You survived a serious accident. At the emergency room, doctors focused on your most obvious injuries, like a broken bone or deep cuts. They treated those and sent you home with instructions to rest. But in the following weeks and months, something felt deeply wrong.
You began suffering from persistent headaches, brain fog, and memory lapses. You felt irritable or depressed for no reason. When you finally saw another doctor, you received a shocking diagnosis: you have a traumatic brain injury (TBI) that was completely missed during your initial treatment.
This new reality is frightening and frustrating. It also leaves you with an urgent question: how to file a lawsuit if a TBI was misdiagnosed or untreated?
You have legal rights, and you can take action to hold the responsible parties accountable for all the harm you have suffered.
Two Different Lawsuits for Two Different Wrongs
When a traumatic brain injury is missed after an accident, there are often two separate acts of negligence.
First, another person’s carelessness caused the accident that gave you the TBI. This could be a distracted driver, a negligent truck operator, or a property owner who failed to maintain a safe environment.
Second, a medical professional failed to diagnose your serious head injury properly. These two failures can lead to two distinct legal claims.
The first type of claim is a personal injury lawsuit. This case is filed against the person or company whose actions caused the original accident.
For example, if a driver ran a red light and hit your car, your personal injury claim would be against that driver. They are responsible for all the injuries you sustained in that crash, including the full extent of the TBI, even if it took time to be diagnosed.
The second type of claim is a medical malpractice lawsuit. This case is filed against the doctor, hospital, or clinic that failed to diagnose and treat your TBI. Their failure to provide competent medical care may have made your condition worse.
You may be able to pursue one or both of these claims depending on the specific facts of your situation.
- The Personal Injury Claim. This lawsuit focuses on the initial event. It seeks to hold the at-fault party responsible for causing the accident. The main goal is to recover payment for all resulting damages, including medical bills, lost income, and pain and suffering connected to the TBI.
- The Medical Malpractice Claim. This lawsuit focuses on the actions of the healthcare provider after the accident. It seeks to hold them responsible for their specific failure to diagnose the TBI, which may have worsened your prognosis or led to additional harm. These cases are very complex and have specific legal requirements.
The Case Against the At-Fault Party
The person who caused your accident is legally responsible for all the harm that followed. This responsibility does not disappear just because a doctor immediately failed to identify one of your injuries.
The at-fault driver’s insurance company should have to pay for the complete cost of your TBI, from initial treatment to long-term therapies and any permanent life changes. However, you can expect the insurance company to fight your claim aggressively. They will use the delayed diagnosis to their advantage.
An insurance adjuster will likely argue that the TBI is not as severe as you claim or that it must have been caused by something else after the accident. They will point to the initial medical records that show no mention of a head injury and use this as "proof" that the crash did not cause it.
Your legal team must build a strong case to connect your brain injury directly back to the initial trauma of the accident. This requires gathering powerful evidence to show the true sequence of events and the full scope of your losses.
Proving the TBI is From the Accident
The first job is to establish a clear and undeniable link between the accident and your brain injury. This involves getting a correct diagnosis from a qualified specialist, such as a neurologist.
That specialist can then provide a medical opinion stating that your TBI is consistent with the forces involved in your accident. Medical records, diagnostic imaging like MRIs, and testimony from your new doctors are all used to build this connection and defeat the insurance company’s arguments.
Accounting for All Your Losses
A TBI can affect every part of your life. The financial recovery you seek must account for all of these changes. It is not just about the medical bills you have today. It includes the cost of future medical care, cognitive rehabilitation, occupational therapy, and any assistive technologies you may need.
If the TBI affects your ability to work, your claim must include your lost wages and any decrease in your future earning ability. It also includes payment for your physical pain, mental anguish, and loss of enjoyment of life.
Overcoming Insurance Company Tactics
Insurance companies exist to make money, and they do that by minimizing payouts. They will question the severity of your symptoms. They will delay responding to your calls. They may even offer you a quick, low settlement before you know the true extent of your injury.
An attorney’s job is to protect you from these tactics. A lawyer manages all communication with the insurer, presents a demand package with all the supporting evidence, and negotiates forcefully for a settlement that covers all your past, present, and future needs.
The Case Against the Medical Provider
A medical malpractice lawsuit is a different and more challenging type of case. All doctors and healthcare providers are legally obligated to provide a certain "standard of care."
This means they must provide the same level of competent care that another reasonably skilled provider in their field would offer in a similar situation.
When a doctor fails to meet this standard and a patient is harmed, the doctor can be held liable for medical malpractice.
Failing to diagnose a TBI after a patient was involved in a car or truck accident can be a clear breach of the standard of care. Symptoms like headache, confusion, nausea, or loss of consciousness after a physical trauma should trigger a thorough evaluation for a head injury.
When a doctor dismisses these signs or fails to order the proper diagnostic tests, such as a CT scan, they may have acted negligently. To win this type of case, you must prove that the doctor made a mistake and that this specific mistake made your injury worse than it otherwise would have been.
Here is what you need to show in a medical malpractice claim for a misdiagnosed TBI:
- A Doctor-Patient Relationship Existed. This establishes that the doctor owed you a duty of care. Going to an emergency room or a clinic for treatment creates this relationship.
- The Doctor Breached the Standard of Care. You must show that a competent doctor in the same situation would have likely diagnosed the TBI. This often requires another medical professional to review your case and testify about the errors that were made.
- The Breach Caused You Additional Harm. This is a key point. You must prove that the delay in diagnosis and treatment led to a worse outcome. For example, the lack of treatment may have caused permanent cognitive damage that could have been minimized or prevented with timely care.
- You Suffered Damages from That Harm. You must show the losses that resulted from the worsened condition, not the original injury itself. This could include the cost of more extensive therapy or a longer period of lost income.
First Steps to Protect Your Health and Legal Rights
If you believe your TBI was misdiagnosed, the actions you take next are vital for both your physical recovery and any future legal claim. You must act quickly to get the medical care you need and to preserve the evidence required to build a case.
Your health should always be your first priority. A proper diagnosis and treatment plan are the most important things you can do for yourself and your family.
At the same time, you must begin to gather the information that an attorney will need to evaluate your situation. This involves collecting medical documents and keeping your own personal records of how the injury has affected you.
Do not assume a hospital or clinic will keep perfect records or that an insurance company will deal with you fairly. You must become your best advocate until you can get professional legal help.
Take these steps immediately to protect your well-being and your legal options:
- Get a Proper Medical Evaluation. Make an appointment with a new doctor or, even better, a neurologist who specializes in brain injuries. Explain the accident and all the symptoms you have been experiencing since. Getting a correct diagnosis is the first step to getting better.
- Gather All Your Medical Records. Request copies of your complete records from the hospital or clinic where you were first treated. Also, collect records from any other doctor you have seen since the accident. These documents are the foundation of your case.
- Create a Symptom Journal. Start a daily log of your symptoms. Write down when you have headaches, your level of pain, any memory problems, difficulty concentrating, mood swings, or sleep disturbances. Also, note how these symptoms affect your ability to work, do household chores, and interact with your family.
- Do Not Sign Anything from an Insurance Company. If an adjuster from the at-fault driver’s insurance company contacts you, do not give a recorded statement, and do not sign any documents or accept any settlement checks. A quick offer will not account for the long-term costs of a TBI.
- Contact a Personal Injury Attorney. These cases are too complex to handle on your own. A lawyer can evaluate your injury and potential medical malpractice aspects and advise you on the best path forward.
The Lawsuit Process Explained
Filing a lawsuit can seem daunting, but an attorney handles the difficult legal work for you. The first step is a thorough investigation. Your lawyer will review all your medical records, the accident report, and any other evidence.
For a medical malpractice claim, they will hire an independent medical professional to review your file to confirm that the standard of care was breached.
Once the investigation is complete and the case is determined to be valid, your attorney will file a formal complaint or petition with the court.
This document outlines what happened, who you believe is responsible, and the damages you seek. This officially begins the lawsuit. From there, the case enters a discovery phase, where each side formally requests information from the other.
You may have to provide written answers to questions or sit for a deposition, where you answer questions under oath. Your lawyer will prepare you for every step. Most cases are resolved through a negotiated settlement, but if the other side refuses to offer a fair amount, your attorney must be fully prepared to take your case to a jury.
Your Legal Ally Is Just One Call Away
A missed TBI diagnosis after an accident can turn your life upside down. You are not only dealing with a serious injury but also with the knowledge that it could have been treated sooner.
You have the right to seek justice from the person who caused your accident and from any medical professional whose negligence made your situation worse.
The legal process for these combined issues is complicated and requires a law firm with the resources to fight large insurance companies and medical institutions.
The personal injury attorneys at Lorenz & Lorenz, PLLC, are committed to helping people in Central Texas get the financial recovery they deserve.
If your TBI was misdiagnosed or untreated after an accident, call us for a free consultation to discuss your legal options at (512) 477-7333.