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Proving A Brain Injury From Medical Malpractice

Proving a Brain Injury From Medical Malpractice

Proving a Brain Injury From Medical Malpractice If you or someone you love suffered a brain injury due to medical malpractice in Virginia, you might wonder about your legal options. Medical malpractice occurs when a healthcare provider fails to provide the appropriate standard of care, harming you. Successfully proving a brain injury from medical malpractice can be challenging, but it’s not impossible. Read on to learn more about the most common medical errors leading to brain damage and what you must prove to establish your brain injury was caused by medical malpractice.

Common Brain Injuries Caused by Medical Errors

Many medical errors can cause various brain injuries with severe and long-lasting consequences. Some of the most common brain injuries caused by medical malpractice include cerebral palsy, anoxia, and hydrocephalus.

Cerebral Palsy

Cerebral palsy affects muscle tone, movement, and coordination. It’s caused by damage to the developing brain, which typically happens during childbirth due to medical errors. Medical negligence during prenatal care can also result in cerebral palsy.


When the brain is completely deprived of oxygen, it can result in a brain injury or even death. Anoxia can happen due to anesthesia errors, an overdose of medication, or respiratory depression.


Hydrocephalus happens when there’s an abnormal buildup of cerebrospinal fluid in the brain. Common causes include medical errors such as failure to diagnose or treat a brain tumor or an infection.

Common Causes of Brain Injury

Numerous medical errors can lead to brain injury. Some of the most common examples include the following.

Anesthesia Errors

Anesthesia errors can cause several types of brain injuries, including an anoxic brain injury. When an anesthesiologist administers the wrong dosage of anesthesia or fails to monitor the patient during surgery, it can result in a lack of oxygen to the brain.

Intubation Mistakes

Intubation negligence can occur during medical procedures where a tube is inserted into the airway to help a patient breathe. If the brain doesn’t receive enough oxygen during this process, it can result in a brain injury.


A misdiagnosis means a patient could fail to receive lifesaving treatment or undergo the wrong treatment. Sometimes, the wrong treatment could cause additional harm to someone, including a brain injury.

Delayed Diagnosis

A delayed diagnosis often leads to further injury or disease progression. For example, any delay in diagnosing a brain tumor can put off lifesaving treatment, causing the patient’s cancer to spread.

Medication Errors

Medication errors happen when a doctor prescribes the wrong medication or dosage, administers the wrong medication, or fails to monitor a patient’s medication use.

Surgical Mistakes

Surgical mistakes can occur during any surgical procedure. Some of these mistakes can cause serious harm to the patient, including a brain injury.

Nursing Home Abuse

Abuse and neglect in nursing homes and assisted living facilities can also result in brain injuries. Falls, physical assaults, or other forms of abuse are several examples of brain injury causes.

Birth-Related Medical Errors

Having a baby should be joyful and exciting. Unfortunately, it can also be one of the most devastating if the medical provider makes a mistake. Birth trauma can occur during childbirth due to medical errors such as oxygen deprivation, trauma during delivery, or improper use of forceps. These injuries can result in brain damage and conditions such as cerebral palsy.

Proving Medical Malpractice

To prove medical malpractice in Virginia, you must establish four elements: duty, breach, causation, and damages. Read on to learn more about each aspect of medical negligence.


You must show that the healthcare provider owes you a duty to provide a certain standard of care. The easiest way to do this is to establish there was a doctor and patient relationship at the time.


The second element of medical negligence is the breach of the duty of care. A breach means the provider deviated from the accepted medical standard of care in a way that another prudent medical provider wouldn’t have.


You must establish causation and provide evidence of a brain injury. That means you must show that the medical provider’s breach of duty led to your brain injury. This evidence can include medical records, lost wages, expert testimony, witness statements, and other documentation that shows the healthcare provider’s negligence and the extent of your injuries.


The final element of establishing medical malpractice is proof of actual damages, such as medical expenses. You must provide evidence of all four elements of medical negligence, or you will not successfully recover compensation for your brain injury.

Recoverable Damages in a Virginia Medical Malpractice Claim

As a victim of medical malpractice, you could be entitled to compensation for your brain injury. Damages can be primarily divided into two main categories: economic and non-economic.

Economic damages are quantifiable, such as medical expenses and loss of earnings. Non-economic damages are more subjective and related to your intangible losses, such as pain and suffering and mental anguish.

You might also be entitled to a third category of damages—punitive damages. Punitive damages are not typically available in Virginia medical malpractice cases unless the medical provider acted with malice or a willful and wanton disregard for your rights. Virginia has also a cap on punitive damages for medical malpractice lawsuits

Requirement for a Certificate of Merit

In Virginia, you must file a certificate of merit along with your medical malpractice claim. This certificate must be signed by a qualified healthcare provider who attests to the fact that there is a reasonable probability that the healthcare provider breached their duty of care, causing your brain injury. This certificate of merit helps to eliminate frivolous medical negligence lawsuits.

Statute of Limitations for Medical Malpractice in Virginia

You must file your lawsuit before the statute of limitations deadline. In most medical malpractice cases, you have two years from the date of injury or the date you discovered the cause of your brain injury. Failure to file a claim within the statute of limitations means the judge could bar you from any financial recovery.

Contact an Experienced Lawyer

You have legal rights if you or someone you love suffered a brain injury due to a medical provider’s negligence. If you need assistance proving a brain injury from medical malpractice, The Law Firm of Carlton F. Bennett, PLLC stands ready to help.

Brain injuries caused by medical negligence can be devastating. You need a skilled legal advocate to help you navigate the complex legal process. With nearly 50 years of experience, we know how to build a solid case. We aren’t afraid to take your case to trial, either. We hold the record for the largest jury verdict in Norfolk for $10.2 million.

Contact our office today to schedule an initial consultation. Let us review your case and discuss your legal options.

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Carlton F. Bennett Mr. Bennett is recognized as an expert in traumatic brain damage litigation, nursing home malpractice, and wrongful death cases. He has obtained numerous multi-million dollar settlements and verdicts for traumatic brain injury survivors, and other cases involving serious injuries.
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