What began as a routine medical procedure or an unexpected car crash has now changed everything. With your traumatic brain injury, daily tasks have become dramatically more difficult, work seems impossible, and family members say your personality has changed.
At The Mottley Law Firm, our Richmond brain injury lawyers understand the life-altering impact of a TBI. With several seven-figure settlements in recent years, our legal team has demonstrated the ability to secure substantial compensation for brain injury victims despite Virginia's legal limitations on recoverable damages.
Understanding Virginia's Damage Caps
Virginia law places important limitations on certain types of damages you may recover in personal injury claims. They vary depending on the cause of your traumatic brain injury.
Medical Malpractice
Virginia imposes strict limits on the total amount recoverable in medical malpractice cases under Code of Virginia § 8.01-581.15. As of July 2024, this cap stands at $2.65 million, increasing by $50,000 annually until at least 2031.
Consider a scenario where a patient undergoes a routine medical procedure. During the procedure, the anesthesiologist administers too much anesthesia. This leads to oxygen deprivation and causes a traumatic brain injury. Even if the lifetime costs exceed $5 million, the courts would still limit total recovery to $2.65 million.
Punitive Damages Cap
While compensatory damages in personal injury cases outside of medical malpractice are not capped in Virginia, punitive damages face restrictions. Punitive damages are monetary awards designed to punish defendants for particularly reckless or egregious conduct and to deter similar behavior in the future.
Virginia Code § 8.01-38.1 limits punitive damages to $350,000, regardless of the defendant's conduct or the harm caused.
For example, say a commercial truck driver causes a crash while texting and driving 30 mph over the speed limit. Another motorist suffers a traumatic brain injury as a result. The punitive damages meant to punish this grossly negligent behavior cannot exceed $350,000, even if the jury believes the company's failure to enforce safety protocols deserves a more substantial penalty to prevent future violations.
Strategies to Maximize Compensation Despite Damage Caps
Despite these limitations, several legal strategies can help traumatic brain injury victims maximize their recovery.
Identifying All Potential Defendants
One effective strategy is to identify every party who might bear responsibility for a traumatic brain injury. In medical malpractice cases, liability may extend beyond a single doctor to include nurses, technicians, the hospital, and even pharmaceutical companies or device manufacturers.
For instance, if a brain injury occurs during surgery, both the surgeon who performed the procedure and the hospital that failed to properly credential or supervise the doctor might be liable under separate insurance policies.
Third-party liability is another consideration. When a car crash causes a brain injury, potentially liable parties might include:
- The other driver
- The vehicle manufacturer, if a defect contributed to the crash
- The government entity responsible for road maintenance
- A bar that served alcohol to an obviously intoxicated patron.
By pursuing claims against each responsible party, the total recovery may significantly exceed what would be possible from a single defendant.
Properly Categorizing Damages
Careful structuring of damage claims can help brain injury victims maximize recovery despite caps. By meticulously documenting economic damages such as medical expenses, rehabilitation costs, lost wages, home modifications, and in-home care expenses, you ensure that a larger portion of any capped award covers these concrete expenses.
The Importance of Expert Testimony
Proving the true extent of a TBI requires testimony from professionals who understand the injury's physical, cognitive, and lifestyle impacts.
Medical Experts
While a radiologist might initially report no significant findings, a neurologist may point to subtle abnormalities on an MRI that were missed. They may identify telltale signs of diffuse axonal injury and other types of physical brain damage.
Neuropsychological testing often reveals cognitive problems that brain scans miss. Cognitive testing can document specific deficits in memory, attention, executive functioning, and other brain processes affected by the injury that prevent the victim from returning to work.
Life Impact Experts
Beyond medical testimony, experts who can speak to how the brain injury affects daily life prove invaluable in maximizing damages. Vocational rehabilitation specialists assess how the TBI impacts the victim's ability to work and earn income over their lifetime. Life care planners develop comprehensive plans detailing all the care, services, and accommodations a TBI victim will need throughout their life, with associated costs.
