Texas Brain Injury Law: The Rules That Decide a Claim
A brain injury claim runs on the same Texas negligence framework as any injury case, but three features make it harder to win: the injury is often invisible, causation is expert-dependent, and where the cause was medical, an extra procedural regime applies.
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Two years, from the injury
Section 16.003 of the Civil Practice and Remedies Code gives two years from the date of injury to file suit, and wrongful death runs two years from the date of death.
Where the brain injury was caused by a governmental unit, a city vehicle, a public road defect, a public hospital, the Texas Tort Claims Act requires formal written notice within months and caps damages. That deadline is measured in months and is easy to miss.
Proportionate responsibility and the 51 percent bar
Recovery is reduced by the claimant's percentage of responsibility and barred entirely above 50 percent. In a brain injury case the claimant frequently cannot describe what happened, so the fault argument is fought on physical evidence rather than on their account.
That makes preserving the evidence more important, not less. The person who could have answered the comparative fault argument may have no memory of the event.
The invisible injury problem
This is what makes brain injury claims legally distinctive. There is often no visible wound, the CT scan is normal, and the person looks unharmed. Insurers use all three facts to argue nothing serious happened.
None of them is evidence of the absence of injury. Standard imaging is not designed to detect the diffuse, microscopic damage of many brain injuries, and a person can be profoundly changed while appearing physically intact. The law recognizes the injury; proving it is the work.
Mild does not mean minor
The term mild traumatic brain injury is a clinical grade describing the initial presentation, not a measure of the life impact. A mild TBI can produce permanent cognitive and emotional change.
Insurers exploit the word. Establishing that a mild-graded injury had a major consequence is a recurring task, and it is done with neuropsychological evidence and testimony about function, not with the initial grade.
Causation is an expert question
That a collision or a fall caused a brain injury is rarely self-evident, particularly where imaging is normal and symptoms developed over days. It is established by expert testimony, treating physicians, neuropsychologists, and sometimes neuroradiologists reading advanced imaging.
Where the cause was medical, the causation battle is central, because the underlying condition competes with the alleged negligence as the explanation for the injury.
Where the cause was medical negligence
A brain injury from medical negligence, anoxic injury from an anesthesia or monitoring error, a missed stroke, a birth injury, is a medical malpractice claim. Texas surrounds these with Chapter 74 requirements: an expert report within 120 days of filing and caps on non-economic damages.
Those requirements defeat more of these claims than the medicine does, and they are covered on the medical malpractice brain injury page. Whether the cause was medical changes how the claim is prosecuted and what it is worth.
Summary
| Rule | Source | Effect |
|---|---|---|
| Two year limitations | Civ. Prac. & Rem. Code 16.003 | Hard bar, narrow exceptions |
| Proportionate responsibility | Civ. Prac. & Rem. Code ch. 33 | Reduced by your share, barred above 50 percent |
| Governmental claims | Civ. Prac. & Rem. Code ch. 101 | Notice in months, damages capped |
| Medical cause | Civ. Prac. & Rem. Code ch. 74 | Expert report in 120 days, caps |
| Invisible injury | Evidentiary reality | Normal imaging is not a defense |
| Mild grade | Clinical, not legal | Does not measure life impact |
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Frequently asked questions
Two years from the date of injury for most claims. Where a governmental unit is responsible, formal written notice is required within months, and where the cause was medical negligence, Chapter 74 imposes an expert report within 120 days of filing.
No. Standard imaging is not designed to detect the diffuse, microscopic damage of many brain injuries, so a normal scan is common and is not evidence that no injury occurred. Insurers rely on people not knowing that.
Mild is a clinical grade describing the initial presentation, not a measure of life impact. A mild traumatic brain injury can produce permanent cognitive and emotional change, established through neuropsychological evidence rather than the initial grade.
Because a brain injury from medical negligence is a malpractice claim, which Texas surrounds with an expert report requirement within 120 days and caps on non-economic damages. That changes how the claim is prosecuted and what it is worth.
Talk it through with a lawyer
A free consultation covers whether you have a claim, what the deadline is, and what insurance is actually available.
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