Overview of Catastrophic Cases
Overview of Catastrophic Cases
Timothy R. Titolo
What Constitutes a Catastrophic Injury?
For many, the term “catastrophic injury” needs no definition. Most know a catastrophe when they see one. Federal law defines “catastrophic injury” as an injury whose consequence permanently prevents an individual from performing any gainful work. 42 U.S.C.A. § 3796b.Moreover, Nevada law includes a serious illness or accident that renders the employee unable to perform his/her duties and is either life threatening or requires a lengthy convalescence as a “catastrophe” for purposes of a public employee who wishes to take "catastrophic leave".Nev. Rev. Stat.§ 284.362; Nev. Rev. Stat.§ 281.153.
Types of Catastrophic Injury
Although Nevada law does not specify the various types of catastrophic injuries, the following classification from Georgia statute provides a good overview of examples of catastrophic injuries:
(a) Spinal cord injury involving severe paralysis of an arm, a leg, or the trunk;
(b) Amputation of an arm, a hand, a foot, or a leg involving the effective loss of use of that appendage;
(c) Severe brain or closed-head injury as evidenced by:
1. Severe sensory or motor disturbances;
2. Severe communication disturbances;
3. Severe complex integrated disturbances of cerebral function;
4. Severe episodic neurological disorders; or
5. Other severe brain and closed-head injury conditions at least as severe in nature as any condition provided in subparagraphs 1.-4.;
(d) Second-degree or third-degree burns of 25 percent or more of the total body surface or third-degree burns of 5 percent or more to the face and hands;
(e) Total or industrial blindness; or
(f) Any other injury that would otherwise qualify under this chapter of a nature and severity that would qualify an employee to receive disability income benefits under Title II or supplemental security income benefits under Title XVI of the federal Social Security Act as the Social Security Act existed on July 1, 1992, without regard to any time limitations provided under that act.
Ga. Code Ann., § 34-9-200.1.
Evaluating Liability and Damages
The Supreme Court of Nevada has held that damages in personal injury cases should be calculated based on modicum of rationality and not with mathematical precision. See Greco v. U.S., 893 P.2d 345, 418 (Nev. 1995). In Hill v. U.S, 854, F. Supp, 727 (D. Colo., 1994), the federal district court in Colorado considered the following facts in evaluating the economic damages in a catastrophic injury claim:
1. Expenses for periodical medical care that is required during the lifetime of the injured with regard to the nature of injury suffered. See id. at 730.
2. Expenses for present and future medication and supplies with regard to the nature of the injury suffered. See Id.
3. Expenses for providing and facilitating required personal care to the injured depending upon the nature of the injury. See id.at 730-31.
4. Expenses for providing psychological counseling to the family members of the injured to cope with the injured person’s demands and need and to assist them in providing care to the injured. SeeiId.at 731.
5. Expenses for appointing case management professional to assist in the planning, coordinating and supervising the care of the injured depending upon the complexity of the medical and physical care services required by the injured. See id.
6. Expenses for the special transportation facilities that the injured person’s physical impairment requires. See id.
7. Expenses for developmental assessment to monitor the developmental progress and to access the injured person’s needs. See id.
8. Expenses for rehabilitation services to give required physical therapy and other therapies such as occupational therapy, speech therapy etc., depending upon the nature of the injury. See id.
9. Expenses for special equipments required for the injured. See id. at 732.
10. Expenses for home modification that is required by the family to modify the home to accommodate injured person’s special equipments and needs. See id.
Apart from the above, economic damages are also awarded on the basis of future loss in earning capacity. See id.
Evidentiary Issues
I am writing from the perspective of a practitioner and have attempted to provide an overview of the evidentiary issues associated with litigating catastrophic injury claims, especially from the plaintiff’s perspective. My intent is not to provide an academic discussion that covers all aspects of this topic. However, for a deep and detailed discourse, please see 72 Am. Jur. Proof of Facts 3d § 363 (2007) which discusses these issues in the catastrophic brain injury context. I have used the foregoing resource as a reference point for organization and to identify key points.
Injury:
More often than not, in a catastrophic injury, particularly a traumatic brain injury, the injured person exhibits memory deficits. Even though such people cannot describe the situation exactly, the occurrence of the injury has to be ascertained by the circumstances surrounding the accident/incident. It is the duty of plaintiff's counsel to carefully analyze all available evidence about the accident and endeavor to integrate each of those facts into a cohesive narrative that shows the finder of fact that the defendant acted in a negligent manner. Plaintiff’s counsel should supplement the plaintiff’s deposition testimony with other prior statements if the plaintiff is unable to recall the facts of the accident. Counsel should be mindful, however, that such deposition testimony should corroborate rather than contradict the plaintiff's prior statements or testimony.
Elements to Establish:
The necessary elements to establish negligence by the defendant are long-established: a legal duty to the plaintiff, a breach of that duty, and damages proximately caused by the breach of duty. It is the plaintiff's ability to establish a prima facie case through circumstantial evidence which is of particular importance in claims involving traumatic brain injuries given the frequent inability of brain-injured clients to recall the specific facts surrounding their injuries. If the case is based on circumstantial evidence, the plaintiffs must present facts from which the defendant's negligence and causation of the accident by that negligence may be reasonably inferred.
Generally, causation of a medical condition and permanency of an injury must be established by testimony of medical experts. Such testimony must show that the indicators of a permanent disability resulting from the traumatic brain injury outweigh those to the contrary. Claiming damages for loss of earning capacity is generally recoverable when such loss is an immediate and necessary consequence of an injury.
Duty to plaintiff and the court’s view:
In the context of a brain injury case, whether defendant has a duty to the plaintiff is a question of law that has to be decided by the court. Once the court determines that one party owes a duty to another, it is important to know the scope and extent of the duty, namely the standard of care that the defendant had to meet and the actual care that the defendant took. Once the court has determined the appropriate standard of care, the jury addresses the factual question of whether that duty has been breached.
Further, there is no legal requirement that a jury make a damage award simply because liability is found. In determining the appropriate amount of compensation for such loss, the jury must consider the plaintiff's age and occupation, the nature and extent of the plaintiff's pre-injury employment, the value of the plaintiff's services and the amount of income that the plaintiff was earning at the time of injury. For ascertaining the damage, expert testimony is not certainly required, but it may be of assistance to the jury, especially on the issue of lost earnings. However, plaintiff's personal projection of future loss of earnings may be admitted where the future plans described by plaintiff are consistent with facts in evidence regarding his or her employment and educational history and where the plaintiff's projections are supported by expert medical testimony.
Damages:
A plaintiff may make a claim for money damages including actual damages, compensatory damages (including reimbursement for attorney fees and for retaining experts, compensation for medical injuries, subsequent injuries, disability, compensation for lost earning capacity, and plaintiff's personal projection of future loss of earnings). Any award of punitive damages is completely within the discretion of the fact-finder.
Plaintiff’s counsel should also be mindful of the duty to mitigate damages. In Nevada, the law regarding the mitigation of damages states that “[a] person who has been damaged by the wrongful act of another is bound to exercise reasonable care and diligence to avoid loss and to minimize the damages, and he may not recover for losses which could have been prevented by reasonable efforts on his part or by expenditures that he might reasonably have made.”Lublin v. Weber, 108 Nev. 452,454 833 P.2d 1139, (Nev., 1992); Silver State Disposal Co. v. Shelley, 105 Nev. 309, 774 P.2d 1044 (Nev., 1989). Defense counsel should, of course, explore any possible failure to mitigate by the plaintiff as a potential defense to avoid or reduce a damages award.
The Nevada collateral source rule prohibits the jury from reducing the plaintiff's damages on the ground that the plaintiff received compensation for his injuries from a source other than the tortfeasor. Nev. Rev. Stat. § 17.130;Bass-Davis v. Davis, 134 P.3d 103, 110-11 (Nev. 2006). Plaintiff’s counsel should be mindful to object to any attempts by the defense to introduce evidence of other sources of compensation for the plaintiff. Introduction of such evidence can lead to a new trial for the plaintiff. See Davis, 134 P.3d at 111.
Discovery and Investigation
Generally, litigation discovery is governed by Fed. R. Civ. Pro. 26 for federal trials and Nev. Rev. Stat. Rule 16.2(b)(2) for Nevada state court litigation. However, my discussion is aimed at providing an overview of some of the specific discovery issues that arise in the catastrophic injury context. For a more detailed discussion, I refer you once again to 72 Am. Jur. Proof of Facts 3d § 363 (2007), which I have used to help organize this discussion and to identify salient points for this overview.
1) Information to be obtained from the plaintiff prior to commencement of litigation:
The discovery methods in such cases require a thorough prior knowledge of all the previous incidents surrounding the plaintiff’s injury to maximize the results of the trial for the plaintiff. Discussion with the plaintiff about the mechanism of injury, resulting symptoms and long term effects serves as a primary source of information. Plaintiff’s counsel may obtain necessary information from potential witnesses such as the physicians who treated the plaintiff both prior and/or subsequent to the injury, information from the family members of the injured describing the affect, frustration, post-injury emotional distress, and information from the plaintiff’s employer, and co-workers about the changes they have noted in the plaintiff’s ability to work.
2) Information to be obtained from medical expert.
The next step in the preparation of the discovery proceedings would be to consult the expert who will be called at trial as part of the plaintiff’s case. Besides obtaining the background information of the expert, the other important information to be obtained from the expert is his prior litigation history mentioning the percentage of cases in which the expert testified on behalf of the plaintiff and the defendant and also the educational and employment qualifications. Counsel should ask the expert regarding the date, location of the first contact with the plaintiff, the occasions on which the plaintiff will require treatment, tests performed (and the nature of the tests and their purpose and results), and the treatment provided to the plaintiff. Plaintiff’s counsel should pose questions to the expert regarding the expert’s opinion about the medical certainty that the plaintiff suffered an injury, cause of the injury, signs, symptoms, complaints, whether the problems exhibited by plaintiff were the result of that injury, and whether any pre-existing conditions have been distinguished from the injuries at issue.
3) Information to be obtained from economist or other expert regarding special damages
Plaintiff’s counsel must collect necessary information from economists or other experts being called in support of the plaintiff’s claim of damages, especially in cases where the plaintiff has lost his earning capacity. Expert opinion as to the plaintiff’s lost earnings should address losses suffered as a result of plaintiff's inability to perform household tasks, plaintiff's future costs for medical care, reduction of such amounts to present value and methodology for calculating present value.
Conclusion
Spinal Treatment Questioned
The New York Times reported:
Patients who received a bioengineered protein during spinal fusion procedures to correct neck pain had far more complications than patients who did not get it, according to a study released Tuesday.
The study, published Tuesday in The Journal of the American Medical Association, reinforces previous concerns about the use of the proteins in fusion procedures to treat upper spine, or cervical, pain.
Read more by clicking here.
TBI Facts Primer
Traumatic brain injury (TBI) is a serious public health problem in the United States. Each year, traumatic brain injuries contribute to a substantial number of deaths and cases of permanent disability. Recent data shows that, on average, approximately 1.4 million people sustain a traumatic brain injury annually. A TBI is caused by a bump, blow or jolt to the head or a penetrating head injury that disrupts the normal function of the brain. Not all blows or jolts to the head result in a TBI. The severity of a TBI may range from “mild,” i.e., a brief change in mental status or consciousness to “severe,” i.e., an extended period of unconsciousness or amnesia after the injury. The majority of TBIs that occur each year are concussions or other forms of mild TBI. CDC’s research and programs work to prevent TBI and help people better recognize, respond, and recover if a TBI occurs.
Go to the CDC (Centers for Disease Control) to access the following facts sheets. Click here.
Concussion in Sports
An estimated 1.6 to 3.8 million sports- and recreation-related concussions occur in the United States each year. This fact sheet provides an overview of concussion in sports and recreation and steps to take to help prevent these injuries.
Facts about Traumatic Brain Injury
This fact sheet was developed by CDC in collaboration with ten national organizations. It contains up-to-date information about the incidence, causes, risk factors, and cost associated with TBI in the United States.
Facts about Traumatic Brain Injury (Spanish) Datos sobre lesiones traumáticas del cerebro
Esta hoja informativa contiene la información más reciente sobre incidencia, causas, factores de riesgo y costos relacionados con lesiones traumáticas del cerebro.
Traumatic Brain Injury: A Guide for Criminal Justice Professionals
This guide provides an overview of TBI, information on the extent of TBI and related problems within the criminal justice system, and how these problem can be addressed.
Traumatic Brain Injury in Prisons and Jails: An Unrecognized Problem
This guide provides information for TBI professionals about what is known about individuals with TBI in prisons and jails, how TBI-related problems affect them and others while they are incarcerated, and what is needed to address these problems.
Victimization of Persons with Traumatic Brain Injury or Other Disabilities: A Fact Sheet for Professionals
This fact sheet was developed for professionals and provides an overview of the topic of victimization of persons with TBI or other disabilities.
Victimization of Persons with Traumatic Brain Injury or Other Disabilities: A Fact Sheet for Friends and Families
This fact sheet provides a general overview of victimization and risks to people with TBI or other disabilities.
* Links to non-Federal organizations found at this site are provided solely as a service to our users. These links do not constitute an endorsement of these organizations or their programs by CDC or the Federal Government, and none should be inferred. CDC is not responsible for the content of the individual organization Web pages found at these links.
Brain Injury Lawyer and Attorney
Timothy R. Titolo resides in Las Vegas. His practice is exclusively personal injury cases. He holds specific interest in cases involving traumatic brain injury (TBI), spine and spinal cord injury (SCI) and auto, motorcycle and truck accidents. He is a member of the Million Dollar Advocates Forum.
Because of his experience handling brain, spine and other injury cases, Tim has been invited to lecture at over 50 attorney & medical conferences around the country. He has lectured for:
American Association of Justice
North American Brain Injury Society
Brain Injury Association of America
International Brain Injury Association
National Business Institute
Pacific Northwest Brain Injury Association
Oregon Brain Injury Association
Washington Brain Injury Association
Los Angeles County Bar Association
Utah Trial Lawyers Assocation
Utah Brain Injury Association
Nevada Brain Injury Association
Michigan Brain Injury Association
other brain injury affiliated groups
Tim Is a Fellow with AAJ's National College of Advocacy and is recognized for completion of the Advanced Studies of Trial Advocacy Program.
Medical Malpractice Reform
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The Nevada Assembly voted 26-15 on Monday to pass legislation that would remove a $350,000 cap on jury awards for non-economic damages in medical liability lawsuits, the Las Vegas Sun reports.
The cap was approved by voters in 2004 after concern was raised that higher medical malpractice insurance premiums were driving some doctors out of the state.
The bill would permit unlimited damages for instances of gross negligence and would give patients an additional 12 months to decide if they want to file a lawsuit (McGrath Schwartz, Las Vegas Sun, 4/20).
The Neurology of Consciousness: Cognitive Neuroscience and Neuropathology
The BIAA is having its annual conference in Las Vegas at the end of the month. One of the featured speakers is Nathan Zasler. Dr. Zasler just finished and book entitled The Neurology of Consciousness: Cognitive Neuroscience and Neuropathology.
This is a very welcome addition to the field of neuroscience literature and should be read by anyone involved in the care of persons with disorders of consciousness. The book starts with a thoughtful Preface by the editors, Dr. Laureys and Dr. Tononi, which is followed by yet another introspective commentary by Dr. Allan Hobson of Harvard Medical School in the form of a Prologue. The contributors to this text include some quickly recognizable names, including Drs. James Bernat, Antonio Damasio, Joseph Fins, Michael Gazzaniga, Adrian Owen, Joseph Giacino, Nicholas Schiff and Adam Zeman, among others.
Read the full review here.
AB495
Dear Senator:
I am in support of AB495, a bill which will no longer protect health care providers when they injure patients. The measure voters approved was designed to limit frivolous lawsuits. It was not intended to protect doctors like Dr. Desai, who has placed the health of patients at risk. Unfortunately, when you give people special legal protections, there is always someone who will try to take advantage.
I am representing a woman whose bile duct remained shut after receiving a pyloric stenosis (stomach thickening condition most often found in infants) surgery. The surgical clips were left in her bile duct. She has three bags of fluid accumulation outside her body which she has to dump and reload several times a day. Additionally her body is unable to absorb food so she is administered nutrition intravenously at night. This has been going on since January 2009. She was referred after the botched surgery to UCLA where she is scheduled to return for corrective surgery. Limiting this woman’s recovery to alleviate this physician’s insurance responsibilities and his insurance company’s profit is unconscionable.
Please right the injustice created when the medical malpractice initiative was passed. Please vote for AB495.
Tim Titolo
Brain Balance(TM) Centers Picks Adam Kluger Public Relations (AKPR) to Help Promote New Book and Atlanta Event to Raise Awareness About Revolutionary New Way to Treat Learning Disorders; Atlantic Recording Artist/Country Music Star Zac Brown and Dr. Rober
Dr. Robert Melillo is an internationally known lecturer, author, researcher and clinician in the areas of neurology, rehabilitation, neuropsychology and neurobehavioral disorders in children. Dr. Melillo's Hemispheric Integration Therapy (H.I.T.) forms the foundation of The BrainBalance Program(R), a multi-modal approach to the remediation of ADHD, Dyslexia, Autism, Asperger's, Tourette's, learning disabilities and processing disorders along with other neurobehavioral disabilities found in children. Brain Balance(TM) Centers do not rely on drugs, medical procedures or psychotherapy.
The new book, Disconnected Kids: The Groundbreaking Brain Balance Program(TM) for Children with Autism, AD/HD, Dyslexia and Other Neurological Disorders, (Amazon.com: Disconnected Kids: The Groundbreaking Brain Balance ...) shows parents how to use this drug-free approach at home, with customizable exercises for physical, sensory, and academic performance, behavior modification strategies, information on foods to avoid, and a follow up program for lasting results.
Lumbar Surgery and Litigation
The negligent performance of lumbar surgery may also give rise to litigation. Negligence in the actual performance of lumbar surgery, however, is infrequently documented in the medical
records and may be difficult to prove. On the other hand, such actions as performing a diskectomy or laminectomy at the incorrect level almost always falls below the applicable standard of care and can be independently proven.
Other examples of negligence during surgery include certain aspects of lumbar fusion surgery, iliac vein or aortic perforation, and the failure to repair a dural tear or leak when recognized.
Examples of intraoperative mishaps that rarely rise to the level of medical negligence include dural tears, cerebrospinal fluid leaks, excessive bleeding and inadvertent nerve root injury.
Overall, mishaps during the technical performance of lumbar surgery constitute the fewest instances of medical negligence.Finally, the failure to diagnose and treat a postoperative
complication may give rise to medical care that breaches the applicable standard of care.
Many post-operative complications following lumbar surgery involve either infection or neurological dysfunction. Infection following lumbar surgery, in and of itself, is usually not medical
negligence; the failure to diagnose and treat such an infection, however, may constitute medical negligence. The failure to diagnose and treat a post-operative disk space infection can
also constitute medical negligence. The presence of a postoperative neurological deficit, in and of itself, may not constitute medical negligence, but the failure to evaluate and treat such a
deficit may be medical negligence.
The failure to provide adequate post-operative follow-up care may constitute medical negligence. In
general, close followup of a patient following lumbar surgery is indicated, and the threshold for performing post-operative imaging including MRI scanning must be low for evaluating neurological dysfunction or infectious processes.
In summary, back pain and lumbar surgery are common medical entities and may be associated with medical negligence giving rise to litigation.
The actual performance of the surgical procedure may give rise to negligence but only in specific instances that may be independently proven.
More commonly, litigation arises from a failure to diagnose the disease entity prior to surgery or a failure to evaluate properly, diagnose and timely treat the patient in the post-operative
period. For these very reasons, an experienced expert witness is necessary to evaluate cases involving lumbar disease and surgical procedures.
Woman Shot in Head Survives
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In an amazing story, A Jackson County man died and his wife was critically injured Tuesday in what authorities described as an attempted murder and suicide at a home off Tanner Williams Road in the Harelston community.
Jackson County Sheriff Mike Byrd said a witness called for help after she was able to escape the home of the victim, Tammy H. Sexton, 47, who had been shot in the head.
The woman was found lying on the bed talking to authorities. Authorities, cited in the Sun Herald, stated. "“It’s truly a miracle that she survived something like this and was talking and conscious,” Byrd said Wednesday. “She had a gunshot wound that went in over her left eye and exited the back of her skull. Based on everything I’ve seen in my career, she shouldn’t be alive.”
Once again, a story of a severe brain injury where the victim walks and talks afterwards. It is reported Tammy Sexton offered authorities tea even with the penetrating would she sustained.
This is similar to the famous case of Phinneas Gage who suffered a railroad iron through his head and frontal lobe and never lost conciousness in 1848. He survived however lived a forever changed life in that his personality was irreparably compromised.
California Hospitals Settle Patient-Dumping Allegations For $1.6 Million
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California-based College Hospitals has agreed to pay $1.6 million to settle charges that two of its campuses improperly discharged and transported about 150 psychiatric patients to homeless shelters in downtown Los Angeles, City Attorney Rocky Delgadillo's office announced on Wednesday, the AP/Kansas City Star reports (Tayefe Mohajer, AP/Kansas City Star, 4/8). City officials alleged the infractions, by College Hospitals' facilities in Costa Mesa and Cerritos, occurred between 2007 and 2008.
The Los Angeles Times reports that the process was discovered by state officials after Steven Davis -- who was diagnosed with schizophrenia, bipolar disorder and schizoaffective disorder -- was treated at the Costa Mesa campus and then taken in a hospital van more than 
40 miles to downtown Los Angeles and dropped off at a homeless shelter. Officials at the shelter complained to the hospital about its action. The van returned and dropped Davis off at a second shelter, but Davis "wandered away without ever entering," the Times reports. City prosecutors then uncovered what they described as the largest case of "homeless dumping" they have encountered, according to the Times (DiMassa/Winton, Los Angeles Times, 4/9).
Under the settlement, College Hospitals will give $1.2 million to charities that care for the mentally ill and homeless and pay $400,000 in civil penalties (AP/Kansas City Star, 4/8). College Hospitals also will have one year to establish written protocols for releasing patients, including locating resources to care for them and obtaining voluntary consent before patients are transported. The two facilities will be barred from taking patients to any homeless shelter within a "patient safety zone" set up in downtown L.A. Delgadillo said, "Dumping patients who are sick or mentally ill on the streets of Skid Row is an unconscionable act," adding, "It's illegal, it's immoral and it has to stop" (Perkes, Orange County Register, 4/8).
College Hospitals attorney Glenn Solomon said that the hospital denies any wrongdoing and that its actions never amounted to "homeless dumping." He added that the hospital agreed to the settlement to establish a workable policy for dealing with homeless patients in the future. "It's the policy of the hospital ... to discharge each and every patient appropriately," Solomon said (Los Angeles Times, 4/9). He added, "The hospital believes it's a good thing to be at the forefront of developing these protocols" (Orange County Register, 4/8).
Reprinted with kind permission from http://www.kaisernetwork.org. You can view the entire Kaiser Daily Health Policy Report, search the archives, or sign up for email delivery at http://www.kaisernetwork.org/dailyreports/healthpolicy. The Kaiser Daily Health Policy Report is published for kaisernetwork.org, a free service of The Henry J. Kaiser Family Foundation.
Did You Know?
DID YOU KNOW?
- A concussion is the most common type of brain injury sustained in sports.
- Most concussions do NOT involve loss of consciousness.
- You can sustain a concussion even if you do NOT hit your head. An indirect blow elsewhere on the body can transmit an “impulsive” force to the head and cause a concussion to the brain.
- Multiple concussions can have cumulative and long lasting life changes.
- Concussions typically do NOT appear in neuroimaging studies such as MRI or CAT Scans.
- An estimated 1.6-3.8 million sports- and recreation-related concussions occur in the United States each year.
- During 2001-2005, children and youth ages 5–18 years accounted for 2.4 million sports-related emergency department (ED) visits annually, of which 6% (135,000) involved a concussion.
- Of the 1.4 million traumatic brain injuries sustained by children and adults in the United States each year, at least 75% are mild and/or concussions.
- Among children and youth ages 5–18 years, the five leading sports or recreational activities, which account for concussions, include bicycling, football, basketball, playground activities, and soccer.
