Can't Remember the Crash? You May Still Have a Claim

Usually, a gap in memory does not, by itself, end a head injury claim in West Virginia. The crash can often be shown in other ways. Police records, witness accounts, vehicle data, and medical records often matter as much as one person’s recollection. This page explains how that works and what to do now.

Why a Missing Memory of the Crash Is a Common Concern After a Head Injury

Many people with a head injury cannot remember the moments before, during, or after a crash. This is a recognized effect of brain trauma. Doctors often describe the confusion and memory gaps that follow as post-traumatic amnesia. It can follow a concussion or a more serious traumatic brain injury. The length and pattern vary from person to person.

Families often feel alarmed when this happens. A loved one may ask the same questions again, or seem unsure what day it is or what happened. It is natural to wonder whether the missing memory means the case is lost. The rest of this page answers that question with the facts the law and the evidence support.

Does Losing Memory of the Crash End an Injury Claim in West Virginia?

A person’s memory is one source of evidence. It is not the only way a claim is supported. West Virginia injury claims are generally built on proof of how the crash happened and who contributed to it.

West Virginia uses modified comparative fault, which means fault is shared by percentage. Under W. Va. Code § 55-7-13c, an injured person’s own fault does not bar recovery unless it is greater than the combined fault of everyone else responsible. If it is less, recovery is reduced in proportion to that person’s share of fault.

Whether a particular claim can move forward depends on the facts, the injuries, and the evidence available. The injured person’s own account is often just one piece of that evidence.

Evidence That Can Show How the Crash Happened Without the Injured Person’s Memory

Other records can show what happened when memory is missing. The most useful sources usually come from the scene, the vehicles, and the first medical care.

• Police crash reports. These record the scene, vehicle positions, and statements made at the time. They may be relevant to who was at fault.
• Witness accounts. Names and phone numbers of people who saw the crash matter. Witnesses may recall the vehicles and the order of events.
• Vehicle and device data. Vehicle damage, event data recorders, dash camera footage, and phone records may be relevant, depending on the facts.
• EMS and emergency room records. These document the injured person’s condition at the scene and on arrival. They may also note what was said at that time.

Truck crashes can add other evidence. Cargo that is not secured can cause serious crashes, according to the West Virginia Division of Motor Vehicles. In a commercial vehicle crash, cargo records and trip logs may also be relevant.

What Medical Records Can Show About a Brain Injury and Memory

Medical records can document the head injury and any memory problems that followed. Treating providers often record the injury, imaging results, neurological testing, and notes about thinking and memory over time. These notes can help connect the crash to the injuries. They may also explain why the injured person cannot recount the crash in detail.

Keep copies of discharge papers, follow-up visit notes, and any therapy or neurology records. Keep them together in one folder or file. Write down the dates and the name of each provider.

The firm can review these records as part of a free case review. Early review can help show which gaps in the record may need to be filled.

Deadlines and Legal Disability Rules That May Affect a Head Injury Claim

West Virginia generally allows two years to file a personal injury lawsuit, and exceptions may apply. The rule appears in W. Va. Code § 55-2-12.

Wrongful death claims have their own timing. Under W. Va. Code § 55-7-6, a wrongful death action must be commenced within two years after the death, subject to other provisions of the law. W. Va. Code § 55-7-6 reads: “The provisions of this section shall not apply to actions brought for the death of any person occurring prior to July 1, 1988.”

West Virginia also has a rule for people who were an infant or “insane” when the right to sue arose. W. Va. Code § 55-2-15 allows a longer period after that impediment ends, but never more than 20 years from when the right accrues. Whether this rule applies depends on the facts and on the person’s condition at the relevant time. Because these rules turn on facts, it helps to raise the question early.

Who Can Act for an Injured Person Who Cannot Recall the Crash

When a brain injury affects decision-making, a family member or a court-appointed representative may need to act. Whether someone can make decisions is a medical and legal question. It depends on the facts, and treating providers’ records are often part of that picture.

When the injured person has died, a wrongful death case is brought by a personal representative. The law says the action is brought in the name of a personal representative who has been duly appointed, as described in W. Va. Code § 55-7-6.

Family members can help in practical ways. Keep a written timeline of what the injured person says and what others saw. Track medical appointments and write down questions for providers. These steps help organize the facts. They do not replace proof.

Steps to Take Now If You Are Trying to Protect a Claim After a Head Injury

The most useful steps now are to save records, photos, and the names of witnesses. Start a written timeline from what you and others remember. Date each note when you write it. Keep medical bills and records together.

Take photos of the vehicles, the scene, visible injuries, and damaged property, if you can do so safely. Write down the names and phone numbers of anyone who saw the crash.

Be careful about social media. Posts about the crash, the injuries, or daily activities may be reviewed by insurers. Some insurers may ask for a recorded statement, and some insurers may dispute a claim.

West Virginia also limits early settlement contact. See W. Va. Code § 55-7-11a. Under W. Va. Code § 55-7-11a, a settlement, release of liability or statement obtained in violation of the statute’s twenty-day restriction may be disavowed by the injured person at any time within one hundred eighty days from the date of the personal injury by executing a written statement of disavowal and thereupon forwarding a copy of the same to the person violating this section; the settlement, release or statement then may not be admissible in evidence in any court or other proceeding relating to the personal injury, if any consideration paid for it is repaid or returned to the person who paid it at the time the copy is forwarded.

Reaching the Firm About a Free Case Review

If you are researching while caring for someone who cannot remember the crash, this can feel urgent and overwhelming. You may be carrying questions about proof, deadlines, and who can act for the injured person. You do not have to work through those questions alone.

The firm handles car accident, truck accident, commercial vehicle, catastrophic injury, traumatic brain injury, spinal cord injury, and wrongful death claims across West Virginia. We serve Charleston injury victims and people in other communities across the state.

Describe the crash, the head injury, and the records you already have. The firm offers a free case review, with no obligation to continue.