Litigating Spinal Cord And Brain Injury Cases
Evaluating Injury, Damages And Rehabilitation

By
Randall H. Scarlett, Esq.

Let's face it, cases involving spinal cord injury are major commitments requiring a significant investment both of attorney time and resource. A spinal cord injury is a catastrophic event, impacting upon the life of the survivor as well as his/her family. Damages in any catastrophic case are extensive, and this is no less true in a case involving spinal cord injury. Yet, speak to any seasoned trial lawyer, and you will learn that the problems associated with trial of a spinal cord injury case can be numerous, and potentially life threatening to the plaintiff.

Trial lawyers representing individuals rendered quadriplegic or paraplegic as a result of the tortious conduct of others will undoubtedly face a host of problems not encountered in other personal injury actions. Perhaps the most difficult issues to address involve potentially life shortening sequelae, including medical problems such as respiratory impairments (respirator needs), physical impairments (sensory and motor losses), bowel and bladder impairments (suppositories, catheter and bag use), pressure sores (decubitus ulcers, ischemic ulcers, etc.), and often severe depression and other psychosocial impairment.

This article will explore how counsel may best evaluate spinal cord injury cases within the context of damages and rehabilitation.

Spinal cord injury results from an insult to the spinal cord. The insult can be from direct external physical harm (severed cord, crushed cord, compression injuries, vertebral dislocation/fracture, etc.), as well as indirect harm (compression resulting from adjacent hemorrhage, disturbance in blood supply resulting in infarction, hemorrhagic applied pressure). Whatever the mechanism of insult, the result is usually paraplegia or quadriplegia.

Paraplegia results from injury or insult to the thoracic, lumbar or sacral areas of the spinal cord. Survivors with paraplegia generally lose physical and sensory capability (movement and feeling) in lower areas of the body (typically waist and lower).

1. If the jury adopts a misplaced "shortened" life expectancy forecast, for example, the plaintiff may be deprived of the very funds s/he needs to survive.

Quadriplegia results from injury or insult to the cervical area of the spinal cord. Survivors with quadriplegia generally lose physical and sensory capability (movement and feeling) in both upper and lower areas of the body. Impairment extends to all four limbs.

Spinal cord injuries are described as "complete" (abrogation of nerve signals passing below the level of insult), or "incomplete" (abrogation of some of the signals passing below level of insult). The point on the cord below which there is decreased sensation or movement is described as the level of injury.

Spinal cord injuries result from a plethora of tragedies, including motor vehicle accidents, medical negligence, slip and falls, construction accidents, disease, excessive force, sports accidents, and other causes. Due to the potentially exhaustless list of insult resulting causes, liability concerns will vary widely, and cannot be addressed herein. Suffice it to say, however, liability must be carefully examined at the outset, before counsel ever signs the case. Predictably, younger males (15 to 28 year olds) are at greater risk and account for the majority of spinal cord injuries.

A young lawyer today is far more likely to encounter a case involving paraplegia or quadriplegia than an experienced lawyer of twenty years ago. Clearly, victims of spinal cord injury benefit from recent medical advances in treatment, particularly rehabilitative treatment. Rehabilitation centers throughout the United States can assist (certainly more than twenty years ago) in getting the plaintiff back to a productive, albeit limited, lifestyle.

It is the challenge of the trial lawyer to obtain via settlement or trial, an adequate award for the injured plaintiff. An adequate award speaks to justice and provides the plaintiff the funds necessary to survive. Obviously, mere "survival" is meaningless if the plaintiff is not properly medically cared for.

As indicated above, liability must be thoroughly reviewed before acceptance of a spinal cord injury case. Thereafter, and only if liability justifies involvement, counsel must begin by evaluating the prospective client's spinal cord injury.

Counsel are admonished that no two spinal cord injury cases are the same. Damages in one paraplegia case are not the same as in another, and the same is true with quadriplegia cases. To be sure, there will be past, present, and future wage losses; past, present, and future medical expenses; pain and suffering; emotional distress; embarrassment and humiliation; physical, emotional, and psychological injuries; and attendant care costs coupled with special medical equipment costs. But each injured individual will have unique needs, and "humanizing" the plaintiff's case will dictate special attention to each such need.

For example, depending on the level of insult, the actual physical injury can be significantly different from plaintiff to plaintiff. The lower on the spine the insult, the better the chance is for mobility of the arm or hand, even in quadriplegic cases. Conversely, the higher the insult, it is likely the greater the impairment.

When evaluating injury in a spinal cord case, life expectancy must be taken into account. Inexperienced counsel, in a rush to emphasize the catastrophic nature of the plaintiff's injuries, can easily fall into a defense theory (backed with ample expert testimony) that plaintiff's injuries result in a shortened life expectancy. While the defense argument tends not to take into account the sweeping improvements in rehabilitative medicine (increased mortality) it is necessarily an emotionally "rational" argument for the jury, and counsel must meet the argument head on, and early in the trial.

When evaluating injury, therefore, counsel must, in an appropriate quadriplegia case, determine if respiratory problems exist. At its most devastating, a plaintiff may require the aid of a respirator because there is no longer control of breathing function. This may, depending on unique circumstances, arguably place the plaintiff at greater risk for respiratory infection.

Similarly, in a given case, bowel and bladder control may be non-existent. It is not uncommon for orifices to be tightly closed, necessitating the use of suppositories. Catheters are required for voiding, along with a "void bag" or other such depository. Again, concerns of potentially life threatening infection arise.

Concern of infection likewise arises from the risk of development of decubitus ulcers or pressure sores. There is no debate that decubitus ulcers are potentially life threatening, though with proper care, they should never develop. These sores are caused by prolonged external pressure. Given the lack of mobility caused by a spinal cord injury, a greater risk exists for the development of sores. The continued pressure on the particular point causes impairment of blood supply, depriving tissue of nutrition, causing tissue breakdown and the development of painful sores. Surgery is often a necessary result, with necrotic tissue leading to infection, and mandated debridements. For this reason, the protocol of most hospitals requires constant hourly turning of most victims of quadriplegia. A wrinkled sheet or underwear not perfectly even is a potential cause for the development of a pressure sore.

Simplistically, without a wheel chair and/or other medical equipment, each spinal cord injury client is at risk for death. Place a victim of quadriplegia alone in a closed room, door locked, without chair or other mobilization, and a very real risk of death occurs. Counsel is admonished never to lose track of this basic point. Add to mobilization problems, the problem of loss of feeling and function of limbs, and it is not difficult to realize the potential need for attendant care, without which life expectancy could be significantly shortened.

Spinal cord injuries are devastating injuries, mentally as well as physically. A once healthy, active life is abruptly reduced to a mind trapped in a body that will not work. In many instances, without proper intervention, all desire to exist dissipates. Psychiatric/ psychological intervention is a must. This is especially so given medications which may or may not be at issue. Significant neuronal damage, can for example, result in the prescription of such drugs as oxycontin or worse. Evaluation of a client's mental condition is therefore absolutely required.

Obviously, the evaluation of injuries does not end with potential life shortening sequelae, but goes individually much further. Counsel must work with appropriate experts and treatment team in order to address each of the issues relevant a particular case. Physiatrists, neurologists, orthopedics, psychologists, neuropsychologists, speech, occupational and physical therapists, recreational therapists, vocational rehabilitation counselors, nurses, patient's advocates, case managers, social workers, and other specialists are usual. Depending on the case, you may need to consult with a cardiologist, an infectious disease specialist, or numerous other medical sub-specialists.

In the remaining sections of this paper, I will discuss several specific areas of damage, including wage loss, loss of enjoyment of life, trauma to the marital relationship (loss of consortium), and extended claimants.

Special damages are more important today than ever before. In spinal cord injury cases, your clients will have significant demonstrative losses. DO NOT OVERREACH. If your client can possibly work, explore all options with an appropriate vocational rehabilitation specialist. Present several alternative options, leaving the jury with the option.

Two experts are absolutely required in order a proper presentation of a client's wage loss/loss of earning capacity claim is presented. The first is a vocational rehabilitation specialist. The second is a forensic economist.

The vocational rehabilitation counsel will consult with each of the plaintiff's treating doctors and will often times review pertinent medical records. In addition, the vocational specialist will test the plaintiff in order to determine what transferable skills exist and what vocational endeavors are truly possible.

Beyond the strictly forensic purposes of the vocational rehabilitative counselor, a plaintiff will often times fundamentally benefit from his/her contact with the vocational rehabilitative counselor. Previously unthought of capabilities and career paths are often revealed. From an emotional standpoint, the trial lawyer benefits the client through contact and access to a vocational rehabilitative counselor.

A vocational rehabilitative counselor will likewise explore the pre-injury course of employment with plaintiff. A host of factors is examined depending on the age of the plaintiff. For example, where a plaintiff has not yet reached the age of majority, educational performance, education attained by parents, results from school testing, including intelligence tests and a host of other factors are taken into account by the vocational specialist in order to reasonably project probable levels of educational accomplishment and probable vocational options, but for the injury causing event.

The goal is to reasonably project in "probable terms" the educational path and vocational path the plaintiff would have pursued (including pay scale), but for the injury, and the post-morbid transferable skills of the plaintiff, including expected pay scale for such vocation.

While in the most catastrophic of spinal cord injury cases, vocational endeavors will be precluded, rarely, if ever, does it benefit a plaintiff to claim a total wage loss where some vocational capabilities exist. Accordingly, unless counsel is absolutely certain that vocational endeavors would be totally precluded, given the extent of injury, proper work-up of a spinal cord injury case necessitates a strong vocational rehabilitative specialist.

Once the vocational specialist's work is complete, his/her information should be conveyed to an appropriate forensic economist. While the forensic economist's work is not limited to the area of past, present and future wage loss, (the economist will also set forth appropriate damages for the life care plan/present value of future medical expense), it is the economist's burden to carefully review all wage information and documentation of the plaintiff. The past wage loss, from the date of insult, is compiled.

The economist, based on the vocational rehabilitative findings, computes plaintiff's lifetime earnings capacity (in solid dollars), but for the injury causing event. Often times, and dependent upon the age of the plaintiff at the time of insult, an economist will present two or more scenarios of earnings capacity. Obviously, no one is prescient enough to predict with unerring accuracy the exact vocation, pay scale, and work length that a given plaintiff would have definitely pursued but for the injury. While the probable estimate becomes easier when the age of insult is later in life, the economist must necessarily testify as to the most probable losses based upon the most probable pre-morbid career path or paths.

Where minors are involved, the economist will determine lifetime wage loss based on expected pre-morbid educational accomplishment. In other words, an economist can state, to a reasonable degree of economic probability, what an individual in a given area of the country could expect to make were that individual to graduate from high school, injury free, or alternatively, graduate from college, injury free. If the minor's parents have achieved graduate or post-graduate college level, adjustments to the projected earnings will be made accordingly.

Mitigating income is determined based upon those transferable skills and potential job options determined to be appropriate by the vocational specialists. Mitigating income will be limited by the projected post-morbid work life expectancy determined to be appropriate by the medical specialist.

The forensic economist greatly assists the jury through determining appropriate net discount rates, rates of inflation, and necessarily, the economist's opinion is based on sound, historical, and governmental data. The forensic economist further assists the jury in understanding present value. Since most jurisdictions require future losses be relegated to present value, a strong forensic economist is a necessity in a spinal cord injury case.

Even where vocational mitigation is impossible due to extent of physical injuries, the forensic economist necessarily must compute and state valid opinions as to the past, present and future wage loss of the plaintiff. Perhaps now, more than any other time, jurors' total awards appear to be anchored in the special damage loss established by the plaintiff. Tragically, spinal cord injury cases provide counsel with ample opportunity to establish significant special damages.

Spinal cord injury cases necessitate the retention of a life care planner. This specialist is taxed with the obligation to coordinate with all of the plaintiff's treating physicians in order a clear medically probable future care plan is developed.

Recognizing that omission of medically necessary treatment can, and will, shorten the expected life of a spinal cord injury victim, the life care planner must exhaustively work with the plaintiff and plaintiff's appropriate medical specialists in order to put together an appropriate plan for medical services throughout the expected life of the plaintiff.

Given that medical expenses have historically grown exponentially, it is within the area of future medical care and life care planning that defendants will hedge their liability "bets", with forecasts of shortened life expectancy. Necessarily, where a defendant can shorten the exposure for future care costs, the defendant (and insurance company) benefits economically.

The life care planner should be prepared to justify, where possible, the expected length of the care plan itself. Benefits of each item of care must be discussed with the jury.

Again, as with wage loss, a forensic economist must take the findings of the life care plan, and place a value on the services, taking into account medical rates of inflation. The future payment stream is likewise relegated to present value for benefit of judge and jury.

VI

Generally not subject to expert testimony, general damages, including the loss of enjoyment of life, pain and suffering, emotional distress, embarrassment and humiliation, and psycho-social maladies, including depression, are significant elements of damage in spinal cord injury cases.

The plaintiff, depending on degree of physical impairment, is trapped in a body that does not work. The plaintiff cannot perform simple tasks. Scratching a nose is a luxury lost.

While sensation to certain parts of the body may have been lost, pain may nonetheless be experienced elsewhere. For example, bed sores which have developed in an area with sensory perception will be as painful to the spinal cord injury victim as anyone else.

Unless rehabilitation is commenced immediately, and even when it is, a spinal cord injury victim is prone to extreme depression, frustration, and at times, a lack of a will to live. While expert testimony is generally not admissible regarding the computation of a dollar amount for a general damage award, expert testimony should be used to validate depression and the emotional well being (or lack thereof), of the victim. Psychiatrists, psychologists, and neuropsychologists should be utilized to discuss the diagnosis of depression, the impact of medication and the prognosis of the plaintiff's emotional condition.

In addition to experts, lay witnesses, including family members, close friends, relatives, etc. should be used to establish the plaintiff's damages.

Physical disabilities in a spinal cord injury case can be disheartening. The true invisible injury, however, the general damages, are no less disheartening to endure.

Extensive time must be spent by counsel in order the breadth of the general damages is understood and communicated to the jury.

Loss of consortium is finally recognized in most jurisdictions. In lay terms, loss of consortium or "trauma to the marital relationship" recognizes the fact that due to injury, a spouse may not be capable of performing those tasks as pre-morbidly performed.

The claim of loss of consortium establishes the right of one spouse to state a cause of action for loss of companionship, emotional support, love, and sexual relations caused by a negligent or intentional injury to the other spouse by a third party. Disparagingly described as "sentimental" or "parasitic" damages, the mental and emotional anguish caused by seeing a health, loving, companionable mate turned into a shell of a person is real enough. To describe the loss as "indirect" is only to evade the issue. The loss of companionship, emotional support, love and sexual relations are real injuries. There may not be deterioration in the marital relationship, but it will certainly alter it in a tragic way. Even in the case of a husband, the "sentimental" images may dominate over the loss of support or material element. Thus, these damages are certainly not "parasitic" and to so describe them is inaccurate and cruel.

Historically, damages for loss of consortium were not viewed with favor. Today, virtually all jurisdictions universally recognize loss of consortium claims.

VIII

As with claims for loss of consortium, counsel should carefully research applicable law to determine whether, for example, children may have a valid cause of action where a parent sustains a spinal cord injury, or conversely, whether the parent may maintain a cause of action where the child sustains the injury.

Bystander theories of negligent infliction of emotional distress should be pursued whenever the facts of a given case provides such a remedy. In the ongoing quest to limit the scope of who may recover, courts in some jurisdictions have imposed stringent guidelines as to who can recover for negligent infliction of emotional distress. For example, the Supreme Court of California has established a three-part test, which must be satisfied in order a plaintiff state a cause of action for "bystander" negligent infliction of emotional distress:

In the absence of physical injury or impact to the plaintiff himself, damages for emotional distress should be recoverable only if the plaintiff:

1) is closely related to the injury victim;
2) is present at the scene of the injury - producing event at the time it occurs and is then aware that it is causing injury to the victim; and
3) As a result suffers emotional distress beyond that which would be anticipated in the disinterested witness.

Nonetheless, where a family member observed the injury-causing event (where required), an action for negligent infliction of emotional distress should be brought on behalf of the family member or bystander.

Since there is no magic, we must discuss money. Damages in a spinal cord injury case are significant, and are generally limited by shortened projections of life expectancy. This is especially so in the catastrophic case.

Proper presentation of a plaintiff's damages requires a multi-disciplinary expert team, and common sense. Given the significant extent of damages in a spinal cord injury case, no lawyer should over reach. Remain conservative, within the boundaries of what is medically necessary in order the survivability of the plaintiff be assured.

 

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