The call comes in the middle of the night. Your spouse has been in a horrific car crash. By the time you arrive at the hospital, the doctor delivers devastating news: "Clinically, your loved one is brain dead." In this nightmare scenario, you may be wondering about the legal implications of a brain-dead diagnosis. Are damages limited to a wrongful death claim, or can you still pursue compensation for a traumatic brain injury?
At the Law Office of Matthew A. Lathrop, we understand the profound grief and confusion that follows a loved one's catastrophic accident. Our compassionate team is here to provide the legal guidance you need during this difficult time. As an experienced Omaha traumatic brain injury lawyer and wrongful death attorney, Matthew Lathrop can help you understand your legal rights and options when a family member is declared brain dead due to another's negligence. Here's what Omaha families need to know.
Understanding Brain Death
Brain death occurs when the entire brain, including the brainstem, has irreversibly lost all function. Key facts about brain death include:
- No brain activity. Brain death means there is no neurological activity. EEGs show a "flat line" indicating permanent loss of brain function.
- Irreversible condition. Brain death is permanent and irreversible. Unlike a coma or vegetative state, there is no chance of recovery once brain death occurs.
- Legal death. All 50 states recognize brain death as legal death, even if the heart is still beating with mechanical support. Time of death is noted as when brain death is formally declared, not when life support is removed.
- Organ donation eligibility: Because the body can be kept on a ventilator after brain death, these individuals may be candidates for organ donation. Donation is a separate decision from the determination of brain death itself.
Brain death is a unique type of catastrophic injury. For legal purposes, the situation transitions from a traumatic brain injury claim to a wrongful death claim upon formal brain death determination.
How Brain Death Differs from Other Severe Brain Injuries
It's important to understand how brain death differs from other traumatic brain injuries:
- Coma. A coma is a state of unconsciousness where the person is unresponsive and cannot be awakened. Some coma patients may progress to brain death, while others may regain consciousness.
- Vegetative state. A vegetative state means the person has lost cognitive function and awareness, but still has a sleep-wake cycle and periods of alertness. It is not the same as brain death.
- Minimally conscious state. A minimally conscious state is a condition in which the person has severely altered consciousness but exhibits some signs of self-awareness or awareness of their environment. They may be able to respond to commands, make gestures, or track movement with their eyes.
These conditions are devastating but potentially reversible. However, brain death is permanent and irreversible, marking the end of life.
Damages in Brain Death Cases
When someone is declared brain dead after an accident, certain damages shift. Here's an overview of common damages in these cases:
Pre-Brain Death Damages
For the time period between the initial accident and formal brain death declaration, standard traumatic brain injury damages apply:
- Medical expenses, including ambulance transport, ER care, diagnostic imaging, and ICU costs
- Lost wages for work missed due to the injury
- Pain and suffering endured by the accident victim before brain death
Gather documentation of all injury-related expenses as well as evidence of the victim's level of awareness and pain during this time period.
Post-Brain Death Damages
After formal brain death determination, the following wrongful death damages are available to eligible family members:
- Funeral and burial expenses
- Loss of the deceased's expected earnings
- Loss of inheritance caused by untimely death
- Value of goods and services the deceased would have provided
- Loss of care, guidance, and nurturing that the deceased would have provided
- Loss of love, affection, and companionship
- Surviving family members' mental pain and suffering
You cannot recover damages for the deceased's pain and suffering after the date of legal death (brain death).
Proving Negligence in Brain Death Claims
As with any personal injury claim, gathering strong evidence of negligence is essential. Your legal team will work to establish:
- The defendant owed the victim a duty of care
- Negligent actions breached that duty
- This negligence directly caused the victim's catastrophic injuries
- Damages occurred as a result
For example, if a distracted driver caused the crash, your attorney would gather phone records, surveillance video, and witness testimony to demonstrate the at-fault party's negligence. Medical records, accident reconstruction, and economic analysis then tie that negligence to the resulting damages.
Choosing the Right Omaha Brain Injury Attorney
Brain death cases require specialized knowledge of both traumatic brain injury claims and wrongful death lawsuits. Look for an Omaha personal injury lawyer who:
- Has experience with catastrophic injury and wrongful death claims
- Works with trusted medical experts to prove the extent of damages
- Handles all communication with insurance companies and defense attorneys
- Prepares your case for trial while negotiating aggressively for a fair settlement
- Understands the emotional challenges of a brain death case and offers compassionate guidance
You need an advocate who will fight for your family's right to compensation while giving you space to grieve.
Legal Guidance for Omaha Wrongful Death Claims
No amount of money can undo the pain of losing a loved one. However, an experienced Omaha wrongful death lawyer can help you secure the financial resources you need during this difficult time. While you focus on honoring your loved one's memory, your legal team will handle all aspects of settlement negotiations and litigation on your behalf.
The team at the Law Office of Matthew A. Lathrop understands the nuances of brain injury claims and how the determination of brain death affects the case. Let us put our knowledge and resources to work for you so you can focus on healing.