Handling Catastrophic Injury Claims When the Injured Person Cannot Communicate Independently

A catastrophic injury can change virtually every part of a person’s life. When the injury also prevents someone from speaking, understanding questions, expressing decisions, or communicating independently, pursuing a personal injury claim becomes even more complicated. The injured person may know what happened but be unable to explain it. They may understand what they want but lack the physical ability to communicate it. In the most serious cases, traumatic brain injury, paralysis, aphasia, or other neurological damage may leave the person dependent on family members and caregivers for basic decisions and daily activities.

These cases require more than simply calculating medical bills. A catastrophic injury claim may need to account for decades of medical treatment, rehabilitation, attendant care, lost earning capacity, adaptive equipment, changes to housing and transportation, and the profound loss of independence caused by the injury.

For families dealing with these circumstances, understanding how the legal process works is important. An injured person’s inability to communicate independently does not eliminate the right to seek compensation. Instead, it can create additional legal and practical issues that must be addressed carefully.

“When an injury leaves someone unable to communicate independently, we have to look beyond the obvious medical records. The person’s needs, abilities, future care, and quality of life all have to be understood so that the legal claim truly reflects what the injury has taken from them.” — John J. Malm, Naperville complex injury attorney

Catastrophic Injuries Can Affect Communication in Different Ways

The inability to communicate is not limited to complete loss of speech. A person may have significant communication limitations even when they can say some words or appear responsive. Traumatic brain injuries are an important example. The Centers for Disease Control and Prevention reports that approximately 214,110 people were hospitalized with TBI in 2020 and that 68,663 people died from TBI-related causes in 2023. The CDC describes TBI as a major cause of death and disability in the United States.

Research has also demonstrated the connection between serious brain injuries and communication problems. Communication disorders following severe TBI can involve speech production, comprehension, organization of language, social communication, and nonverbal communication. Communication difficulties may include:

Aphasia, which can interfere with speaking, understanding, reading, or writing.
Dysarthria, which can make speech difficult to understand.
Cognitive-communication disorders affecting memory, reasoning, attention, or organization.
Difficulty answering questions or explaining events.
Inability to communicate pain or medical symptoms reliably.
Difficulty understanding legal or financial information.
Paralysis or physical limitations that prevent the person from writing, typing, or using a telephone.
Loss of consciousness or severe cognitive impairment.
Dependence on assistive communication devices or caregivers.

This distinction matters in a personal injury case because someone who cannot communicate normally may still have important information about the accident, their symptoms, their preferences, and the effects of the injury.

The Injured Person’s Voice Still Matters

One of the most important principles in a catastrophic injury case is that the injured person should not become invisible simply because communicating is difficult. Family members, physicians, rehabilitation specialists, speech-language pathologists, nurses, and caregivers may help explain the person’s condition. But their observations should supplement, not automatically replace, the injured person’s own voice.

Medical professionals may use communication assessments to determine whether a person can understand information, express choices, communicate reliably, or use alternative methods of communication. Research has found that communication performance after severe TBI is associated with broader measures of disability and functional outcomes. Depending on the person’s abilities, communication may occur through:

Speech.
Writing.
Typing.
Eye movements.
Hand signals.
Picture boards.
Communication tablets or computers.
Speech-generating devices.
Yes-or-no responses.
Assistance from a speech-language pathologist.

The legal team should understand how the individual communicates rather than assuming that an inability to speak means an inability to understand or make decisions.

Who Can Pursue a Claim When the Injured Person Cannot Act Independently?

Illinois law provides mechanisms for cases involving individuals who are under a legal disability. Under 735 ILCS 5/2-1008, when a party is declared to be under a legal disability, the action may be maintained by the person’s representative, guardian ad litem, or next friend, as appropriate.

Illinois also has a guardianship process for adults with disabilities. The Probate Act permits courts to appoint guardians of the person, guardians of the estate, or both, depending on the circumstances. Illinois law also permits separate guardians for the person and estate when doing so is in the individual’s best interests.

The appropriate arrangement depends on the injured person’s actual abilities and circumstances. Not every person with a communication disorder necessarily requires a plenary guardianship. Some individuals retain substantial decision-making capacity even though they cannot communicate conventionally. The goal should be to protect the injured person’s legal rights while preserving as much independence and decision-making authority as possible.

Proving What the Injured Person Needs

Catastrophic injury litigation often requires extensive medical and vocational evidence. When communication is impaired, that evidence becomes especially important. A lawyer may need to work with a team of professionals to understand the person’s current condition and likely future needs. Depending on the case, this can include:

Neurologists and other treating physicians.
Neuropsychologists.
Speech-language pathologists.
Physical and occupational therapists.
Rehabilitation specialists.
Life-care planners.
Vocational rehabilitation experts.
Economists.
Assistive-technology specialists.
Architects or specialists evaluating home modifications.

A life-care plan, for example, may identify anticipated future medical treatment, rehabilitation, equipment, attendant care, medications, transportation, and other services. The purpose is not simply to show that the injured person needs help today. The case may need to demonstrate what that person is likely to require for years or decades.

Damages May Extend Far Beyond Current Medical Bills

Catastrophic injury cases can involve substantial economic and noneconomic damages. The value of the claim depends on the specific facts, injuries, liability, available insurance or assets, and applicable law. Potential damages may include:

Emergency treatment and hospitalization.
Surgery and rehabilitation.
Speech, physical, and occupational therapy.
Prescription medications.
Future medical treatment.
In-home nursing or attendant care.
Residential or long-term care.
Wheelchairs and other durable medical equipment.
Communication technology.
Home modifications.
Vehicle modifications.
Transportation expenses.
Lost wages.
Lost future earning capacity.
Loss of normal life.
Physical pain and suffering.
Emotional distress.
Disfigurement.
Permanent disability.

When an injured person cannot communicate independently, some losses may be difficult to quantify. For example, a person may be unable to explain the extent of their emotional suffering or frustration. That does not mean those losses are insignificant. Evidence from people who know the injured person, combined with medical and rehabilitation evidence, may help establish how dramatically the injury has changed the individual’s life.

Preserving Evidence Becomes Especially Important

When the injured person cannot provide a detailed account of the accident, independent evidence may become critical. A serious catastrophic injury investigation may involve gathering:

Police reports.
Accident photographs and video.
Surveillance footage.
Dashcam or vehicle data.
Electronic vehicle data when available.
Witness statements.
911 recordings.
Medical records.
Ambulance records.
Hospital records.
Rehabilitation records.
Employment records.
Prior medical records when relevant.
Insurance policies.
Social media evidence.
Expert evaluations.

This evidence can help establish what happened without requiring the injured person to personally reconstruct every detail. It is particularly important to preserve evidence quickly. Surveillance video may be automatically overwritten, vehicles may be repaired or destroyed, accident scenes may change, and witnesses’ memories may fade.

Family Members Often Become Essential Sources of Evidence

Family members frequently see the effects of catastrophic injuries that are not apparent during a short medical examination. A spouse, parent, adult child, or other caregiver may observe changes in:

Personality.
Memory.
Speech.
Mobility.
Judgment.
Emotional regulation.
Independence.
Sleep.
Ability to perform household tasks.
Ability to work.
Relationships with family members.
Ability to participate in hobbies and activities.

Family members can also document the practical consequences of the injury, including the amount of assistance required each day. Their observations may help establish the difference between the injured person’s life before the accident and the person’s life afterward.

Settlements Require Careful Consideration

A catastrophic injury settlement can provide financial resources for medical care and future needs, but accepting an offer requires careful analysis. When an injured person cannot independently evaluate a settlement, the legal process may involve a guardian, representative, guardian ad litem, or court approval depending on the circumstances.

Illinois law recognizes that a guardian of an estate may represent a ward in legal proceedings, while courts retain authority concerning the protection of the individual’s interests. The central question should be whether the proposed resolution adequately protects the injured person’s long-term interests, not simply whether it provides immediate financial relief. Before resolving a catastrophic injury claim, the parties may need to consider:

Future medical expenses.
Future attendant care.
Life expectancy.
Future lost earnings.
Inflation.
Medical equipment.
Housing needs.
Government benefits.
Insurance liens.
Tax considerations.
Special-needs planning.
The structure of the settlement.

A settlement that appears substantial today may be inadequate if future care costs are significantly underestimated.

What Families Should Do After a Catastrophic Injury

Families dealing with a catastrophic injury are often focused understandably on medical treatment. At the same time, important legal evidence can disappear quickly. If possible, family members should:

Preserve photographs and videos from the accident.
Keep copies of medical records and bills.
Identify witnesses.
Preserve insurance information.
Avoid discussing the case publicly on social media.
Keep records of changes in the injured person’s abilities.
Document caregiving and out-of-pocket expenses.
Preserve employment and income records.
Keep a journal describing the injured person’s daily limitations.
Consult an experienced Illinois catastrophic injury attorney before signing settlement documents.

Most importantly, family members should avoid assuming that they must tell the entire story on behalf of the injured person. A qualified legal team can work with medical and rehabilitation professionals to determine the best way to obtain and present the injured person’s information.

Frequently Asked Questions about Catastrophic Injury Claims

Can someone file a personal injury lawsuit if the injured person cannot speak?

Yes. An inability to speak does not automatically prevent a person from pursuing a personal injury claim. Depending on the person’s legal capacity, a representative, guardian, guardian ad litem, or next friend may be involved in the litigation.

Does an inability to communicate mean that the injured person lacks legal capacity?

Not necessarily. Communication ability and decision-making capacity are different issues. A person may be unable to speak but still understand information and make decisions using an alternative communication method.

Can family members make decisions for a catastrophically injured person?

Sometimes, but the answer depends on the person’s legal capacity, existing powers of attorney, guardianship status, and the type of decision involved. Illinois law provides procedures for guardianship when appropriate.

What if the injured person can communicate only through a device?

Alternative communication can still allow the injured person to participate in important decisions. Attorneys and medical professionals should determine the person’s most reliable communication method rather than assuming that conventional speech is necessary.

How are future care costs calculated?

Future care may be evaluated using medical records, treating physicians, rehabilitation professionals, life-care planners, economists, and other experts. The analysis can include medical treatment, therapy, equipment, attendant care, housing modifications, transportation, and other long-term needs.

Is there a deadline for filing a catastrophic injury lawsuit in Illinois?

Yes. The applicable deadline depends on the type of claim and circumstances. Illinois has specific provisions addressing legal disability, but those provisions contain limitations and exceptions.

Contact the Top-Rated Illinois Catastrophic Injury Attorneys at John J. Malm & Associates

At John J. Malm & Associates, we understand that a catastrophic injury can affect an entire family, particularly when the injured person can no longer communicate or make decisions independently. Our attorneys investigate the circumstances of the injury, work to preserve critical evidence, evaluate current and future losses, and pursue compensation that reflects the full impact of a life-changing injury. With over 95 years of combined litigation experience and a trial-ready approach to serious injury cases, our firm works to protect the rights of people whose lives have been profoundly changed by negligence. If you or a loved one has suffered a catastrophic injury and cannot communicate independently, contact our firm for a free consultation to discuss the circumstances of the injury and your potential legal options.