Few things in life are as scary and potentially life changing as brain injuries. When you or someone you love has suffered a brain injury, the impact on your relationships, family finances, and daily activities can be devastating. Unfortunately, the complex nature of these injuries causes a lot of confusion, from basic medical terminology to possible legal considerations. We are here to help.

Types of Brain Injury – TBI vs. ABI

A small percentage of brain injuries happen “naturally” – that is, through inherited or congenital conditions. All others are called Acquired Brain Injuries (ABIs). ABIs are divided into two groups: Traumatic (TBIs) and non-traumatic. Usually, non-traumatic brain injuries are simply called ABIs. 

Generally, the more severe the injury, the more drastic the outcome. However, all ABIs, even so-called “mild” ones, can cause changes to the brain’s ability to send messages (called neuronal activity) which can impair the victim’s physical, cognitive, and psychological functioning. In many cases, the impairments will be permanent, despite efforts to heal and retrain the injured brain. 

TBIs get the most attention in our media and have become far too common. They are caused by external forces including car accidents, falls, physical violence, and sporting incidents. 

Head Injury vs. Brain Injury

Although they get used interchangeably, head injuries and brain injuries are not always the same thing. Head injury refers to any injury to the victim’s scalp, skull, blood vessels, connective tissue, and/or brain. Nonetheless, direct head injuries (which are either “open” or “closed” depending on whether they penetrate the victim’s skull) often ARE the cause of TBIs. 

In all TBIs, at least part of the damage occurs because the brain strikes the inside of the victim’s skull after impact. This is called a coup injury. 

1. With open head injuries, the object that penetrates the skull also usually damages brain tissue, and further damage can be caused by the skull fragments.
2. On the other hand, closed head injuries (usually diagnosed as concussions – also called mild TBIs) often include both a coup and a contrecoup injury. 

In a rear-end collision, for example, the victim’s neck is “whiplashed” violently back and forward during impact. This causes the brain to strike the front then back of the inner skull, damaging both impacted areas. Repeated shaking of the brain back and forth (usually through violence, but also during serious car accidents) can cause a Diffuse Axonal Injury (DAI). DAIs can be relatively mild or very serious, leading to prolonged coma and widespread brain damage.  

TBIs are classified as mild, moderate, or severe, based on the degree of physical damage to the brain tissue and other signs of pathology like neurological, cognitive, or psychological deficits. IT IS IMPORTANT TO UNDERSTAND that this classification does not mean a mild TBI is not a serious and potentially disabling injury. Concussions and other mild TBIs must be treated promptly and thoroughly to give the victim their best chance at recovery. 

Non-traumatic ABIs are caused by internal factors like lack of oxygen to the brain (from a stroke, heart attack, near-drowning/suffocation), exposure to toxins, diseases like meningitis, pressure (from a tumor, edema (swelling) or intracranial hematoma (blood clots) from a head injury) and hemorrhaging – from high blood pressure (aneurysm), bleeding disorders, certain medications or illicit drugs. 

Legal Considerations – Brain Injury Lawsuits

Most brain injury lawsuits in Ontario involve TBIs that happen after a car accident or slip and fall. They are civil (as opposed to criminal) negligence or personal injury lawsuits, where the injury victim claims monetary compensation for their injuries and losses from the at-fault party (the other driver, the negligent property owner or municipality, etc.). Only losses that can be proven will be compensated. These losses are either pecuniary (lost income, costs of care, that can be calculated) or non-pecuniary (for pain and suffering, awarded based on similar cases and capped around $450,000 currently). To be eligible for non-pecuniary damages at trial, the victim must demonstrate they have suffered a permanent, serious impairment. Most civil lawsuits do not proceed to a trial, and instead reach negotiated settlements with the assistance of lawyers for the victim and defendant. 

When physical violence causes a TBI, the victim often presses assault charges in the criminal court. They can also start a civil lawsuit against the assailant (called a battery claim), seeking compensation for their injuries and losses, which is not available in the criminal proceeding. Another key difference between the assault and battery claims is the standard of proof required. The civil standard is known as the balance of probabilities, meaning that it is at least 51% likely (as opposed to “beyond a reasonable doubt”) that the accused committed the battery.

Although they are caused by “internal” factors, non-traumatic ABIs can also be the result of medical malpractice or professional negligence. In this type of civil lawsuit, the victim argues that the ABI occurred because the responsible parties (physicians and surgeons, radiologists, nurses and staff, hospital administrators and boards) failed or neglected to provide the professional standard of care expected of them. To win at trial, the victim must show that they ABI would not have happened but for their negligence, or the outcome would have been better if they had met the standard. Medical malpractice lawsuits involve issues like failures to diagnose or misdiagnosis, surgical errors or oversights, failures to explain all options (informed consent), or failures to intervene/delays in treatment. They are complex and challenging, usually taking years to prepare for trial. 

Moderate and severe TBIs will be obvious and can be diagnosed because they involve a significant head wound. In the unlikely event that you suffer an “open” head injury and have not received immediately medical attention, or if you think you have suffered a closed/mild TBI (or your loved one has), you must see a physician at your earliest opportunity. Early detection and treatment are crucial to long-term recovery and symptom reduction. 

While your primary focus will and should be on your rehabilitation, you should also consult with a reputable personal injury law firm at your earliest opportunity – especially if the injury happened in a car accident. In that case, you will need to apply for and organize your “no-fault” accident benefits claim with your auto insurer. This process can be overwhelming, particularly if you are experiencing post-concussion (or worse) brain injury symptoms.

At Campisi LLP, we are pleased to offer a free, no-obligation consultation to discuss your accident benefits and give you peace of mind. We manage our clients’ accident benefits claims from the outset, dealing with adjusters and rehabilitation specialists on their behalf, arranging expert care and fighting for their right to treatment, income replacement and other necessary benefits. Similarly, if you or a loved one suffered a non-traumatic ABI and are concerned that medical malpractice might have caused it or made it worse, we strongly encourage you to meet with our experts and discuss your potential lawsuit, also with no charge or obligation.