How Does a Traumatic Brain Injury Claim Work in Massachusetts?

A traumatic brain injury claim in Massachusetts runs on the same legal machinery as any other injury claim, with three differences that decide most of these cases. The first is proof: a brain injury often leaves no broken bone and no abnormal scan, so the evidence has to be built out of records, testing and testimony rather than an image. The second is the motor vehicle threshold in M.G.L. c. 231, sec. 6D, which lets a plaintiff recover for pain and suffering after a crash only if reasonable and necessary medical expenses exceed two thousand dollars or the injury fits one of five listed exceptions, none of which a concussion automatically satisfies. The third is capacity: when the injured person cannot make decisions, Massachusetts law changes both who signs and, under M.G.L. c. 260, sec. 7, when the clock runs. The ordinary deadline is three years from the date the cause of action accrues. If you are trying to work out where a head injury stands, call Jim Glaser Law at (617) JIM-WINS. The line is answered 24 hours a day, and the first telephone consultation is free.

What the Law Means by Traumatic Brain Injury

There is no Massachusetts statute that defines traumatic brain injury and attaches a legal consequence to the label. That surprises people, and it matters more than it sounds. In a claim, “traumatic brain injury” is a medical description that has to be translated into legal categories the statutes actually use: expenses incurred, loss of function, incapacity for work, permanent impairment. The diagnosis on the discharge paperwork is the starting point of the argument, not the end of it.

Medically the range is enormous. At one end is a concussion, often called a mild traumatic brain injury, where imaging is normal and the person walks out of the emergency department the same day. At the other end is a severe injury with bleeding, swelling, surgery, a long hospital stay and a permanent change in who the person is. Between them sits the category that produces the most contested claims in Massachusetts: the injury that was labelled mild, resolved on paper, and did not resolve in the person’s life.

The word “mild” is doing damage in that sentence. It describes the acute presentation, not the outcome. An insurer will quote it back. A claim that anticipates that, and documents the gap between the label and the lived result from the first week onward, is in a very different position from one that does not.

The Problem Every Brain Injury Claim Has to Solve

Most injury claims have an object at the center. A fracture has a film. A herniated disc has an MRI. A scar has a photograph. A great many brain injuries have none of that, and the claim has to be assembled out of things that are easy to lose.

What tends to carry weight is unglamorous and contemporaneous. The ambulance and emergency department records, and specifically whether loss of consciousness, confusion, amnesia or repeated questioning was recorded at the scene. The first primary care visit after the crash or the fall. Neuropsychological testing, which measures processing speed, memory and attention against expected performance rather than against a scan. Vestibular and vision therapy notes. Occupational therapy notes describing what the person can and cannot do.

Then there is the evidence that does not come from a clinician at all. An employer’s record of dropped hours, missed deadlines or a role quietly reassigned. A teacher’s report on a student who used to sit at the front. A spouse’s account of the specific things that changed, told in concrete terms rather than adjectives. Courts and adjusters both respond to specifics. “He gets headaches and is irritable” is weak. “He stopped driving at night in October, and his employer moved him off the scheduling desk in January because he could not hold three tasks at once” is not.

The practical point is that this evidence has a short shelf life. Symptoms get normalised, work adjustments get forgotten, and nobody writes down in March what changed in January. Anyone dealing with a head injury should be building that record now, whether or not there is ever a claim.

Answer Capsule

A Massachusetts traumatic brain injury claim is a personal injury claim, so the ordinary deadline is three years from the date the cause of action accrues under M.G.L. c. 260, sec. 2A. Where the injury came from a motor vehicle crash, M.G.L. c. 231, sec. 6D bars recovery for pain and suffering unless the reasonable and necessary expenses incurred in treatment exceed two thousand dollars, or the injury causes death, or consists in whole or in part of loss of a body member, or permanent and serious disfigurement, or the sight and hearing losses described in M.G.L. c. 152, sec. 36, or consists of a fracture. A concussion with normal imaging fits none of the five non-monetary exceptions, so in practice the two thousand dollar expense route is the one that matters, and the statute measures expenses “incurred”, not expenses paid out of pocket. Personal injury protection under M.G.L. c. 90, sec. 34A pays at least eight thousand dollars per person, and pays no more than two thousand dollars of expenses that health insurance has covered or will cover. A head injury at work runs through the workers compensation system instead, where M.G.L. c. 152, sec. 34 pays sixty percent of the average weekly wage for up to one hundred fifty-six weeks, sec. 35 pays partial incapacity benefits for up to two hundred sixty weeks and in some cases five hundred twenty, sec. 34A pays two-thirds of the average weekly wage for permanent and total incapacity, and sec. 36 pays a separate amount for loss of bodily function or sense. If the injured person is incapacitated by reason of mental illness when the right to sue first accrues, M.G.L. c. 260, sec. 7 allows the action to be brought within the ordinary period after the disability is removed. Call Jim Glaser Law at (617) JIM-WINS; the first telephone consultation is free.

The Motor Vehicle Route, and the Two Thousand Dollar Question

Massachusetts is a no-fault state for the first layer of a crash claim, and that layer is personal injury protection. Under M.G.L. c. 90, sec. 34A, a motor vehicle policy provides PIP of at least eight thousand dollars on account of injury to or death of any one person, paid without regard to who caused the crash. The same section limits PIP to two thousand dollars of expenses where those expenses “have been or will be compensated” by a policy of health, sickness or disability insurance. The practical effect is that PIP handles the opening two thousand dollars, health insurance takes over from there for people who have it, and PIP remains available for what health insurance does not pay, up to the policy limit. The mechanics are set out at greater length in the Massachusetts PIP guide.

The second layer is the claim against the driver who caused the crash, and that is where the threshold sits. M.G.L. c. 231, sec. 6D permits recovery of damages for pain and suffering, including mental suffering, “only if the reasonable and necessary expenses incurred in treating such injury, sickness or disease” exceed two thousand dollars, unless the injury causes death, or consists in whole or in part of loss of a body member, or of permanent and serious disfigurement, or produces the sight and hearing losses the section cross-references, or consists of a fracture.

Read that list against a concussion. There is no death, no lost body member, no disfigurement, no sight or hearing loss of the kind described, and no fracture. A closed head injury with normal imaging clears the threshold, if at all, through the two thousand dollar expense route. That is why the treatment record is not only medical evidence in these cases; it is also jurisdictional. A person who felt awful for four months, saw nobody, and then decided to make a claim may find that the door the statute describes was never opened. There is a fuller walk through the threshold and its exceptions in the serious injury threshold explainer.

One caution, stated plainly. The statute says expenses “incurred”, not expenses paid by the injured person, and how that word applies when a health insurer has paid the bills is a question of case law rather than statute. It is worth asking about early, because the answer can decide whether the second layer of the claim exists at all.

When the Injury Happens at Work

A head injury on the job is normally a workers compensation matter rather than a lawsuit against the employer, and the compensation system asks a different question. It does not ask who was careless. It asks what the injury did to the ability to earn.

M.G.L. c. 152, sec. 34 pays temporary total incapacity benefits at “sixty percent of his or her average weekly wage before the injury”, and the total number of weeks under that section is capped so that it does not “exceed one hundred fifty-six”. Section 35 covers partial incapacity at sixty percent of the difference between the pre-injury average weekly wage and what the employee can earn afterward, subject to a ceiling of seventy-five percent of the section 34 rate, and it runs for no more than two hundred sixty weeks. That can be extended to five hundred twenty, but only if the insurer agrees or an administrative judge finds one of three things: a permanent loss of seventy-five percent or more of a bodily function or sense listed in the paragraphs of section 36 the statute names, a permanently life-threatening physical condition, or a permanently disabling occupational disease that is physical in nature and cause. Without such a finding the combined total under sections 34 and 35 is capped at three hundred sixty-four weeks; with one, at five hundred twenty. Section 34A covers permanent and total incapacity at “two-thirds of his average weekly wage before the injury”, within the statutory maximum and minimum rates.

Section 36 is the one that most often gets overlooked in brain injury cases. It pays a separate amount for loss of bodily function or sense, calculated as “proper and equitable compensation” up to the Massachusetts average weekly wage at the date of injury multiplied by thirty-two, with a total under that paragraph capped at the average weekly wage multiplied by eighty. Cognitive loss is a loss of function. It does not announce itself the way an amputation does, which is exactly why it needs to be documented and raised rather than assumed.

Two further points matter for head injuries specifically. Compensation benefits do not include damages for pain and suffering, so the value of what the system offers is not comparable to a tort claim. And where someone other than the employer contributed to the injury, a defective machine, a negligent driver, a property owner on a job site, there may be a separate claim against that party alongside the compensation case. The workers compensation insurer’s rights in that recovery are a real constraint, and are covered in the spinal cord injury article, which walks through the same third party mechanics in detail. Benefit duration is covered in how long workers compensation lasts in Massachusetts.

When Medical Care Is the Cause

Some brain injuries are caused by care rather than by an accident: a delayed diagnosis of a bleed, an oxygen deprivation event, a missed stroke. Those claims are medical malpractice claims and they run on their own track.

The deadline in M.G.L. c. 260, sec. 4 is three years after the cause of action accrues, and the same section adds an outer limit: “in no event shall any such action be commenced more than seven years after occurrence of the act or omission which is the alleged cause of the injury upon which such action is based except where the action is based upon the leaving of a foreign object in the body.” That seven year backstop is unforgiving, and brain injury cases are among the likeliest to bump into it, because causation is often understood years after the event.

Massachusetts also puts a screening step in front of these cases. Under M.G.L. c. 231, sec. 60B, a tribunal made up of “a single justice of the superior court, a physician licensed to practice medicine in the commonwealth” and “an attorney authorized to practice law in the commonwealth” decides whether the evidence “is sufficient to raise a legitimate question of liability appropriate for judicial inquiry or whether the plaintiff’s case is merely an unfortunate medical result.” If the tribunal finds for the defendant, the case can continue only on a bond of “six thousand dollars in the aggregate”, which the justice may increase, and which the justice may reduce on the plaintiff’s motion if the court determines the plaintiff is indigent. Reduce, not waive: the statute says the justice “may not eliminate the requirement thereof”, and if the bond is not posted within thirty days of the tribunal’s finding the action is dismissed. The medical malpractice deadlines article covers accrual and the discovery question in more depth.

Fault, and Who Has to Prove It

Massachusetts uses modified comparative negligence. A person who was partly careless can still recover, provided their share of the negligence was not greater than the share attributable to the parties they are suing, and the award is reduced in proportion to their share. The statute also puts the burden of alleging and proving that negligence on the party asserting it, and directs that the plaintiff be presumed to have been in the exercise of due care.

That presumption is worth holding onto in a head injury case, because these cases attract fault arguments that lean on the injury itself. The client cannot give a clean account of the crash. The client’s story changed between the emergency department and the deposition. Both are ordinary features of a brain injury and neither is proof that the client caused anything. The mechanics of the allocation are set out in the comparative negligence article.

Deadlines, and the One Rule That Moves Them

The general deadline is three years. M.G.L. c. 260, sec. 2A provides that “actions of tort, actions of contract to recover for personal injuries, and actions of replevin, shall be commenced only within three years next after the cause of action accrues.” Medical malpractice is three years with the seven year outer limit described above. Claims against public bodies carry an earlier written presentment requirement and a shorter overall window, which the claims against the government article covers.

The rule that is specific to serious brain injuries is M.G.L. c. 260, sec. 7, and it is short enough to quote whole: “If the person entitled thereto is a minor, or is incapacitated by reason of mental illness when a right to bring an action first accrues, the action may be commenced within the time hereinbefore limited after the disability is removed.”

Read it carefully, because it is narrower than people hope. The section speaks to incapacity by reason of mental illness at the time the right to sue first accrues, and whether a particular brain injury meets that description is a legal question with a factual record behind it, not something to assume. Nobody should treat sec. 7 as a reason to wait. The correct use of it is as an argument available to a family who discovers late that a deadline may have passed, not as a plan. The general framework is in the statute of limitations article.

Who Signs and Who Decides

A brain injury can leave the injured person unable to make or communicate decisions, and Massachusetts has two separate mechanisms for that, which do different jobs.

A health care proxy, made under M.G.L. c. 201D, appoints an agent for medical decisions. Section 6 provides that “the authority of a health care agent shall begin after a determination is made” that the principal lacks the capacity to make or to communicate health care decisions, and that “such determination shall be made by the attending physician according to accepted standards of medical judgment”, in writing, stating the physician’s opinion on the cause, nature, extent and probable duration of the incapacity. That is a medical authority. It does not authorise anyone to settle a claim.

For legal and financial decisions, including bringing or settling a case, the route is a guardianship or conservatorship proceeding in the Probate and Family Court. Families discover this at an awkward moment, usually when an adjuster asks for a signature nobody has authority to give. If it is likely to be needed, it is better started early, because it takes time.

What the Law Lets You Claim

Massachusetts recognises the ordinary categories: medical expenses incurred and reasonably expected in the future, lost earnings, lost earning capacity where the injury changes what the person can do for a living, and, where the sec. 6D threshold is met in a motor vehicle case, pain and suffering including mental suffering.

Two of those carry unusual weight in brain injury cases. Lost earning capacity is not the same as lost wages: a person can return to work at the same pay and still have lost the capacity to advance, to hold a role that requires sustained attention, or to work the hours they used to work. And future medical and support costs may include therapies, supervision or accommodations that a person who has never dealt with a brain injury would not think to price. Both are proved with expert evidence, and both fail when nobody thought to develop them.

What no honest article can give you is a number. Value depends on the injury, the evidence, the available insurance and the facts of the crash or fall, and anyone quoting an average is describing other people’s cases. The general framework, without figures, is in the Massachusetts case value article. What often decides the net figure is not the headline at all but the medical liens and reimbursement claims that come out of it.

What Happens on an Intake Call

The call is a conversation, not a form. What helps is the date, what the person was doing when it happened, where they were taken and by whom, what has changed since, and whether anyone has already asked them to give a recorded statement or sign anything. If someone is calling about a family member rather than themselves, that is normal in these cases and worth saying at the start, because it changes what can be done next.

Massachusetts injury matters at Jim Glaser Law are handled on a contingency fee, which means a percentage of any recovery rather than an hourly bill; costs and expenses are handled separately from the fee and are explained in writing before anything is signed. The fee rules are set out in what personal injury lawyers charge in Massachusetts. Practical background on the injury itself sits on the traumatic brain injury page. The intake line is answered 24 hours a day at (617) JIM-WINS, and the first telephone consultation is free.

Frequently Asked Questions

Q: Do I have a claim if my CT scan was normal?

A: A normal scan does not by itself end a claim. Standard emergency imaging is looking for bleeding, swelling and fractures, and a concussion frequently produces none of those while still producing real symptoms. What a normal scan does change is the evidence you have to build, which shifts toward treatment records, neuropsychological testing and testimony about function. In a motor vehicle case it also matters because M.G.L. c. 231, sec. 6D lists a fracture as one of the exceptions to the two thousand dollar threshold, and a normal scan usually means that exception is unavailable.

Q: How long do I have to bring a Massachusetts brain injury claim?

A: Three years from the date the cause of action accrues, under M.G.L. c. 260, sec. 2A, for an ordinary injury claim. Medical malpractice is also three years under M.G.L. c. 260, sec. 4, with an outer limit of seven years from the act or omission except where a foreign object was left in the body. Claims involving public employers require earlier written presentment. M.G.L. c. 260, sec. 7 can extend the period for a person who is a minor or is incapacitated by reason of mental illness when the right first accrues, but that is a narrow provision and not a reason to delay.

Q: My concussion cost me less than two thousand dollars in medical bills. Is that the end of it?

A: Not necessarily, and it depends on which part of the claim you mean. The two thousand dollar figure in M.G.L. c. 231, sec. 6D is a threshold for recovering pain and suffering in a motor vehicle case. It does not affect personal injury protection benefits, which are payable regardless of fault, and it does not affect claims for lost wages or medical expenses through PIP. It is also worth checking whether treatment that has been recommended but not yet obtained changes the picture, since the statute speaks to expenses incurred in treating the injury.

Q: My employer says I have to use workers compensation. Is that right?

A: For an injury arising out of and in the course of employment, workers compensation is normally the exclusive remedy against the employer, and it pays regardless of who was careless. It does not include pain and suffering. It also does not extinguish a claim against a party other than the employer, such as a negligent driver or the manufacturer of a defective machine, and those claims are common in head injury cases. The compensation insurer will have rights in any such recovery, which is a reason to raise both tracks at the same time rather than one after the other.

Q: Can I bring a claim for a family member who cannot make decisions?

A: Not on your own authority, in most cases. A health care proxy under M.G.L. c. 201D gives an agent authority over medical decisions once the attending physician determines in writing that the principal lacks capacity, but that authority does not extend to bringing or settling a legal claim. For that, the route is a guardianship or conservatorship in the Probate and Family Court. It is worth starting early, because insurers will not accept a signature from someone without authority and the appointment takes time.

Q: The insurance adjuster wants a recorded statement. Should I give one?

A: Talk to a lawyer before you do. Recorded statements are routine requests, and in a brain injury case they carry a particular risk, because memory and word-finding problems are part of the injury and inconsistencies in the statement will later be used as evidence about credibility rather than as evidence of the injury. There is a fuller answer in the recorded statement article.

Q: What if the symptoms did not start for weeks?

A: Delayed or evolving symptoms are common after a head injury and do not by themselves defeat a claim. They do make the record more important, because the gap between the event and the first documented complaint is the first thing an insurer will point at. Getting seen, describing the symptoms specifically, and connecting them in the record to the event is what closes that gap.

Q: Does it cost anything to ask?

A: Massachusetts injury matters at Jim Glaser Law are handled on a contingency fee, a percentage of any recovery rather than an hourly bill, with costs and expenses handled separately from the fee and explained in writing before anything is signed. The intake line is answered 24 hours a day at (617) JIM-WINS, and the first telephone consultation is free.

Q: Is Jimmy Knows AI giving me legal advice?

A: No. This is general information about Massachusetts law, not legal advice, and reading it does not create an attorney client relationship. Whether any of it applies to your situation depends on facts that are not in this article. For advice about your own case, speak with a lawyer.