Texas brain injury claims: how damages are proven and limited

By Beverly Law’s Texas-licensed attorneys, Joyce Ondich and John Efstathiou. Updated November 2026.

What a TBI is, and how the injury is proven

The CDC describes a moderate or severe traumatic brain injury as one caused by a bump, blow or jolt to the head, or by a penetrating injury to the head (CDC). Most TBIs are mild, and the CDC says the brain changes may affect how a person thinks, learns, feels, acts and sleeps (CDC). This guide covers legal rules only; medical questions belong with a doctor. Because much of the harm never shows on a scan, proof usually comes from several sources:

• Early records. Paramedic and emergency notes on confusion, memory gaps or loss of consciousness were written before anyone was thinking about a claim.
• Neuropsychological testing. The CDC notes that a provider may check for problems with learning, memory, concentration and problem solving, and that these neuropsychological or neurocognitive tests can help identify the effects of a mild TBI. It adds that a person may still have a mild TBI even if these tests do not show it, and that a CT scan is not needed to spot one.
• Before and after. Follow-up notes, job reviews and statements from family and coworkers show what changed. See how to prove a traumatic brain injury.

The Texas damages rules at a glance

Medical bills: what was paid, and how it is proven

CPRC § 41.0105 holds the medical expense claim to what was actually paid or incurred, by the injured person or for them, rather than the billed price.

A brain injury case often produces bills from many providers, from the emergency room to neuropsychology and cognitive therapy. CPRC § 18.001 lets each provider or its records custodian sign an affidavit with an itemized statement. Unless the other side serves a counteraffidavit, that affidavit is enough evidence for a jury to find the charge reasonable or the service necessary. Its service deadlines are listed in our Texas spinal cord injury guide.

One limit matters a great deal in TBI cases. Section 18.001 says the affidavit is not evidence of causation. Whether the crash or fall caused the memory or mood problems still has to be proven through medical testimony.

Lost earnings are measured after taxes

CPRC § 18.091 covers claims for loss of earnings, loss of earning capacity, loss of contributions of a pecuniary value and loss of inheritance. Evidence of those losses must be presented as a net loss after reduction for income tax payments or unpaid tax liability under federal income tax law. The court must also instruct the jury on whether any recovery for compensatory damages is subject to federal or state income taxes.

With a brain injury, the earnings claim often looks forward. A person may return to work but lose speed or stamina, which can close off promotions or a whole line of work. Any economist who puts numbers on that lost earning capacity has to use after-tax figures.

Tax returns, pay stubs, performance reviews and a supervisor’s statement about lost duties all help.

Future care and the life care plan

A life care plan lists the care an injured person is expected to need, with how often and how long each item recurs. For a brain injury, it may include specialist follow-up, medication, cognitive therapy, counseling and supervision or attendant care.

The CDC says a moderate or severe TBI may lead to long-term or life-long health problems that may affect all aspects of a person’s life. A CDC chart based on the TBI Model Systems National Database followed people 16 and older who received inpatient rehabilitation for TBI. Five years later, 26% had improved, 22% had stayed the same, 30% had become worse and 22% had died (CDC).

That spread is why timing matters. A plan written before doctors can judge the course of the injury can miss needs that appear later.

Noneconomic damages, and when caps apply

Noneconomic damages include physical pain, mental anguish, physical impairment, loss of consortium and loss of enjoyment of life (CPRC § 41.001). With a brain injury they often cover changes in personality, memory and family life. In an ordinary negligence claim, such as a car crash or a fall at a business, none of the statutes discussed here puts a dollar ceiling on them. Limits apply in three settings.

• Health care liability claims. When the injury is blamed on a physician’s or health care provider’s treatment or lack of treatment, Chapter 74 applies (§ 74.001). Noneconomic damages are capped at $250,000 per claimant against all physicians and non-institutional providers combined, $250,000 against a single health care institution, and $500,000 against all institutions combined, with no more than $250,000 from each (§ 74.301). Section 74.302 holds backup limits. In a health care wrongful death or survival action, § 74.303 caps all damages at $500,000 per claimant, adjusted for inflation since 1977, not counting medical, hospital and custodial care.
• Government units. Under the Texas Tort Claims Act, § 101.023 limits total liability for bodily injury to $250,000 per person and $500,000 per occurrence for the state and cities, and $100,000 per person and $300,000 per occurrence for other local units.
• Exemplary damages. A unanimous jury must find gross negligence, malice or fraud by clear and convincing evidence (§ 41.003). The award cannot exceed $200,000 or, if larger, double the economic damages plus the noneconomic damages found by the jury, counting no more than $750,000 of those. Listed felonies, such as intoxication assault, are exempt (§ 41.008).

Shared fault and the 51% bar

If the jury assigns the injured person more than half of the responsibility, there is no recovery (CPRC § 33.001). At half or less, the court reduces the damages by the claimant’s percentage and then, in most cases, subtracts the dollar amounts of any settlements with others (§ 33.012).

Brain injuries add a problem of their own. The injured person may not remember the crash or fall, so crash reports, video and witness names gathered early have to answer the defense’s version. See comparative fault in California, Texas and Washington.

Deadlines, and who brings the claim when the injured person cannot

The general deadline for a personal injury suit is two years from the day the claim accrues (§ 16.003). A government unit is also entitled to notice no later than six months after the incident, and a city charter may set its own notice period (§ 101.101).

Under § 16.001, being under 18 or of unsound mind when the claim accrues is a legal disability, and that period is left out of the count. A disability that arises after the period starts does not stop it. The statute does not define unsound mind, and the defense can dispute that a brain-injured adult qualified, so filing within two years is safer.

For an adult who cannot manage a claim, Texas offers two routes:

• Next friend. Texas Rule of Civil Procedure 44 lets minors and persons non compos mentis (not of sound mind) who have no legal guardian sue through a next friend, who has the same rights in the suit as a guardian. A next friend may settle only with court approval, and an approved settlement binds the injured person. Rule 173 requires a guardian ad litem if the next friend appears to have an adverse interest.
• Guardianship. An adult is incapacitated if a physical or mental condition leaves the person substantially unable to provide food, clothing or shelter, care for their own physical health or manage their own finances (Estates Code § 1002.017). Any person may apply for a guardian (§ 1101.001). The court must find incapacity by clear and convincing evidence and that alternatives, supports and services are not feasible (§ 1101.101). A guardian of the estate may sue to recover damages for the ward (§ 1151.104).

What this means for your case

Damages rest on records that are easiest to collect early. Steps that help:

• Keep every discharge summary, therapy note and neuropsychological test report.
• Save explanations of benefits and unpaid balances, since § 41.0105 looks at what was paid or is still owed.
• Gather tax returns and pay records from the years before the injury.
• Ask family and coworkers to write down, with dates, the changes they noticed.
• Keep a list of every provider so § 18.001 affidavits can be requested on time.
• If the injured adult cannot manage the claim, raise next friend or guardianship early.
• Say early if a doctor, hospital or government unit may be involved, since other caps and notice rules apply.

See our Texas brain injury lawyer page. Texas cases are handled by the firm’s Texas-licensed attorneys. You owe no fees or costs unless we win. Call (310) 552-6959 for a free consultation in English or Spanish.

Common questions

Related pages

Texas brain injury lawyer · Texas injury lawyers · Texas spinal cord injury claims: future costs · How much is a brain injury case worth? · How to prove a traumatic brain injury · Comparative fault in California, Texas and Washington

Important: This page is general information, not legal or medical advice, and reading it does not create an attorney-client relationship. Every case is different; talk to a lawyer about yours. Last reviewed: November 10, 2026.