When Medical Negligence Causes Traumatic Brain Injury

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Doctor writing on a medical chart, representing documentation of care in a medical negligence case

Key Takeaways

Medical malpractice is negligence — it can be caused by an act or the failure to act by medical practitioners, and medical negligence is defined as treatment that is below the minimum standard of acceptable care.
Accountability for substandard care is a cornerstone of medical professional responsibility in the United States.
Vicarious liability is a legal doctrine, adopted in some states, which holds a hospital responsible for the negligent actions or omissions of its employees performed within the scope of their employment.
If the lawyer believes in the claim, the lawyer will typically agree to represent you on a contingent fee basis, which in many states means that there will be no legal fees or reimbursement of costs unless there is a recovery.
The recovery of substantial compensation does positively assist people with TBI and their families get the housing, lost earnings and benefits, and medical expenses that they need.

When patients receive substandard medical treatment, and it causes harm to the patient, that is medical malpractice — and it happens. Malpractice can cause or worsen a TBI. Insurance for malpractice can provide substantial funds to care for individuals and families injured by substandard care. Doctors, hospitals, rehabilitation facilities, home health care agencies all have liability insurance for medical malpractice. This insurance can provide substantial financial compensation for these injuries.

Our law firm has successfully represented many clients who were severely injured by substandard medical care that caused TBI and other catastrophic injuries.

Here is an example of how malpractice caused one of our clients a tragic TBI. Postoperative patients are susceptible to hypoxemia (low concentration of oxygen in the blood). Our client, a wife and mother, was undergoing routine surgery with general anesthesia. To prevent potential harm from hypoxemia the standard of care for medical providers is to provide supplemental oxygen to help restore adequate oxygenation. This is critical and necessary treatment to ensure that vital organs, like the brain and heart, receive the oxygen they need to function properly. When the brain does not receive enough oxygen, the condition is known as hypoxia. Prolonged hypoxia can result in irreversible brain damage. In this case, supplemental oxygen was provided during surgery, and was also ordered to be provided to the patient while she was being transferred to the recovery room post-surgery and to be used in the recovery area. However, after surgery and while the patient was being transported to the recovery room, the supplemental oxygen tube became disconnected. It was not reconnected, and the patient did not receive the necessary supplemental oxygen after surgery. This was finally discovered much later in the recovery room, but by then it was too late.

It was the collective responsibility of the medical team to continuously monitor our client’s vital signs, oxygen levels, and overall condition to ensure that she was continuously receiving supplemental oxygen. The medical team failed. The standard of care was not met, and by the time the disconnected tube was discovered, our client had already suffered a severe brain injury because of prolonged hypoxia. This TBI was caused by malpractice (substandard care) because:

The medical team had a legal duty (responsibility) to ensure that the oxygen was connected and to monitor the patient.
The medical team failed to perform their duty (breached the standard of care).
The actions and failures of the medical team caused this TBI.

Medical malpractice is negligence, and it can be caused by an act or the failure to act by medical practitioners. Medical negligence is defined as treatment that is below the minimum standard of acceptable care. And when substandard care causes or worsens TBI, it can be the basis of a claim.

Patient care can and does slip through the cracks in the medical system; this is often referred to in health care as the Swiss Cheese Model. This model recognizes that most malpractice claims in health care are caused by a breakdown in, or absence of safety barriers. When a hospital fails to have policies and procedures to protect patients, or when a hospital fails to teach and enforce those safety rules, patient care can slip through the holes in the system. When holes across each level of the hospital or health care system line up (like the holes in a wedge of Swiss cheese), a window of opportunity is created for the patient to be harmed.

Accountability for substandard care is a cornerstone of medical professional responsibility in the United States. Medical negligence claims promote a standard of care that prioritizes patient well-being. This legal framework not only seeks to provide justice but also encourages health care providers to adhere to the accepted standards of medical practice. Furthermore, medical malpractice claims help remove the doctors and other medical providers who regularly provide substandard care that causes patient harm. These are the physicians who are repeatedly sued for medical negligence but are still allowed to practice. One study found that approximately 1 percent of physicians accounted for nearly one-third of paid malpractice claims and that 94 percent of physicians had no malpractice claims. This study also showed that physicians with multiple malpractice claims continued to hold licenses, and that only when the number of paid medical malpractice claims against them had sufficiently accumulated was it likely that those physicians would leave clinical practice and stop treating patients.

Failure to diagnose a brain injury is one of the most common forms of medical negligence in TBI cases. In this clip, Dr. Thomas Swirsky-Sacchetti explains why standard imaging often fails to detect the full extent of a traumatic brain injury — and why that matters for diagnosis, treatment, and legal claims.

Video Transcript

Limitations of Brain Imaging (MRI & CT Scans)

0:04

Stewart Cohen: Are these things that you prescribe and recommend to the patient and to the neurologist?

Dr. Thomas Swirsky-Sachetti: Yes.

Stewart Cohen: You mentioned a couple of times MRI and CAT scans—sometimes called CT scans. Those are tests—advanced radiology tests, like X-rays, but different. They take pictures of slices of the brain using very sophisticated modern equipment, right? In your experience, and based on your testing, do MRIs and CT scans show all damage to the brain?

Dr. Thomas Swirsky-Sachetti: No. As a rule of thumb, something generally needs to be the size of your pinky fingernail for an MRI to pick it up. Additionally, because imaging relies on taking slices, a lesion can be missed if it falls directly in between a slice, though that is less likely with repeated scans.

The primary issue with brain injuries is that damage often occurs on a microscopic, cellular level. Brain cells (neurons) consist of an axon (body) and dendrites extending outward that do not physically touch the next neuron. There is a space between them—the synapse—where neurotransmitters act as chemical bridges, allowing electrical impulses to jump from one neuron to the next.

When you retrieve a phone number, roughly 50,000 neurons may fire per second. During a head injury, these neurons get twisted and pulled apart. As a result, the synaptic gap becomes too wide for those chemical bridges to work effectively, leading to slower information processing or word-finding difficulties as signals hit a dead end.

Furthermore, MRIs and CT scans often miss micro-hemorrhages from broken capillaries. The inside of the human skull is not a smooth surface; it contains bony protrusions. When the brain is shaken back and forth, it rubs against these protrusions, tearing tiny blood vessels. While a major blood vessel rupture causes a collection of blood visible on an MRI, minor vessel damage remains invisible.

This highlights the distinction between structure and function. Conversely, I have seen patients with slow-growing brain tumors the size of a lemon that wiped out their left frontal lobe, yet they showed no functional impairment on testing. Because the tumor grew slowly over 15 years, the patient’s brain adapted by utilizing the right frontal lobe to handle tasks normally managed by the left. Structure and function are two entirely different things.

Stewart Cohen: So, there can be damage to the brain that will not show up on CT scans or MRIs, but your standardized functional tests can reveal these hidden deficits?

Dr. Thomas Swirsky-Sachetti: Right.

The Role of Neuropsychology in Rehabilitation & Brain Retraining

4:53

Stewart Cohen: You touched upon the neuropsychologist’s role in recovery and treatment. Could you go into detail about your job and how you carry it out?

Dr. Thomas Swirsky-Sachetti: We use pattern analysis to evaluate strengths and weaknesses across cognitive functions. The goal of neuropsychological rehabilitation broadly falls into three categories:

1. Environmental Compensation (External “Crutches”)

This involves using external tools to bypass an impaired function without changing the underlying brain structure. For example, I worked with a popular professor in his 60s who could no longer lecture extemporaneously after a head injury. His issue was not long-term memory, but rather frontal lobe inhibition—he would wander off on 10-minute tangents and lose his train of thought. We implemented a structured slide presentation as a visual guide to keep his lectures on track.

2. Direct Retraining & Neuronal Healing

By repetitively exercising an impaired brain region, blood flow increases to that specific area, helping neurons heal and close synaptic gaps. For instance, word-retrieval difficulties involve the angular gyrus in the left parietal lobe (where words are stored) and the arcuate fasciculus pathway leading to the frontal lobe (where speech is produced). A speech therapist might exercise this pathway by asking a patient to identify increasingly obscure objects from pictures, rebuilding that retrieval function like physical therapy after a cast is removed.

3. Alternative Pathway Rerouting (Internal Adaptations)

If a primary neural pathway is damaged beyond direct repair, we train the brain to utilize alternative regions. For example, if a patient has short-term verbal memory loss due to a left temporal lobe injury, relying on verbal repetition (“house, tree, cat, pie”) fails. Instead, we can train them to use the right temporal lobe (responsible for visual/non-verbal memory) by creating a mental picture—such as visualizing a house with a tree, a cat on a branch, and a pie on the porch. This strategy helps patients manage everyday tasks, like remembering grocery items via visual mental snapshots.

Developing Post-Concussion Treatment Plans & Interdisciplinary Care

11:44

Stewart Cohen: When I say “post-concussion syndrome,” what does that mean?

Dr. Thomas Swirsky-Sachetti: It refers to a persistent cluster of cognitive, physical, or vestibular (balance) symptoms that endure well beyond the typical recovery window of days or weeks.

Stewart Cohen: When presented with a patient who has post-concussion syndrome, how do you develop a treatment plan?

Dr. Thomas Swirsky-Sachetti: I analyze their pattern of strengths and weaknesses across testing. Rather than only searching for deficits, I evaluate the healthy parts of the brain to determine its capacity to adapt and compensate, then design a plan that pushes that compensatory ability to the maximum.

Stewart Cohen: How do you collaborate with the rest of the rehabilitation team?

Dr. Thomas Swirsky-Sachetti: Neuropsychology emerged in the 1930s and 1940s, making it a relatively modern field. Collaboration depends heavily on the care setting:

Inpatient Rehab & Hospital Settings: In hospital departments (such as Thomas Jefferson University Hospital or MossRehab), neuropsychologists work closely alongside physiatrists (rehabilitation physicians), speech-language pathologists, and occupational therapists (OTs). We hold regular team meetings and re-test patients periodically to track cognitive improvements.
Outpatient & Private Practice Settings: In outpatient settings, recommendations are detailed in comprehensive reports for treating clinicians. High-functioning patients with mild injuries often prefer outpatient treatment directly in an office setting rather than attending inpatient centers alongside severely impaired patients, which can feel discouraging.

Recovery Differences: Mild vs. Moderate to Severe Brain Injuries

16:59

Stewart Cohen: In your practice, does treatment and recovery for mild brain injuries differ from moderate and severe brain injuries?

Dr. Thomas Swirsky-Sachetti: Yes. Most individuals with mild brain injuries achieve significant recovery through targeted office-based rehabilitation.

However, recovery expectations are markedly different for moderate to severe injuries because a larger volume of brain tissue has been damaged. Full recovery is far less likely with moderate injuries and rare with severe injuries. Some of the most challenging evaluations involve patients two to three years post-severe injury, where the primary objective is determining whether the individual can live at home with partial daily assistance or if they require full-time custodial care.

Family Guidance & the “Hidden” Nature of Head Injuries

19:02

Stewart Cohen: Is part of a neuropsychologist’s role talking with the family?

Dr. Thomas Swirsky-Sachetti: Absolutely. Family feedback sessions are essential because a head injury is a major trauma for the entire family system—the person who returns home after an injury is often altered.

Brain injury is frequently called a “hidden injury.” Unlike a broken arm in a cast, which receives immediate visibility and empathy, a head injury is invisible to outside observers and even family members. It can be difficult for family members to understand why a loved one experiences emotional meltdowns, depression, or sudden memory lapses. A significant portion of my practice involves counseling spouses and children to help them navigate these changes.

Misconceptions About “Mild” Brain Injuries

20:19

Stewart Cohen: When people hear the term “mild,” they often assume it is not serious.

Dr. Thomas Swirsky-Sachetti: That is a major flaw in the classification system. Mild brain injuries are divided into two categories:

Uncomplicated Mild Head Injury: No visible physiological markers (such as skull fractures or internal bleeding).
Complicated Mild Head Injury: The injury meets the clinical criteria for “mild” based on initial assessment tools (like a near-perfect Glasgow Coma Scale score), yet involves underlying physiological trauma like fractures or internal bleeds.

For example, an elderly patient who fell experienced only brief disorientation without loss of consciousness, receiving an initial classification of a mild head injury. Six months later, they presented to the emergency room with a life-threatening, slow-growing subdural hematoma the size of a lemon that was undetectable on initial scans.

Stewart Cohen: Can someone with a mild brain injury experience job disability, communication difficulties, or personality changes?

Dr. Thomas Swirsky-Sachetti: Yes, all three are possible.

Stewart Cohen: Do you collaborate with psychologists and psychiatrists in treating these post-concussion symptoms?

Dr. Thomas Swirsky-Sachetti: Yes.

Stewart Cohen: Have you prepared reports for disability claims (Social Security, Medicare, Medicaid, or personal injury claims) and been accepted as an expert witness in court and by the federal government?

Dr. Thomas Swirsky-Sachetti: Yes, absolutely.

Medical Causes of TBI

Here are some examples of medical malpractice that can cause or worsen a traumatic brain injury:

Anesthesia Errors

Anesthesia comes with inherent risks, and every time there is a bad outcome (an adverse event) there is not necessarily medical negligence. However, substandard anesthesia care and treatment can lead to significant complications, including brain injury due to:

Inadequate Monitoring: Failing to continuously monitor the patient’s vital signs, (oxygen saturation, blood pressure, and heart rate) can lead to complications, such as hypoxia.
Hypoxia: Failing to provide adequate oxygen during surgery (improper ventilation or airway management) can cause brain damage.
Medication Errors: Failing to provide the correct medications or incorrect dosages amounts of those medications (dosage) can cause an adverse event, including brain damage.
Equipment Failure: Defective anesthesia equipment, or equipment that has not been inspected, serviced, and repaired can result in inadequate anesthesia or failure to detect that the patient under stress and not receiving adequate oxygenation during the surgery.
Incompetent Airway Management: Inadequate intubation or failure to secure the airway properly can lead to respiratory failure and subsequent brain injury due to hypoxia.
Failure to Anticipate Complications: Not recognizing or preparing for potential complications including allergic reactions, sudden changes in blood pressure or sudden changes in body temperature (malignant hyperthermia) in response to anesthesia drugs can have grave consequences.
Inadequate Preoperative Assessment: Failing to rigorously evaluate a patient’s medical history, allergies, or risk factors may lead to complications during anesthesia.
Delayed Response to Emergencies: When medical practitioners are slow to respond to an emergency complication in a patient’s condition during surgery, this can cause a brain injury and death.
Poor Communication: Lack of clear communication among the medical team can result in misunderstandings or errors that cause brain damage.

Our firm has represented clients injured by anesthesia malpractice, including a young woman who was undergoing elective surgery under general anesthesia. During surgery, a breathing apparatus (a mechanical ventilation system) failed. The equipment had not been inspected or serviced for years, because it was left off the inspection list due to a clerical error. The evidence was that the nurses alerted the doctors that our client was in distress, that she was turning blue, and that her chest and abdomen appeared distended, all of which are alarming signs of the emergency. This distress was due to the equipment failure. Our client was receiving oxygen, but a defect in the equipment prevented her from being able to exhale. As a result, our client suffered a pneumothorax (lung collapse), which led to her brain injury and death. We proved that the medical team failed to respond to the emergency as required and that the hospital failed to provide equipment that was thoroughly inspected and in working order. This case was resolved by a substantial settlement that was finally offered during the trial, shortly after the emotional testimony of one of the operating room nurses who witnessed the emergency.

Birth Injuries

Medical negligence during labor and delivery can and does happen, and it can cause TBI and lead to cerebral palsy. See Traumatic Brain Injury and Cerebral Palsy at Birth: Understanding Prolonged Labor Risks and Duty of Care.

Emergency Department Errors

Emergency Department (ED) health care providers treat a wide range of patients with urgent to life-threatening conditions (though there are patients who use the ED as their primary source of medical care). Errors occur in the ED that can cause brain injury, such as:

Delayed Diagnosis: Failing to promptly recognize signs of a serious condition, such as cardiac arrest, stroke, meningitis, sepsis, or infection can significantly affect the patient’s outcome.
Inadequate Assessment: Failing to conduct a thorough physical examination or account for the patient’s medical history, signs, symptoms, and condition can result in missed diagnoses and delayed treatment.
Poor Management of Respiratory Distress: Inadequate management of respiratory distress and failure to diagnose its causes, such as hypoxemia, pneumonia, pulmonary embolism, chest or head injuries, or infection, can delay treatment and lead to hypoxia and brain injury.
Medication Errors: According to the CDC “an adverse drug event (ADE) is when a medication causes harm to someone. ADEs include …medication errors. They are a serious public health threat.” Medication errors include substandard care in the preparation of the prescription (medication and/or dosage) and the administration of medications and can cause severe neurological consequences.
Failure to Monitor: Inadequate monitoring of vital signs or neurological status during a critical period in the ED can result in permanent deterioration of a patient’s condition without timely intervention.
Inadequate Communication: Poor communication among health care providers, including failure to relay essential information about changes in the patient’s condition, test, or x-ray results, can lead to errors in treatment.
Neglecting Family Input: Dismissing parental and family concerns or observations about the patient’s condition may lead to missed critical information regarding symptoms or changes in behavior.
Failure to Identify and Respond to Trauma: In cases where an infant has experienced trauma (a fall or car accident), the failure to assess the patient for a brain injury and manage potential brain injuries can have serious and lasting effects for the baby.
Infection Management Failures: Failure to recognize or adequately treat infections can lead to sepsis and can cause brain injury and death.
Transfer Errors: During a transfer of care to specialists or other facilities, inadequate preparation, or communication, such as a lack of necessary information about the patient’s condition, can result in delayed diagnosis and treatment that could leave the patient with a brain or other injury.

Medical Device Failures

Medical devices used in medical offices, hospitals, and homes can lead to brain injury through defects or errors in design, manufacturing, negligent use, or simply poor maintenance. Examples of types of devices which can cause brain injuries include:

Ventilators: Malfunctioning or improperly calibrated ventilators can result in inadequate ventilation or oxygenation, leading to hypoxia and potential brain injury.
Intravenous (IV) Pumps: Erroneous dosing due to programming errors or pump malfunctions can result in an overdose of medications or fluids that can affect brain function.
Defibrillators: If a defibrillator fails to deliver a shock when needed or delivers an inappropriate shock, it can cause serious cardiac issues that, in turn, can cause brain injury due to lack of oxygen.
Neuromodulation Devices: Spinal cord stimulators, deep brain stimulators, and other devices can malfunction or be improperly implanted, leading to unintended effects on brain function.
Oxygen Delivery Systems: Malfunctions in oxygen delivery systems or masks that fail to provide adequate oxygen can contribute to hypoxia and can cause brain injury.
Anesthesia Machines: The malfunction of these compact machines used in outpatient surgery centers to monitor and control a patient’s ventilation can lead to insufficient oxygen delivery to the brain which can cause brain injury.
Intracranial Pressure Monitors: Defective ICP monitors may provide inaccurate readings, leading to delayed detection and untimely treatment of conditions that can cause secondary brain injuries.
Endotracheal Tubes: Misplaced or defective tubes can obstruct the airway and can lead to inadequate oxygenation which can cause hypoxia and brain injury.
Neuroimaging Equipment: Errors in interpretation of images or malfunctions in equipment like MRI or CT scanners can lead to misdiagnosis or cause delays in critical treatment of brain injuries, which can cause secondary brain injuries.
Blood Clot Filters: Defects in filters designed to prevent blood clots can lead to clots traveling to the brain, causing a stroke and brain injury.
Shunting Devices: Substandard placement or malfunctions in devices used to drain excess cerebrospinal fluid (CSF) from the brain can lead to increased ICP or infections, thereby causing brain injury.

Surgical Malpractice

All surgeries come with inherent risks, and a bad outcome is not necessarily the result of medical negligence. However, substandard surgical care and treatment, which is negligence, can lead to significant complications, including brain injury. Here is a list of the types of surgical malpractice that can cause catastrophic damage:

Delay in Diagnosis and Surgery: Surgeons decide if, how, and when to perform surgery. Delays in diagnosis and surgery due to substandard care can lead to complications, including sepsis, which may cause brain injury.
Wrong Site, Wrong Procedure, and Unnecessary Surgeries: when a surgeon performs an unnecessary surgery (wrong site or procedure, or unnecessary surgery), the surgeon is responsible for complications that result from the negligence of performing that surgery.
Retained Surgical Instruments: Leaving surgical instruments or materials inside the patient can lead to infections, abscess formation, or other complications which can lead to infections, sepsis, and brain injury.
Inadequate Monitoring: Failing to monitor a patient’s vital signs and neurological status properly and attentively during or after surgery can result in undetected complications, potentially leading to brain injury.
Surgical Technique Errors: Substandard surgical techniques, such as improper protection or dissection of adjacent anatomical structures, anastomoses (sutures), or cauterization, can lead to complications.
Failure to Obtain Informed Consent: Typically, in non-emergency situations, surgeons must have patient’s informed consent before performing an operation. Failing to adequately inform a patient about the risks associated with or alternatives to the surgery may lead to legal liability in certain situations.
Failure to Follow Hospital Procedures: Neglecting written policies designed to prevent errors can increase the risk of surgical mistakes, leading to brain injury.

Postoperative Negligence

After an operation, patients can be at risk of suffering a brain injury or a secondary brain injury. Examples of substandard care include:

Failure to Recognize Complications: Failing to promptly identify complications such as bleeding, infection, or changes in neurological status can delay necessary interventions and lead to brain injury.
Inadequate Monitoring: Insufficient monitoring of the patient’s vital signs, neurological function, and overall condition after surgery can result in undetected issues that may impact brain health.
Delayed Response to Emergencies: Failing to react quickly to signs of complications, including seizures, loss of consciousness, infection, bleeding, or severe headaches, can exacerbate injuries and contribute to brain damage.
Medication Errors: Incorrect dosages, inappropriate medications, or adverse drug interactions administered after surgery can cause adverse reactions and brain injury.
Failure to Manage Pain: Inadequate pain management can lead to undue stress and complications.
Failure to Monitor for, Recognize, or Treat Infection: Infections that spread to the brain or surrounding structures can lead to conditions like meningitis or brain abscesses. Postoperative infections, if not treated, can also develop into sepsis and result in significant complications.
Failure to Control Bleeding: Failing to control bleeding during surgery or not detecting and correcting postoperative bleeding can result in hematoma formation. If this bleeding occurs in the brain, it can cause increased ICP after surgery.
Respiratory Issues: Poor management of respiratory function may lead to hypoxia, which can cause brain injury if not promptly corrected.
Deep Vein Thrombosis (DVT) and Pulmonary Embolism (PE): Failure to monitor and prevent DVT can lead to a PE, which may result in decreased oxygen supply to the brain.
Failure to Educate Patient or Family: Failing properly and fully to explain postoperative care and discharge instructions to the patient and their family can prevent timely intervention when problems arise.

Wondering whether substandard medical care played a role in a loved one's TBI? Get the free book for guidance on medical malpractice, legal rights, and next steps.

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Hospital Malpractice: Vicarious Liability and Ostensible Agency

Vicarious liability is a legal doctrine, adopted in some states, which holds a hospital responsible for the negligent actions or omissions of its employees (physicians and other health care providers) that are performed within the scope of their employment. Ostensible agency is a related doctrine available in some states that holds a hospital financially responsible for practitioner’s negligence when, by word or action, the hospital leads the patient to believe that the practitioner is a hospital employee. These doctrines are significant, especially if the health care providers have insufficient insurance coverage to compensate their patient for the injuries caused by their negligence.

In those states that have adopted these doctrines, a hospital is, as a matter of law, responsible for the negligence of any health care provider who is employed by a hospital or who is held out by the hospital to be its employee.

Obtaining Financial and Legal Support for TBI After Medical Malpractice

When substandard medical care causes severe damage, the injured patient or their family has a legitimate medical malpractice claim under the law of each of the fifty states. The laws and procedures of the states differ, but hospitals and physicians are typically insured for damage caused by medical negligence, which is vital to ensure patient safety, and provide trust in medical professionals.

All states have unique requirements regarding the procedure for filing medical malpractice claims. Some states require a certificate or sworn statement of merit from accredited medical specialists, meaning proof that an expert has reviewed and believes the case has merit before a medical negligence case can proceed. Other states have specific requirements for the qualification of experts: caps or limits on the damages that can be recovered; procedures for alternative dispute resolution; or pre-lawsuit screening boards that review the claims. For more information regarding state practice, statutes of limitations, and an evaluation of the case, you must contact an experienced attorney. Most experienced medical negligence attorneys will meet with you, either in person, virtually, or on the phone, to discuss the matter. Depending on the facts, they may wish to obtain some or all the medical records and assess the viability of the claim with medical experts to determine whether to undertake your representation. If the lawyer believes in the claim, the lawyer will typically agree to represent you on a contingent fee basis, which in many states means that there will be no legal fees or reimbursement of costs to the attorneys unless there is a recovery.

Our firm is very experienced in representing patients in medical malpractice claims, and we are privileged to work with some of the most experienced physicians and lawyers across the country on these cases. We have medical and nursing consultants on our team who promptly investigate the medical records, and research the medicine. In our experience, a substantial recovery from a lawsuit will never make the injured person or their family whole. However, the recovery of substantial compensation does positively assist people with TBI and their families get the housing, lost earnings and benefits, medical expenses that they need, as well as compensation for their physical pain, emotional suffering and loss of life’s pleasures.

Many medical negligence claims are settled out of court, but after the case has been filed, prepared, and presented to the hospital lawyers and their insurers. It is rare that a case is settled without filing a lawsuit, but it does happen. Jury trials of medical malpractice cases are available in all states, with some exceptions. Many of our cases have also settled after the trial began. In most states, there are also claims available on behalf of the spouse, and in the case of death, there are claims available on behalf of the estate and certain family members.

For more information, see the Legal Help section.

Frequently Asked Questions About Medical Negligence and TBI

What is medical malpractice as it relates to TBI?

Medical malpractice is negligence — it can be caused by an act or the failure to act by medical practitioners. Medical negligence is defined as treatment that is below the minimum standard of acceptable care. When substandard care causes or worsens TBI, it can be the basis of a claim.

What are the most common types of medical negligence that cause TBI?

Common types include anesthesia errors (failure to monitor oxygen levels, inadequate airway management), emergency department errors (delayed diagnosis, inadequate assessment), medical device failures (defective ventilators, oxygen delivery systems), surgical malpractice (wrong-site surgery, failure to control bleeding), and postoperative negligence (failure to monitor for complications).

How do hospitals become legally responsible for a doctor's negligence?

Vicarious liability is a legal doctrine in some states that holds a hospital responsible for the negligent actions of its employees. Ostensible agency is a related doctrine that holds a hospital liable when, by word or action, it leads the patient to believe a practitioner is its employee.

What is the Swiss Cheese Model in medical malpractice?

The Swiss Cheese Model recognizes that most malpractice claims in health care are caused by a breakdown in, or absence of, safety barriers. When a hospital fails to have policies and procedures to protect patients, or when a hospital fails to teach and enforce those safety rules, patient care can slip through the holes in the system. When holes across each level of the hospital or health care system line up (like the holes in a wedge of Swiss cheese), a window of opportunity is created for the patient to be harmed.

Do I need to hire a lawyer to pursue a medical malpractice TBI claim?

All states have unique requirements regarding filing medical malpractice claims, including expert reviews, certificates of merit, and statutes of limitations. Most experienced medical negligence attorneys will meet with you, either in person, virtually, or on the phone, to discuss the matter. If the lawyer believes in the claim, the lawyer will typically agree to represent you on a contingent fee basis, which in many states means that there will be no legal fees or reimbursement of costs to the attorneys unless there is a recovery.

Can a medical malpractice claim cover all the costs of a TBI?

In our experience, a substantial recovery from a lawsuit will never make the injured person or their family whole. However, the recovery of substantial compensation does positively assist people with TBI and their families get the housing, lost earnings and benefits, medical expenses that they need, as well as compensation for their physical pain, emotional suffering and loss of life’s pleasures.