PART 6 TABLE OF CONTENTS
27. “Whiplash” And Soft Tissue Injuries
28. Broken Bones
29. Spinal Cord Injuries – Quadriplegia and Paraplegia
30. Traumatic Brain Injuries
31. Burn Injuries
33. Psychological Injuries
34. Pain and Suffering
35. Damage to Your Vehicle and Its Contents
27. “WHIPLASH” AND SOFT-TISSUE INJURIES
Whiplash has been the butt of many jokes and parodies over the years. However, the fact is that it can be a serious injury requiring medical attention and extensive physical therapy. Whiplash occurs when the head is snapped suddenly and violently forward then backward, as happens when a stopped car is rear-ended by another vehicle. Severe whiplash can result in injury to the intervertebral joints, discs, ligaments, and nerve cases. In especially severe cases of whiplash, surgery may be necessary to repair damage to the soft tissue. Between 15 and 40 percent of persons who suffer whiplash will continue to have pain months after the injury was sustained. There is an 18 percent chance that a whiplash victim will still be experiencing some symptoms more than two years after the accident.
Whiplash injuries may not show up right away; a person may awaken several days or a week or two later with the classic signs of whiplash, such as neck pain, shoulder stiffness, and headache. Usually, the sooner the symptoms of whiplash appear, the more serious the injuries tend to be. Depending on the severity of the whiplash, the doctor may order the patient to wear a cervical (neck) collar, take anti-inflammatory drugs such as aspirin, ibuprofen (e.g., Advil, Motrin), or naproxen (Aleve). For persons who are suffering greater than normal pain, the doctor may prescribe strong prescription pain relievers, such as Vicodin and Norco, as well as muscle relaxants. The doctor may also prescribe physical therapy for the victim for a period of several months or more, depending upon how the victim is recovering. While the majority of whiplash victims recover in six to twelve weeks, for some people, regardless of the brace, medications, and physical therapy, whiplash results in long-term symptoms which can be extremely painful and disabling.
In addition to “simple” whiplash, there is the more serious Whiplash-Associated Disorder (WAD). In the more severe and chronic cases of WAD, the person may experience depression, anger, frustration, anxiety, stress, drug dependency, alcoholism, substance abuse, Post Traumatic Stress Disorder (PTSD), insomnia, and social isolation. In some cases, the snapping motion of the neck is so strong that it may cause the dislocation or even a fracture to a cervical vertebra, causing paralysis. (See Chapter 29 for a discussion of Spinal Cord Injuries.)
Rather than seeing a traditional M.D., the whiplash victim may seek out an osteopathic physician (D.O.), who is a medical doctor who frequently corrects disorders of the body through the manipulation of the spine and alternative methods of treatment not used by M.D.s. Or the whiplash victim may choose to see a chiropractor. Research shows that chiropractic care for neck pain is just as good as, but not better than, traditional physical therapy. Combining spinal manipulation with exercises that strengthen the muscles in the neck and shoulder provides more benefit than mere spinal manipulation alone.
28. BROKEN BONES
If you were injured in an automobile collision or other type of accident caused by another person that resulted in broken bones, you have the right to recover monetary compensation for all of your injuries and associated costs. Common causes of bone fractures include motor vehicle accidents, falls from a height, a direct blow to the bone, child abuse, and repetitive forces, such as those produced by running, causing stress fractures of the foot, ankle, tibia, or hip.
One source says that the most commonly fractured bone is the collar bone (“clavicle”), usually as the result of an automobile accident. Another source lists breaks of the wrist, hip, and ankle as the most common fractures. A break or a crack in a bone is known as a fracture and can affect any bone in the body. A simple (or “closed”) fracture is a clean break to the bone that does not damage any surrounding tissue or break through the skin. The only way of certainty in diagnosing a closed fracture is with an X-ray, or even a CT scan or MRI.
A compound (or “open”) fracture occurs when the surrounding soft tissue and skin is damaged, such as where the broken bone penetrates through the skin. The attending emergency room physician will order X-rays or other imaging studies performed so she can find out exactly the extent of injury. This kind of fracture is more serious in large part because there is a high risk of infection since it is an open wound.
Additionally, a “simple” fracture is one that occurs along one line, splitting the bone into two pieces, while “multi-fragmentary” fractures, known as “comminuted fractures,” involve the bone splitting into multiple pieces. A simple closed fracture is much easier to treat and has a much better prognosis for full recovery than an open comminuted fracture. Another type of bone fracture is a “compression fracture,” which usually occurs in the vertebrae (the bones that make up the spinal column). There are approximately 14 different types of fractures.
Fractures are most frequently a result of an accident such as a bad fall or motor vehicle collision. The time it takes for a bone to heal depends on the type of fracture, where it is, and if it is an open or closed fracture. Healing of a broken bone is a gradual process, and it can take anywhere from a few weeks to several months. The healing process may, in fact, take even longer in some cases, such as in the presence of chronic diseases like osteoporosis and diabetes. As a person gets older, their bones become weaker making the individual more prone to fractures if they fall. Young children get different types of fractures because their bones are more elastic. They also have growth plates at the ends of the bones that can be damaged.
In order for a fracture to heal as well as possible, a good placement (“reduction”) of the bones must be attained. When doctors talk about “reduction” of a fracture, or “reducing” the broken bone, they are talking about improving the alignment of the broken ends of the bone. In most cases, aligning, or reducing, a fracture may involve a little pulling and tugging of the bones to attain optimal alignment. Once the bones are properly aligned, a plaster or fiberglass cast will be applied to hold the bones in the proper position while they heal.
A plaster cast molds to the skin better and is preferred if needed to hold the broken bone in a specific place. If the fracture is not unstable, or if some healing has already taken place, a fiberglass cast may be used. In many cases, physical therapy is required after the fracture has healed and the cast is taken off to strengthen the muscles and restore mobility in the affected area. Fractures near or through joints may result in the joint becoming permanently stiff or being unable to bend properly. In such a case, the lawyer will argue that the patient/client is entitled to recover a higher monetary award to compensate the injured person for the added pain and suffering, lack of enjoyment of life, and work prohibitions that the victim will experience.
If the bones cannot be properly aligned or are not sufficiently stable, and reduction cannot be satisfactorily achieved, then surgery is often necessary. In one type of surgery, “internal fixation,” an orthopedic surgeon aligns the fractured bones with pins, plates, screws, or rods. A second type is “external fixation.” Here, the pins or screws are placed into the broken bone above and below the fracture site. The orthopedic surgeon then repositions the bone fragments, and the pins or screws are connected to a metal bar or bars outside the skin. The external fixation devices hold the bones in the proper position so they can heal. After an appropriate amount of time, the external fixation devices are removed.
Occasionally the orthopedic surgeon uses “bone grafting” to treat a fracture. A bone graft is surgery to place new bone into spaces around a broken bone or bone defects. The new bone can be taken from the patient’s own healthy bone (an “autograft”), from frozen, donated bone (“allograft”), or an artificial, synthetic or natural substitute for bone. Bone grafting is used to repair bone fractures that are extremely complex, pose a significant health risk to the patient, or fail to heal properly. The new bone is held in place with pins, plates, or screws. Stitches are used to close the wound, and a splint or cast is usually used to prevent injury or movement while the bone is healing. Bone grafts are used to fuse joints to prevent movement, repair broken bones (fractures) that have bone loss, and to repair bone that has not healed. Surgeons use bone grafts to repair and rebuild diseased bones in the hips, knees, spines, and sometimes other bones and joints. Most bone grafts help the bone defect to heal with little risk of graft rejection, and recovery time generally varies from two weeks to two months, depending on the injury or defect being treated. Vigorous exercise is usually prohibited for up to six months.
If you have suffered a broken bone due to another person’s carelessness (“negligence”), you are entitled to recover your medical expenses, lost wages, pain and suffering, and loss of enjoyment of life you endured from the party that negligently injured you, as well as the lost wages for the time you are off work for the surgery, recovery, and physical therapy. Recoverable medical expenses include visits to the emergency room, your primary care provider, an orthopedic specialist, and the costs of having a cast made for you. If the break results in a deformity or limp that you will have to live with for the rest of your life, you are entitled to receive damages for that as well.
29. SPINAL CORD INJURIES –QUADRIPLEGIA AND PARAPLEGIA
If you suffer an injury that severs or compresses the spinal cord in your neck or back, there is a good chance that you will be paralyzed from the point of injury downward for the rest of your life. This is called a “spinal cord injury,” or SCI for short. A little neurology and anatomy will be of immense help here.
The central nervous system (CNS) is made up of two parts: the brain and the spinal cord. The spinal cord runs from the base of the brain down the back to the tailbone. The spinal cord is protected by the spinal column, which consists of bones with a hole in the middle. These bones are called the vertebrae. At the top of the spinal cord are seven vertebrae known as the cervical vertebrae (C-1 to C-7, in descending order). Running down the back are the 12 “thoracic” vertebrae (T-1 to T-12), which are in turn followed by the five “lumbar” vertebrae (L-1 to L-5). The “sacrum” (S-1 to S-5) and the “coccyx” (tailbone) make up the remainder of the spinal column. Injuries to the cervical spine resulting in paralysis of the body below a certain point are known as quadriplegia (also called tetraplegia), while injuries to the spinal column at or below the thoracic level are classified as paraplegia.
The cervical spinal nerves control signals to the back of the head, the neck, and shoulders, the arms and hands, and the diaphragm. The thoracic spinal nerves control signals to the chest muscles, some muscles of the back, and parts of the abdomen. The lumbar spinal nerves control signals to the lower part of the abdomen and the back, the buttocks, some parts of the external sex organs, and parts of the leg. Sacral spinal nerves control signals to the thighs and lower parts of the legs, the feet, most of the external sex organs, and the area around the anus. As you can see, the higher the SCI to the spine, the more disabling—and potentially fatal—the injury. For instance, a spinal cord injury at the neck level may cause paralysis in both arms and legs and make it impossible for the victim to breathe without a respirator, while a lower injury may affect only the legs and lower parts of the body.
SCIs involving the cervical vertebrae usually cause loss of function in the arms and legs, known as quadriplegia (or tetraplegia). If the SCI is at or above the C-3 level (C-1 to C-3), then the ability to breathe on one’s own is affected, and it will probably be necessary to have a mechanical ventilator for the person to breathe, as was the case for actor Christopher Reeve after his tragic accident until his death. Many people with SCI at or above C-3 die before receiving medical treatment because of their inability to breathe. C-4 is a critical level, as it is the level where nerves to the diaphragm—the main muscle that allows us to breathe—exit the spinal cord and go to the breathing center.
Besides regulating the breathing process, injuries at C-4 may allow the person some use of his biceps and shoulders, but this will be fairly weak. Injuries at the C-5 level often result in shoulder and biceps control, but no control of the wrist or hands. If the SCI is at the C-6 level, the victim usually has wrist control, but no hand function. Victims with SCI at the C-7 level can usually straighten their arms, but may still have dexterity problems with the hands and fingers. Injury at or below the C-7 level is generally considered to be the level for functional independence.
If the SCI is at the T-1 to T-8 levels, the victim usually has control of is hands, but poor trunk control resulting from a lack of abdominal muscle control. Lower thoracic vertebra injuries (L-9 to L-12) allow good trunk control and good abdominal muscle control, and the victim’s sitting balance is very good. SCI to the lumbar and sacral regions result in decreasing control of the legs and hips, urinary system, and anus.
It is often impossible for the doctor to make a precise prognosis right away, and emergency doctors are advised not to make prognoses on the question of paralysis. There is no cure for an SCI, but the sooner the intervention, the better the chances of minimizing the damage. For example, a corticosteroid drug (methylprednisolone) administered within eight hours of the time of injury may reduce swelling, which is a common cause of secondary damage. An experimental drug currently being studied appears to reduce loss of function.
On about the third day of hospitalization following the injury producing incident, the doctors give the victim a complete neurological examination to determine the severity of the injury and predict the likely extent of recovery. X-rays, CT scans, MRIs, and more advanced imaging techniques are also used to visualize the entire length of the spine.
Recovery, if it occurs, typically starts between a week and six months after the injury is sustained, especially as the swelling goes down. The majority of recovery occurs within the first six months after injury. Impairment remaining after 12 to 24 months is usually permanent, although with incomplete SCIs, the person may recover some functioning as late as 18 months after the injury. However, some people experience small improvements for up to two years or longer. For instance, Christopher Reeve regained the ability to move his fingers and wrists and feel sensations more than five years after he sustained a SCI to his cervical spine in a horse-riding accident. But the fact remains that only a very small fraction of persons who sustain an SCI will recover significant functioning.
Besides a loss of motor functioning and feeling below the level of injury, depending upon the level of the SCI, persons with SCI may experience other difficulties, such as:
- Pain or an intense stinging sensation caused by damage to the nerve fibers in the spinal cord
- Loss of sensation, including the ability to feel heat, cold, and touch
- Difficulty breathing, coughing, or clearing secretions from the lungs
- Loss of bladder or bowel control
- Pressure sores from sitting or lying in the same position for a long period of time (bedsores or “decubitus ulcers”)
- Inability or reduced ability to regulate heart rate, arrhythmias (irregular heart beats), blood pressure, sweating and hence body temperature
- Exaggerated reflex activities or spasms (spasticity)
- Atrophy of the muscles
- Blood clots, especially in the lower limbs (e.g., Deep Vein Thrombosis, commonly known as DVT) and in the lungs (pulmonary embolism)
- Osteoporosis (loss of calcium) and bone degeneration
- Mental depression, often resulting in suicide or attempted suicide
The damage to the nerve may be complete or incomplete. With complete damage, there is a total loss of sensory and motor function below the level of the SCI; there is no movement and no feeling below the level of injury, and both sides of the body are equally affected. With incomplete damage, there is some functioning and/or sensation below the site of the SCI. For instance, a person with incomplete damage may be able to move one leg more than the other, may be able to feel parts of the body that cannot be moved, or may have more functioning on one side of the body than the other. The extent of an incomplete spinal cord injury is generally determined after spinal shock has subsided, approximately six to eight weeks after the injury is sustained. With the advances in acute treatment of SCI, incomplete injuries are becoming more common than complete SCI injuries.
Accidents involving automobiles, motorcycles, and other motor vehicles, especially with Sport Utility Vehicles (SUVs) and 15-passenger vans rolling over, are the most common causes of SCIs. Spinal cord injuries due to violent acts—such as being shot or stabbed—are the second most common type of SCI, and they are the leading type of SCI in some urban settings in the United States. SCIs due to falls are the third-most common type, occurring most frequently in persons aged 65 years or older. Recreational sports injuries (discussed in Chapter 15) are the fourth-most common cause of SCIs, with diving in shallow water being the sport that causes the most SCIs of all recreational sports, followed by impact or high-risk sports such as football, rugby, wrestling, gymnastics, surfing, ice hockey, and downhill skiing.
There is the risk of an earlier death for a person who suffers a SCI. The most common cause of death of SCI victims is diseases of the respiratory system, especially pneumonia. The second leading cause of death is nonischemic heart disease; this involves almost always unexplained heart attacks, often occurring among young persons who have no previous history of underlying heart disease. Suicide is the cause of death in a substantial number of persons who sustain a SCI. Other leading causes of death involving an SCI are pulmonary emboli and septicemia (infection of the blood stream). Death rates are significantly higher during the first year after injury than during subsequent years, particularly for severely injured persons.
The financial and emotional costs associated with paraplegia and quadriplegia are enormous. The average length of the initial hospitalization following injury in acute care units is 15 days. The average stay in a rehabilitation unit is 44 days. The victim of a serious SCI will often have to go through extensive and exhaustive rehabilitation and physical therapy. Persons suffering from a serious SCI are generally treated at a regional SCI spine center. The initial hospitalization costs following an SCI are in the range of several hundred thousand dollars for paraplegics and over half a million dollars for quadriplegics. The average lifetime medical costs for victims becoming paraplegics at the age of 25 can easily top $1 million. The average lifetime costs for victims who become quadriplegics at age 25 easily reaches into the area of several million dollars.
30. TRAUMATIC BRAIN INJURIES
A person who suffers a severe blow or jolt to the head or a penetrating head injury may frequently develop a condition that disrupts the function of the brain. This is known as a traumatic brain injury (“TBI”). Auto accidents are a leading cause of TBIs, as are falls, such as a slip and fall accident in a grocery store or due to a defective walkway. TBI is a leading cause of death and disability in the United States. Each year, 1.4 million people sustain a traumatic brain injury. Fifty thousand of those die from the TBI; 235,000 people are hospitalized; and 1.1 million people are treated and released from an emergency room. The injury may be relatively minor, such as a minor concussion or brief period of unconsciousness, or it may be severe, such as a lengthy period of unconsciousness (a coma) or amnesia after the injury. Each year, 80,000 to 90,000 people will sustain a long-term disability as the result of a TBI. The Centers for Disease Control and Prevention estimate that at least 5.3 million Americans currently have a long-term or lifelong need for help to perform activities of daily living (“ADLS”) as a result of TBI.
The leading causes of traumatic brain injury are falls and motor vehicle accidents, being struck by or against an object, and assaults by another person involving traumatic injury to the head. But TBI need not be caused by a blow to the head. A violent jolt of the head such as one might experience in a rear-end collision (“whiplash”) may result in serious brain injury. In a violent collision, the head snaps forward and the brain hits the front of the skull, then the head snaps backward and the brain hits the back of the skull. These impacts can cause serious TBI. “Shaken-baby syndrome” is an example of a serious brain injury being inflicted without a direct blow to the head.
Even in this age of advanced medicine and neurobiology, there is no cure for a TBI. Improvement from a brain injury depends on the brain’s “plasticity,” that is, the brain’s ability to “rewire” itself and have other areas of the brain take over the functions of the damaged areas.
Brains do not heal like broken limbs, and everybody’s brain is different. Although they may superficially appear alike, no two brain injuries are the same and the consequence of two similar traumatic brain injuries may be vastly different.
Health care professionals who deal with TBI do not talk in terms of “recovery,” but rather “improvement.” The word “recovery” implies that that the effects of TBI will disappear, while the reality is that improvement is usually all that can be expected. With TBI, some of the effects may disappear after a couple of years or more, but more frequently these long-term changes linger on, changing only slowly—if at all—over the person’s lifetime.
CATEGORIES OF TBI
TBIs are classified into three categories: mild, moderate, and severe.
A person with a mild TBI is one who has suffered trauma to the brain and: (a) had any period of loss of consciousness and/or confusion, (b) was disoriented or confused for less than 30 minutes, and/or (c) suffered from Post traumatic Amnesia (PTA) (loss of memory for events immediately before or after the accident). Mild TBI is the most common type of TBI, and it is often missed at the time of the initial injury. Fifteen percent of people with mild TBI have symptoms that last one year or more.
Moderate TBI exists when a person has suffered trauma to the brain and: (a) loses consciousness for at least 20 minutes to six hours and/or (b) suffers from Post traumatic Amnesia for more than 30 minutes but less than 24 hours. It also applies where the person has suffered a skull fracture. Moderate TBI may result in long-term physical or cognitive deficits, depending on the type and location of the brain injury. Rehabilitation will help to overcome some deficits and help to provide skills to cope with any remaining deficits.
A severe brain injury is a life threatening condition in which: (a) the person loses consciousness for more than six hours or (b) has Posttraumatic Amnesia lasting longer than 24 hours. If the person lives, she will typically be faced with long-term physical and cognitive impairments, ranging from a persistent vegetative state to less severe impairments that may allow the person, with extensive rehabilitation, to continue to function independently.
DAMAGES DUE TO TBI
Symptoms common to mild TBI include fatigue, headaches, visual disturbances, memory loss, poor attention and/or concentration, sleep disturbances, dizziness and/or loss of balance, irritability, feelings of depression, and, rarely, seizures. Other symptoms associated with mild TBI include nausea, loss of smell, sensitivity to sound and lights, getting lost or confused, and slowness in thinking. Sometimes the cognitive symptoms are not readily identified at the time of the injury, but instead may show up as the person returns to work, school, or housekeeping. Friends and colleagues may notice changes in the person’s behavior before the injured person realizes anything is wrong.
A person who has suffered moderate or severe TBI may suffer from such cognitive deficits as difficulties with attention, concentration, distractibility, memory, speed of processing information, confusion, impulsiveness, language processing, and what are often referred to as “executive functions.” Executive functions refer to the complex processing of large amounts of intricate information that we need to function creatively, competently, and independently as beings in a complex world. After a severe TBI, the person may be unable to function well in her social roles because of difficulty in planning ahead, in keeping track of time, in coordinating complex events, in making decisions based on broad input, in adapting to changes in life, and in otherwise “being the executive” in one’s own life.
Some of the difficulties due to a moderate to severe TBI include speech and language problems, such as not understanding the spoken word, difficulty speaking and being understood, slurred speech, speaking very fast or very slow, and issues with reading and writing. Sensory problems include difficulties with the interpretation of touch, being aware of changes in the temperature, and limb position. Partial or total loss of vision, weakness of eye muscles and double vision, blurred vision, difficulties judging distance, involuntary eye movements, and intolerance of light are other problems frequently found with moderate to severe TBI.
Physical changes include paralysis, chronic pain, loss of control of bowel and bladder, sleep disorders, loss of stamina, changes in appetite, difficulty regulating body temperature, and menstrual problems in women. Moderate to severe TBI can cause a wide range of functional changes affecting thinking, language, learning, emotions, behavior, and sensation. TBI can also cause seizures and increase the risk for such conditions as Alzheimer’s disease, Parkinson’s disease, and other brain disorders that become more likely as the person grows older.
A common complaint among persons who sustain a TBI is fatigue. Studies of people with TBI found that between 37 percent and 98 percent of them said they had some type of fatigue. There are three types of fatigue: (1) physical fatigue, feeling tired and a need to rest, and having muscle weakness; (2) psychological fatigue, in which the person can’t get motivated to do anything, is often accompanied with depression (50-60 percent of persons who suffer a TBI develop major depression, which affects only about 5 percent of the general population at any one time), anxiety (about twice the rate of the general population), Posttraumatic Stress Disorder (PTSD) and other psychological conditions, which may take months or years of psychotherapy to treat and may require psychoactive medication; and (3) mental or cognitive fatigue, in which the person has difficulty concentrating and finds it hard to stay focused, becomes irritable, or has headaches.
LONG TERM EFFECTS OF TBI
The long-term effects of TBI depend on a number of factors, including: (1) the severity of the initial injury, (2) the rate and completeness of physiological healing, (3) the types of functions affected, (4) the resources available to aid in the recovery of function, and (5) other factors. Most spontaneous improvement from a TBI occurs within the first month after a brain injury. Some additional gains may occur over the next three to six months. The long-term effects of a TBI are different for every person. Some may experience only subtle difficulties, others will have moderate dysfunction, while to still others the TBI may be life-threatening.
With TBI, the systems in the brain that control our social-emotional lives often are damaged. The consequences for the individual and his significant others may be very difficult, as these changes may imply to them that “the person who once was” is no longer there. Thus, personality can be substantially or subtly modified following injury. The person who was once an optimist may now be depressed. The previously tactful and socially skilled negotiator may now be blurting comments that embarrass those around them. The person may also be characterized by a variety of other behaviors: dependent behaviors, emotional swings, lack of motivation, irritability, aggression, lethargy, being very uninhibited, and being unable to modify behavior to fit varying situations.
The severity of the injury and the resulting direct effects on the individual’s body systems and cognitive abilities may not predict the amount of impact in a person’s life. For example, a severe injury to the frontal brain area may have less impact on an agricultural worker’s job performance than a relatively mild frontal injury would have on a physicist’s work. Hence, the extent of injury and damages in a specific person’s life will depend on his pre-injury lifestyle, personality, goals, values, resources, as well as his ability to adapt to changes and to learn techniques for minimizing the effects of brain injury.
WORKING WITH A LAWYER
If you or a loved one has suffered a traumatic brain injury due to another person’s carelessness—such as an automobile accident caused by another person’s inattentiveness or a slip and fall on a store’s slippery floor—it is important that you promptly seek representation by a personal injury law firm experienced in this type of injury. Monetary damages you are entitled to receive when you have sustained a traumatic brain injury include all of your medical and rehabilitation costs, lost wages because you were unable to return to work, loss of enjoyment of life due to your impaired condition, pain and suffering, and psychological damage.
31. BURN INJURIES
Approximately 2.4 million burn injuries are reported each year. About650,000 of the injuries are treated by health care professionals. Approximately 75,000 burn victims are hospitalized each year. Of those hospitalized, 20,000 have major burns involving at least 25 percent of their total body surface. Between 8,000 and 12,000 patients with burns die, and several hundred thousand sustain substantial or permanent disabilities resulting from these injuries. Burn injuries are the second leading source of accidental death in the United States, following only the number of deaths resulting from motor vehicle accidents.
TYPES OF BURNS
There are five major of types of burns: thermal burns; friction burns;electrical burns; chemical burns; and radiation burns.
1. Thermal Burns: This is the most frequent type of burns and are caused by fire or excessive heat coming from such sources as steam, hot liquids, or contact with hot objects. In automobile collisions or motorcycle accidents, there is always the risk of a ruptured gas tank or loosened gas line that ignites and catches fire, burning the people in the vicinity.Even when the person is removed from the source of the thermal burn, damage to his skin is still taking place and therefore the prompt administration of first aid is required. Depending upon their severity, thermal burns can cause anywhere from the minor discomfort of firstdegree burns to life-threatening third-degree burns. In thermal burns, as well as other types of burns, the swelling and blistering of the burned skin is caused by the loss of fluid from damaged blood vessels. In severe cases, such fluid loss can cause shock. Immediate blood transfusion and/or intravenous fluids may be needed to maintain blood pressure. Due to the damage to the skin’s protective barrier, burns often lead to infection, which if not treated promptly and appropriately can result in life-threatening consequences, even death.
- Inhalation Burns: Fire and heat have been associated with several types of inhalation injuries as well as burns to the flesh. (Inhalation injuries also occur with different types of burns, such as the inhalation of a caustic chemical.) When inhalation injuries are combined with external burns, the chance of death increases significantly.
The three types of inhalation injuries are:
- Damage from Heat Inhalation: True lung burns occur only if the person directly breathes in hot air or a flame source, or high pressure forces the heat into him. In most cases, thermal injury is confined to the upper airways. However, secondary airway injury can occur if a person inhales steam, as it has a greater thermal capacity than dry air.
- Damage from Systemic Toxins: Systemic toxins affect our ability to absorb oxygen. If someone is found unconscious or acting confused in the surroundings of an enclosed fire, the inhalation of systemic toxins could be a possible cause. More than a hundred known toxic substances have been identified in fire smoke. Toxin poisoning can cause permanent damage to internal organs, including the brain. Carbon monoxide poisoning can appear without symptoms up until the point where the victim falls into a coma.
- Damage from Smoke Inhalation: Injuries that were caused by inhaling smoke can easily be missed because of more visible injuries, such as burns as a result of the fire. Sometimes this leads to the victim not receiving the necessary medical treatment due to the rescue teams taking care of the more severely burned victims whose injuries are more apparent. People who appear unharmed can collapse due to a major smoke inhalation. Sixty to eighty percent of fatalities resulting from burn injuries are due to smoke inhalation. Signs of smoke inhalation injury usually appear within 2 to 48 hours after the burn occurred. Symptoms of smoke inhalation include: (1) fainting; (2) evidence of respiratory distress or upper airway obstruction; (3) soot around the mouth or nose; (4) nasal hairs, eyebrows, and/or eyelashes have been singed; and/or (5) burns around the face or neck. Upper airway swelling (“edema”) is the earliest consequence of inhalation injury, and it is usually seen during the first 6 to 24 hours after the injury. Early obstruction of the upper airway is managed by intubation. Initial treatment consists of removing the patient from the smoke and allowing him to breathe air or oxygen.
2. Friction Burns: This type of burn commonly occurs when a person is dragged along a surface. For instance, in a motor vehicle-motorcycle accident in which the motorcyclist is dragged a certain distance, he will likely sustain friction burns caused by the asphalt or cement unless he was wearing protective clothing. Joggers, pedestrians, and bicyclists are at high risk for friction burns when they are injured by an automobile or other motor vehicle. When a person has been dragged in an accident, he usually sustains abrasion injuries as well as a friction burn.
3. Electrical Burns: Contact between a person and an exposed live wire line or other electrical source is the cause of electrical burns. Contact with a high-voltage power source often results in limbs being severely burned, as the electricity seeks a way out of the body. With some voltage sources, the person is unable to release his grasp on the power line or object, often resulting in electrocution. Besides the damage to the skin and limbs, electrical burns can severely affect the internal organs as well.
4. Chemical Burns: Chemical burns are caused by acids and other caustic substances, many of which are found in household cleaning products.
5. Radiation Burns: Radiation burns are caused by exposure to the sun, tanning booths, sunlamps, X-rays, radiation treatment for cancer, and nuclear medicine.
DEGREES OF BURNS
The severity of burns has traditionally been described in terms of degree. First-degree burns are the most shallow (superficial), and they affect only the top layer of the skin, the epidermis. First-degree burns are red, moist, swollen, and painful, and such burns may result in peeling and in severe cases, shock. Second-degree burns extend into the middle layer of the skin, the dermis, and often affect the sweat glands and hair follicles. Second-degree burns are red, swollen, and painful, and they develop blisters that may ooze a clear fluid. The skin may be white or charred, and the person may go into shock. If a deep second-degree burn is not properly treated, swelling and decreased blood flow in the tissue can result in the burn receiving a third degree burn classification as the body’s condition worsens.
Third-degree burns involve all three layers of the skin—the epidermis, the dermis, and the fat layer—and usually destroy the nerve endings as well. In third-degree burns, the skin becomes leathery and may be white, black, or bright red, with coagulated blood vessels visible just below the skin surface. There is usually little pain with third-degree burns, as the nerves have been destroyed, but the victim may complain of pain. This pain is usually due to second-degree burns. Healing from third-degree burns is very slow due to the skin tissue and structures having been destroyed. Burns of this severity usually result in extensive scarring. There are also fourth-degree burns, which involve damage to muscle, tendon, and ligament tissue.
The categorization of burns in terms of degrees is being phased out in favor of one reflecting the need for surgical intervention. The new language refers to burns as superficial, superficial partial-thickness, deep partial-thickness, and full-thickness.
Twenty-five years ago, people who had suffered burns over 25 percent or more of their bodies were likely to die of their injuries. Today, advances in medicine make it possible to save many victims who have been burned over 90 percent of their bodies. Of course, these survivors will have long-term impairment, disability, scarring, and disfigurement, and they may never get back to leading a normal life.
When burn damage is due to another person’s negligence, that person must compensate the victim for all of her injuries, financial, physical, and emotional. Over half of serious burn victims are now treated in the approximately 200 hospitals or clinics specializing in burn treatment. Many hospitals now have trauma teams that are specially educated in the treatment and management of burns.
TYPES OF SCARS
As burns heal, scars develop. There are three major types of burn related scars: (1) keloid; (2) hypertrophic, and (3) contracture.
Keloid scars are an overgrowth of scar tissue that grows beyond the site of the burn, are generally red or pink at first, and will become a dark tan over time. They occur when the body continues to produce collagen, a tough fibrous protein, after the wound has healed. Keloid scars are thick, nodular, ridged, and itchy during formation and growth. Extensive keloids may become binding and limit the person’s mobility. Additionally, clothing rubbing or other types of friction may irritate this type of scar. Dark-skinned people are more likely to develop keloid scars than those with fair skin, and the possible occurrence of keloid scars reduces with age. Keloid scars may be reduced in size by freezing (cryotherapy), external pressure, cortisone injections, steroid injections, radiation therapy, or surgical removal.
Hypertrophic scars are red, thick, and raised, but unlike keloid scars these do not develop beyond the site of injury or incision. Additionally, hypertrophic scars will improve over time. This time can be reduced with the use of steroid application or injections.
The third type of scar, a contracture scar, is a permanent tightening of skin that may affect the underlying muscles and tendons; this can limit mobility, and there can be possible damage or degeneration of the nerves. Contractures develop when normal elastic connective tissues are replaced with inelastic, fibrous tissue. This makes the tissues resistant to stretching and prevents normal movement of the affected area. Physical therapy, pressure, and exercise can help in controlling contracture burn scars in many cases. If these treatments do not control the effects of contracture scars, surgery maybe required. A skin graft or a flap procedure may be performed. The doctor may recommend a newer procedure, such as Z-Plasty or tissue expansion.
SURGICAL PROCEDURES TO IMPROVE SCARS
There are two major types of surgical procedures that can help to conceal scarring and replace lost tissue for severe burn victims: (1) dermabrasion and (2) skin grafts.
Dermabrasion is a surgical procedure to improve, smooth, or minimize the appearance of scars, restore function, and correct disfigurement resulting from a burn injury. Even with dermabrasion, scars are permanent but their appearance will improve over time. Dermabrasion may be performed in a dermatologic surgeon’s office or in an outpatient surgical facility.
A skin graft is a surgical procedure in which a piece of skin from one area of the person’s body is transplanted to another area of the body. Skin from another person or animal may be used as a temporary cover for large burn areas to decrease fluid loss. The skin is taken from a donor site, which has healthy skin, and it is then implanted at the damaged recipient site. Skin grafts and flaps are more serious than other scar revision surgeries, such as dermabrasion. They are usually performed in a hospital under general anesthesia. Depending on the size of the area and severity of the injury, the treated area may need six weeks to several months to heal. Within 36 hours of the surgery, new blood vessels will begin to grow from the recipient area into the transplanted skin. Most grafts are successful, but some may require additional surgery if they do not heal properly.
The success of a skin graft can usually be determined within 72 hours of the surgery. If a graft survives the first 72 hours without an infection or trauma, the body in most cases will not reject the graft.
Before surgery, the recipient and donor sites must be free of infection and have a stable blood supply. Following the procedure, moving and stretching the recipient site must be avoided. Dressings need to be sterile and antibiotics may be prescribed to avoid infection.
For many severely burned persons, skin grafts using their own healthy skin are not possible. These patients tend to have very little healthy skin or they may not be strong enough for the surgery. When other sources of skin must be used, options can be cadaver skin or animal skin. The body will usually reject both of these procedures within a few days and the surgery will need to be performed again. A synthetic product called Dermagraft-TC is made from living human cells and it is being used now instead of cadaver skin. The FDA has approved Dermagraft-TC and two artificial “interactive” burn dressings for use in treating third-degree burns. Unlike traditional bandages, some new dressings promote wound healing by interacting directly with body tissues.
Other substitute skin products may become available soon. Already, in addition to artificial skin, there is cultured skin. Doctors are able to take a postage-sized piece of skin from the patient and grow the skin under special tissue culture conditions. From this small piece of skin, technicians can grow enough skin to cover nearly the entire body in just three weeks.
COST OF TREATMENT/GETTING LEGAL HELP
Serious burns are one of the most expensive catastrophic injuries to treat, and they can lead to lasting physical disability and emotional damages. For instance, a burn of 30 percent of total body area can cost several hundred thousands of dollars in initial hospitalization costs and physician fees. For more extensive burns, there are additional significant costs, such as the cost of multiple admissions for reconstruction and for rehabilitation. Scars may heal physically but they remain visible and last emotionally. Hence, it is of utmost importance if you have been severely burned due to another person’s carelessness, that you retain an experienced personal injury lawyer who understands serious burn injuries. This type of lawyer can help you get full compensation for the physical and emotional trauma associated with the burns. You are entitled to recover all of your medical expenses—past and future—lost wages, pain and suffering, loss of enjoyment of life, and other damages.
Losing a limb due to a traumatic injury is the most common reason for an amputation among people younger than 50. The leading causes of those injuries include motor vehicle and motorcycle accidents, farm machines, power tools, and factory/industrial machines and equipment. Another source can be products that are dangerously designed, do not have sufficient safety measures built in, and/or lack a properly placed “off” switch. Traumatic amputation usually occurs at the scene of the accident, when the limb is completely or partially severed. Sometimes the injured person will make it to the hospital with the limb still attached, but it has been so badly crushed or mangled that amputation is necessary.
The amputation may be of one or more toes or fingers, a foot or a hand, a leg below or above the knee, or an arm below or above the elbow. A person may sustain amputations of more than one limb, such as both legs, both arms, or one of each. For instance, when a person comes into contact with an exposed, downed high-voltage power line, it is not at all unusual for the person to suffer the amputation of more than one limb as the electricity seeks paths to leave the body. Hemicorporectomy, or amputation at the waist downward, is the most radical—and rare—of all the types of amputations. The majority of trauma-related amputations are of the arms (approximately 65 percent compared to 35 percent for leg amputations), and men are at a significantly higher risk than women for trauma-related amputations. However, the number of amputations in women is on the rise, as is the age of the victim who requires an amputation. If an accident or other trauma results in the complete amputation of the limb (i.e., the body part is totally severed), that part sometimes can be reattached, especially when proper care is taken of the severed part and the stump. However, often the victim will have a better outcome from having a well-fitting, functional prosthesis than a nonfunctional reattached limb.
The long-term outcome for persons who have lost a limb has improved greatly due to a better understanding of the management of traumatic amputation, early emergency and critical care management, new surgical techniques, early rehabilitation, and new prosthetic designs. But make no mistake about it: the loss of a limb is still a serious injury that requires major changes to your life. No amount of money and no prosthesis can ever replace a natural, fully functional limb.
Severe and persistent pain can be a fact of life for someone who has suffered a traumatic amputation. Up to 80 percent of all amputees still experience pain in their residual limb (the “stump”) and in the part that is now missing, known as “phantom pain.” Doctors are unsure exactly how this works, but to the injured victim the phantom pain in his missing limb feels as real and painful as if the missing limb were still attached. Rather than feeling pain in the missing limb, some amputees feel only phantom sensations, such as itching, burning, aching, pressure, touch, wet or dry, hot or cold, or movement in the missing limb.
Pain management is essential to the proper medical treatment of amputees. There are two types of pain in amputation cases: acute and persistent. Acute pain is usually severe in intensity but lasts a relatively short time. Persistent pain generally ranges from mild to severe, and lasts for long periods of time sometimes years. In the beginning of treatment,when pain is new and at its peak, it may be necessary to prescribe a drug from that group of pain medications known as “opioids.” This category of drugs includes morphine, oxycodone, and codeine. Because of the risk of becoming addicted to an opioid drug, after the critical stage has ended and the pain is less intense, the doctor may switch the victim to a non-steroidal anti-inflammatory drug (NSAID), such as ibuprofen (e.g., Advil or Motrin), aspirin, acetaminophen (Tylenol), or naproxen (Aleve). If severe pain persists despite the use of medications and physical therapy, the victim may be referred to a pain management doctor or clinic.
In many cases, a prosthesis (artificial limb) will enhance an amputee’s mobility and ability to perform the “activities of daily living” (ADLs), such as using the restroom by themselves, dressing themselves, making their own meals, showering, brushing their teeth, etc. A prosthesis must be fit to the individual and should be comfortable, functional, and cosmetic. Training by a skilled physical and/or occupational therapist is necessary before and after receiving a prosthesis. This training will help to maximize the functional use of the artificial limb, and it will also help to prevent the development of bad habits that may be difficult to break later.
While advances in medical treatments and surgical techniques continue, over the past decade, improved outcomes following amputation have largely been the result of advances in prosthetic technology. For instance, for lower-limb (i.e., leg) amputees, the number of prosthetic feet that provide “dynamic response” and the ability to maneuver on uneven surfaces continues to increase. Additionally, at least one microprocessor controlled prosthetic foot-ankle unit is now available. For above-the-knee amputees, there are currently five different prosthetic knee units that use microprocessor-control. These units allow for more normal knee motion and stability through computerized parts that monitor motions and forces and make extremely rapid real-time adjustments while walking. This results in improved walking ability, requiring less effort.
For upper-limb (i.e., arm) amputees, the original body-powered (i.e., cable controlled) prosthetic designs remain in common use, are the most durable, and continue to improve. Although using electrical signals from the muscles (“myoelectric componentry”) to control prostheses for the upper limb has been in use for over 40 years, this technology continues to advance, with associated further enhancements in function. To improve the ability of high-level (close to or through the shoulder) upper-limb amputees to use a myoelectric prosthesis, in 2006 a surgical technique called “targeted reinnervation” was introduced, in which motor and sensory nerves are transferred to improve motor control and sensory feedback during prosthetic use. The application of this technique is still in its early stages. In most cases, the amputation victim is measured for a prosthesis several weeks after surgery, when the wound has healed and the tissue swelling is decreased. The medical team will be concerned with maintaining the proper shape of the residual limb, as well as increasing overall strength and function.
The amputee will most likely need to make several visits for adjustments with the professional who made the prosthesis (the prosthetist), as well as extensive training with a physical therapist to learn how to use it. They can help the amputee ease pressure areas, adjust alignment, work out any problems, and regain the skills the amputee needs to adapt to life after limb loss.
Some people are not good candidates for prostheses, and these amputees will need to rely on mobility devices, such as a wheelchair or crutches. For instance, a person who has had both legs amputated (a “bilateral” amputee) may opt for a wheelchair, while a person who has had only one leg amputated (a “unilateral” amputee) may opt for a prosthesis. Of course, a unilateral lower-limb amputee who has had a prosthesis made for her may find it useful to use a cane or crutches for balance and support in the early stages of walking. Whether to use a prosthesis or a mobility device such as a wheelchair may be an individual decision based on such factors as the person’s age, balance, strength, and sense of security, as well as the location and extent of the amputation.
Once the amputee has been fitted for a prosthetic limb, has mastered (or is well on her way to mastering) its use, and feels comfortable with its function, this is not the end of the road for the amputee. She will still need to make periodic follow-up visits to her doctor and prosthetist as a normal part of her life. Proper fit of the socket and good alignment will ensure that the prosthesis is still useful to the amputee and is not causing the amputee discomfort, pressure sores, or other problems. Artificial limbs can break down over time and with continued use, and changes in the physical shape and condition of the amputee’s residual limb (i.e., the stump) may require the amputee to go in and have adjustments made to an old prosthesis or get a new one made. Even small problems with the prosthesis should be brought to the immediate attention of the prosthetist. That way, the issue can get attention before that small problem suddenly results in the failure of the prosthesis and becomes a large problem, resulting in further injury to the amputee.
After the amputee has had her surgery and has been fitted for an artificial limb, she will need to keep a focus on the care of the wound site and maintenance of the residual limb (i.e., the stump). Any skin opening, whether it be for surgery or due to an improperly fitted prosthesis, runs the risk of becoming infected by germs entering the bloodstream through the opening. Infections can cause tenderness or pain, fever, redness, swelling,and/or discharge. These infections can lead to further complications that will require medical intervention, even surgery. If the infection is not treated in a timely manner, it is possible that the infection will grow and spread, causing death.
The amputee will always need to pay special attention to the hygiene of her residual limb, as it will be enclosed in the socket or liner of the prosthesis and thus will be more prone to skin breakdown and infections. If an amputee suspects that she is getting an infection, she should promptly see her medical doctor before it gets out of hand. If you are being fitted for a prosthetic limb, ask your prosthetist for information on caring for your residual limb to prevent infections and what to do if you suspect you have one.
In addition to the intense physical pain and emotional discomfort, the victim may suffer severe psychological trauma that will require intensive and prolonged mental health care intervention. Studies show that civilians suffering the loss of a limb in, say, a traffic accident have a greater risk of experiencing serious psychological problems than servicemen and women who have suffered a traumatic amputation as a result of, e.g., the explosion of a roadside explosive device while serving her country in the Middle East.
From a psychological viewpoint, losing a limb is one of the most traumatic psychic events and losses you can suffer. Initially, the victim will feel tremendous grief over the loss of the limb. When the amputation is due to another person’s careless act, the victim will at some point usually feel anger, even rage, toward that person. And as time goes by, the victim may fall into a deep clinical depression stemming from the loss of the limb. A victim suffering from mental and emotional problems arising from the loss of a limb should be treated by a psychologist and/or psychiatrist. The victim will need psychotherapy and, particularly in the case of depression, psychoactive medication to treat her mental condition. An amputee may become so despondent over the loss of her limb(s) that she attempts or completes suicide.
33. PSYCHOLOGICAL INJURIES
Monetary compensation for psychological injuries such as Posttraumatic Stress Disorder (PTSD), depression, anxiety, and phobias needing professional help are recoverable in most cases with proper psychiatric or psychological care and the use of psychoactive medications in many cases. In one automobile accident case, a father and his 16-year-old daughter were seriously injured in a horrendous head-on collision. However, a 15-year-old cousin who was sitting in the back seat with her seatbelt on escaped with just a few cuts and bruises. The newspaper that covered the crash dubbed her lack of serious injuries a “miracle.” Fast forward six months: the father and daughter are well on their way to full recoveries. However, things could hardly be worse for the “miracle girl” who avoided any physical injury with nary a scratch.
Soon after the accident, the girl began getting anxious when riding in a car. These feelings of general anxiety progressed to full-blown panic attacks that prevented the girl from riding in a car at all. Eventually, the girl’s anxiety and panic became so strong that she was afraid to leave the house without a safe companion, and she was becoming frightened leaving the house even with a safe person. The girl had developed a psychiatric condition known as panic disorder with agoraphobia that rendered her housebound. While she needed mental health care to overcome her fears, the girl was too scared to leave home to travel to the office of a psychiatrist or psychologist. She also developed severe depression.
The point of this case is to demonstrate that even when a person escapes serious physical injury, he may develop severe psychological damages that significantly impair his functioning in and enjoyment of life. And it doesn’t have to be a serious accident to cause severe psychological injuries.
People who get in serious accidents can develop Posttraumatic Stress Disorder (PTSD), the same type of anxiety that combat soldiers often develop. The person may suffer nightmares about being in the accident, wake up in the middle of a summer’s night in a cold sweat, duck for cover at loud noises such as a car backfiring, etc.
Many people who have been involved in an accident develop major depressive disorder (MDD), even if they were not physically harmed or suffered only superficial physical injuries. The outgoing high-achieving high school student who was a passenger in a car that was involved in an accident, but escaped with only a few cuts and bruises, may turn sullen, lose interest in activities she used to enjoy, sleep too much or too little, experience fatigue or tiredness throughout the day, feel worthless or guilty, or have a diminished ability to think or concentrate. At its most serious, depression may result in the girl having recurrent thoughts of death and suicidal ideations. In the worst case scenario, if the girl does not get adequate mental health care in time, she may commit suicide, all stemming from an accident she was involved in but didn’t suffer any serious physical injuries.
Psychological damage resulting from another person’s careless conduct is real, debilitating, and sometimes deadly. If you find that a family member or loved one is acting differently since he has been involved in an accident of any type, encourage that person to see a psychiatrist or a psychologist for a mental health evaluation. A psychiatrist is a medical doctor (M.D.), while a psychologist is either a Ph.D. or Psy.D. Only a psychiatrist can prescribe medication, such as antidepressants or anti-anxiety drugs.Without a proper mental health checkup, your loved one may suffer excrutiating psychic pain and lose all interest in others, things he used to enjoy, and even life itself. With proper psychotherapy and/or psychoactive medication, your loved one should be back to his old self again in several months.
34. PAIN AND SUFFERING
In many personal injury cases, compensation for the physical pain and emotional suffering you experienced and will continue to suffer because of another person’s negligence often constitute a significant portion of the damages you are entitled to receive. Indeed, monetary compensation for physical and psychological pain and suffering constitutes the lion’s share of many personal injury awards. Note, however, that in medical malpractice cases, an award for pain and suffering (and other “non-economic” damages) are limited to $250,000.
The amount of compensation the jury will award for pain and suffering depends upon the type and nature of the injury. For instance, a jury will award a person who has suffered serious burns over 30 percent of her body a significantly higher amount of compensation for pain and suffering than it will award a person who has suffered a typical whiplash injury. Pain and suffering is a catch-all phrase that includes such things as:
The Texas Court of Appeals once stated,
At the end of a personal injury trial, when giving the jury its instructions, the judge will inform the jury not to speculate and that neither emotion nor prejudice has a place in their deliberations. The judge further instructs the jury that the only award permissible in a personal injury case is one lump sum for all time, in precise, cold, hard dollars and cents. Continuing his instructions to the jury, the judge will say further that “pain and suffering,” “ridicule,” “humiliation,” “embarrassment” and the like all shall be evaluated, and only “in terms of dollars and cents.” Then, as the jurors expectantly wait for further instructions of what is the evaluator or yardstick of the pain and suffering they are to award, the “kilowatt” of pain and suffering, they learn that the judge can give them no such yardstick because none exists. Every case must be determined on its own merits.
After telling the jury that they must return a verdict only in “dollars and cents” for pain and suffering, one judge said: “Under the head of this matter of pain with suffering and humiliation, I am unable to give you any definite rule by which you can assess damages. However, the law allows jurors to assess damages for pain and suffering and humiliation. Nobody can measure pain and suffering in damages. No one can value them particularly. If a man said to you, ‘What would you take to suffer this or that,’ usually they would tell you they would not take anything. There is no way of measuring pain and suffering definitely. But I say to you, ladies and gentlemen of the jury, it is a proper measure of damages. The only thing I can say to you about assessing damages in this kind of case for pain and suffering is that it is just a question of plain common sense. One judge has said it was just a matter of plain horse sense, and that particular statement was approved by the Supreme Court. Allow just such a sum as you think should be allowed in dollars and cents.”
Loss of enjoyment of life can be a major element of pain and suffering for which monetary compensation is available in a personal injury case. For example, assume that you’re an active man in his mid-twenties, playing basketball and tennis several times a week, and running in the occasional marathon or taking part in triathlons. Because of another person’s carelessness, you suffer an injury to your right leg that due to its severity prevents you from engaging in the activities you used to enjoy. You are entitled to receive fair compensation for this “loss of enjoyment of life.”
In California, the victim’s lawyer cannot argue to the jury how much money they would take to trade shoes with the injured person and ask what they would charge or expect as compensation for the pain and suffering endured by the injured plaintiff if it happened to them. This is known as the “Golden Rule” argument and is considered prejudicial to the defendant. The jury is instructed merely that they are required to award an amount for pain and suffering that is reasonable in light of the evidence admitted at the trial, and that they must not let bias, sympathy, prejudice, or public opinion influence their decision.
In one case, the plaintiff’s lawyer, during closing argument, asked the jury to assess damages from their own perspective, to act as “a personal partisan advocate for the injured party, rather than any unbiased and unprejudiced weigher of the evidence.” The appellate court found this was an improper argument, because it was essentially a plea to apply the Golden Rule standard.
However, although the law prevents the victim’s lawyer from asking the jury to put themselves in the victim’s place, when the injury results in an injury that will cause the victim pain and suffering for the future, even for rest of his life, California law permits the victim’s lawyer to argue a per diem standard to determine the amount of her client’s compensation. Under the per diem rule, an amount for hourly or daily pain is multiplied by the number of hours or days of the plaintiff’s life expectancy. For instance, the victim’s attorney can argue that the injured victim is entitled to, say, $100 a day for his pain and suffering, multiplied by the plaintiff’s life expectancy.
This means that a person suffering $100 per day of pain and suffering would be entitled to compensation of $36,500 per year, multiplied by the number of years of his life expectancy. Thus, if the plaintiff’s life expectancy is 10 years, the plaintiff would be allowed $365,000 for pain and suffering. If his life expectancy were 20 years, he or she would be allowed $730,000 and so forth.
As the California Supreme Court has stated, there is no definite standard or method of calculation prescribed by law by which to fix reasonable compensation for pain and suffering. No method is available to the jury by which it can objectively evaluate such damages, and no witness may express his subjective opinion on the matter. In a very real sense, the jury is asked to evaluate in terms of money a detriment for which monetary compensation cannot be ascertained with any demonstrable accuracy. Translating pain and suffering into dollars can, at best, be only an arbitrary allowance, and not a process of measurement, and consequently the judge can give the jury no standard to go by; the judge can only tell the jury to allow such amount as in their discretion they may consider reasonable. The chief reliance for reaching reasonable results in attempting to value suffering in terms of money must be the restraint and common sense of the jury.
The jury must impartially determine pain and suffering damages based upon evidence specific to the victim, as opposed to statistical data concerning the public at large. The only person whose pain and suffering is relevant in calculating a general damage award is the victim. How others would feel if placed in the victim’s position is irrelevant.
35. DAMAGE TO YOUR VEHICLE AND ITS CONTENTS
Suppose that you are in an accident which is entirely the other driver’s fault and your two-year-old car is totaled. Is the other driver responsible for buying you a new car? No. When a car or other personal property is damaged or destroyed, the measure of damages is: How much will it cost to fix it? If it can’t be fixed, how much is its replacement value? For instance, let’s say you paid $25,000 for your car two years ago, but the fair market value of a two-year-old car of the same make and model was $17,500 at the time of the accident that destroyed your car; under these circumstances, the most you can recover from the other driver is only $17,500. This is true even though you are likely to still owe more on your car loan than $17,500. Or if the cost of repairing your vehicle after such an accident exceeds its fair market value, the defendant would nevertheless only have to pay you the fair market value of the vehicle.
Likewise, if any contents you had in your car were damaged or destroyed during the accident, the party at fault must compensate you for their fair market value at the time of the accident. If the party at fault is uninsured, you will ordinarily have to recover the value of the contents by submitting a claim to your homeowner’s insurance company.