Experiencing a traumatic brain injury is a life-altering event, often leaving families with immense emotional and financial burdens. In Indiana, if your loved one suffers a catastrophic brain injury due to another’s negligence, you may be able to file a lawsuit on their behalf for compensation.
An Indiana brain injury attorney from Wagner Reese can help you understand your rights as the loved one of a brain injury victim. Our team can walk you through the legal process and help you receive a settlement on your loved one’s behalf.
When Can You File on Another Adult’s Behalf?
In Indiana, you can only file on another adult’s behalf in a personal injury claim under specific circumstances. Under Indiana Code 29-3-1-7.5, you must demonstrate that the person is incapacitated.
According to this statute, incapacitated means the person you’re filing for cannot either manage their own property, provide self-care, or both, due to conditions such as mental illness or deficiency, or physical illness or infirmity. This can also include someone with a developmental or intellectual disability that arose prior to age 22, such as cerebral palsy or autism, under Indiana Code 12-7-2–61.
If a family member has suffered a serious brain injury that has left them temporarily or permanently incapacitated, you may be able to file on their behalf for compensation.
Who Can File a Personal Injury Claim for Another Adult?
In Indiana, individuals generally have the right to file a lawsuit on their own behalf. However, when the person in question is mentally incapacitated or unable to represent themselves legally, such as after a severe brain injury from a fall or car accident, certain individuals may file a lawsuit for them.
Typically, the following people can file for another person:
- Legal guardian or conservator: One of the most common scenarios involves a legally appointed guardian or conservator. When an adult cannot make decisions regarding their health, finances, or legal matters due to a condition like a traumatic brain injury, a court may appoint a guardian or conservator to make decisions for them.
- Power of attorney: An individual with a durable power of attorney for healthcare or finances may also have the authority to file a lawsuit on behalf of the incapacitated person. However, the power of attorney document must grant this authority and typically be established before the incapacitation occurs.
- Next friend or guardian ad litem: In some instances, the court may appoint a “next friend” or “guardian ad litem” to represent the person’s interests in a legal action. This is often a close family member, though it doesn’t necessarily have to be.
- Immediate family members: In some personal injury cases, immediate family members may also be able to file a lawsuit. However, these situations are generally more restrictive and may apply mainly to wrongful death cases or loss of consortium claims.
Regardless of the relationship to the injured party, the court must generally approve the individual who wishes to represent the incapacitated adult. This often requires submitting medical evidence proving the person’s incapacity and demonstrating that the proposed representative can act in the injured party’s best interests.
What if They are Expected to Recover from the Brain Injury?
“Tolling” is a legal provision that temporarily halts or “pauses” the running of the statute of limitations in certain circumstances. The statute of limitations is the timeframe within which an injury victim can file a claim against a negligent party for compensation after the injury occurs.
Indiana Code 34-11-2-4 sets the statute of limitations for filing a personal injury claim at two years under normal circumstances. However, if your loved one is temporarily incapacitated but is expected to regain capacity, the clock on the statute of limitations can be paused.
Under Indiana Code 34-11–6-1, once the disability or incapacitation is removed, the two-year period for filing a claim resumes. This ensures that individuals have a fair opportunity to seek legal recourse, even if temporarily incapacitated.
Tolling is not an automatic procedure. If you believe tolling may apply to your loved one’s case, speak with an attorney as soon as possible. They can help you request a tolling agreement from the court or the other party involved.
What Type of Compensation Can You Ask for in a Brain Injury Case?
Brain injuries are some of the most devastating injuries a person can suffer, affecting not only the victim but their family and loved ones. A brain injury attorney can help you seek the following types of compensation for your loved one to help pay for the lasting impact it has on your family:
- Medical expenses: Covers current and anticipated future medical bills related to the injury, including surgeries, medications, and rehabilitation.
- Rehabilitation costs: Payment for physical, occupational, and cognitive therapy expenses required for recovery or adaptation.
- Lost wages and earning capacity: Compensation for income lost due to the inability to work post-injury and lost future earning capacity.
- Pain and suffering: Damages for physical pain and emotional trauma. This can include emotional distress due to psychological impacts like anxiety, depression, or PTSD.
- Loss of enjoyment of life: Compensation for the decreased quality or enjoyment of life post-injury.
- Loss of consortium: Damages for the injury’s adverse effect on a victim’s relationship with their spouse or family.
- Home modification costs: Payment for any necessary alterations to the home to accommodate disabilities, as well as items like wheelchairs, hearing aids, or other devices required due to the injury.
- Punitive damages: In cases where the injury resulted from particularly negligent or malicious actions, you may be able to seek punitive damages. However, these are capped at 3 times the economic damage award or $50,000.
Protect Your Loved One’s Rights After a Brain Injury
Traumatic brain injuries are life-changing for the victims and their families. Filing a lawsuit on their behalf may provide the necessary financial support for a long, difficult journey ahead.
Our Indianapolis brain injury lawyers at Wagner Reese can help you navigate the legal system and secure the compensation your loved one deserves.
Contact our law firm today for a free case review.
