How Do Brain Injury Claims Work in California?

Danger signs: get emergency care right away

The CDC says to call 911 or go to an emergency department right away if, after a bump, blow, or jolt to the head or body, a person shows any of these danger signs. For a child, the CDC adds crying that will not stop and cannot be consoled, and refusing to nurse or eat.

• A headache that gets worse and does not go away
• Weakness, numbness, decreased coordination, convulsions, or seizures
• Repeated vomiting
• Slurred speech or unusual behavior
• One pupil larger than the other
• Confusion, restlessness, or agitation, or not recognizing people or places
• Loss of consciousness, unusual drowsiness, or not being able to wake up

What a TBI is, and what a concussion is

The CDC describes a traumatic brain injury as an injury that affects how the brain works, caused by a bump, blow, or jolt to the head or by a penetrating injury. TBIs are grouped as mild (including concussion), moderate, or severe, and most TBIs each year are mild. A concussion can also be caused by a hit to the body that makes the head and brain move quickly back and forth, which is why a brain can be injured in a car crash or a fall even when the head strikes nothing.

The CDC lists falls, firearm-related injuries, motor vehicle crashes, and assaults as the most common ways people get a TBI. A head injury and a brain injury are not the same: a scalp wound or a skull fracture can heal without lasting harm to the brain, and a brain injury can occur with no visible head wound. The medical records, not the label, decide what a claim covers.

Symptoms that show up later

The CDC says some concussion symptoms appear right away, while others may not appear for hours or days. Symptoms can change during recovery: headaches and nausea early on, and a week or two later, feeling more emotional than usual or having trouble sleeping. The injured person may not recognize the problems, and family members or providers can overlook them.

Most people with a mild TBI or concussion feel better within a couple of weeks, but some have effects that last longer, and moderate or severe injuries can have long-term or lifelong effects. In older adults, the CDC notes that a TBI can be missed because its symptoms overlap with conditions such as dementia, and blood thinners can raise the risk of bleeding in the brain. In children, a brain injury can disrupt development and limit participation in school and other activities. The CDC groups concussion symptoms this way:

• Physical: headaches, dizziness or balance problems, sensitivity to light or noise, fatigue, nausea early on, vision problems
• Thinking and remembering: trouble concentrating, feeling slowed down, foggy or groggy, memory problems, trouble thinking clearly
• Social or emotional: anxiety, irritability, sadness, feeling more emotional
• Sleep: sleeping more or less than usual, trouble falling asleep

How a brain injury claim is proven

Insurers often point to a normal scan. The CDC says a brain scan is not needed to spot a mild TBI or concussion, although one may be used for patients at risk for bleeding on the brain, and that a person may still have a concussion even if it does not show up on neuropsychological tests, which check learning, memory, concentration, and problem solving. Doctors and other witnesses may disagree about whether a brain injury occurred or what is causing the symptoms, and insurers often question gaps in treatment, so consistent records and follow-up care matter. Claims usually rest on several kinds of proof:

• Medical records from the first visit forward: emergency, imaging, neurology, therapy, and rehabilitation
• Neuropsychological testing, when a provider orders it
• Witnesses who knew the person before and after: family, coworkers, teachers, and coaches
• School and work records that show changes in performance
• A dated symptom journal, started as early as possible
• The incident evidence: the collision or incident report, photos, and video, preserved before it is overwritten

What a brain injury claim can include

Value depends on the evidence, the injury’s lasting effects, fault, and the insurance available. When fault is shared, California reduces a recovery by the injured person’s share rather than barring it (CACI No. 405). If the brain injury happened during medical care, such as oxygen loss during surgery or birth, malpractice rules apply, including a limit on non-economic damages that rises each January 1 (Civil Code § 3333.2).

California damages compensate for all the detriment the injury caused, including detriment certain to result in the future (Civil Code §§ 3333, 3283). Depending on the injury, a claim can include:

• Past and future medical care, therapy, rehabilitation, and medications
• In-home care and supervision
• Lost earnings and reduced ability to earn in the future
• Pain, suffering, emotional distress, and loss of enjoyment of life

Deadlines, including for children and public agencies

A settlement of a child’s claim generally needs superior court approval (Probate Code § 3500). The main deadlines:

• Two years for most lawsuits (Code of Civil Procedure § 335.1).
• Minors and incapacity. The two years generally do not run while the injured person is a minor or lacks the legal capacity to make decisions (Code of Civil Procedure § 352(a)).
• Six months for public agencies. A claim against a city, county, school district, transit agency, or other public entity generally requires a written government claim within six months (Government Code § 911.2), and the minors’ rule does not extend it (Code of Civil Procedure § 352(b)).
• Late claims. If the six months pass, an application to present a late claim is due within a reasonable time, and no later than one year after the claim accrues (Government Code § 911.4). The agency must grant a timely application if the injured person was a minor for the whole six months (§ 911.6), and a court petition is available if it is denied (§ 946.6).
• Medical care. Malpractice claims follow Code of Civil Procedure § 340.5, generally the earlier of one year from discovery or three years from the injury, with separate rules for children, and the provider must get 90 days’ written notice before a lawsuit (§ 364).

Concussions in school and youth sports

Two California laws set rules for young athletes. Participants in a sport generally accept its inherent risks, but coaches, instructors, facility operators, and event sponsors can be liable in some circumstances, such as when they unreasonably increase the risks beyond those inherent in the sport (CACI Nos. 471 and 472). Keep the signed concussion information sheet and any removal and clearance records.

• School athletic programs (Education Code § 49475) and youth sports organizations, including local government agencies that run youth sports (Health and Safety Code § 124235), must remove an athlete suspected of a concussion or head injury for the rest of the day. The athlete may not return without written clearance from a licensed health care provider, and a diagnosed concussion requires a graduated return-to-play protocol of at least seven days.
• Section 49475 does not apply during the regular school day or to a required physical education course. Youth sports organizations must also notify a parent or guardian when an athlete 17 or younger is removed for a suspected concussion.