A severe brain injury can leave a person unable to communicate, make financial decisions, understand legal documents, or take the steps necessary to pursue a personal injury claim. When that happens, families often wonder whether the injured person loses the right to seek compensation simply because they cannot handle the claim themselves.
In Texas, the answer is generally no. A serious cognitive impairment does not automatically prevent an injured person from pursuing compensation. Depending on the circumstances, a legally authorized representative, guardian, or “next friend” may be able to act on the injured person’s behalf.
At The Law Offices of Colby Lewis, our Houston brain injury attorney represents seriously injured Texans and their families in complex personal injury cases, including claims involving catastrophic injuries that may affect a person’s ability to advocate for themselves.
Can Someone Else File a Brain Injury Claim for My Loved One?
Potentially, yes.
If a traumatic brain injury leaves your loved one unable to understand or participate meaningfully in the legal process, Texas law provides mechanisms that may allow another person to protect their legal interests.
Depending on the circumstances, the person pursuing or managing the case may be:
- A court-appointed guardian
- A legal representative who already has appropriate authority
- A “next friend” acting on behalf of an incapacitated person
- Another representative authorized under applicable Texas law
The correct approach depends heavily on whether your loved one has already been declared incapacitated, whether a guardian has been appointed, and the type of authority another family member may already possess.
Importantly, being a spouse, parent, adult child, or sibling does not necessarily mean you automatically have authority to settle or control another adult’s personal injury claim.
What Is a “Next Friend” in a Texas Personal Injury Case?
Texas court rules recognize a procedure that can allow certain people who cannot adequately represent themselves to appear in court through a next friend.
Under Texas Rule of Civil Procedure 44, a person who lacks a legal guardian and is unable to manage their own interests may, in appropriate circumstances, be represented by a next friend.
A next friend is not simply someone who takes ownership of the injured person’s claim. Instead, that person acts for the benefit of the injured individual and is expected to protect their interests throughout the case.
Any proposed settlement may also require additional court scrutiny to ensure that it serves the injured person’s best interests.
Will My Loved One Need a Guardian?
Not necessarily.
Guardianship may be appropriate when a brain injury causes long-term or permanent incapacity, but Texas courts generally consider the specific abilities and limitations of the injured individual.
A guardian may be given authority over certain personal or financial matters when a person cannot manage them independently.
However, guardianship is a separate legal process, and it is not always required before a personal injury attorney can begin investigating the underlying accident.
For that reason, families should speak with an attorney before assuming that they must complete an entire guardianship proceeding before addressing the injury claim.
What If My Loved One Is in a Coma?
A person who is unconscious or in a coma may still have a viable claim against the person, company, property owner, employer, trucking company, or other party responsible for the injury.
The fact that the injured person cannot currently provide a statement does not eliminate the claim.
Instead, an attorney may begin building the case through other evidence, including:
- Police or accident reports
- Witness statements
- Photographs and video
- Vehicle or property evidence
- Medical records
- Expert evaluations
- Employment and wage records
- Electronic data
- Commercial trucking records, when applicable
- Insurance documentation
Preserving this evidence can be particularly important in catastrophic injury cases because critical evidence may disappear long before the injured person regains consciousness or capacity.
What If the Brain Injury Causes Permanent Cognitive Impairment?
Some traumatic brain injuries produce lasting changes in memory, judgment, concentration, communication, personality, and executive functioning.
When those limitations are permanent, a personal injury case may need to account for far more than immediate hospital bills.
Depending on the facts, damages may include compensation for:
Past and Future Medical Care
Severe traumatic brain injuries may require hospitalization, neurological care, rehabilitation, physical therapy, occupational therapy, speech therapy, medications, assistive technology, and ongoing monitoring.
Long-Term Care and Assistance
An injured person may require in-home assistance, residential care, transportation support, supervision, or help with everyday activities.
Lost Income and Reduced Earning Capacity
A brain injury may prevent someone from returning to their previous occupation or working at all.
The claim may therefore include both wages already lost and the value of future income the person is reasonably expected to lose.
Physical Pain and Mental Anguish
Serious brain injuries can substantially affect both physical and emotional well-being.
Physical Impairment
Compensation may be available when an injury significantly limits a person’s ability to participate in activities or perform functions they could previously manage independently.
Other Damages
The specific categories of compensation available depend on how the injury occurred and how it has affected the injured person’s life.
Severe cases often require medical, vocational, economic, and life-care experts to evaluate the full extent of future losses.
Can Family Members Recover Compensation Too?
Sometimes, but the primary personal injury claim generally belongs to the injured person.
Family members may experience enormous financial and emotional consequences when a loved one suffers catastrophic brain damage, but whether a spouse or another family member has an independent claim depends on the circumstances and applicable Texas law.
An attorney can evaluate both the injured person’s claims and any claims that may separately belong to family members.
Does Incapacity Affect the Texas Statute of Limitations?
It can.
Texas personal injury claims are generally subject to strict filing deadlines. In many negligence cases, the ordinary statute of limitations is two years.
Texas law, however, contains special provisions addressing certain legal disabilities. Under Texas Civil Practice and Remedies Code Section 16.001, a person who is considered to be of “unsound mind” when a cause of action accrues may qualify for tolling while that legal disability exists.
That does not mean families should assume that a severe brain injury automatically stops every filing deadline.
The rules can vary depending on:
- When the incapacity began
- Whether the incapacity existed when the claim accrued
- The type of legal claim involved
- Whether a governmental entity is involved
- Whether the claim involves medical negligence
- Other notice requirements or statutes of repose
Because these deadlines can become complicated quickly, families should have an attorney evaluate the claim as soon as reasonably possible rather than relying on a possible extension.
What Should I Do If My Loved One Cannot Speak With an Attorney?
You can still contact an attorney to discuss what happened.
You do not need to wait for your loved one to fully recover before determining whether a legal claim exists.
Helpful information to gather may include:
- The date and location of the accident
- Police, workplace, incident, or crash reports
- Photographs or videos
- Names of witnesses
- Insurance information
- Medical records and hospital information
- Information about the responsible person or company
- Any documents establishing an existing power of attorney or guardianship
- Communications from insurance companies
- Records showing your loved one’s employment and income before the injury
An attorney can then determine what additional legal authority may be necessary to move the case forward.
Should I Talk to the Insurance Company for My Loved One?
Be cautious.
After a catastrophic injury, an insurance company may contact family members quickly and request information about the accident, injuries, medical treatment, or your loved one’s condition.
You generally should not guess about facts you do not personally know or agree to anything on behalf of an injured adult unless you have the legal authority to do so.
A serious brain injury claim may involve substantial future medical and financial losses that are not apparent during the first few weeks or months after an accident.
Accepting an early settlement without understanding the injured person’s long-term prognosis could potentially leave the family responsible for significant future expenses.
Why Are Severe Brain Injury Claims Different From Other Injury Cases?
Traumatic brain injuries can be unusually complex because some of the most serious consequences are neurological rather than outwardly visible.
A person may survive an accident but experience permanent problems involving:
- Memory
- Speech
- Concentration
- Decision-making
- Balance and coordination
- Mood or personality
- Impulse control
- Sleep
- Employment
- Independent living
Building a strong claim may therefore require more than documenting the initial emergency-room treatment.
Attorneys handling catastrophic brain injury cases may work with neurologists, neuropsychologists, rehabilitation specialists, economists, vocational experts, and life-care planners to understand how the injury is expected to affect the person for years to come.
Protecting the Rights of a Loved One With a Serious Brain Injury
When a person suffers a catastrophic brain injury, they may be unable to protect their own financial and legal future at the moment they need protection most.
Texas law provides ways for others to act on behalf of injured people who lack the capacity to manage their own claims. Determining who should act, what authority is required, and how to protect the injured person’s long-term interests requires careful legal analysis.
The Law Offices of Colby Lewis represents people who have suffered serious and catastrophic injuries throughout Texas. With more than $200 million recovered for clients, the firm focuses on pursuing compensation that reflects both the immediate and long-term consequences of serious injuries.
If your loved one suffered a traumatic brain injury because of another person’s or company’s negligence and cannot pursue a claim independently, contact The Law Offices of Colby Lewis for a free consultation. The firm can evaluate what happened, determine how the claim may be brought on your loved one’s behalf, and work to protect their rights while your family focuses on their care and recovery.
Disclaimer: This article is for informational purposes only and does not constitute legal advice. The availability of a claim, applicable deadlines, and who may legally act for an injured person depend on the specific circumstances of each case.
