Traumatic Brain Injuries and Your Right to Financial Compensation in Florida

By the trial attorneys at Silva & Silva

How do I choose a traumatic brain injury attorney in South Florida?

Choose a firm that tries cases and can prove what a brain injury will cost over a lifetime. Silva & Silva is a Coral Gables trial firm that represents people with traumatic brain injuries across Florida and prepares every case for trial from day one. Ask any firm how it will prove the injury, including damage that may not appear on a scan, who will establish the future costs, and how it will meet Florida’s two-year deadline for negligence claims that accrued after March 24, 2023.

Silva & Silva offers a free consultation, and there are no fees unless we recover.

Traumatic brain injuries (TBI) can have life-altering, if not life-threatening, consequences. According to the U.S. Centers for Disease Control and Prevention (CDC), there were over 69,000 TBI-related deaths in the United States in 2021, about 190 every day. The CDC also reports that:

  • People most commonly get TBIs from a fall, a firearm-related injury, a motor vehicle crash or an assault.
  • Falls lead to nearly half of TBI-related hospitalizations.
  • Older adults are more likely to be hospitalized and die from a TBI than any other age group, and their TBIs may be missed because the symptoms overlap with conditions such as dementia.
  • An injury of any severity to a child’s developing brain may disrupt the child’s development.

What matters most is getting the care you need and a way to pay for it. While it is possible to recover from some forms of TBI, the CDC notes that a moderate or severe TBI may have long-term or life-long effects and may require ongoing care, such as rehabilitation.

Understanding the Different Types of Traumatic Brain Injuries

Doctors classify traumatic brain injuries by severity, as primary or secondary, and by type; the specific diagnosis shapes both treatment and long-term planning.

1. Traumatic Brain Injury Severity

The CDC describes three main types: mild TBI or concussion, moderate TBI and severe TBI. In emergency and intensive care settings, the depth of a coma is usually measured with the Glasgow Coma Scale, which runs from 3 to 15; a higher score shows more consciousness and awareness, as Johns Hopkins Medicine explains.

  • Mild Brain Injury – The National Institute of Neurological Disorders and Stroke (NINDS) describes a concussion as a type of mild TBI that could take minutes to several months to heal. “Mild” does not mean “minor”: the CDC advises that a person with a possible TBI should be seen by a healthcare provider.
  • Moderate Brain Injury – According to the CDC, a moderate or severe TBI may have long-term or life-long effects and may need ongoing care, such as rehabilitation services.
  • Severe Brain Injury – At the far end of the range, Johns Hopkins Medicine notes, is a severe injury that results in coma or even death.

2. Primary vs. Secondary Traumatic Brain Injuries

NINDS explains that primary damage is immediate, while secondary damage can develop over hours, days or weeks after the initial trauma. Brain trauma from the head striking the ground or a vehicle window is a primary injury; swelling, rising pressure inside the skull and reduced oxygen to the brain are secondary damage, and NINDS notes that much of the damage related to severe TBI develops from secondary injuries.

3. Specific Types of Traumatic Brain Injuries

The nature and location of the damage determine the type, which include:

Cerebral Edemas

Cerebral edema is swelling of the brain, a form of secondary damage. NINDS explains that swelling inside the skull raises intracranial pressure, which can damage brain tissue and prevent blood flow to the brain, depriving it of the oxygen it needs.

Concussions

NINDS describes a concussion as a mild TBI caused by a blow to the head or a rapid movement of the brain within the skull, such as from violent shaking; the person suddenly loses consciousness or experiences a sudden change in consciousness or awareness.

Contusions

A contusion is a bruising or swelling of the brain that happens when very small blood vessels bleed into brain tissue; NINDS notes that it can appear after a delay of hours to a day.

Coup-Contrecoup Injuries

The brain is bruised at the site of impact (a coup lesion) and, as it jolts backward, against the opposite side of the skull (a contrecoup lesion), as Johns Hopkins Medicine describes. The jarring can tear the brain’s internal lining, tissues and blood vessels, causing internal bleeding, bruising or swelling.

Diffuse Axonal Injuries (DAI)

DAI is the shearing (tearing) of the brain’s long connecting nerve fibers as the brain shifts and rotates inside the skull, according to Johns Hopkins Medicine. NINDS calls it one of the most common types of TBI, commonly from auto accidents, falls or sports injuries. Its changes are often microscopic and may not be evident on CT or MRI scans.

Hematomas

A hematoma is bleeding in or around the brain caused by a burst blood vessel. NINDS names the types by where the blood collects: an epidural hematoma, between the skull and the dura mater; a subdural hematoma, between the dura and the arachnoid mater, very common in older adults after a fall; a subarachnoid hemorrhage, between the arachnoid mater and the pia mater; and an intracerebral hematoma, bleeding into the brain itself.

Hydrocephalus

NINDS lists hydrocephalus, a buildup of cerebrospinal fluid in the brain, among the causes of secondary damage.

Hypoxia, Hypotension and Ischemia

Reduced oxygen flow (hypoxia), low blood pressure (hypotension) and a restricted blood supply to brain tissue (ischemia) are secondary injuries; NINDS lists low blood pressure or oxygen flow among the causes of secondary damage.

Post-Concussive Syndrome (PCS)

Post-concussion syndrome involves symptoms that last for weeks or longer, according to NINDS. Most people recover fully from a first concussion within a few weeks, but recovery from a second or third concussion is generally slower.

Second-Impact Syndrome

NINDS warns that a second concussion closely following the first, the so-called “second hit” phenomenon, can lead to permanent damage or even death in some cases.

Brain Injuries Related to Skull Fractures

A skull fracture can damage the membranes, blood vessels and brain beneath it, NINDS explains. In a penetrating (open) TBI, an object such as a bullet, shrapnel or a bone fragment pierces the skull and enters the brain tissue, and Johns Hopkins Medicine notes that traumatic epilepsy is more common after severe or penetrating injuries.

Understanding the Many Possible Effects of Traumatic Brain Injuries

Some brain injuries are mild, with symptoms disappearing over time; others may result in permanent disability that needs lifelong rehabilitation, as Johns Hopkins Medicine notes. Effects may include:

  • Agraphia, alexia, aphasia and apraxia
  • Anxiety, depression and emotional changes
  • Headaches
  • Cognitive impairments
  • Coma
  • Disrupted development in children
  • Difficulty speaking or understanding speech
  • Impaired ability to perform activities of daily living (ADLs)
  • Impaired judgment and problem solving
  • Impaired social capacity
  • Loss of balance, coordination, strength and endurance
  • Loss of bowel and bladder control
  • Memory loss (amnesia)
  • Paralysis
  • Death, in the most severe injuries
  • Sensory changes
  • Changes in sleep patterns
  • Spasticity
  • Traumatic epilepsy
  • Tremors
  • Vision problems

When Can You Seek Financial Compensation for a Brain Injury in Florida?

TBIs can result from many kinds of incidents, including falls, firearm injuries, motor vehicle crashes and assaults. Liability is assessed case by case: the question is whether someone else’s negligence, a defective product or another legal wrong caused the injury. Common scenarios include:

Slips, Trips, and Falls

Falls frequently cause concussions and other TBIs, especially when the head strikes the ground or an object. If a hazardous property condition caused the fall, the owner may be liable under premises liability law, whether the hazard is a slippery floor, a cracked sidewalk, inadequate lighting or inadequate swimming pool security.

Falls from Height

Falls from height can cause severe or fatal TBIs. They often result from unsafe stairs, missing railings and other property conditions, and they are common on construction sites, from roofs, ladders and scaffolding.

Motor Vehicle Accidents

The CDC lists motor vehicle crashes among the common ways people get a TBI: the head can strike the vehicle, and the force of a crash can move the brain inside the skull. Most claims involve driver negligence, such as speeding or distracted driving, but vehicle defects, road defects and inadequate maintenance can also support a claim.

Boating Accidents

Collisions onboard, falls during watersports and job-related incidents put boaters and maritime workers at risk. In collisions between vessels, the claim is ordinarily brought against the negligent operator, the vessel’s owner or another legally responsible party, and federal maritime law may govern instead of Florida law on navigable waters.

Assaults

Gunshots, assaults with weapons and physical altercations can cause severe or fatal TBIs. Victims can pursue the assailant, but many assailants lack the resources to pay a substantial judgment, so a claim against a third party, such as a business that provided inadequate security, is often necessary.

Being Struck by Objects

Flying, falling and swinging objects cause TBIs on job sites, in stores and in sports. A claim usually requires proof of negligence; a defective product claim can rest on strict liability instead.

Sports Accidents

Collisions between athletes, flying balls and equipment, and near-drownings can cause TBIs. Waivers may prevent a claim in some cases, but they are not always enforceable and do not always apply.

Playground and Other Child Accidents

Playground falls, school bus accidents and tipping furniture put children at risk, and the CDC notes that TBI affects children differently than adults. When negligence or a product defect causes a child’s TBI, a claim may be brought on the child’s behalf; whether the parents have a separate claim depends on Florida law and the facts.

Accidents Involving Dangerous and Defective Products

A products liability action in Florida can rest on “a theory of strict liability, negligence, breach of warranty, nuisance, or similar theories” (§ 768.81(1)(d)). Under strict liability, the claim turns on whether the product was defective and caused the injury rather than on whether the company was careless, and the manufacturer and other companies in the product’s chain of distribution can be responsible.

Nursing Home Accidents

The CDC reports that falls are the most common cause of TBIs for older adults, and that a head injury from a fall can be very serious for a person taking blood thinners. Florida gives a nursing home resident a cause of action for negligence or a violation of the residents’ rights set out in the statute, which the resident, a guardian or the personal representative of a deceased resident’s estate can bring (§ 400.023); it is not a claim for medical malpractice (§ 400.023(9)).

Medical Malpractice

A medical mistake that deprives the brain of blood or oxygen can cause a life-altering brain injury, as can diagnostic, medication, anesthesia and surgical errors that support a medical malpractice claim. Before filing suit, a claimant must notify each prospective defendant of the intent to initiate litigation (§ 766.106(2)(a)), and a suit may not be filed for 90 days after notice is delivered (§ 766.106(3)(a)).

Building Collapses

Collapses such as the Surfside condo collapse can leave survivors with lifelong effects from TBI. Finding who is responsible requires an exhaustive investigation. In the Champlain Towers South collapse litigation, Silva & Silva was appointed to the Plaintiffs’ Steering Committee on July 16, 2021, to coordinate pretrial activity in the wrongful death cases.

Work-Related Accidents

Workers’ compensation is generally the employer’s exclusive liability for a work injury (§ 440.11(1)), with exceptions in the statute for an employer that fails to secure compensation and for an intentional tort proven by clear and convincing evidence under the statute’s narrow test. Claims against third parties outside the employment relationship, such as a product manufacturer, may also be available.

Understanding How to Prove the Financial and Non-Financial Costs of Traumatic Brain Injuries

When a TBI is permanent, its costs can last a lifetime. Florida law allows for the recovery of both current and future financial and non-financial losses when someone else is legally responsible, including:

  • Medical bills
  • Prescription costs
  • Other out-of-pocket costs resulting from the injury
  • Loss of income, benefits and future earning capacity
  • Pain, suffering and emotional trauma
  • For family members, where Florida law allows it, a spouse’s claim for loss of consortium, or an unmarried dependent’s claim when negligence causes significant permanent injury to the dependent’s natural or adoptive parent resulting in a permanent total disability, including the permanent loss of “services, comfort, companionship, and society” (§ 768.0415)
  • Loss of enjoyment of life

In a motor vehicle action governed by Florida’s no-fault threshold, recovery for pain, suffering, mental anguish and inconvenience requires an injury that meets § 627.737(2), such as a significant and permanent loss of an important bodily function or a permanent injury within a reasonable degree of medical probability.

Proof starts with the injury itself, which may not show on a scan. The costs are commonly proven with records and testimony from treating doctors, neuropsychologists, life care planners and economists, and with accounts from family and friends who see the injury’s day-to-day effects.

A life-care plan, defined by the International Academy of Life Care Planners as a plan “for current and future needs with associated costs for individuals who have experienced catastrophic injury or have chronic health care needs,” is a common way to prove future care; our guide to the lifetime costs of a traumatic spinal cord injury explains how those plans are built and proven in Florida. Ultimately, however, there is a process that can be followed, and many accident victims and families can pursue just compensation with the help of an experienced personal injury attorney.

Florida Law That Shapes a Brain Injury Claim

  • Deadlines. An “action founded on negligence” must be brought within two years (§ 95.11(5)(a)) if it accrued after March 24, 2023 (ch. 2023-15, § 28, Laws of Florida); a negligence claim that accrued on or before that date keeps the four-year period that applied before the 2023 amendment. Other claims run on other clocks: § 95.11(3) lists among its four-year actions “an action for injury to a person founded on the design, manufacture, distribution, or sale of personal property” and an action for battery or another intentional tort; medical malpractice follows § 95.11(5)(c); and a wrongful death action generally must be brought within two years (§ 95.11(5)(e)), although § 95.11(11) allows a wrongful death action against a natural person for an intentional tort resulting in death from acts described in § 782.04 or § 782.07 (murder or manslaughter) to be commenced at any time.
  • Comparative fault. In a negligence action filed after March 24, 2023, a person “found to be greater than 50 percent at fault for his or her own harm may not recover any damages” (§ 768.81(6)); at 50 percent or less, fault reduces the award in proportion (§ 768.81(2)). The bar “does not apply to an action for damages for personal injury or wrongful death arising out of medical negligence pursuant to chapter 766.”
  • Medical-expense evidence. In actions filed after March 24, 2023, evidence of past medical bills that have been paid “is limited to evidence of the amount actually paid, regardless of the source of payment” (§ 768.0427(2)(a)). The medical damages recovered may not exceed the evidence admitted under the statute, and may not exceed the sum of the amounts paid, the amounts still owed and the amounts needed for future care (§ 768.0427(4)).

Frequently Asked Questions About Brain Injury Claims in Florida

How long do I have to file a brain injury claim in Florida?

For most negligence claims, two years. Section 95.11(5)(a) sets a two-year period for an action founded on negligence, and it applies to causes of action that accrued after March 24, 2023; a claim that accrued on or before that date keeps the former four-year period. Medical malpractice, wrongful death, product and intentional-tort claims have their own periods in § 95.11.

What compensation is available for a traumatic brain injury in Florida?

When someone else is legally responsible, damages may include current and future financial losses, such as medical bills, lost income and lost earning capacity, and non-financial losses, such as pain and suffering, where Florida law permits them. In a motor vehicle action governed by Florida’s no-fault threshold, recovery for pain and suffering requires an injury that meets § 627.737(2).

Can I still recover if I was partly at fault for my brain injury?

Possibly. In negligence actions filed after March 24, 2023, § 768.81(6) bars recovery by a person found greater than 50 percent at fault for his or her own harm; at 50 percent or less, fault does not bar recovery but reduces the award in proportion. The bar does not apply to medical negligence claims under chapter 766, and actions filed on or before March 24, 2023 follow the earlier pure comparative fault rule.

How do you prove a brain injury that does not show up on a scan?

With evidence beyond imaging. Johns Hopkins Medicine notes that the changes from diffuse axonal injury are often microscopic and may not be evident on CT or MRI scans, and NINDS notes that neuropsychological tests of memory, concentration, information processing, reaction time and problem solving are often used alongside imaging. Treating physicians’ records and testimony, and accounts from family and coworkers, complete the picture.

Does Silva & Silva handle brain injury cases outside Miami-Dade County?

Yes. Silva & Silva works from one office in Coral Gables and represents injured people and families across Florida, in English and Spanish. The consultation is free, and there are no fees unless we recover. Call 305-445-0011 or contact us online.

Speak with a Florida Traumatic Brain Injury Attorney in Confidence

If you or a loved one has been diagnosed with a traumatic brain injury, we encourage you to contact us for a free, no-obligation consultation about your legal rights. To speak with a Florida traumatic brain injury attorney at Silva & Silva in confidence, call 305-445-0011 or request an appointment online now.