, an accident reconstruction expert will likely need to be hired to recreate, from evidence at the scene and witness statements, what happened.  If brain damage was the result of something a doctor or hospital did wrong, medical experts will need to be hired to prove malpractice.  If a car collision caused a brain injury, it may be necessary to retain a biomechanical engineer to calculate the G-forces that came to bear on the body, head, and brain during the accident.

Liability under Texas law, and elsewhere, is driven by our collective notions of right and wrong. Specifically, what as a society we consider “reasonable conduct.”  If someone behaves unreasonably given the circumstances, and causes harm, they are considered negligent and we hold them responsible for that harm.  On the other hand, if the behavior was reasonable but harm resulted anyway, there is no liability under the law. Based on the evidence, the jury determines what is reasonable and unreasonable. To assist, the Judge gives the jury guidance through instructions and definitions they are to follow and apply.  Negligence means “failure to use ordinary care, that is, failing to do that which a person of ordinary prudence would have done under the same or similar circumstances or doing that which a person of ordinary prudence would not have done under the same or similar circumstances.”

Causation means proving the incident caused the injury and that the injury/occurrence was foreseeable.  This is called “proximate cause.” This is sometimes where big battles are fought in the courtroom, particularly in mild traumatic brain injury (MTBI) cases.  Oftentimes, the defense is claiming there is no brain damage, that the incident could not have caused brain damage, and/or whatever the brain-related deficits or problems the plaintiff is experiencing, they are not the result of brain injury that occurred in the incident.  It’s not uncommon for the defense to simultaneously argue all these as alternative explanations.

Damages are those, and only those, recognized under Texas law as something the plaintiff can seek compensation for. We work hard to leave no dollar behind when it comes to calculating your damages. They fall into two categories: economic and noneconomic damages.

Economic damages include loss of earning capacity in the past and future (past and future lost wages) and medical care expenses in the past and future.  Noneconomic damages include past and future pain, suffering and mental anguish, past and future physical impairment, and past and future disfigurement.  Under circumstances often found in brain injury cases, the spouse of the injured person has damages and can be compensated for past and future loss of the value of household services the injured spouse can no longer perform, and for past and future loss of consortium.  Loss of consortium means “the mutual right of the husband and wife to the affection, solace, comfort, companionship, society, assistance, sexual relations, emotional support, love, and felicity necessary to a successful marriage.”

Multiple experts become involved in brain injury cases to help prove the extent of your injury, how it has, and will continue to have, an impact on your life, and the total resulting economic impact to you and your family.  Such losses can result in millions of dollars the at-fault party is responsible for.  These experts can also help in answering the all-important causation question in your case.

A neuropsychologist is often involved in administering testing to help identify which specific parts of your brain have been affected.  Their testimony can be invaluable in contested MTBI cases. Neuropsychologists can also help formulate treatment plans and therapy protocols in conjunction with others on your treatment team.  You may be seeing a neurologist who can testify to the correlation of your symptoms to the brain damage and who can best explain why your symptoms are so debilitating.  Psychiatrists often help treat brain injury survivors, particularly those struggling with related depression or PTSD, and are important witnesses regarding future prescription medications you may need.  There may also be numerous therapists involved in your care and treatment who will need to testify.

To help calculate your economic losses over time, we most always hire vocational rehabilitation experts, economists, and Life Care planners.  These experts, working together, can calculate the amount of the lost earnings you will suffer for the remainder of your life, and the total cost of all future medical treatments including prescription costs.  This becomes vitally important testimony in your case when it comes to replacing what you and your family have lost from your injury.


Brain Anatomy
Traumatic Brain Injury Overview
Texas Laws to Know
Brain Injury Litigation: Simplifying the Complexity
Featured Articles by Charlie Waters
Traumatic Brain Injury Resources