Truck Accident Brain Injury Case Results in $5.5 Million Settlement | Shapiro, Washburn & Sharp

What Happened

Our Virginia truck accident clients were four members of a family who suffered severe physical and brain injuries when a commercial truck driver rear-ended their car at a red light in Virginia Beach. The mother and father suffered a range of back and neck injuries, and both of their young daughters experienced traumatic brain injuries (TBIs).

Eyewitnesses described the tractor-trailer “running over” the family’s car without ever slowing down. The commercial truck driver, for his part, claimed during a deposition to have no recollection of the rear-end collision that occurred with such force that the front seats of the car he hit snapped and collapsed on the children in the back seat.

The tractor-trailer operator, who had been making food deliveries to restaurants, described making a left turn, getting his rig up to about 40 mph, approaching the red light and climbing out of his semi’s cab at his next scheduled stop. He said he must have fainted. Police from the Virginia Beach Fatal Accident Crash Team who spoke with the truck driver right after the wreck, however, noted their suspicion that he had briefly fallen asleep behind the wheel in their incident report.

Here is what happened inside the car: The parents’ seats flew backwards as the girls were propelled forward. Both girls’ heads slammed into the headrests attached to the front seats, and the children suffered TBIs classified as closed head injuries. One of the girls remained unconscious as she was transported the hospital. While her sister could answer EMTs’ question, she also exhibited “seizure-like” behaviors.

The more-responsive daughter was diagnosed with a concussion, and she and her parents spent a night in the hospital before being discharged. The other daughter was subsequently transferred to a children’s hospital for extended treatment of her TBIs, which included swelling, bruising and bleeding in both of her frontal lobes. She also fractured several skull bones.

After spending a week slipping in and out of consciousness, the hospitalized girl was stabilized and moved from the pediatric intensive care unit to the long-term care and rehabilitation ward. Physical and occupational therapists helped her relearn to use her left arm and to control tremors in her left leg well enough to walk without assistance. Speech therapy restored her communicative capacities, but doctors arrived at a consensus prognosis of permanent intellectual impairment due to encephalomalacia (i.e., permanent loss of brain tissue).

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Key Legal Strategy

Defeating a Medical Emergency Defense

Our Virginia personal injury law firm represented all four members of the family in their insurance claims against the commercial truck driver and the company that employed him. The insurers attempted to deny liability by pursuing a medical emergency defense.

Under common law, a driver can escape blame and legal liability for compensating victims when evidence exists that he or she suffered a sudden and unexpected health crisis in the moments before a crash. We defeated this assertion by pointing to the police officers’ contention that the tractor-trailer operator had fallen asleep. We also obtained the clinician’s report from a medical workup the truck driver underwent a couple of weeks after the crash. No physical ailments or long-term health problems that might have caused him to faint without warning were identified.

In fact, on-the-record interviews with two of the truck driver’s managers who traveled to the scene of the accident to check on their employee revealed that they noticed nothing other than the man “being shook up.”

Establishing the Need for Compensation

We built most of our case around the disabling TBI and lifelong care needs of the girl who spent weeks in the hospital and went through months of intensive therapy. We began by hiring a pediatric neuropsychologist to assess the extent of her intellectual impairment.

A battery of standardized tests, feedback from the girl’s elementary school teachers and an understanding of the developmental needs of a child her age led the neuropsychologist to recommend a full medical assessment. This resulted in a referral to a neuropsychiatrist, who noted that the permanent damage to the girl’s frontal lobes could trigger future issues with disinhibition, aggression and impulse control.

The neuropsychiatrist also advised having the girl work with a tutor and counselor to improve what is known as executive function, or the mental ability to understand and complete tasks from dressing and working to regulating emotional responses to external stimuli. Going through school in a structured environment was advised, as well.

We helped the girl’s parents find the appropriate developmental and educational opportunities by hiring a nationally recognized expert who had extensive experience working with children who suffered TBIs. This expert met with the family and wrote a report that the parents and the girl’s teachers could use as a guide to ensuring their daughter had the best chance to achieve optimal outcomes.

Last, to fully assess the brain-injured girl’s future needs, our Virginia personal injury law firm retained a life care planner who reviewed all of her medical records, spoke with her doctors and wrote out two plans that included cost estimates for projected services. One plan detailed “required” services, and the second included both required and recommended services.

Reaching Mediated Settlements

We prepared for a civil jury trial by obtaining audio recordings of the 911 calls reporting the crash and by putting together a PowerPoint presentation that incorporated excerpts from eyewitness accounts and information from the health care providers, therapists and experts who evaluated the brain-injured girl. Especially compelling were the phone calls from the injured mother and an off-duty EMT in a nearby vehicle. These firsthand accounts would communicate to jurors the magnitude of the wreck and subsequent injuries.

We also commissioned a medical illustrator to create posters and 3-D computer graphics depicting the nature and extent of our clients’ injuries. Before-and-after CT scans of the most severely injured girl’s brain were particularly effective for showing how traumatic the truck crash was.

We shared some of this evidence with the defense lawyers for the insurance companies, and they offered mediation. This alternative dispute resolution process can allow injured people and insurers avoid going to court. It worked in this case.

We obtained acceptable settlements for the injured mother, father and girl with the concussion within one day of mediation. A second round of mediation started a month after that, and our Virginia personal injury law firm obtained a $5.5 million settlement for the girl who developed intellectual impairments.

The insurers agreed to pay part of the multimillion-dollar settlement upfront and to deposit the rest into an annuity fund designed by a financial consultant hired by our firm. Due to interest and the schedule of disbursements from the annuity, the total received by the most severely injured child was projected to total $21 million.

As attorneys for Virginia truck accident victims, we are proud to have helped this family secure short-term funding to clear medical bills and return to financial stability. We are also pleased to have been able to set up a source of long-term support for the brain-injured girl and her parents, who might have otherwise struggled to meet educational and health care expenses.

Court: Virginia Beach Circuit Court, Virginia Beach, VA

Staff: Randall E. Appleton, staff attorney