Can You File a Lawsuit for Brain Death?

March 18, 2024 / RP Legal

If someone is declared brain dead because of a personal injury, you may wonder if you can file a lawsuit.

The Columbia wrongful death attorneys at Rikard & Protopapas explain lawsuits for brain death.

Is Brain Death a Personal Injury or Wrongful Death Case?

Qualified parties can file a lawsuit for brain death. When brain death meets certain criteria, it is legally considered death. A claim may fall under wrongful death laws or personal injury law depending on whether the person meets legal definitions of death in the applicable state.

What to Know About Lawsuits for Brain Death

According to Yale, there are up to 20,000 deaths each year by brain death.

Brain death is an injury that is compensable under South Carolina law. Most often, brain death is the result of violent trauma. It may result from a car accident, slip and fall, assault and battery, explosions, or gunshot wound. Brain death can also result from oxygen deprivation or in rare cases, poisoning.

  • A personal injury lawsuit may be based on brain death.
  • The claim may be a personal injury claim, or it may be a wrongful death claim, depending on the exact medical situation. A survival claim may be appropriate.
  • South Carolina has adopted a legal definition of death that may be relevant to a claim.
  • Medical information is especially important, because proving the cause of death is a required part of the claim.
  • The statute of limitations for personal injury and for wrongful death is three years. However, when a case is a personal injury case, and the victim is incapacitated, they have up to five years to start a claim with the help of a conservator or guardian.
  • There are important procedural considerations when a personal injury claim is pending, and brain death occurs.
  • It is important to provide thorough proof of causation, damages and the appropriate amount of compensation allowed under law.
  • A lawyer for lawsuits involving brain death may provide representation.

A party or parties may have legal responsibility for brain death caused by personal injury. The same legal standards are used to evaluate personal injury causing brain death that are used to evaluate other types of personal injury claims.

If a victim would have been entitled to maintain an action if they had not died, survivors may bring a civil claim for wrongful death. (S.C. Code § 15-51-10).

What Is the Legal Definition of Death in South Carolina?

S.C. Code § 44-43-460 defines death in South Carolina as the:

  1. Irreversible cessation of circulatory and respiratory functions,


  1. Irreversible cessation of all functions of the entire brain, including the brain stem.

A person is considered legally dead if they fall under either criterion.

The South Carolina definition of death comes from the Uniform Determination of Death Act (UDDA). It was created in 1981 by the National Conference of Commissioners on Uniform State Laws. It has been passed into law in most states, including South Carolina.

The South Carolina Probate Code uses the definition of death provided in S.C. Code § 44-43-460 as the definition of death with regards to probate jurisdiction.

American Academy of Neurology (AAN) Brain Death Definition

Another widely accepted guideline for brain death comes from the American Academy of Neurology (AAN). AAN defines brain death as irreversible loss of function to the entire brain. It includes:

  • Coma (loss of consciousness)
  • Brainstem reflexes
  • Apnea (loss of independent breathing)

When these factors are irreversible.

Medical professionals use a series of tests and criteria to evaluate brain death.

Is a person in a vegetative state brain dead?

A vegetative state is different than being brain dead. If the brain stem is still functioning, the person doesn’t meet the definition of cessation of all brain activity. Usually, the person can breathe on their own which means there is still some brain function. While the person may be unlikely to recover, they don’t meet accepted definitions of death.

Lawsuits Based on Brain Death

When a person suffers brain death from a personal injury, a wrongful death claim may be brought under South Carolina law. A survival claim may also be appropriate. If a personal injury claim is already pending, our lawyers can assist with the appropriate next steps.

If a person is in a vegetative state, the claim may proceed as a personal injury claim. It’s critical to fully explain damages and provide medical expert testimony demonstrating causation of the defendant’s actions and the victim’s medical condition. Our lawyers can prepare this evidence.

Talk to a Lawyer

If your loved one has suffered brain death because of a personal injury, we invite you to contact the lawyers at Rikard & Protopapas. There are many considerations for getting justice for your loved one and the appropriate compensation. Our lawyers can evaluate the entire situation, providing guidance and legal representation.

Do you need a lawyer for a lawsuit for brain death?

There are many reasons that it is critical to have a lawyer for a lawsuit involving brain death.

The claim is procedurally complex, regardless of whether a claim has already been started at the time of the victim’s death.

The person’s medical condition may impact what type of claim should be filed and how to proceed. Because a claim for brain death typically involves a high amount of damages, detailed evidence must be developed regarding compensable damages.

A lawyer can assist you with these many steps. Following the correct procedure is critical to advancing the case and avoiding errors, seeking justice and monetary compensation.

Contact Rikard & Protopapas

If a loved one has suffered brain death, we invite you to talk to the caring and compassionate team at Rikard & Protopapas. We can evaluate the situation and discuss the legal options in front of you.

We can represent you in all aspects of a legal claim. Our wrongful death team is experienced in a wide variety of brain injury cases. We can assist you in any situation that you may be facing.

Call 803-978-6111 or message us today.

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