Download Spinal cord injury is a devastating and

31 Temp. J. Sci. Tech. & Envtl. L. 205
Temple Journal of Science, Technology & Environmental Law
Winter 2012
A PRIMER ON SPINAL CORD INJURIES - A MEDICAL/LEGAL
OVERVIEW
Virginia Graziani M.D.a1 Samuel D. Hodge Jr.aa1
Copyright (c) 2012 Temple Journal of Science, Technology & Environmental Law; Virginia Graziani
M.D.; Samuel D. Hodge Jr.
“I think a hero is an ordinary individual who finds strength to persevere and endure in spite of
overwhelming obstacles.”
-Christopher Reeve
I. INTRODUCTION
An injury to the spinal cord is one of the most life-changing events that can occur. Although the
resultant paralysis is the most obvious consequence and what people would consider the most
devastating result of such trauma, these individuals also face a disruption in almost every other
aspect of their lives.1 After all, the spinal cord is the major pathway through which motor and sensory
signals travel between the brain and the body and is integral in the control of movement, sensation,
bowel and bladder activity, and autonomic functions such as temperature and blood pressure
control.2 Any disruption of this structure, therefore, can have devastating emotional, psychological,
physical and financial consequences. In addition to the obvious impairment of mobility, individuals
also suffer from a variety of related medical issues such as respiratory, bowel, skin, bladder and
sexual problems.3 The psychological significance of spinal cord injuries also challenges victims with
the task of comprehending their lost mobility, accepting a new dependency on others, *206 and
learning to establish altered goals for their lives.4
At one time, a paralyzing spinal cord injury (SCI) was usually a death sentence because of the
likelihood of pneumonia, an infection from pressure sores or a urinary tract infection.5 Since World
War II, however, an advanced understanding of the pathological processes that occur in the spinal
cord immediately following injury, in addition to the utilization of antibiotics, has made long-term
survival possible for most people with spinal cord injuries.6 Nevertheless, the recovery potential for
those with a total loss of motor control and sensation below the area of the injury remains grim
because of the inability of the spinal cord to regenerate itself.7
The legal issues involving spinal cord injuries can arise in relation to all aspects of the injury, from
the cause of the injury, the immediate and subsequent medical care, secondary complications and
insurance coverage to issues surrounding death. The financial toll is also enormous from the cost of
multiple hospitalizations to the need for caregivers, and these sums must be considered in
establishing the value of a claim. Lawyers can best represent spinal cord injury (“SCI”) clients by
understanding the complex nature and long-term consequences of the injury and how the problem
so comprehensively changes the lives of those affected.
This article has been crafted because not a lot has been written about the subject from a
medical/legal point of view. It is designed to act as a primer on the topic, and the article is divided
into two sections in order to provide a multifaceted overview of a spinal cord injury. The first part will
present a medical overview of traumatic SCI including epidemiology and etiology, evaluation and
treatment, systems affected, and prognosis. The second segment will explore some of the legal
issues that arise with spinal cord injuries.
II. SPINAL CORD INJURY
There is no mandatory reporting of spinal cord injuries in the United States; however, the National
Institute for Disability Rehabilitation and Research currently funds centers across the country to
provide specialty care for patients with spinal cord injuries, called SCI Model System Centers.8 There
are currently fourteen funded centers.9 The requirements to be funded as a SCI Model System
Center include the ability to provide comprehensive rehabilitation services, including emergency
medical services, acute care, vocational and other rehabilitation services, community and job
placement, and health maintenance.10 Additionally, centers are required to conduct spinal cord
research, including clinical research and the analysis of standardized data.11 The National Spinal
Cord Injury Statistical Center (NSCISC) supports and directs the collection, management and
analysis of the world's largest *207 spinal cord injury database gathered from these centers.12 The
Shriner's Hospital system also collects data on pediatric spinal cord injury.13
A. Epidemiology
Twelve thousands spinal cord injuries occur annually in the United States.14 This incidence has
remained relatively stable over the past thirty years.15 Nevertheless, this number is quite small when
compared to the 1.7 million traumatic brain injury patients per year. Although the majority of
traumatic brain injury patients are treated in the emergency room and released, 275,000 per year
(twenty times the number of spinal cord injuries) suffer injuries significant enough to warrant
hospitalization.16 The number of people in the U.S. who are currently living with spinal cord injury,
however, has been estimated to be approximately 270,000, despite the much smaller population
pool.17
The incidence of SCI is lowest for the pediatric age group, highest in the late teens and early
twenties group, and declines steadily in older ages.18 The mean age at time of injury is 32.4 years;
however, there has been a substantial trend toward increasing age at the time of injury in recent
years.19 Approximately 80% of spinal cord injuries occur in men, and this four-to-one ratio of male to
female spinal cord injuries has remained relatively constant over time.20
B. Etiology
Nine specific causes of traumatic spinal injury (TSI) accounted for the vast majority of new cases
enrolled in the National Spinal Cord Injury Statistical Center (NSCISC) database in 2010.21 Not
surprisingly, motor vehicle accidents ranked first (33.8%), followed by falls (20.9%), gunshot wounds
(15.8%), diving mishaps (6.3%), motorcycle accidents (5.9%), being hit by a falling/flying object
(2.9%), *208medical/surgical complication (2.5%), pedestrians who were struck by motor vehicles
(1.6%), bicycle accidents (1.3%), and person to person contact (1%). All other causes of spinal cord
injury accounted for less than 1% each.22
When considering etiology by age group, different trends emerge. In 2010, vehicular accidents
caused 46.4% of spinal cord injuries in the 16-30 year age group compared to 30% in the 61-75 year
group.23 Violence accounted for 23.5% of injuries in the younger group compared to 2.7% in the
older population; sports related injuries accounted for 14.4 % in the younger group compared to
2.3% in the older population, and falls correlated to10.6% of SCI in the younger group compared to
49.4% in the older population.24 In the 76-98 year age group, falls accounted for 64.4% of all
injuries.25
In the larger category of recreational sports, diving was the cause of 57.7% of all spinal cord injuries
reported between 1993 and 1996.26 Snow skiing ranked second (9.7%), followed by surfing
(including body surfing) (4.1%), wrestling (3.1%) and football (2.8%).27Diving, football, and
trampoline injuries have declined since the 1970's, whereas injuries due to skiing and surfing have
increased.28 The change of football rules in 1976 which banned “spearing” most likely contributed to
the decrease in football injuries, and the removal of trampolines from schools in some states likely
contributed to the decrease seen in those injuries.29
C. Life Expectancy
The life expectancy of those with spinal cord injury has improved significantly over the past several
decades but remains below the average population. The mortality rate during the first year postinjury has been conservatively estimated to be 6.3%.30 The death rate significantly decreases in the
second year post injury to 1.7%. Predictors of mortality include advanced age, being male,
sustaining the injury by an act of violence, having a higher injury level in the spine, having a more
severe injury, being ventilator dependent, and having either Medicare or Medicaid
coverage.31 Higher mortality rates in subsequent years after a spinal cord injury are seen in patients
with lower satisfaction with life, poor health, emotional distress, poorer adjustment to their disability,
and those who are more dependent on others for care.32
As the severity of the injury increases, as determined by the neurologic level and *209 completeness
of the injury, life expectancy declines steadily. For example, a 25 year-old able-bodied person has a
life expectancy of 52.4 years compared to 41.8 years in a paraplegic patient, 37 years in a C5-C8
quadriplegic patient, 33.1 years in a C1-C4 quadriplegic individual, and 23.5 years in a ventilatordependent patient at any level. Additionally, as age increases with each neurologic category, the
percentage reduction in life expectancy also goes up. For example, in C1-C4 tetraplegics,33 life
expectancy is 68.8% of normal for a 10-year-old patient, 60.8% of normal for a 30-year-old patient,
47.8% of normal for a 50-year-old patient, and 31.2% of normal for a 70-year-old patient.34
D. Causes of Death
Respiratory issues are the leading cause of death following spinal cord injury, accounting for 20.8%
of all deaths. The majority of these deaths are due to pneumonia.35 Heart disease, including
hypertensive, ischemic, and other types, accounts for 20.6% of deaths.36Infections cause 8.8% of
deaths, with 90% of these being due to septicemia (blood infection), and are usually associated with
pressure sores, urinary tract infections, and respiratory infections.37 Cancer causes 7.2% of deaths,
and diseases of the pulmonary circulation cause 6.2% of deaths.38 The vast majority of pulmonary
circulation deaths are due to pulmonary emboli,39 which usually occur before discharge from the
hospital and decline sharply with time after injury.40
E. Fractures and Dislocations
Most injuries to the spinal cord (excluding those due to gunshot wounds, other penetrating trauma,
and medical/surgical complications) occur in association with a fracture and/or subluxation of the
boney elements of the spine.41 Surprisingly, most spine fractures do not result in a spinal cord
injury.42 For instance, fractures of the bone in the cervical spine occur in 2-6% of all trauma patients,
but only about half of them will have a concurrent injury to the spinal cord or nerve roots.43 Fractures
can occur in the vertebral body44 and in any of the posterior elements of the vertebra. *210 Minor
compression fractures of the vertebral body are usually orthopedically stable injuries, do not cause
spinal cord damage, and often do not require surgical intervention.45 On the other hand, burst
fractures (where the vertebral body is severely disrupted and breaks into several pieces), often
caused by abrupt axial loading of the cervical spine, frequently result in bone fragments going into
the spinal canal, with a resultant spinal cord injury.46 Due to the significant boney and ligamentous
disruption, these injuries are often also orthopedically unstable and require operative treatment to
align and stabilize the spine.47
Dislocations and subluxations48 of the spine can occur in association with a fracture or be
independent of a fracture.49 Dislocation implies that the facet joints are no longer side-by-side,
whereas subluxation occurs when the joint has slipped but some portion of the surfaces are still
apposed.50 These injuries can be unilateral or bilateral. Bilateral dislocation (sometimes referred to
as “bilateral jumped facets”) can cause a significant reduction in the diameter of the spinal canal and
often results in a SCI.51 Although there is human clinical evidence that immediate reduction of facet
dislocation (i.e., realignment of the spine to its normal position) can improve clinical recovery, the
evidence is weak because controlled studies are not possible.52 However, “animal data in favor of
immediate reduction are compelling and favor reduction as rapidly as possible.”53
Approximately 90% of spine fractures occur in the thoracic or lumbar regions, with the majority of
injuries at the thoracolumbar junction (T11-L2).54 Because of the alignment of the facet joints55 in the
lower spine and the supporting rib cage and muscles, dislocation without significant associated
fracture is less common than in the cervical spine.56 This increased rigidity, however, results in
greater biomechanical stresses at the thoracolumbar joint which, in turn, makes this area particularly
susceptible to fractures.57 Up to 50% of thoracic and lumbar spine *211 injuries result in a spinal
cord injury.58
Traumatic injury to the spinal cord can occur even without spine fracture or dislocation, particularly in
the elderly population. These injuries often result in a clinical picture, known as central cord
syndrome, where the upper extremities are weaker than the lower extremities.59 These patients often
have pre-existing cervical spondylosis, an arthritic condition of the spine that results in a narrowing
of the spinal canal.60 Although the patient may have been unaware of the spondylosis prior to injury,
a relatively low-energy fall or minor motor vehicle accident may cause compression of the spinal
cord, with no concomitant spinal fracture.61 This mechanism of injury is thought to be a pinching of
the spinal cord between the arthritic spinal elements during hyperextension of the neck.62
The pediatric spine is at the other end of the spectrum, has relative laxity of the ligaments, which
places the spinal cord at risk in flexion, extension, distraction, and rotation, and may be responsible
for a condition known as “spinal cord injury without radiologic abnormality” (SCIWORA).63 Coined in
1982, the term was used to describe spinal cord injuries in children, usually less than 8 years old,
with no evidence of fracture, subluxation, or dislocation noted on plain radiograph (X-ray) or CT
scan.64 The increasing use of MRI in SCIWORA, however, has revealed that damage is present in
the non-boney supporting tissues of the vertebral column, including torn and ruptured ligaments, and
intervertebral disc disruptions.65 MRI also demonstrates the degree of injury to the cord itself, which
can range from complete transaction, to edema only.66 Prognosis for recovery varies depending on
the degree of cord damage demonstrated on the MRI.67
F. Levels of Injury
To better understand the nature of a spinal cord injury, it is necessary to gain an appreciation of the
anatomy of this structure. The spinal cord is part of the central nervous system68 and is only the
diameter of a finger.69 It has been explained as “the cable of nerves in the spinal column”70 that
transmits signals between the brain and *212 the peripheral nervous system.71 For example, the
spinal cord has ascending pathways carrying sensation from the trunk and limbs on its way up to the
brain, and it also contains the descending fibers originating in the brain that regulate the muscles of
the body.72 These pathways are generally named from where they start and where they end.73 The
corticospinal tract is the primary descending pathway that initiates movement of the body.74
The core of the spinal cord is made up of gray matter that takes on an “H-shape” appearance.75 This
region contains all of the motor and sensory neuronal cells that control the trunk of the body and
extremities in addition to acting as a relay for autonomic control of the body's organs.76 The top
portions of the H “uprights” are dubbed the dorsal horns and contain the cell bodies of neurons in the
sensory pathways.77 The lower aspects of the H “uprights” are known as the ventral horns.78 These
structures contain the cell bodies of neurons that transmit signals to the muscles, called motor
neurons.79 Lateral horns are located in the thoracic and lumbar segments of the spinal cord and
project outward at the crossbar of the H-shape of the spinal cord's gray matter.80 These horns
consist of cell bodies that relay autonomic functioning, such as intestinal motility, heart rate, and
blood pressure.81
The spinal cord travels in the spinal canal, a structure surrounded by the bones (called vertebrae)
and ligaments of the spine.82 Nerves enter and exit the spinal cord through openings in the spinal
canal called foramina.83 At this level, the nerves are called nerve roots and are named according to
the associated vertebral (i.e. spinal) level.84 The spine, or spinal column, itself consists of 31
segments over five areas: cervical, thoracic, lumbar, sacral, and coccygeal.85 The cervical spine,
situated at the level of the neck, has seven bones, but because the nerve roots exit above vertebrae
C1 through C7, and an additional nerve root exits below C7, there are actually eight spinal cord
segments numbered C1 to C8.86 Portions of the C3, 4, and 5 nerve roots join to form the phrenic
nerve, which controls the diaphragm, the main muscle for respiration.87 Vertebral segments C5-C8
control the movements of the arms and hands.88 The thoracic region extends down the mid-back
area, has twelve *213 vertebrae, and has twelve corresponding spinal cord segments labeled T1T12.89 The thoracic cord controls the musculature and sensation of the trunk of the body.90 The
lumbar spine, found around the region of the waist, consists of five large vertebrae and five
corresponding spinal cord segments, labeled L1-L5.91 These segments provide sensory and motor
control to the legs and feet.92 The terminal end of the spinal cord contains the sacral (S1-S5) and
coccygeal segments.93 The sacral segments control bowel and bladder function and supply some
sensory and motor control to the legs and feet.94 The five sacral vertebrae are fused into one bone,
called the sacrum.95 The spinal cord ends around the level of the belly button; however, the lumbar
and sacral spinal nerves continue to travel through the lower part of the spinal canal, exiting at their
corresponding foramina.96 The terminal part of the spinal cord is known as the conus medullaris, and
the spinal nerves that travel through the lower part of the spinal canal are known as the cauda
equina.97 The coccyx, or tail bone, may have 0, 1 or 2 associated nerve roots.98
In most spinal cord injuries, the bones of the neck or back, ligaments, or disc material protrudes into
the cord, causing it to become swollen or bruised.99 Occasionally, the damage may even tear the
spinal cord and/or its nerve fibers.100 While the nerves above the level of injury keep working
properly, messages are blocked from being transmitted to the levels below the level of injury.101
Based upon the level of injury, damage to the spinal cord can cause a paralysis of the muscles used
for breathing; a loss of feeling in all or some of the trunk, arms, and legs; numbness; weakness; loss
of bladder and bowel control; and many secondary conditions such as respiratory issues, pressure
sores, and sometimes fatal increases in blood pressure.102
The level of injury to the spinal cord also plays a role in the degree of harm that results.103 For
instance, more displacement of a dislocated or fractured vertebra is required to harm the cord in the
lumbar region than in the thoracic area because of *214 the larger amount of available space within
the spinal canal in the lumbar spine.104 In fact, a lumbar fracture may cause no neurologic injury
while a similar break in the cervical or thoracic region may result in a catastrophic neural
loss.105 Injuries in the cervical spine are usually the most significant, usually causing
quadriplegia.106 Trauma above the C-4 level may mandate the use of a ventilator for breathing
because of the loss of innervation to the diaphragm as well as the chest muscles that assist in
breathing.107 However, even in lower cervical and upper thoracic injuries where the diaphragm is
functioning normally, patients often have diminished respiratory capacity due to impairment of the
chest muscles that assist breathing.108 C-5 injuries allow shoulder and biceps control to remain
intact, but the person loses control at the level of the wrist or hand while C-6 injuries usually cause
loss of hand function.109 Those with an injury at the C-7 and T-1 levels can straighten their arms but
may have dexterity issues with the hand and fingers.110 An injury in the thoracic region and below
results in paraplegia, but the hands are not affected.111 For instance, at T-1 to T-8 levels, the person
usually has control of the hands, but poor trunk control because of lack of abdominal muscle
control.112 Injuries in the lower thoracic region from T-9 to T-12 allow adequate control of the trunk
and good abdominal muscle control.113 Lumbar and sacral injuries tend to cause a decreasing ability
to control the hip flexors and legs.114
Injuries to the spinal cord further result in partial or complete disruption of motor and sensory
function below the level of the injury to the cord (known as the neurological level), which does not
always correlate with the level of the skeletal injury.115 Motor and sensory signals above the level of
the injury remain unaffected.116
Injuries are broadly divided into two categories: tetraplegia (also known as quadriplegia) and
paraplegia.117 In tetraplegia, there is disruption of the motor and/or sensory pathways in the cervical
segments of the spinal cord, resulting in impairment in the upper and lower extremities, as well as
the chest and abdomen.118 In paraplegia, the disruption is in the thoracic, lumbar, or sacral
segments of the spinal *215 cord; therefore, arm functioning is spared.119
Depending on the level of the injury, paraplegia impairs lower extremity sensory and motor function,
and the sensory and motor pathways as high as the chest may be disrupted.120 It is important to note
that most tetraplegics have some function in the arms, the degree of which depends on their
neurological level.121 The specific neurological level of injury (e.g. C5, T8) is determined by a precise
examination of ten muscle groups and twenty eight sensory points on each side of the
body.122 Further description of the levels of injury and their associated degree of impairment will be
discussed in the section entitled “Neurological Levels.”
G. Complete versus Incomplete Injuries
When individuals sustain spinal cord injuries, they are frequently informed that they have an injury at
a specific spinal cord level and are assigned a qualifier, “complete” or “incomplete,” which indicate
the severity of harm.123 A complete injury indicates the patient has no function below the level of the
injury, no voluntary movement and no sensation.124 Both sides of the body are also equally
affected.125On the other hand, an incomplete injury signifies that there is a degree of functioning
below the primary injury level. This person may be able to move one extremity more than the other,
may be able to feel an area of the body that cannot be moved, or may have more functioning on one
side of the body than the other.126
The degree of completeness of the injury is often referred to as the “extent of injury.”127 The
importance of the extent of injury cannot be overstated: prognosis for recovery of motor and sensory
function below the neurological level is based on the completeness of the injury.128 Research has
demonstrated that patients who have any sensation in the fourth and fifth sacral segments (known
as “sacral sparing”) have a significantly better prognosis for at least some motor recovery than those
that do not.129 This is true even for patients that have no other sensation in any area between their
neurological level of injury and the fourth and fifth sacral segments (S4-5).130For example, a
tetraplegic patient with no sensation in the chest, abdomen, or legs, but with sensation at S4-5, has
a better prognosis for motor recovery than a paraplegic patient (or another tetraplegic patient) with
some sensation in the chest, *216 abdomen or legs, but no sensation in the sacral segments. A
possible explanation for the improved prognosis in patients with sacral sparing is that sensation in
the S4-5 segments is evidence of the physiologic continuity of spinal cord long tract fibers.131
Extent of injury is assessed using the five-category American Spinal Injury Association (“ASIA”)
Impairment Scale (“AIS”) which evaluates the presence of any movement or sensation below the
level of neurological injury.132 Patients with no S4-5 sensation or motor function (i.e. cannot contract
the anal sphincter) are considered complete and are classified as ASIA A.133 Patients who have
sensation but not motor function in the S4-5 segments are considered sensory incomplete and are
classified ASIA B.134 Those who have sensation in the S4-5 segments and some movement below
the neurological level of injury, and those who have voluntary anal contraction (with or without any
other movement below the neurological level) are considered motor incomplete.135 Motor incomplete
patients are further classified into ASIA C and ASIA D, depending on the degree of strength in the
spared muscles (ASIA D patients have more motor sparing than ASIA C patients).136 Patients who
have a documented spinal cord injury, but at the time of evaluation, have normal neurological
function at all levels, are classified ASIA E.137 At the time of discharge from rehabilitation,
approximately 49% of injuries are classified ASIA A, 10% ASIA B, 11% ASIA C, 29 % ASIA D, and
1% ASIA E.138
H. Prognosis for Recovery
Prognosis for any meaningful motor recovery in ASIA A patients is extremely poor. Eighty percent of
these individuals remain complete. Only 2% to 3% of these patients improve to ASIA D, and it is not
known how many of these few patients regain the ability to walk.139 For patients classified ASIA B at
the time of their initial injury, 48% regain at least some ability to walk.140 For ASIA C patients, the
prognosis for recovery is significantly affected by age.141 Those under 50 years of age have a 91%
chance of regaining the ability to walk in the community versus only 42% chance for patients age 50
or older.142 Approximately 40% of ASIA D patients regain full neurological function, and almost all
regain the ability to walk.143
*217 I. Treatment
Management of a spinal cord injury begins by the emergency responders at the scene of the
accident.144 The pre-hospital evaluation attempts to quickly identify any signs of spinal cord
injury.145 If the victim is alert, any complaints of neck or back pain, numbness, tingling or decreased
ability to move are noted.146 An abbreviated motor exam, checking grip strength and ability to flex
the ankle, a gross examination of sensation and an assessment of any bowel or bladder involvement
is performed.147 Even absent any abnormal findings, all persons with major trauma should be treated
with immobilization until the injury has been excluded or definitive management has been
initiated.148 A cervical collar is placed on the neck before removing a victim from the seated
position.149 As many as 20% of spine injuries involve more than one noncontinuous vertebral level,
therefore, the entire spinal column should be immobilized by use of a rigid backboard.150 Once
properly immobilized, the patient with a suspected spinal cord injury should be transported to an
accredited trauma center, preferably a Level I trauma center,151 if local triage protocols and the
medical stability of the patient allows.152
Because most spinal cord injuries are associated with a significant trauma, emergency treatment
must first be directed at rapid restoration of the airway, breathing and circulation (the ABC's), if
indicated.153 Patients with impaired neurologic levels at C4 and above will almost certainly require
ventilatory support due to the loss of innervations to the diaphragm.154 However, even patients with
lower cervical neurologic levels and some thoracic neurologic level patients may require ventilatory
support, particularly if there is any chest trauma or if pulmonary infection develops.155 Although lower
cervical and thoracic level patients have normal diaphragm function, the chest muscles and
abdominal muscles used for *218 forceful expiration do not function.156 Therefore, these patients are
at risk for respiratory failure and must be monitored closely.157
An injury to the spinal cord interrupts the autonomic nervous system, so cardiovascular
derangements, including hypotension (low blood pressure) and, in cervical levels of injury,
bradycardia (slow heart rate), frequently occur immediately following injury.158 Intravenous fluids and
medications to maintain blood pressure are often necessary in the acute post-injury period.159
A baseline neurological assessment, utilizing the ASIA standards, should be performed and
documented as soon as feasible in the emergency room.160 Neurologic deficits evolve naturally over
time and can worsen due to inadequate immobilization during transport and improve or worsen
during traction or reduction maneuvers.161 Therefore, neurologic examinations should be repeated at
least daily and after any intervention that might affect the impairment.162
Once the patient is medically stable, expeditious transfer to a specialized spinal cord injury center
should be considered.163 These units have five major components of care: emergency medical
services, a trauma center with SCI trauma unit, a rehabilitation facility with SCI trauma unit, a followup system, and a viable community integration program.164 Studies have demonstrated fewer
complications and decreased length of acute care and rehabilitation stays in patients who are
transferred quickly to a specialized center compared to those who are transferred later or not at
all.165
Although much of the injury to the nerves in the spinal cord is due to the initial mechanical trauma,
there is also a “secondary” injury that occurs due to processes such as diminished blood perfusion
(ischemia) and inflammation which occur immediately after the initial trauma, and which may be
preventable or reversible.166 Many neuroprotective therapies have been investigated in an attempt to
limit the deleterious effects of the secondary injury.167 Methylprednisolone, a steroid thought to block
inflammation following spinal cord injury, has been the most widely used treatment and has become
“entrenched in the clinical management of acute SCI as a ‘standard of care’. . .”168 Although
methylprednisolone has been investigated in three large-scale, multicenter clinical trials that
demonstrated improvements in ASIA scores, recent critics have questioned the way the results were
presented and the *219 validity of the conclusions drawn.169 These trials also reported that
significant adverse events, such as gastrointestional hemorrhage, wound infection, and pulmonary
embolus, were higher in the patients treated with methylprednisolone.170 After careful analysis of the
studies, several opinions have emerged suggesting that “methylprednisolone should not be
considered an obligatory standard or a necessary part of routine clinical practice.”171 Unfortunately,
“no clinical evidence exists to definitively recommend the use of any neuroprotective pharmacologic
agent, including steroids, in the treatment of acute spinal cord injury to improve functional
recovery.”172 However, not all experts agree with the critics of the methylprednisolone studies:
“considering the typically devastating nature of acute SCI to the patient and the patient's family, and
the fact that no other neuroprotective approach is currently available, the misleading assessments of
high-dose MP (methylprednisolone) treatment are likely a disservice to SCI patients.”173
Once a spinal cord injury has been identified, a CT scan of the entire spine should be
obtained.174 Plain x-rays alone have been reported to miss a significant number of spine injuries;
whereas, a CT scan is highly reliable in detecting spinal fractures and dislocations.175 CT, however,
is not adequate for visualizing the spinal cord itself, ligament or disc disruptions, or any soft-tissue
injury.176 MRI, therefore, should be performed to the known or suspected areas of spinal cord injury
in order to visualize these structures.177
In cases of bilateral cervical facet dislocation in the setting of an incomplete spinal cord injury, the
spine should be reduced to decompress the neural elements as soon as possible.178 This can be
done in a “closed” fashion, which can be accomplished by utilizing tongs screwed into the skull and
applying weights in five to ten pound increments to distract and then realign the spine.179 X-rays and
a complete neurologic exam must be performed at each weight increment to assure that the
impairment is not worsening; therefore, the patient must be awake, alert and cooperative.180 If closed
reduction is not possible or is unsuccessful, reduction can be accomplished surgically (i.e. “open
reduction).181 Although the human clinical evidence that immediate reduction of facet dislocation can
improve neurological *220 recovery is not strong, “it is generally accepted that the sooner a
successful reduction is accomplished, the better likelihood that some degree of neurological
recovery may occur.”182
Surgical intervention is commonly used to manage spine fractures. For example, following closed
reduction in cervical facet dislocation, patients will often undergo surgery to stabilize the spine in the
corrected position.183 The purpose of surgery in other cases is to reduce and realign the spinal
elements, to decompress compromised neural tissue, and to stabilize the spine.184
It is common clinical practice to urgently perform spinal canal decompression if a patient
demonstrates a worsening neurologic examination.185 However, in patients who are not
neurologically deteriorating, there has been significant controversy over whether there is any benefit
to surgery being performed soon following injury, or if surgery should be postponed several days
because of the risk of neurologic deterioration and surgical complications.186 A recent study, the
Surgical Trial in Acute Spinal Cord Injury Study (STASCIS)187, may put this controversy to rest.
STASCIS prospectively evaluated 313 patients with acute cervical spinal cord injury.188One hundred
eighty two patients underwent “early” decompressive surgery (less than 24 hours post injury), and
131 underwent delayed surgery (at or after 24 hours post injury).189 At their six month follow-up,
19.8% of patients undergoing early surgery showed at least a two grade improvement in ASIA
Impairment Scale as compared to 8.8% of patients in the delayed decompression
group.190 Additionally, there were fewer incidents of major inpatient complications in the early
surgery group.191 The authors concluded that “early decompressive surgery after cervical SCI can be
performed safely and is associated with improved neurologic outcome as measured by AIS grade
conversion.”192
J. Systems Affected
Motor and Sensory Function
Motor impairment (paralysis) is the most obvious harmful outcome of a spinal cord injury. It is
important to note, however, that many patients will “gain” a level *221 within the first one to two
years following the trauma, depending on their initial level of injury.193 An improvement of one
neurological level can make a significant impact on a patient's function, again, depending on the
initial level of injury.194 For instance, C4 patients cannot bend their elbows, therefore, cannot drive a
specially adapted upper extremity-controlled vehicle.195 However, C5 patients can bend their elbows
and can independently drive a van that is specially adapted.196 Therefore, if a C4 patient gains one
neurological level, he or she may be able to drive independently.197
Immediately following a SCI, there is a period where muscle tone and reflexes are markedly
decreased.198 Within a few weeks, however, there is a gradual return of muscle tone and
reflexes.199 By one year post injury, up to 78% of patients have an exaggeration of muscle tone and
reflexes, a condition known as spasticity.200 Not all patients with spasticity are negatively affected by
it.201Nevertheless, the increased muscle tone causes a tightness and resistance to passive range of
motion and can lead to a permanent shortening of the muscle, known as contracture, which can
further impair function.202 Additionally, spasticity often causes involuntary muscle activity, called
spasms, which cause the limbs and/or trunk to flex or extend spontaneously or to certain
stimuli.203 Some patients are not bothered by the spasms. Indeed, some patients find them beneficial
for maintaining some muscle tone and bulk.204 However, in some patients, the spasms can be
severe enough to cause pain, interfere with their mobility and activities of daily living, and even throw
them from their wheelchairs.205 Spasticity can be ameliorated with passive stretching of the affected
muscles and with medications.206However, some patients with severe spasticity may require nerve
blocks or treatment with medications delivered directly into the spinal canal by an implanted pump
and a catheter system to control their symptoms.207
Many patients experience pain following spinal cord injury.208 This pain can be *222 severe and
disabling, interfere with function, and compromise quality of life.209 Because patients rely heavily on
their upper extremities for mobility and daily care, many patients develop musculoskeletal pain due
to degenerative joint disease and overuse of their shoulders, elbows, wrists and
hands.210 Additionally, patients may experience pain below the level of their neurologic injury, even if
they are sensory complete (i.e. cannot feel any sensation when the skin is touched).211 This is called
neuropathic pain and is sometimes referred to as central or spinal pain.212 Patients usually describe
this discomfort as burning or aching but sometimes as tingling, shooting, stabbing, pressure, cold,
numbness, pins and needles or electric sensations.213 Neuropathic pain can be ameliorated with
medications, including anticonvulsants and antidepressants, but some patients continue to
experience a degree of neuropathic pain despite treatment.214
Gastrointestinal Tract
Patients with acute spinal cord injury are at high risk of gastrointestinal bleeding, due to stress
ulcers, so they must be placed on medications to prevent ulcers for at least four weeks following
injury.215 Once past this acute period, there is no increased risk of bleeding unless other risk factors
are present.216
Between seventeen and forty-one percent of patients with tetraplegia may have dysphagia, which is
difficulty swallowing.217 Risk factors for dysphagia include “tracheotomy, presence of a halo orthosis,
anterior cervical spine surgery, and higher neurological level.”218Dysphagia is usually transient, but
acute patients with risk factors should be evaluated prior to oral feeding.219
A neurogenic bowel is the loss of normal bowel function due to damage anywhere in the nervous
system.220 In patients with a spinal cord injury, there is a significant loss of colon motility and a
decreased or absent ability to voluntarily control evacuation of stool.221 Many patients consider
bowel dysfunction to be a *223 significant limiting factor in their life, and “fear of bowel accidents is a
frequent cause of people with SCI not to participate in social and other outside
activities.”222 However, if managed appropriately, patients can have bowel movements at scheduled
times and generally remain continent otherwise.223 This is usually accomplished through the use of
medications to keep the stool soft and stimulate motility, and the use of a suppository and digital
stimulation of the rectal vault as needed to trigger a bowel movement once a day.224
Urinary System
Neurogenic bladder is the loss of normal bladder function due to damage anywhere in the nervous
system.225 Immediately following spinal cord injury, the bladder loses all reflex activity, resulting in
urinary retention; therefore, a urinary catheter must be placed immediately.226 Usually, reflex bladder
contractions return after six to eight weeks, but a patient may experience detrusor hyperreflexia up
to twenty-two months after the spinal cord injury.227 Additionally, there may be an “intermittent or
complete failure of relaxation of the urinary sphincter during a bladder contraction and voiding”
resulting in reflux of urine up into the kidneys.228 Patients with sacral injuries will be unable to
voluntarily control bladder contractions and will experience weaker sphincter activity.229 Therefore,
patients will be incontinent of urine unless the bladder is managed appropriately.230 Management of
the bladder may include medications, indwelling urinary catheter, intermittent catheterization, an
external collection device and surgical procedures.231
Neurogenic bladder in spinal cord injured patients is associated with “increased urinary tract
infections, bladder stones and other lower urinary tract morbidity,” but can also lead to bladder
cancer and kidney function deterioration.232 Renal failure was previously the leading cause of death
after spinal cord injury, but close monitoring of renal function and adequate bladder management
reduced the rate of *224 death from renal failure.233 Paraplegics have “sixteen to twenty-eight times
higher risk” for bladder cancer than able-bodied people.234 Possible causes include “chronic irritation
from UTIs [urinary tract infections], stasis of urine, and bladder stones.”235 A few patients with
bladder cancer had an indwelling urinary catheter in for at least fifteen years.236 Therefore, patients
should be monitored closely for signs and symptoms of bladder cancer, and should receive a
cystoscopy, an internal examination of the bladder, yearly if the patient has had an indwelling
catheter for more than ten years.237
Pulmonary
Paralysis of the diaphragm, chest and abdominal muscles impairs the ability to breathe in spinal cord
injured patients.238 Patients who are “older and have sustained a higher neurologic level of injury
have been shown to be the most vulnerable to pulmonary problems.”239C1 through C3 patients will
require life-long mechanical ventilation.240 Patients with injuries at C4 and below may require
mechanical ventilation temporarily post-injury due to “a variety of factors, including associated
injuries and pulmonary complications.”241 Sleep apnea is common in patients with spinal cord
injuries, with up to sixty percent of tetraplegics demonstrating sleep disordered
breathing.242 Diseases of the respiratory system are the leading cause of death after spinal cord
injury, with 72.3% of respiratory deaths due to pneumonia.243
Cardiovascular
Cardiovascular complications occur following spinal cord injury due to the neurologic impairment
itself as well as to changes that occur with immobility.244 Venous thromboembolism, a kind of blood
clot, is a serious complication, occurring in up to fifty percent of patients if preventive treatment is not
initiated.245 These clots can travel to the lungs, causing a pulmonary embolism (PE), which can
be *225fatal.246 Preventive treatment includes the application of pneumatic compression devices to
the legs for the first two weeks following injury and a low dose blood thinner for three months
following trauma.247 If there is a contraindication to the blood thinner or the patient develops a
venous thromboembolism despite preventive treatment, a filter can be placed in the vena cava, the
large vein between the legs and the lungs, to prevent a clot from travelling to the lungs.248
The cardiovascular system is controlled by the autonomic nervous system. Therefore SCI can affect
heart rate and blood pressure.249Bradycardia, or slow heart rate, occurs in up to 100% of tetraplegic
patients within the first 2 to 3 weeks after injury and usually resolves by 6 weeks.250 In the first few
weeks following injury, patients often experience orthostatic hypotension, a condition in which the
blood pressure drops when there is a change in body position toward the upright posture. Patients
with this condition experience lightheadedness, dizziness, nausea, and sometimes loss of
consciousness.251 This usually resolves after the first few weeks of rehabilitation as the patient's
body adjusts to being out of bed.252
Patients with neurologic level T6 and above may experience autonomic dysreflexia, a syndrome
characterized by a sudden exaggerated reflex increase in blood pressure, sometimes accompanied
by bradycardia.253 An episode occurs in response to a noxious peripheral stimulus below the
neurologic level, which incites a reflex release of sympathetic activity.254 The symptoms often include
headaches, sweating, and flushing above the level of injury.255 The inciting stimulus is most often
distension of the bladder, but other causes, such as urinary tract infection, bladder stones, bowel
distension, pressure sores, ingrown toenails, fractures, and body positioning, can also cause an
episode.256 Possible complications of autonomic dysreflexia include retinal hemorrhage, brain
hemorrhage, myocardial infarction, seizure, and death.257 The mainstay of treatment is to address
and relieve the underlying cause of the episode.258Medication may be required to reduce the blood
pressure if the episode does not resolve quickly.259
*226 Autonomic System
In addition to the effect of autonomic system disruption on the cardiovascular system, autonomic
disruption causes disturbances in body temperature control.260 In patients with a complete injury
above T6, thermoregulation is significantly impaired and there is difficulty in maintaining a normal
core temperature in response to environmental changes in temperature.261
Skin
Pressure ulcers are one of the most common and serious complications of spinal cord
injury.262 Between 50% and 80% of patients will develop a pressure ulcer at some time after their
injury.263 Primary factors leading to pressure ulcers include pressure, shear forces, moisture,
anemia, nutritional deficiencies, aged skin and moisture.264 Pressure ulcers are graded on a scale
from I to IV based on severity. A class I ulcer causes redness of the skin but leaves the epidermis
intact A class IV ulcer causes skin loss and deep tissue destruction down to the bone.265 Pressure
ulcers result in significant physical, social, vocational and economic costs.266 Depending on the
location of the pressure ulcer, patients may not be able to sit in their wheelchairs until the wound
heals.267 The general principles of treatment are to relieve pressure; eliminate reversible underlying
predisposing conditions; avoid pressure, shear and moisture; and to remove any dead
tissue.268 Estimates for pressure ulcer treatment costs range from $20,000 to $30,000 for a less
severe wound and upwards to $70,000 for a more severe wound.269
Musculoskeletal System
Following SCI, secondary musculoskeletal complications can develop such as osteoporosis and
fracture, joint pain, and heterotopic ossification.270 After spinal cord injury, there is a rapid loss of
bone mass in the lower limbs and pelvis. 16 months post injury, a patient's bone mass in this area is
50-70% of normal and near fracture threshold.271 This bone loss leads to an increased risk for
fractures which occur most commonly due to falls during transfers.272 In patients who are
severely *227 osteoporotic, fractures can even occur from minor stresses such as prolonged sitting
or range of motion exercises.273
Overuse of the upper extremities resulting from wheelchair propulsion, transfers, and other activities
of daily living contributes to shoulder, elbow, wrist and hand pain, which happens in 30 to 50% of
spinal cord injured patients.274 Because these individuals are so reliant on the upper extremities, any
limitation in upper limb function because of pain may have adverse effects on mobility and functional
independence.275
Heterotopic ossification (HO) is the formational development of bone in abnormal sites.276 HO occurs
in approximately 50% of adult patients with spinal cord injury.277 The most common site for HO is the
hip, but it can occur at any joint below the neurologic level.278Symptoms of the early stage of HO
include fever, joint pain and swelling, and discomfort if the patient has preserved sensation.279 About
20% of patients with HO develop significant restrictions in joint range of motion which can affect
transfers, bowel and bladder care, and other activities of daily living.280 There is no definitive
treatment to prevent HO, however, if diagnosed in the early stage treatment with medication, it can
prevent the maturation of the bone and the resultant restriction on range of motion.281
Sexual and Reproductive Functions
Sexual and reproductive functions are affected following SCI. In women, there is no data to suggest
a decline in fertility; however, pregnancies in women with spinal cord injuries are considered high
risk due to a significant incidence of complications specific to the spinal cord injury.282 For many
women, libido is preserved, and orgasm is possible in up to 50% of this female population.283 92% of
men with SCI are able to achieve an erection, but about half are successful with intercourse and less
than 5% can have unassisted ejaculation.284 Sperm quality is frequently deficient following SCI285 but
erectile dysfunction can be treated with devices, implants and medication.286 Fertility can be assisted
with a combination of technologies to produce ejaculation and assistive reproductive techniques
(e.g. intrauterine insemination and in vitro fertilization), with pregnancy success rates as *228 high
as 40%.287
Psychological Adjustment
Although many individuals initially feel grateful at surviving the traumatic event that caused their
injury, depression may affect between 20 to 45% of SCI patients within the first month of the
traumatic event.288 Longer term difficulty with emotional adjustment may also contribute to drug
addiction and divorce.289 In fact, the suicide rate after a spinal cord injury is 2 to 6 times greater than
that of the able-bodied population.290 Treatment for emotional difficulties includes psychological
counseling and education for the patient and family, along with peer support.291 Antidepressant
medication may be required for patients with depression.292
K. Economics
The average yearly health care and living expenses and the estimated lifetime costs that are directly
attributable to SCI vary greatly according to severity of injury. Costs include initial hospitalization and
acute rehabilitation, home and vehicle modifications, and recurring costs for medical equipment,
medications, supplies, and personal assistance.293 The table below is a sample outline of yearly and
lifetime costs for different severity of injury and age at injury.
Severity of Injury
Average Yearly Average Yearly Estimated Lifetime
Expenses
Expenses
Costs by Age at Injury
First Year
Each Subsequent 25 years old
Year
High Tetraplegia (C1- $985, 774
$171, 183
4,373,912
C4)
Low Tetraplegia (C5- $712,308
$105,103
3,195,853
C8)
Paraplegia
$480,431
$63,643
$2,138,824
Incomplete Motor
$321,720
$39,077
$1,461,255
Function at Any Level
Estimated Lifetime
Costs by Age at Injury
50 years old
$2,403,828
1,965,735
$1,403,646
$1,031,394
*229 Data source: Economic Impact of SCI, 16 Topics in Spinal Cord Injury Rehabilitation (2011).
These figures do not include any indirect costs such as losses in wages, fringe benefits and
productivity, which averaged $69,204 annually in February 2012, but vary substantially based on
education, severity of injury and pre-injury employment history.294 Many patients never return to
work, and at ten years following injury, only twenty-seven percent of people with spinal cord injuries
are working.295
III. LEGAL CONSIDERATIONS
Spinal cord injuries typically account for the largest verdicts in personal injury claims with multimillion dollar verdicts or settlements being common place.296 On the other hand, such a devastating
injury is not an automatic guarantee of an award of damages. While spinal cord injuries can result in
complete paralysis with constant medical complications and the need for continual care, the lack of
liability on the part of the defendant can be fatal to the claim.297
*230 Spinal cord claims are complex to litigate because they involve all aspects of the injury, from
liability related to the cause of the harm, negligence related to the emergency treatment at the scene
and transportation to the hospital, medical malpractice in an acute and chronic care setting, to
violations of the Americans with Disabilities Act and disputes over insurance coverage for ongoing
care.
Litigation involving the etiology of a spinal cord injury often involves a product liability claim with
causes of action based in negligence, strict liability, or breach of warranty with a vast number of
these cases arising out of motor vehicle accidents. For example, vehicular accidents accounted for
almost forty-three percent of spinal cord injuries in 2010.298 These included accidents caused while
riding in jeeps, trucks, dune buggies, and buses (33.8% of SCI in 2010); motorcycle accidents
(5.9%); boats (0.1%); fixed and rotating wing aircraft (0.4%); snowmobiles (0.2%); bicycles (1.3%);
all-terrain vehicles (0.6%); and other vehicles, unclassified (tractors, bulldozers, go-carts,
steamrollers, trains, road graders and forklifts- 0.6%).299
The following is a sampling of some of the cases involving spinal cord injuries.
A. Product Liability Claims
a. Motor Vehicle Accidents
Graves v. Toyota Motor Corporation provides an example of a spinal cord injury in an accident
arising out of an alleged defect in a motor vehicle.300 Although he was wearing a seatbelt and
remained inside the vehicle during the accident, the plaintiff was rendered quadriplegic when his
1995 Toyota 4 Runner rolled over and the roof was crushed.301 Suit was filed on the basis that
Toyota negligently failed to design and/or manufacture the roof properly.302 The plaintiff's expert, a
biomedical engineer, opined that the occupant protection system failed to safely restrain the victim
within the occupant survival space during a foreseeable crash, that an occupant would have
sustained only minor or moderate injuries had the system functioned properly, and that the vehicle
failed to provide adequate protection to a restrained driver in a reasonably foreseeable rollover
crash.303
Toyota moved to exclude this testimony, contending that the expert's opinion regarding the design of
the seat belt buckle was unsupported by sufficient testing and that the witness' injury causation
opinions were incomplete and flawed, and therefore must be excluded under Daubert.304 The court
disagreed and held that the expert “rigorously adhered to the proper scientific method of analysis.”305
*231 In Moore v. Ford Motor Company, a motorist instituted suit on a products liability theory
claiming that the driver's seat collapsed in a rear-end collision, causing her head to strike the back
seat with such force that it rendered the 300 pound claimant paraplegic.306 It was asserted that the
car was defective because “[n]owhere in the owner's manual or on the on-product labels did Ford tell
people who might use the Explorer that it intended the front seats to collapse in a rear
impact.”307 The trial court granted the defendant's motion for directed verdict on the failure to warn
claim involving an overweight occupant.308 The court reversed this determination, finding that the
plaintiff presented enough evidence for a jury to conclude that the vehicle was “unreasonably
dangerous without a warning imparting knowledge of its characteristics despite the finding that the
design of the seats themselves was not defective.”309
b. Falls
The origin of a spinal cord injury is not confined to motor vehicle accidents. In fact, falls accounted
for 20.9% of these types of injuries in 2010.310 This is demonstrated by Snoznik v. Jeld-Wen, a case
in which the plaintiff was injured while cleaning windows manufactured by the defendant.311 It is
alleged that, while the plaintiff was cleaning a window, it pulled out of its casement, causing the
plaintiff to fall from the second floor to the ground and rendering him a quadriplegic.312 The plaintiff's
expert, a mechanical engineer, opined that the window was defective and unreasonably dangerous
due to its lack of a positive attachment method and lack of a safety screw.313Although the expert
measured the force necessary to disconnect the hinge with a digital force gauge “two or three times,”
he did not write down any of the measurements nor did he make any written notes or videos of his
testing.314 The defendant moved to exclude this expert's testimony.315 The court concluded that,
although the expert was qualified to testify, his testimony lacked factual foundation, he did not
employ a reliable scientific methodology, calling his methods “haphazard tinkering.”316 Therefore, his
testimony was excluded under Daubert.317 The court also granted the defendant's motion for
summary judgment on all of the claims.318
*232 c. Diving Accidents
Diving is the fourth leading cause of SCI, accounting for 6.3% of all such claims in 2010.319 It is
unknown, however, what percentage of these injuries occur in swimming pools as opposed to
natural environments.320 A study of patients enrolled in the NSCISC database between1973 and
1997 did shed some light on the topic when it reported that 1,106 people were classified as having
sustained cord injuries due to diving.321 Of these, 57.1% occurred in natural environments, 30.8%
occurred in swimming pools, and 12.1% happened in an unknown location.322 Of those injuries
occurring in swimming pools, 86.7% took place in private residential pools.323 Injuries due to diving
almost always occur in the C4-C6 range and are usually classified as neurologically complete,
making them among the most severe.324
Litigation involving a SCI sustained in swimming pool diving accidents often involves product liability
claims against the pool manufacturer and/or retailer.325 These claims are usually based on
negligence or strict liability and frequently involve a failure to warn assertion.326For instance, in
Battistoni v. Weatherking Products, the appellate court reversed the defendant's motion for summary
judgment, holding that a genuine issue remained as to whether the plaintiff would have dove into the
pool even if adequate warnings were posted.327 The plaintiff, a twelve year old girl, was rendered a
quadriplegic after diving into and striking her head in the shallow end of an in-ground pool.328 It was
maintained that the pool was defective because the manufacturer failed to affix depth markings and
warnings of the risk of potential harm to users that could not be removed by the purchaser.329 The
facts demonstrated, however, that removable warning signs and decals were “issued” in conjunction
with the sale of the pool, but the pool owners had not installed them.330 The pool manufacturer
submitted only the deposition of the plaintiff in support of its motion for summary judgment.331 This
testimony indicated that the plaintiff was an experienced swimmer and diver, that she was aware
that the water in the shallow end did not go over her head, and that she could hit the
bottom *233 and be injured if she dived too deeply into the shallow end of a pool.332 The defendant
claimed that the potential dangers of diving head first into shallow water are open and obvious to the
typical pool user.333 Therefore, it had no duty to warn.334 The plaintiff stated that, although she knew
she could be injured by hitting the bottom of the pool, she did not know she could sustain a
SCI.335 The trial court granted summary judgment to the defendant, concluding that the plaintiff had
failed to establish that the alleged failure to warn was the proximate cause of her injuries.336 The
court considered the plaintiff's experience as a swimmer, her familiarity with the pool, and the
admission that she knew she was diving into shallow water, and concluded that a warning would
have merely communicated what the plaintiff already knew would have had no effect on her decision
to dive in, and that “a reasonable mind could only conclude that her own action was the proximate
cause of her injury.”337
This decision was reserved on appeal when the court concluded that, based on the plaintiff's
deposition testimony, there was a genuine issue of material fact to determine “whether a reasonable
mind could conclude only that the plaintiff would have elected to perform the dive even if there had
been depth markers and warnings installed on the pool on the day of the accident.”338
Courts may take into account the age of the person when considering whether the danger of diving
into a pool is open and obvious.339In Bunch v. Hoffinger Industries, an eleven-year-old was rendered
quadriplegic when she dove into an above-ground swimming pool.340She sued the pool
manufacturer, and a jury awarded over $12 million.341 The appellate court affirmed the finding,
holding that “the danger of diving into a shallow aboveground pool is not open and obvious to an 11year-old as a matter of law.”342 The court considered that, in determining whether the danger is
obvious to adults, other jurisdictions had weighed prior swimming and diving experience, familiarity
with the pool in question, and the public's general awareness of diving dangers.343 It concluded that
it would be “absurd and somewhat illogical to consider these factors in determining an awareness of
danger but to ignore or exclude the age of the diver.”344
In Glittenberg v. Doughboy Recreational Industries, three adults sustained spinal cord injuries while
attempting shallow dives into above ground pools.345 The court held that there was no duty to warn
because:
*234 “The obvious risk of this simple product is the danger of hitting the bottom. When such a risk is
objectively determinable, warnings that parse the risk are not required. The general danger
encompasses the risk of the specific injury sustained. In other words, the risk of hitting the bottom
encompasses the risk of catastrophic injury.”346
In Neff v. Coleco, the court similarly held that the potential consequences of diving headfirst into
shallow water should be readily apparent to a reasonable man.347 Therefore, the manufacturer had
no duty to warn the 25 year old plaintiff.348 In Benjamin v. Deffet Rentals, Inc. the court held that the
manufacturer had no duty to warn a fifteen-year-old who was an experienced swimmer and was
injured when he dove off a sliding board platform into a five foot deep below ground swimming
pool,349 stating that:
“[I]t may be assumed that a person of whatever age is able to appreciate the obvious risks incident
to any sport or activity in which he may be able to engage with intelligence and proficiency, and must
act accordingly.”350
Finally, Klen v. Asahi Pool, Inc., involved a fourteen-year-old who attempted a shallow dive from a
trampoline into an above ground pool and sustained a spinal cord injury.351 The plaintiff sued the
pool manufacturer, alleging a failure to warn of the risk of permanent neurologic injury presented by
the intended and foreseeable use of the pool. The plaintiff was an experienced swimmer and
testified that he knew the water was chest deep but that he was attempting a flat, racing-type dive
that he believed was safe.352 The court held that the determination of whether the risk of paralysis
was open and obvious must be judged by the reasonable or objective class of fourteen-year-olds.353
d. Football Injuries
Spinal cord injuries sustained in football accidents receive much media attention, but they are
relatively rare and accounted for only 0.5% of all spinal cord injuries in 2010.354 Spearing, which was
banned in football in 1976 because of its risk for causing cervical spinal cord injury, occurs when a
player uses the helmet/head as the first point of contact with another player.355 Despite this ban,
cervical spinal cord injuries still occur in all levels of football. In Fiske v. MacGregor, a high school
football player sustained a cervical spinal cord injury when he collided with another player during an
attempted tackle.356 He sued the *235 manufacturer of his helmet for a defective design as well as
his school and coach for negligent coaching and supervision.357 The plaintiff's expert testified that,
because of the dimensions of the face mask, the helmet worked as a brace so that the plaintiff's
cervical spine was unable to flex forward and was thus kept in a straightened position, allowing an
axial loading injury to occur.358 The defendant's experts testified that the helmet-face mask
combination did not contribute to the injury and that bracing of the neck was not necessary for an
axial loading spinal cord injury to occur.359 The jury found in favor of the coach and school but found
against the helmet manufacturer on a strict liability and breach of implied warranty claims.360 The
jury concluded that the plaintiff had not assumed the risk of his injury but found 40% of the
negligence attributable to the plaintiff.361 Accordingly, the award was reduced from $3,500,000 to
$2,100,000.362 On appeal, the court concluded that a jury question existed regarding whether a
defective design of the helmet caused the plaintiff's injury and denied the defendant's motion for a
directed verdict.363 The court also clarified the distinction between the doctrines of assumption of the
risk and contributory negligence based on different types of culpable conduct on the part of a
plaintiff, with the former being “a knowing encounter with danger” and the latter being “a negligent
encounter with a risk of danger.”364
B. Medical Complications
Medical and surgical complications accounted for 2.5% of spinal cord injuries in 2010.365 Although
SCI plaintiffs more frequently advanced claims for medical malpractice, product liability theories
were also made in some cases. For instance, in Evans v. Medtronic, Inc., the plaintiff sustained a
spinal cord injury during surgery in which an infected spinal cord stimulator lead that had previously
been implanted was removed from her cervical spine.366 After tugging on the lead to remove it, the
surgeon noted that the insulation cover was broken, the coils stretched, and one of the wires was
broken.367 The lead was then handed to the scrub nurse, who discarded it.368 The surgeon
performed a laminectomy and implanted a new surgical lead, which was accomplished with some
difficulty because of scarring from the previous procedure.369 Two sales representatives from the
defendant manufacturer *236 were present in the operating room throughout the procedure.370 When
the patient awoke from surgery, she complained of pain and an inability to move her limbs, and an
MRI showed that she had suffered a SCI.371 The plaintiff did not claim that the damaged lead caused
her spinal cord trauma in an immediate sense but asserted that the defect in the percutaneous lead
caused the lead's damage, requiring the surgeon to remove it, and that the subsequent laminectomy
and placement of the surgical lead caused the spinal cord injury.372 The plaintiff's expert opined that
the tugging on the lead by the doctor in the operating room could not have caused the damage in the
absence of a defective lead.373 Because he saw nothing else in the medical record, aside from the
tugging, that indicated any other force could have caused the damage, the expert concluded that the
harm must have been due to defective manufacturing.374 Upon questioning by defense counsel,
however, the expert admitted that he could not rule out the possibility that the lead had experienced
other types of forces during the period between initial placement and removal.375 The court ruled
that, although the expert was qualified to testify, his test was not based on a reliable methodology,
did not apply to the facts of the case, and did not exclude other reasonably conceivable explanations
for the damage to the lead. His testimony was, therefore, excluded.376 The plaintiff also claimed a
product defect through a spoliation of evidence inference.377 The court held, however, that the
defendant manufacturer's sales representatives reasonably did not anticipate that the lead would be
relevant to future litigation, that they had no duty to preserve the lead, and that there was no
evidence of willful destruction on their part.378 Therefore, the plaintiff's motion for a spoliation
inference was denied.379
C. Criminal Acts
Violence accounted for 17.8% of spinal cord injuries in 2010, with about 89% of those due to
gunshot wounds.380 Spinal cord injuries caused in this way may lead to either criminal or civil
charges. In State of Iowa v. Fox, Mayo sustained a complete cervical SCI in a car accident where
the defendant was the intoxicated driver and Mayo was his passenger.381 A few days after injury, the
doctors concluded that the patient's prognosis for recovery was extremely low and that he would
need a ventilator to breathe for the rest of his life.382
Doctors explained that Mayo would not be able to move his arms or legs and would be wheelchair
dependent. He had tubes in his bladder to control waste, was *237 not able to control bowel
movements and was provided fluids and medicines through intravenous lines. He would be prone to
skin ulcers and bedsores. He would be dependent on a ventilator and subject to increased risk of
infection and pneumonia. The doctors could not predict how long Mayo would live, but that it would
be less than normal life expectancy. Significant financial costs would also be associated with Mayo's
care.383
After hearing this information, Mayo indicated that he did not want to continue receiving life-support
measures, and the doctors disconnected his ventilator.384 He died a few hours later.385 Fox was
charged and convicted of homicide by vehicle.386 On appeal, the defendant claimed that Mayo's
conscious decision to remove life-sustaining medical assistance constituted an intervening and
superseding cause of death.387 The court noted that a normal consequence of a situation created by
the actor's negligent conduct is not a superseding cause of the harm and further clarified that
“normal” meant not “so extraordinary as to fall outside of the class of normal events.”388 The court
concluded that, because of the severity of his injuries and the near impossibility of recovery, Mayo's
decision to remove life support was a “normal” consequence of the situation created by the
defendant's criminal conduct.389 Fox's conviction was therefore upheld.390
In Gonzalez v. Safe & Sound Security Corp., the plaintiff sued several defendants, claiming
negligence in failure to provide adequate security at the apartment complex where he suffered a
gunshot wound with resulting SCI.391 The plaintiff presented evidence that the owner of the
apartment complex, the security company, and the management firm were all aware of the frequent
violence at the site and the need for greater security.392 The plaintiff's medical expert testified that
the gunshot wound left the plaintiff paralyzed from the mid-chest down, and that there was no more
than a 5% chance that he would recover any significant use of his legs.393 The plaintiff refused to
testify, and the judge instructed the jury that they could draw an adverse inference from this
refusal.394 The jury rendered verdicts against the complex owner and the management company but
found the security company not liable.395 The jury awarded $1,140,000 for future expenses;
$1,000,000 for pain, suffering, and loss of enjoyment of life; $142,272 for loss of past and future
earnings; and $82,059.45 for past medical expenses.396 The court also *238 awarded the plaintiff an
additional $782,496.55 in pre-judgment interest.397 Because the verdict exceeded 120% of an offer
that was made before trial, the court allowed an additional $260,343 in counsel fees, $64,851 in
litigation costs, and $28,458 in enhanced interest, for a total award of $3,500,481.398
The New Jersey Supreme Court noted on appeal that defendants had the right to plaintiff's testimony
in presenting their defense and that, because he was an eyewitness to all of the events, he was
uniquely qualified to testify concerning the circumstances of the shooting and the security at the time
of the event.399 Therefore, the Court reversed the finding, holding that the plaintiff's refusal to testify
was so fundamentally unfair that the plaintiff should have been advised that he was facing the
immediate dismissal of his cause of action, and that if he continued to defy the court's order, then his
case should have been dismissed.400
D. Iatrogenic
An iatrogenic injury is one that occurs during a medical procedure and includes those things that
happen during the use of anesthesia, especially spinal injections and epidural catheter placements,
spinal surgeries, chiropractic treatments, and during other medical and surgical care.401
In Kerkman v. Hintz, the plaintiff sought treatment with a chiropractor for soreness in his “upper
shoulders and neck and numbness in his hands.”402 Over the course of two weeks, the chiropractor
performed several cervical spine adjustments, but the plaintiff's condition deteriorated.403 The patient
was then evaluated by a neurosurgeon who diagnosed him with compression of the spinal cord and
a herniated disc requiring two surgeries.404 Following the second surgery, the plaintiff continued to
have numbness in his hands, difficulty walking and problems with bladder control.405 The patient
then sued the chiropractor, alleging negligent treatment.406 The plaintiff presented the testimony of
two neurosurgeons, both of whom testified that the chiropractor “had not conducted a proper
diagnosis” of the patient.407 On the other hand, the defendant presented evidence that he had
exercised the “same degree of care which is usually exercised by a reasonable chiropractor.”408 The
trial court instructed the jury that “a chiropractor must exercise the same degree of care and skill that
is usually exercised by a recognized school of the medical profession.”409 The jury returned a verdict
for the plaintiff, awarding $241,000 in *239 damages, but issued no award for the patient's wife for
loss of consortium.410 On appeal, the court noted that chiropractors were licensed professionals,
subject to administrative regulations which established that the legislature “recognized the practice
of chiropractic as a separate and distinct health care discipline.”411 Therefore, the chiropractor
should not be held to a medical standard.412 The court held that a chiropractor's duties included
determining “whether the patient's problem is treatable through chiropractic means; refraining from
treatment if the condition will not be responsive; and informing the patient if the ailment is not
treatable through chiropractic means.413 The court noted that a chiropractor does not, however,
“have a duty to refer the patient to a medical doctor” if the ailment is outside the scope of chiropractic
care.414 In determining whether a chiropractor breaches these duties, he will be held to “that degree
of care, diligence, judgment, and skill which is exercised by a reasonable chiropractor under like or
similar circumstances.”415 The court ordered a new trial on the question of negligence consistent with
the “reasonable chiropractor” standard of care.416
In cases where a spinal cord injury occurs in the course of spinal surgery, courts will consider the
expert's medical subspecialty in determining whether they are qualified to testify on the surgeon's
standard of care.417 In Lloyd v. Kime, the plaintiff attempted to present the expert testimony of a
neurologist to establish the standard of care for an orthopedic surgeon performing spine
surgery.418 The plaintiff had suffered a neck injury while at work, resulting in “severe neck and left
arm pain as well as motor and sensory deficits on the left side.”419 The defendant orthopedist, Dr.
Kime, performed a surgical procedure to remove two herniated cervical discs that were compressing
nerve roots.420 When the patient awoke from surgery, a nurse noted that he could not move his right
leg.421 Although several hours after surgery Dr. Kime noted the patient's right leg weakness and
documented that he might have “a small cord contusion,” the physician did not begin treatment with
intravenous steroids or obtain an MRI until the following day when the patient demonstrated
“weakness in his right arm and leg, milder weakness in his left arm, and numbness in his
abdomen.”422 The MRI demonstrated “swelling in the spinal cord at the C6-7 level.”423 The plaintiff
filed suit against the doctor for “malpractice in the performance of the . . . [surgery] and for his postoperative treatment” in failing to *240 recognize, diagnose, and timely treat the spinal cord
injury.424 The plaintiff designated a neurologist as his only expert witness.425 This expert was a
practicing neurologist and had performed spinal surgeries in the past but not within the years
immediately prior to the patient's surgery.426 The trial court held that the neurologist was not qualified
to testify as to the standard of care for either the surgery or the post-operative care and was not
qualified to testify as to breach of the standard of care or proximate causation.427 The trial court then
granted the defendant's motion for summary judgment.428
On appeal, the court noted that, in order to qualify a witness as an expert on the standard of care,
the proponent of the expert must show that the specialty of the expert is the same as the defendant's
specialty or a related field of medicine.429 The court concluded that, to determine whether the
specialty is in a “related field of medicine,” it is sufficient if, in the expert's clinical practice, he
performs the procedure at issue and the standard of care for performing the procedure is the
same.430 Because the neurologist did not perform spinal surgery in his clinical practice, the court
held that the trial court correctly excluded his testimony regarding intraoperative
negligence.431 However, because the neurologist evaluated and treated patients with spinal cord
injuries in his clinical practice and because the plaintiff presented evidence that the standard of care
for neurologists and orthopedists in treating a new spinal cord injury is the same (and Dr. Kime
offered no evidence to contradict this), the court held that the trial court had abused its discretion by
excluding the neurologist's testimony with regard to the allegation of postoperative negligence and
remanded the case for further proceedings.432
E. Missed Diagnosis
Immobilization of a fractured spine at the time of injury is critical in preventing further damage to the
spinal cord;433 administration of high dose steroids within eight hours of injury may improve
outcome;434 and early surgical intervention may improve the patient's prognosis.435 Therefore, a
missed or delayed diagnosis of spinal cord injury can result in compensable harm.436 For instance,
in *241District of Columbia v. Howard, the decedent's wife brought a wrongful death action for the
alleged failure of emergency technicians to diagnose her husband's spinal cord injury and for a
police officer's mishandling of him during transport.437 The facts show that the Mr. Howard was
intoxicated when he fell down a flight of stairs onto a cement patio at a friend's house.438 Mr. Howard
told his friend that he was unable to get up because of pain in his arm and neck, and numbness in
his neck.439 When the emergency medical technicians (EMTs) arrived, Howard was coherent and
able to move his arms.440 There was a dispute as to whether the EMTs were told that Mr. Howard
had fallen down the stairs or of his complaints of pain and numbness.441 The only tests that the
EMTs performed were a blood pressure check and a reaction test that involved shining a flashlight
into the patient's eyes.442 When Mr. Howard refused to be transported to the hospital, the police
were called to take him to a detox center. The police were advised that Mr. Howard was intoxicated
but otherwise “all right.”443 The police then carried him by his arms and belt and placed him face
down on the floor of the paddy wagon.444 Upon arrival at the detox center, the police propped him up
against a wall in a sitting position.445 The doctor at the center immediately recognized Howard's
spinal cord injury, instructed the EMTs to immobilize his neck, and transferred Howard to the
hospital.446 Upon arrival, the patient suffered a cardiac arrest, became comatose, and died thirteen
days later.447 The decedent was found to have had a severe fracture of two cervical vertebrae.448 At
trial, the plaintiff's expert, who was qualified in orthopedics and the standard of care for EMTs in
respect to spinal immobilization and transport of persons with spinal injuries, opined that properly
trained EMTs would have recognized that the patient had a broken neck and would have
immobilized his head before moving him.449 Plaintiff's expert also testified that, because Howard
could move his limbs when he was at the bottom of the stairs, Mr. Howard was still “neurologically
intact” at that point, and proper immobilization by the EMTs would have prevented his subsequent
paralysis and death.450 The plaintiff's treating physician, however, felt that the spinal cord injury had
occurred at the time of the initial impact when Mr. Howard fell down the stairs.451 The trial judge
restricted the treating physician's testimony in regard to the mechanism of Mr. Howard's injury
because he had not *242 been listed as an expert witness.452 The jury found that the EMTs and
police were negligent and awarded $676,548 for the decedent's injuries, mental anguish, and
discomfort between the time of the injury and his death, net future earnings, services to Mrs.
Howard, funeral expenses, and medical and hospital services.453 On appeal, the court held that the
treating physician's opinion about the mechanism of injury was improperly excluded, as the treating
physician indicated that he always tried to determine mechanism of injury in the course of treating
his patients.454 The court noted that prior case law established that a treating physician may testify
as an actor and viewer of occurrences that are part of the subject matter of the lawsuit and may
testify about opinions that he develops in the course of treating the patient.455 Because causation
was a critical part of the case, the court found that the restriction of the treating physician's testimony
resulted in prejudicial error and granted the defendant a new trial.456
A delayed diagnosis of spinal cord injury can result in the loss of the opportunity for an improved
outcome.457 In Lord v. Lovett, a plaintiff, who suffered a broken neck in a car accident, claimed the
physicians at the hospital negligently misdiagnosed her spinal cord injury, failed to immobilize her
properly and to administer steroid treatment, which caused her to lose the opportunity for a
substantially better recovery.458 The plaintiff conceded that her expert could not quantify the degree
to which she was deprived of a better recovery by the defendant's negligence, and the trial court
dismissed the lawsuit on the basis that the state did not recognize loss of opportunity as a cause of
action.459 On appeal, the court noted that the loss of opportunity doctrine “is a medical malpractice
form of recovery which allows a plaintiff, whose preexisting injury or illness is aggravated by the
alleged negligence of a physician or health care worker, to recover for her lost opportunity to obtain
a better degree of recovery.”460 It was held that a plaintiff may recover for a loss of opportunity injury
“when the defendant's alleged negligence aggravates the plaintiff's preexisting injury such that it
deprives the plaintiff of a substantially better outcome.”461 With this approach, the plaintiff may
prevail even if her chances of recovery are less than fifty-one percent.462 However, the plaintiff must
still prove that the lost opportunity for a better outcome was caused, more probably than not, by the
defendant's negligence.463 Additionally, the litigant would not receive damages for the entire injury,
just for the portion of damages actually attributable to the defendant's negligence.464
*243 Even when a spinal cord injury is recognized, a physician's choice of treatment, or timing of
treatment, may be the basis of a negligence claim.465 In Fitzgerald v. Vincent, the plaintiff sustained
a subluxation of the cervical spine, with bilateral “jumped facets” at C5-6, when she fell from a
horse.466 Upon arrival at the emergency room approximately one hour after her fall, she was
examined by the defendant neurosurgeon and started on a steroid protocol.467 At that time, she had
“approximately 40 percent of her biceps function, a trace of wrist rotation, but no movement
elsewhere below” and a sensory level at the nipple.468 The defendant attempted, unsuccessfully, to
reduce the patient's subluxation with traction.469 He diagnosed the plaintiff with a C5-6 complete SCI
and scheduled a surgical reduction three days later.470 About 24 hours after her injury, a nurse
reported that the plaintiff could no longer use her biceps, and her sensory level was at the
shoulders.471 The physician examined the patient, believed that she had lost nerve root function to
her biceps, but found that her spinal cord injury had not ascended.472 He partially based his
conclusion on the fact that she had no change in her breathing function, which would likely be
affected if her spinal cord injury had worsened.473 The physician was unaware that the nurses,
respiratory therapist and pulmonologist had all documented deterioration in the plaintiff's breathing
capacity throughout the day.474 Approximately four hours after the defendant's assessment, the
plaintiff's breathing status deteriorated to the point that she was placed on a ventilator.475 Her injury
eventually ascended to the C1-2 level.476 Surgical reduction was performed, and the plaintiff's spine
was stabilized three days after her injury, though she never regained any function and remained
unable to breathe on her own, move any muscle below her chin or feel or touch anywhere but on her
face.477
The plaintiff claimed that her initial injury was incomplete and that she lost function unnecessarily
when the doctor did not reduce her subluxation immediately.478 She contended that she would not
have lost any additional function if she had been taken immediately to surgery when traction failed
or, at the very latest, as soon as her injury began to worsen.479 The defendant asserted that the
worsening of the patient's spinal cord injury was the result of an ascending myelopathy, a rare
condition which occurs in two percent of patients with spinal injuries and which has occurred in both
patients whose injuries have been reduced *244 and in those whose injuries have not been
reduced.480 The defendant's experts testified that the severe trauma of the injuries themselves
caused chemicals to be released which resulted in the death of tissue above the site of the
injury.481 The jury returned a verdict of $5,215,935.72, for past economic damages ($659,685.72),
future economic damages ($3,037,500), and noneconomic damages ($1,518,750).482 “The appellate
court affirmed the award, rejecting the defendant's contention that the court erred when it refused to
give his proposed instruction that there were two schools of thought about the timing of surgery; one
school supporting that emergency surgery was required, and the other school supporting the
decision to delay surgery,” and that “a physician was not liable if he followed a course of treatment
advocated by a considerable number of medical professionals.”483 The court concluded that the
defendant's instruction did not fit the facts of the case and would have confused the jury because it
was “not clear that the treatments advocated by the experts were alternate choices or that there
were only two choices available.”484
F. Secondary Complications
There are numerous potential secondary complications associated with spinal cord injuries leading
to the possibility for many types of causes of action.485 In Bamberger v. Freeman, Eckstein was
rendered a quadriplegic when his car was struck by a truck driven by one of the defendants in the
course of his employment.486 Eckstein filed a personal injury action but died prior to the resolution of
the lawsuit.487 The lawsuit was substituted by a wrongful death action and a $1 million settlement
agreement was reached “relinquishing any and all claims against the defendants.”488 The court
approved the settlement and found that no hospital liens attached.489 The personal representative of
the estate then filed a survivorship action against the defendants seeking to recover damages
separate from the wrongful death settlement and the hospital that treated the decedent filed a claim
to enforce its lien.490 Defendants' motion for summary judgment was granted and the plaintiffs
appealed.491 The emergency room report noted that the cause of death was cardiopulmonary arrest,
but the court considered the note of the emergency room *245 physician, which stated that the
patient probably had “a massive pulmonary embolus, as an etiology of his sudden demise.”492 The
death certificate listed the cause of death as “complications of cervical spine fractures with
quadriplegia.”493 Because the medical literature describes pulmonary embolism as “a common
medical complication after a spinal cord injury” “as well as an important cause of morbidity and
mortality,” the court concluded that the medical research supported the conclusion that the decedent
had suffered a complication common to those suffering spinal cord injuries.494 The court further
stated that because the patient's death “resulted from his quadriplegia, which was caused by the . . .
accident, [the] personal representative was barred from bringing a survivorship action on behalf of
the estate as a matter of law.”495
Secondary complications in spinal cord injuries can give rise to product liability claims.496 For
instance, in Needham v. Roho Group, the plaintiff brought suit for negligent design, defective
manufacture, and failure to warn, against the manufacturer of the Roho air cushion he was using
when he developed a pressure sore.497 The cushion was “marketed as one that allows the disabled
to sit for hours without developing pressure sores.”498 The plaintiff, who had been rendered a
quadriplegic in an auto accident fourteen years earlier, had used the cushion for four years prior to
the day that he contended that it lost air which allowed him to “bottom out” and develop a pressure
sore.499 On that day, after transferring the plaintiff from the chair onto his bed, an attendant noted
that the cushion did not have much air.500 When she checked his skin, she noted a “cherry spot,” or
pressure sore, on his buttock.501 Over the next few weeks, the sore became infected, “eventually
requiring surgery that left the plaintiff bed-ridden for three years.”502 The plaintiff presented several
theories as to why the cushion did not function as expected.503 He first argued that a change of
twenty-six degrees in the ambient temperature on the day in question caused the volume of air
within the cushion to decrease and allowed his buttock to contact the hard wheelchair seat.504 His
other arguments included that his positioning in the chair made the cushion either unsuitable for use
or ineffective, that the cushion had been shown in a clinical study to be defectively designed
because it routinely allowed occlusion of the capillary vessels to occur, and that an air valve may
have loosened and leaked.505 The court held that all of these theories suffered from “a common
defect, which is the failure of the plaintiff to come forward with *246 evidence that creates a triable
issue on the element of causation.”506 Circumstantial evidence may permit a reasonable inference of
causation if the plaintiff introduces evidence which affords a reasonable basis for the conclusion that
it is more likely than not that the conduct of the defendant was a cause in fact of the result.507Here,
because there was uncontested evidence that pressure sores can develop in quadriplegic patients
even under the best of circumstances, it was the plaintiff's burden to prove that it was more likely
than not that some fault in the cushion was the cause of his injury.508 The court felt that the plaintiff
did not meet this burden and granted the defendant's motion for summary judgment.509
Secondary complications in spinal cord injuries can also give rise to medical malpractice
claims.510 In Freed v. Geisinger Medical Center, a patient sued the defendants for pressure sores he
developed following a car accident that rendered him paraplegic.511 The plaintiff was hospitalized for
approximately one month following his injury then transferred to a rehabilitation center where he
developed pressure sores on his buttocks and sacrum, which became infected, requiring
surgery.512 He claimed that the nursing staff at both institutions failed to meet the nursing standard of
care with regard to the treatment and prevention of pressure wounds on an immobilized
patient.513 At trial, the plaintiff's expert, a registered nurse, was asked her opinion as to the cause of
the plaintiff's bedsores. The defense objected.514 The court sustained the objection on the basis that
the expert was not a medical doctor and, therefore, was not qualified to give a medical
diagnosis.515 The court cited Flanagan v. Labe,516 which held that “an opinion regarding the specific
cause and identity of an individual's medical condition constitutes a medical diagnosis, which a nurse
is prohibited from making under the Professional Nursing Law.”517 Because the plaintiff was unable
to present evidence of a causal connection between the alleged breach of the nursing standard of
care and the development or worsening of the pressure sores, the trial court granted the defendant's
motion for a non-suit.518 The intermediate appellate court reversed, holding that the nurse was
competent to testify on both the standard of nursing care and the issue of causation.519 The
defendants appealed, arguing that the holding was in conflict with Flanagan and must be
vacated.520 The Pa. Supreme Court agreed that the Superior Court's decision was in conflict with
Flanagan but determined that, *247“to the extent that it prohibits an otherwise competent and
properly qualified nurse from giving expert opinion testimony in a court of law regarding medical
causation, [[Flanagan] is flawed and must be overruled.”521 The court evaluated the general rule that,
in order to qualify as an expert witness in a given field, “a witness need only possess greater
expertise than is within the ordinary range of training, knowledge, intelligence, or experience.”522 The
Court reasoned that “it is in the context of the practice of nursing” in which a nurse is precluded from
making a medical diagnosis and that there is no language in the statute to suggest that the laws are
applicable in the distinct legal arena of malpractice or negligence actions.523 The Court overruled
Flanagan retroactively and affirmed the Superior Court's order reversing and remanding the case for
trial.524
G. Insurance Issues
The high costs of the acute care and ongoing medical needs of spinal cord patients often result in
litigation involving insurance coverage.525 Even those with what would appear to be good insurance
coverage may find it difficult to receive benefits.526 In Atanacio v. New Jersey Manufacturers
Insurance Company, the plaintiff's insurance claim was dismissed due to the Employment
Retirement Income Security Act of 1974 (ERISA) preemption clause.527 The facts show that the
plaintiff sustained a spinal cord injury in a car accident and required extensive medical care,
modifications to his home, and a specially equipped van.528 At the time of the accident, he was
insured under a New Jersey Manufacturer's (NJM) personal automobile policy, which provided
personal injury protection (PIP) coverage up to $250,000 for catastrophic injury.529 He was also
employed by Verizon at the time of the accident and was covered under a Verizon Managed Care
Network administered by Aetna.530 That plan provided “extensive medical care benefits for active
employees without limitation.”531 Additionally, the patient was covered as a dependent under the
plan provided to his wife through her employment (the SBH plan).532 In reading the plans, the court
determined that NJM provided the primary coverage so that the plaintiff was entitled to $250,000 of
PIP coverage, that the Verizon plan was secondary, and that the SBH was tertiary.533 The court
also *248 noted that SBH's plan provided that, if the primary health care plan benefit equals or
exceeds the SBH plan benefit, the beneficiary will receive no additional benefits from their
plan.534 The court, however, held that parts of the plaintiff's claims were preempted by ERISA.535 All
employee welfare benefit plans are covered under ERISA.536 Both the Verizon and the SBH plans,
therefore, were covered under the federal legislation.537 Because Verizon's plan specifically stated
that it did not cover services or supplies covered under any federal or state “no-fault” motor vehicle
insurance provision, and the SBH plan also denied the claims on the basis of the plan's
terms.538 The court held that both plans' decisions must be upheld.539
ERISA preemption, however, is not always upheld.540 In Watts v. Organogenesis, Inc.,541 the court
granted a preliminary injunction against an employee's benefit plan that had denied home care
nursing for the plaintiff. The claimant had suffered a C4 spinal cord injury in a car accident and, at
the time of discharge from the rehabilitation hospital, was suffering from frequent and extreme
episodes of autonomic dysreflexia.542 Her physician ordered home care nursing to administer the
patient's bowel and bladder care regimen and to control her episodes of dysreflexia, but the
defendant health benefit plan denied that she was covered for such services.543 The claimant sued
her benefit plan, former employer, and claims administrator to recover the costs of the nursing care,
and moved for a preliminary injunction ordering the defendants to cover her for 16 hours of home
nursing services per day, seven days per week.544 The defendants claimed that the plaintiff had
failed to exhaust the procedural steps prescribed in the plan document, as well as on the basis of
various exclusions specified in the plan.545 The plaintiff countered that her circumstances rendered
the exclusions irrelevant to her claim or did not justify denial in her case.546
The court first determined that an ERISA plan's procedural requirements need not be exhausted
when they are inadequate.547 If the particular care sought is of an urgent nature, such as when there
is an imminent threat to health or life, inadequacy is clear and exhaustion not required.548 Because
the plaintiff's dysreflexia was an *249 imminent threat to her life, the court rejected the defendant's
exhaustion argument.549 The court then looked at the construction of the plan document to
determine whether the particular care requested was excluded and concluded that the nursing
services were available to the plaintiff, provided that the services sought were “medically necessary,”
that the services were prescribed by a physician, and that the services were “reasonably expected to
improve the underlying condition.”550 The court concluded that the plaintiff fulfilled all of these
requirements, based on the evidence, particularly on the testimony of the patient's treating
physician.551
“The severity of Watts' dysreflexia is undisputed. . . In response to a problem or stimulus in her lower
body, Watts' blood pressure rises rapidly and to particularly dangerous levels, and she suffers, on
average, one to four such attacks each day. . .. Her blood pressure must be decreased within ten
minutes of an attack, which requires that effective treatment be commenced within about half that
amount of time. Watts' current nurse testified that it ordinarily takes between 5 minutes and one hour
to stabilize Watts' blood pressure fully. . .. If effective steps are not taken with sufficient speed, Watts
runs a serious risk of a stroke, heart attack, or death.”552
The court concluded that the care prescribed, therefore, was medically necessary.553 The defendant
next argued that each of the tasks involved in the management of the plaintiff's dysreflexia, when
broken down, was simple “custodial” or “domestic” type care, which was excluded by the
plan.554 The court rejected this argument, stating that, for most people, even most disabled people,
these tasks may be considered custodial, but in the case of the plaintiff, they are not, as they must
be performed with the utmost care and skill.555 The court ordered the health plan to authorize and
pay for the nursing care prescribed and to reimburse the plaintiff and family for any and all payments
that they had made for skilled at home nursing care to date.556
H. Constitutional Claims
The Government's duty to provide for prison inmates' basic human needs, including medical care, is
linked to the Eighth Amendment's protection against cruel and unusual punishment.557 Inmates with
spinal cord injuries, therefore, must be provided with the appropriate medical care for their unique
needs.558 However, in regard to medical care, the Supreme Court has held that “a prisoner must
allege acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical
needs” in order to establish an Eighth Amendment claim.559 In *250 Rahoi v. Franks, an inmate
claimed that the physicians at the detention facility were deliberately indifferent to his serious
medical needs.560 The petitioner was incarcerated about five months after he suffered a cervical
spinal cord injury in a motor vehicle accident.561 Prior to his incarceration, he developed significant
spasticity and a right rotator cuff tear.562 He was scheduled for botox injections for the spasticity and
shoulder surgery for the rotator cuff tear, but was incarcerated before he received those
treatments.563 His doctor had advised him that it was imperative that he have the surgeries and the
injections or his rotator cuff muscles would shrink, surgical repair would become impossible, and he
would have increasing pain and other difficulties.564 A physician at the correction facility noted that
the petitioner had missed the scheduled surgery and stated that no follow-up was needed.565 The
prisoner was then transferred to a series of other facilities, and at each facility, he wrote health
service requests seeking attention for extreme pain and muscle spasms.566 He was prescribed
physical therapy but never received it and was inadequately medicated for spasticity, neuropathic
pain, and bowel movements.567 He was finally approved for an appointment with the pain clinic;
however, more than one year after his incarceration, he had not yet seen a doctor for his pain or
received treatment and was in line for a transfer to another institution.568
In granting the petitioner's leave to state an Eighth Amendment claim in forma pauperis, the court
noted that the inmate's medical needs must be objectively serious.569 This standard is met if a
physician has mandated treatment or if it is so obvious that even a lay person would recognize the
need for a doctor's attention.570 This includes conditions in which “the deliberately indifferent
withholding of medical care results in needless pain and suffering.”571 The court concluded that the
petitioner stated sufficient facts to suggest that he had a serious medical condition and to state a
claim that the doctors showed deliberate indifference to his serious medical needs.572
I. Americans with Disabilities Act
The Americans with Disabilities Act (ADA) guarantees full participation in American society for all
people with disabilities.573 The legislation applies to every individual with an impairment that
substantially limits one or more major life *251 activities.574 The act prohibits private employers, state
and local governments, employment agencies and labor unions from discriminating against people
with disabilities in job application procedures, hiring, firing, job training, advancement, compensation,
and other aspects of employment.575An individual with a disability is defined as a person who has a
physical or mental impairment that substantially limits one or more major life activities; has a record
of such impairment; or is regarded as having such an impairment.576 A qualified employee or
applicant with a disability is an individual who, with or without reasonable accommodations, can
perform the essential functions of the job in question.577As one can imagine, this legislation plays an
important role in the lives of those with spinal cord injuries.
Despite this remedial legislation, if the person with a spinal cord injury is not able to perform the
requirements of the job even with accommodations, this legislature will not help. For instance, in
Ebbert v. Daimler Chrysler Corp.,578 a former employee sued her employer for failing to reasonably
accommodate her spinal cord injury under the ADA. The claim was denied because her injuries
prevented her from performing the essential functions of her former position with or without
accommodations.579
In Equal Employment Opportunity Commission v. Du Pont De Nemours & Co., the plaintiff was
awarded over $90,000 in back pay and over $1 million in punitive damages following dismissal from
her job as a lab clerk that involved copying and filing.580 The plaintiff's employer had required her to
undergo an evaluation of her functional capacity and, as a result, determined that she was unable to
perform the essential functions of her job because she was unable to evacuate the office building
because her disability made it difficulty to walk.581 The court noted that essential functions are “the
fundamental duties of the job at issue and do not include the job's ‘marginal functions'.”582 In
considering whether a function is essential, a court may consider the employer's judgment as to
which functions are essential, written job descriptions, the amount of time spent on the job
performing the function, and the work experience of both past and current employees in the
position.583 Here, the court upheld the trial court's decision that the plaintiff's ability to evacuate the
building was not an essential function of her job and upheld the award of back pay and punitive
damages.584
Title III of the ADA prohibits discrimination based on disability in places of public accommodation
and in “specified public transportation services” and requires *252 covered entities to remove
“architectural barriers. . .that are structural in nature” where such removal is “readily
achievable.”585 In Spector v. Norwegian Cruise Line Ltd., the Supreme Court held that foreignflagged cruise ships operating in United States waters were required to meet the provisions of the
ADA and that “to hold there is no Title III protection for disabled persons who seek to use the
amenities of foreign cruise ships would be a harsh and unexpected interpretation of a statute
designed to provide broad protection for the disabled.”586 Douglas Spector who utilized a motorized
scooter due to an inability to walk caused by a tumor on his spinal cord, and a group of other
mobility-impaired passengers, who used wheelchairs or scooters, brought action against the cruise
line because of physical barriers to their access to certain areas of the cruise ship.587 Although the
court held that, “[e]xcept insofar as Title III regulates a vessel's internal affairs. . .the statute is
applicable to foreign ships in United States waters to the same extent that it is applicable to
American ships in those waters,” the statute's “own limitations and qualifications prevent it from
imposing requirements that would conflict with international obligations or threaten shipboard
safety.”588 Therefore, the case was remanded to determine if these limitations and qualifications
applied.589
J. Damages
When a plaintiff prevails in a spinal cord injury claim, damages can be quite high and include
compensation for past and future pain and suffering, past and future health care expenses, lost
earnings, and loss of future earnings.590 Courts consider the extent of paralysis, the degree of
physical pain suffered the presence of secondary complications, life expectancy, and the impact on
the plaintiff's lifestyle, family life, and emotional well-being in determining if the amount of a noneconomic damage award is reasonable.591
In ascertaining whether an award is excessive or inadequate, courts may also consider whether it
deviates materially from reasonable compensation.592 In Saladino v. Steward & Stevenson Services,
Inc., the court upheld an award of $15 million for pain and suffering, $18 million for future health care
expenses, and $750,000 for loss of consortium to a plaintiff who was rendered quadriplegic at 37years of age when he was struck in the head by an unsecured baggage tractor's hood *253 while at
work.593 The trial court's jury also awarded almost $5 million for past health care expenses, $532,309
for lost earnings, and $1 million for loss of future earnings, but the defendants did not dispute these
awards.594 In assessing the verdict, the court considered the plaintiff's fear and pain during his initial
hospitalization, when he experienced multiple complications, including fevers, allergic drug
reactions, constant urinary tract infections and pressure sores requiring extensive surgery.595 The
plaintiff's wife testified that he had been a very involved husband and father prior to his injury but
became quiet, was less social, and was physically unable to participate in his daughters' care after
the injury.596 He felt humiliated by having nurses do any of his intimate care, so his wife performed
all of his catheterizations and bowel routines.597 He limited his activities outside of the house for fear
of having accidents with his catheter.598 He was unable to have intimate relations with his wife, and
he ultimately moved out of the home and separated from his wife.599 The court also considered the
extent of the plaintiff's paralysis, his daily routine, his ongoing medical complications which included
urinary tract infections and dysreflexia.600 The defendants argued that the award for past and future
pain and suffering was excessive because the plaintiff's record did not establish that he suffered
from physical pain.601 The court determined that, in looking to awards in comparable cases, the
primary criterion in choosing analogous cases is similarity of injury or diagnosis.602 The court
considered several cases of awards to spinal cord injured plaintiffs for pain and suffering between
$10 million and up to $17.5 million.603 Several of the awards were to patients who suffered significant
physical pain after their injuries but who were paraplegic, not quadriplegic.604 The court refused to
accept the defendant's stance which “seem[ed] to argue that pain trumps greater paralysis as a
general principle.”605 The court concluded that $15 million for pain and suffering did not deviate
materially from reasonable compensation:
“He is essentially a prisoner in his own body, dependant on others for every moment of his day,
including the performance of his most basic bodily functions. . .[He] still faces unpredictable threats
of dysreflexia, infections, and other complications. He has lost his marriage, his home, and his
livelihood, sometimes spending hours each day counting objects in front of *254him just to pass the
time. . .Therefore, although the $15 million aggregate pain and suffering award is certainly in the
higher range, this Court does not find the amount excessive as a matter of law.”606
The court also concluded that, based on the nine-year period between the time of the plaintiff's injury
and the marital separation, the significant impact on their social and physical relationship during that
time, and the ultimate loss of their marriage, the $750,000 loss of consortium award to the plaintiff's
wife did not deviate materially from reasonable compensation.607 Finally, the court found that the
jury's award of $18 million for future medical costs was supported by evidence of a current life care
plan and a year-by-year breakdown provided by the plaintiff's expert and did not deviate materially
from reasonable compensation.608
IV. CONCLUSION
Spinal cord injury is a devastating and comprehensive injury that affects almost all aspects of a
person's life.609 Unfortunately, there is no current cure for this complicated medical problem, and
treatments to improve the outcome have very limited effects. Additionally, spinal cord injury results in
life-long medical, emotional, and social issues. Many legal issues arise in relation to spinal cord
injury, and attorneys who understand the complex nature of the injury will be in a better position to
advocate for such clients.
Footnotes
a1
Virginia Graziani Lowe recieved her MD from Jefferson Medical College in Philadelphia, PA. She is
an Assistant Professor in the Department of Rehabilitation Medicine at Thomas Jefferson University
Hospital and a law student at Temple University Beasely School of Law.
aa1
Samuel D. Hodge, Jr. is a professor and chair of the Legal Studies Department at Temple
University where he teaches both law and anatomy. He lectures nationally on anatomy and trauma
and is the co-author of the ABA Medical-Legal Guides, Clinical Anatomy for Lawyers, ABA, 2012,
and Anatomy for Litigators, 2nd Edition, ALI-ABA (2011). He has also written more than 100 articles
on medical/legal topics. Professor Hodge is a graduate of Temple University Beasley School of Law
and the Graduate Division of the Law School. He is also a member of the College of Legal Medicine.
Virginia Graziani Lowe recieved her MD from Jefferson Medical College in Philadelphia, PA. She is
an Assistant Professor in the Department of Rehabilitation Medicine at Thomas Jefferson University
Hospital and a law student at Temple University Beasely School of Law.
1
Help Center: Spinal Cord Injuries, The Legal Examiner Wiki, http:// wiki.legalexaminer.com/helpcenter/spinal-cord-injuries/ (last visited September 11, 2012).
2
Samuel D. Hodge, Jr. & Jack E. Hubbard, ABA Medical-Legal Guides, Clinical Anatomy for
Lawyers, Chapter 6, (American Bar Association, 2012).
3
Help Center: Spinal Cord Injuries, supra note 1.
4
Id.
5
37 Am. Jur. 2d Proof of Facts § 1 (1984) (updated 2012).
6
Id.
7
Id.
8
Ralph J. Marino, Dir. Reg'l Spinal Cord Injury Ctr., Spinal Cord Injury Model Systems of Care,
Presentation at Magee Rehabilitation Hospital (Oct. 7, 2011).
9
Id.
10
Id.
11
Id.
12
National Spinal Cord Injury Statistical Center (NSCISC), University of Alabama at Birmingham,
https://www.nscisc.uab.edu/ (Last visited Jan. 12, 2011). This organization supports and directs the
collection, management and analysis of the world's largest spinal cord injury database. In addition to
maintaining the national SCI database, NSCISC personnel conduct ongoing research; many of the
findings resulting from their investigative efforts have had a large impact on the delivery and nature
of medical rehabilitation services given to spinal cord injury patients. Id.
13
Unless otherwise noted, all statistical information in this article is based on NSCISC and/or the
National Shriner's Hospital System database.
14
Michael J. DeVivo, Epidemiology of Spinal Cord Injury, in Spinal Cord Medicine: Principles and
Practice 72 (Vernon W. Lin ed., 2d ed. Demos Medical 2010).
15
Id.
16
Traumatic Brain Injury in the United States: Emergency Department Visits, Hospitalizations and
Deaths 2002-2006, Centers for Disease Control and Prevention,
http://www.cdc.gov/traumaticbraininjury/tbi_ed.html (last visited Sept. 11, 2012).
17
Spinal Cord Injury Facts and Figures at a Glance, University of Alabama at Birmingham,
https://www.nscisc.uab.edu/PublicDocuments/fact_figures_
docs/Facts%202012%C20Feb%20Final.pdf (last visited Sept. 2, 2012).
18
DeVivo, supra note 14, at 73.
19
See id. (noting the mean age at injury from 1973-79 was 28.9 years, whereas among persons
injured since 2000, the mean age at injury was 35.6 years).
20
Id.at 81.
21
Nat'l Spinal Cord Injury Statistical Ctr., University of Alabama at Birmingham, The 2010 Annual
Statistical for the Spinal Cord Injury Model Systems 38 tbl.26 (2011).
22
Id.
23
Id. at 39 tbl.28.
24
See id. (noting that violence accounted for 23.5% and 2.7% of all spinal cord injuries in the 16-30
and 61-75 age groups, respectively and 10.6% and 49.4% of falls in the age groups 16-30 and 6175, respectively).
25
Id.
26
Michael J. DeVivo and Yuying Chen, Epidemiology of Traumatic Spinal Cord Injury, in Spinal Cord
Medicine: Principles and Practice 72, 74 (Stephen Kirshblum Denise I. Campagnolo and Joel A.
DeLisa eds., Lippincott Williams & Wilkins 2002).
27
Id.
28
Id.
29
Id.
30
Id. at 79.
31
DeVivo & Chen, supra note 26, at 79.
32
Id.
33
Quadriplegia and Tetraplegia, Apparelyzed, http:// www.apparelyzed.com/quadriplegia.html, (last
visited Sept. 2, 2012) (noting that the terms quadriplegic and tetraplegic are used interchangeably).
34
DeVivo, supra note 14, at 80.
35
Id.
36
Id.
37
Id. at 81.
38
Id.
39
Pulmonary Embolism, MayoClinic.com, http:// www.mayoclinic.com/health/pulmonaryembolism/DS00429 (last visited on Dec. 21, 2011). A pulmonary embolism refers to a blockage in
one or more arteries in the lungs. Id.
40
Id.
41
Jared Toman, Christopher M. Bono and Mitchel B. Harris, Cervical Injuries: Indications and Options
for Surgery, in Spinal Cord Medicine: Principles and Practice 187 (Vernon W. Lin ed., Demos
Medical 2010).
42
Id.
43
Id.
44
Id.; see also Vertebral Body, Medical College of Wisconsin, http://
www.mcw.edu/neurology/divisions/Neurointervention/Selected-Disorders-and-Conditi/VertebralBody-Compression-Fra.htm#.UENsbrJmTSY (last visited Sept. 2, 2012). The vertebral body is the
largest part of the vertebrae and is the portion of the bone that supports the body's weight when
standing.
45
Toman, Cervical Injuries, supra note 41 at 198.
46
Id.
47
Id.
48
What is a Subluxation, eChiropratic.net, http:// www.echiropractic.net/what_is_a_subluxation.htm
(last visited on Dec.21, 2011). A subluxation is a term frequently used by chiropractor to refer to a
medical condition where one or more of the vertebrae move out of anatomic position and place
pressure on, or irritate spinal nerves. Id.
49
Toman, Cervical Injuries, supra note 41 at 197.
50
Id.
51
Id.
52
Id.
53
John C. France & John R. Orphanos, Management of Cervical Facet Dislocations: Timing of
Reduction, in Controversies in Spine Surgery: Best Evidence Recommendations 42 (Alexander R.
Vaccaro & Jason C. Eck eds., Thieme 2010).
54
Andrew K. Simpson, et al, Thoracolumbar Fractures, in Spinal Cord Medicine: Principles and
Practice 202 (Vernon W. Lin ed., 2010).
55
Facet Joint Disease, NYU Medicine, http://pain-medicine.med.nyu.edu/patient-care/conditions-wetreat/facet-joint-disease (last visited on Dec. 20, 2011).The facet joints are the structures in the back
portion of the vertebrae that connect the vertebrae to one another. Id.
56
Simpson, supra note 54, at 202.
57
Id.
58
Id.
59
Marcel F. Dvorak and Charles G. Fisher, Central Cervical Cord Injury in the Presence of Cervical
Spondylotic Stenosis, in 13 Spine: State of the Art Reviews: Spinal Cord Injury 519, 520 (Jens R.
Chapman ed., Hanley & Belfus 1999).
60
Id.
61
Id.
62
Id. at 520.
63
Saadi Ghatan, Anthony M. Avellino and Richard G. Ellenbogen, Spinal Cord Injuries in Pediatric
Patients in Spine: State of the Art Reviews: Spinal Cord Injury, Vol. 13, No. 3, p.550 (Jens R.
Chapman ed., Hanley & Belfus 1999).
64
Id.
65
D. Pang, Spinal Cord Injury Without Radiographic Abnormality in Children, 2 Decades Later. 55
Neurosurgery 1325 (Dec. 2004).
66
Id.
67
Id. at 1340.
68
Samuel D. Hodge, Jr. & Jack E. Hubbard, ABA Medical-Legal Guides, Clinical Anatomy for
Lawyers, Chapter 6, (American Bar Association, 2012).
69
Spinal Anatomy: Overview of the Spine, University of Virginia Health System,
http://www.uvaspine.com/overview-of-the-spine.php (Last visited on Sept. 2, 2012).
70
Aetna Life Ins. Co. v. Evins, 199 So.2d 238, 240 (Miss. 1967).
71
Id.
72
37 Am. Jur. 2d Proof of Facts § 3 (1984) (updated 2010).
73
Id.
74
Samuel D. Hodge, Jr. & Jack E. Hubbard, ABA Medical-Legal Guides, Clinical Anatomy for
Lawyers, Chapter 6, (American Bar Association, 2012).
75
37 Am. Jur. 2d Proof of Facts § 3 (1984) (updated 2010).
76
Id.
77
Id,
78
Id.
79
Id.
80
See id. (describing how lateral cells innervate distal muscles).
81
37 Am. Jur. 2d Proof of Facts § 3 (1984) (updated 2010).
82
Id.
83
Id.
84
Id.
85
Id. at § 4.
86
Id. at § 4 fig. 4.
87
37 Am. Jur. 2d Proof of Facts § 4 (1984) (updated 2010).
88
Id.
89
Id.
90
Id.
91
Id.
92
See 37 Am. Jur. 2d Proof of Facts §13 (explaining that a lesion to the fifth vertebrae can cause
paralysis to the legs).
93
Id. at § 4 fig. 4.
94
Id. at § 18.
95
Id. at § 6.
96
Id.
97
See Funke v. Fieldman, 512 P.2d 539, 543 (Kan. 1973) (noting that “the spinal cord ends at the
upper part of the small or our back, normally you would not expect it to end lower than the body of
the second lumbar vertebra. The cord tapers down gradually and at the very bottom there is a slight
enlargement which is called the conus medullaris and the cauda equina extends from the conus
medullaris and exits through the lower lumbosacral coccygeal foramen.”).
98
Steven C. Kirshblum et al., International Standards for Neurological Classification of Spinal Cord
Injury, 34 J. Spinal Cord Medicine 535, 535 (2011).
99
What is a Spinal Cord Injury, National Spinal Cord Injury Association,
http://www.spinalcord.org/what-is-spinal-cord-injury-and-disease/ (last visited Dec. 24, 2011).
100
Id.
101
Id.
102
Id.
103
See id. (describing the degrees of damage to the spinal cord).
104
See 37 Am. Jur. 2d Proof of Facts § 10.
105
Id.
106
Spinal Cord 101, Spinal Cord Injury Resource Center, http://
www.spinalinjury.net/html/_spinal_cord_101.html (Last visited Dec. 24, 2011).
107
Id.
108
Id.
109
Id.
110
Spinal Cord 101, supra note 106.
111
Id.
112
Id.
113
Id.
114
Id.
115
Wise Young, Spinal Cord Injury Levels & Classification, SCI-Info-Pages, http://www.sci-infopages.com/levels.html (Last visited Dec. 24, 2011).
116
This information is based upon the clinical practice of Virginia Graziani, M.D. See also, What is a
Spinal Cord Injury, National Spinal Cord Injury Association, http://www.spinalcord.org/what-is-spinalcord-injury-and-disease/ (last visited December 24, 2011).
117
What is a Spinal Cord Injury, National Spinal Cord Injury Association,
http://www.spinalcord.org/what-is-spinal-cord-injury-and-disease/ (last visited Dec. 24, 2011).
118
37 Am. Jur. 2d Proof of Facts § 13 (1984) (updated July 2010).
119
Id.
120
Spinal Cord 101, supra note 106.
121
Stephen C. Kirschblum, et al., International Standards for Neurological Classification of Spinal Cord
Injury, 34 J. Spinal Cord Med., 536 (2011) [hereinafter ASIA Standards].
122
Id.
123
Wise Young, Spinal Cord Injury Levels & Classification, SCI-Info-Pages, http://www.sci-infopages.com/levels.html (Last visited on Dec. 24, 2011).
124
Id.
125
Spinal Cord 101, supra note 106.
126
Id.
127
FM Maynard et al., Neurological Prognosis after Traumatic Quadriplegia: Three-year Experience of
California Regional Spinal Cord Injury Care System, 50 J. Neurosurgery 611 (1979).
128
Id.
129
Id. (This is determined by testing the sensation in the skin immediately surrounding the anus, and
also by testing for deep anal pressure sensation during rectal examination).
130
Spinal Cord 101, supra note 106.
131
Kelley S. Crozier, et al., Spinal Cord Injury: Prognosis for Ambulation Based on Sensory
Examination in Patients Who Are Initially Motor Complete, 72 Archives of Physical Med. and Rehab.
119 (1991).
132
ASIA Standards supra note 121 at 29-31.
133
Id.
134
Id.
135
Id. at 36.
136
Id.
137
ASIA Standards supra note 121 at 30-31.
138
DeVivo, Epidemiology of Traumatic Spinal Cord Injury, supra note 14 at 75.
139
John F. Ditunno et al., Predicting Outcome in Traumatic Spinal Cord Injury, in Spinal Cord Medicine,
111 (Stephen Kirshblum, Denise I. Campagnolo and Joel A. DeLisa eds., Lippincott Williams &
Wilkins 2002).
140
Christina V. Oleson et al., Outcomes Following Spinal Cord Injury, in Spinal Cord Medicine:
Principles and Practice 138 (Vernon W. Lin ed., 2d ed., Demos Medical 2010).
141
Id. at 139.
142
Id.
143
Id.
144
William D. Whetstone, Prehospital Management of Spinal Cord Injured Patients, in Spinal Cord
Medicine: Principles and Practice 155 (Vernon W. Lin ed., 2d ed., Demos Medical 2010).
145
Id.
146
Id.
147
Id. at 156.
148
Id. at 157.
149
William D. Whetston, Prehospital Management of Spinal Cord Injured Patients at 157.
150
Id.
151
A trauma center is a type of hospital that has resources and equipment needed to help care for
severely injured patients. The American College of Surgeons Committee on Trauma classifies
trauma centers as Level I to Level IV. Injury Prevention & Control: Trauma Care, Center for Disease
Control, http://www.cdc.gov/traumacare/access_trauma.html (Last visited on Jan. 5, 2012). A Level I
trauma center provides the highest level of trauma care. Id. Higher levels of trauma centers have
trauma surgeons available, as well as specialists in fields such as Neurosurgery and Orthopedic
surgery, and highly sophisticated medical diagnostic equipment. Lower levels of trauma centers may
only be able to provide initial care and stabilization of a traumatic injury and arrange for transfer of
the victim to a higher level of trauma care. Id.
152
Consortium for Spinal Cord Medicine, Early Acute Management in Adults with Spinal Cord Injury: A
Clinical Practice Guideline for Health-Care Providers, 31 J. Spinal Cord Medicine 403, 427 (2008).
153
Id. at 433.
154
W. Peter Peterson & Steven Kirshblum, Pulmonary Management of Spinal Cord Injury, in Spinal
Cord Medicine 135, 136 (Stephen Kirshblum et al. eds., 2002).
155
Id.
156
Id.
157
Id.
158
Denise I. Campagnolo & Geno J. Merli, Autonomic and Cardiovascular Complications of Spinal Cord
Injury, in Spinal Cord Medicine 123, 123 (Stephen Kirshblum et al. eds., 2002).
159
Id. at 124.
160
Consortium for Spinal Cord Medicine, supra note 152, at 437.
161
Id.
162
Id.
163
Id. at 428.
164
Id.
165
Consortium for Spinal Cord Medicine, supra note 152, at 428-29.
166
Id. at 435.
167
Gregory W. J. Hawryluk et. al., Translational Clinical Research in Acute Spinal Cord Injury, in Spine
and Spinal Cord Trauma, Evidence Based Management 539, 539 (Alexander R. Vaccaro et al. eds.,
2011).
168
Id. at 540.
169
R. John Hurlbert, Pharmacologic Management of Acute Spinal Cord Injury, in Spine and Spinal Cord
Trauma, Evidence Based Management 87, 89 (Alexander R. Vaccaro et al. eds., 2011).
170
Id.
171
Id. at 90.
172
Consortium for Spinal Cord Medicine, supra note 152, at 435.
173
Edward D. Hall, Acute Treatment Strategies for Spinal Cord Injury: Pharmacologic Interventions,
Hypothermia, and Surgical Decompression, in Spinal Cord Medicine: Principles and Practice 883,
890-91 (Vernon W. Lin ed., 2d ed., 2010).
174
Consortium for Spinal Cord Medicine, supra note 152, at 438.
175
Id. at 439.
176
Id. at 440.
177
Id.
178
Id. at 445.
179
John C. France & John R. Orphanos, Management of Cervical Facet Dislocations: Timing of
Reduction in Controversies, in Spine Surgery, supra note 30, at 49.
180
Id.
181
Consortium for Spinal Cord Medicine, supra note 152, at 445.
182
John C. France & John R. Orphanos, Management of Cervical Facet Dislocations: Timing of
Reduction in Controversies, in Spine Surgery, supra note 30, at 42.
183
Elizabeth M. Yu & Ahmad Nassr, Management of Cervical Facet Dislocations: Anterior versus
Posterior Approach, in Controversies in Spine Surgery, Best Evidence Recommendations 48, 48
(Alexander R. Vaccaro & Jason C. Eck, eds., Thieme 2010).
184
Consortium for Spinal Cord Medicine, supra note 152, at 446.
185
Id.
186
Id.
187
Michael G. Fehlings et al., Early vs. Delayed Surgical Decompression for Traumatic Cervical Spinal
Cord Injury: Results of the Surgical Trial in Acute Spinal Cord Injury Study (STASCIS) (2011). Poster
session presented at 2011 Annual Meeting of Congress of Neurological Surgeons, Washington, DC,
available at http://w3.cns.org/dp/2011CNS/921.pdf.
188
Id.
189
Id.
190
Id.
191
Id.
192
Fehlings et al., supra note 187.
193
Ralph J. Marino & Kelley S. Crozier, Neurologic Examination and Functional Assessment after
Spinal Cord Injury,in Physical Medicine and Rehabilitation Clinics of North America: Traumatic
Spinal Cord Injury 837, 837 (George H. Kraft et al. eds., 1992).
194
Steven S. Kirshblum et al., Spinal Cord Injury Medicine. 3. Rehabilitation Phase After Acute Spinal
Cord Injury, 88 Supplement 1 Archives of Physical Medicine and Rehabilitation S62 (March 2007).
195
Id. at S62, S63.
196
Id. at S63.
197
Id.
198
Melanie Adams & Audrey L. Hicks, Spasticity: Pathophysiology, Assessment, and Management, in
Spinal Cord Medicine: Principles and Practice 535 (Vernon W. Lin ed., 2d ed., 2010).
199
Id.
200
Id. at 534.
201
Id. at 534-35.
202
This information is based upon the clinical practice of Virginia Graziani, M.D.
203
Id.
204
Id.
205
Id.
206
Id.
207
This information is based upon the clinical practice of Virginia Graziani, M.D.
208
William L. Bockenek & Paula J. B. Stewart, Pain in Patients with Spinal Cord Injury, in Spinal Cord
Medicine 389, 389 (Stephen Kirshblum et al. eds., 2002).
209
Id.
210
Id. at 392.
211
Id.
212
This information is based upon the clinical practice of Virginia Graziani, M.D.
213
Bockenek & Stewart, supra note 128, at 394.
214
This information is based upon the clinical practice of Virginia Graziani, M.D.; see also Consortium
for Spinal Cord Medicine, supra note 152, at 450 (stating that “Topical use of amitryptiline and
ketamine has also been reported to lessen neuropathic pain in an open-label pilot study, although it
did not appear to be of benefit during a blinded assessment”).
215
Consortium for Spinal Cord Medicine, supra note 152, at 456.
216
Id.
217
Id. at 457.
218
Id.
219
See id. (in patients with “cervical spinal cord injury, halo fixation, cervical spine surgery, prolonged
intubation, tracheotomy, or concomitant TBI,” a swallowing evaluation needs to be done prior to oral
feeding).
220
See Steven A. Steins, Ashwani K. Singal & Mark Allen Korsten, The Gastrointestinal System after
Spinal Cord Injury: Assessment and Intervention 392 (Vernon W. Lin ed., 2010) (neurogenic bowel is
caused by a spinal cord injury and slows down the movement of stool through the colon).
221
See Consortium for Spinal Cord Medicine, supra note 152, at 457 (after a spinal cord injury, there is
a loss of colon motility, and poor gut motility or ileus can be attributed to trauma, surgery or
medications).
222
David Chen & Steven B. Nussbaum, Gastrointestinal Disorders, in Spinal Cord Medicine 155, 157
(Stephen Kirshblum, Denise I. Campagnolo & Joel A. DeLisa eds., 2002).
223
See Consortium for Spinal Cord Medicine, supra note 152, at 457 (with proper care, patients with
neurogenic bowel dysfunction can have one bowel movement a day).
224
Id.
225
See generally Todd A. Linsenmeyer, Neurogenic Bladder Following Spinal Cord Injury, in Spinal
Cord Medicine 181 (Stephen Kirshblum, Denise I. Campagnolo & Joel A. DeLisa eds., 2002)
(patients with spinal cord disorders normally experience voiding dysfunction, which may result in
kidney complications, renal deterioration, urinary tract infections, bladder stones and lower urinary
tract morbidity).
226
See Consortium for Spinal Cord Medicine, supra note 152, at 455 (a bladder catheter should be
placed in a spinal cord injury patient while the patient is in the emergency room receiving IV fluids).
227
See Linsenmeyer, supra note 225, at 186 (normal bladder contractions slowly return after six to eight
weeks, but a patient may experience detrusor hyperreflexia up to twenty-two months after injury).
228
Id.
229
Id. at 198.
230
See id. (incontinence may occur if there is a weak sphincter mechanism or if bladder pressure is
higher than sphincter pressure).
231
Id. at 191-200.
232
Linsenmeyer, supra note 225, at 181.
233
See id. at 202 (renal failure was the leading cause of death after a spinal cord injury, but IC and
sphincterotomy has reduced the death rate).
234
Id.
235
Id.
236
Id.
237
Linsenmeyer, supra note 225, at 203 (studies suggest that patients who have had indwelling
catheters for more than ten years should have a yearly cystoscopy).
238
See Indira S. Lanig & Daniel P. Lammertse, The Respiratory System in Spinal Cord Injury, in
Physical Medicine and Rehabilitation Clinics of North America: Traumatic Spinal Cord Injury 725,
727 (George H. Kraft et. al. eds., 1992) (paraplegics may have loss of abdominal motor function,
loss of intercostal function, loss of inspiration-and-expiration function, weakened diaphragm and
ventilator failure).
239
Id. at 725.
240
See id. at 732 (almost all patients with C1 to C3 injuries will need assisted ventilation).
241
Id.
242
Anthony E. Chiodo et al., Spinal Cord Injury Medicine. 5. Long-Term Medical Issues and Health
Maintenance, 88 Archives Physical Med. & Rehab. S76 (Supp. Mar. 2007).
243
Id.
244
See Campagnolo & Merli, supra note 158, at 123 (cardiovascular problems are caused directly by
the neurologic injury itself or indirectly by complications that result from a sedentary lifestyle).
245
See Consortium for Spinal Cord Medicine, supra note 152, at 451-52 (at least fifty percent of
patients will develop venous thromboembolism if preventative measures are not taken).
246
Campagnolo & Merli, supra note 158, at 129 (PE was reported as a major cause of death in patients
with spinal cord injuries).
247
See id. at 132 (Paralyzed Veterans of America guideline suggests that patients receive a pneumatic
compressive hose within the first two weeks of injury, and if there is no active bleeding or evidence
of a head injury, then an anticoagulant be administered within seventy-two hours of the injury).
248
Id.
249
Id. at 123.
250
Id. at 124.
251
Id.
252
Campagnolo & Merli, supra note 158, at 124.
253
Id. at 125.
254
Id.
255
Id. at 126.
256
Id.
257
Id.
258
Campagnolo & Merli, supra note 158, at 127.
259
Id.
260
Id. at 124.
261
Id.
262
Kevin C. O'Connor and Richard Salcido, Pressure Ulcers and Spinal Cord Injury in Spinal Cord
Medicine, 207, 207 (Stephen Kirshblum, Denise I. Campagnolo and Joel A. DeLisa eds., Lippincott
Williams & Wilkins 2002).
263
Id.
264
Id. at 208.
265
Id. at 207-8.
266
Id. at 208.
267
Id. at 213.
268
O'Connor & Salcido, supra note 262, at 212.
269
Id. at 208.
270
James W. Little and Stephen P. Burns, Neuromusculoskeletal Complications of Spinal Cord Injury in
Spinal Cord Medicine, 241, 241 (Stephen Kirshblum, Denise I. Campagnolo and Joel A. DeLisa
eds., Lippincott Williams & Wilkins 2002).
271
Id.
272
Id.
273
Id.
274
Id. at 243-44.
275
Id. at 244.
276
Kresimir Banovac and Filip Banovac, Heterotopic Ossification in Spinal Cord Medicine, 253
(Stephen Kirshblum, Denise I. Campagnolo and Joel A. DeLisa eds., Lippincott Williams & Wilkins
2002).
277
Id.
278
Id.
279
Id.
280
Id.
281
Id.
282
Chiodo, supra note 242, at S78.
283
Id.
284
Id.
285
Id. at S79.
286
Id. at S 78.
287
Id. at S79.
288
Consortium for Spinal Cord Medicine, supra note 152 at 462; Kirshblum, supra note 194, at S66.
289
Kirschblum, supra note 194, at S66.
290
Id.
291
Id.
292
Id.
293
Michael M. Priebe, et. al., Spinal Cord Injury Medicine. 6. Economic and Societal Issues, in Spinal
Cord Injury 88 Supplement 1 Archives of Physical Medicine and Rehabilitation S84 (March 2007).
294
National Spinal Cord Injury Statistical Center, Spinal Cord Injury Facts and Figures at a Glance, Feb.
2012 https:// www.nscisc.uab.edu/PublicDocuments/fact_figures_docs/Facts%202012%C20Feb%
20Final.pdf. (last visited on Sept. 17, 2012).
295
Priebe, supra note 293 at S85.
296
See, e.g., Waldorf v. Borough of Kennilworth, No. 84-3885, 1992 U.S. Dist. WL 740270 (D.N.J. Sept.
1992) (awarding sixteen million dollars to an individual that suffered a severed spinal cord causing
complete quadriplegia).
297
See, e.g., Dinsmore v. Rubin, No. 98-7509C121, 2000 WL 35064987 (Unknown Fla. State Ct. Nov.
2000), (awarding zero dollars to a pregnant 32-year-old woman who suffered a spinal cord injury
which she alleged was caused by her doctor's negligence in incorrectly inserting a nephrostomy tube
in her spinal cord instead of her urinary tract). See also Cerny v. Longley, 270 Neb. 706, 708 N.W.2d
219 (Neb. 2005) (awarding zero dollars to a man rendered paraplegic after spine surgery because
he could not establish a prima facie case for the physician's negligence).
298
National Spinal Cord Injury Statistical Center (NSCISC), University of Alabama at Birmingham, 2010
Annual Statistical Report, p. 13 and Table 26.
299
Id.
300
Graves v. Toyota Motor Corp., No. 2:09cv169KS-MTP, 2011 U.S. Dist. WL 4625606 (S.D. Miss. Oct.
3, 2011).
301
Id. at *1.
302
Id.
303
Id. at *2.
304
Id.
305
Graves, 2011 U.S. Dist. WL 4625606 at *9.
306
Moore v. Ford Motor Co., 332 S.W.3d 749 (Mo. 2011) (en banc). Plaintiff fractured her T9 vertebra in
the collision.
307
Id. at 754.
308
Id. at 755.
309
Id. at 758.
310
NSCISC, supra note 193, at p. 13 and 26.
311
Snoznik v. Jeld-Wen, Inc., 259 F.R.D. 217 (W.D.N.C. 2009). This opinion dealt with procedural issue
concerning the productions of certain documents involving the plaintiff's economic loss. Eventually,
the claim was dismissed. See Snoznik v. Jeld-Wen, Inc., No. 1:09cv42, 2010 U.S. Dist. WL 1924483
(W.D.N.C. 2010) (granting defendant's motion for summary judgment and dismissing the case).
312
Snoznik v. Jeld-Wen, Inc., 2010 U.S. Dist. WL 1924483 at *4.
313
Id. at *6.
314
Id. at *7.
315
Id. at *5.
316
Id. at *12.
317
Snoznik, 2010 U.S. Dist. WL 1924483 at *13.
318
Id. at *27.
319
Nat'l Spinal Cord Injury Statistical Ctr., 2010 Annual Report for the Spinal Cord Injury Model Systems
38 tbl.26 (Univ. of Ala. at Birmingham 2011).
320
Michael. J. Devivo & Padmini Sekar, Prevention of Spinal Cord Injuries That Occur in Swimming
Pools, 35 Spinal Cord 509, 510 (1997).
321
Id.
322
Id.
323
Id.
324
Id. at 509.
325
See generally Battistoni v. Weatherking Prods., 676 A.2d 890 (Conn. App. Ct. 1996) (diver sued
pool's manufacturer);Bunch v. Hoffinger Indus., 123 Cal. App. 4th 1278 (2004) cert. denied, 546 U.S.
817 (2005) (diver sued pool manufacturer);Glittenberg v. Doughboy Recreational Indus., 491 N.W.2d
208 (Mich. 1992) (diver sued the manufacturer and sellers of the pool).
326
See generally Battistoni, 676 A.2d 890 (diver sued under products liability); Bunch, 123 Cal. App. 4th
1278 (diver sued under negligence and strict products liability); Glittenberg, 491 N.W.2d 208 (diver
sued under a failure to warn assertion).
327
Battistoni, 676 A.2d at 895.
328
Id. at 892.
329
Id.
330
Id. at 892, n.4.
331
Id. at 892.
332
Battistoni, 676 A.2d at 892-93.
333
Id. at 892.
334
Id.
335
Id. at 893.
336
Id..
337
Battistoni, 676 A.2d. at 893.
338
Id.
339
Bunch, 123 Cal. App. 4th at 1293.
340
Id. at 1281.
341
Id.
342
Id. at 1300.
343
Id. at 1299.
344
Bunch, 123 Cal. App. 4th at 1299.
345
Glittenberg, 491 N.W.2d at 210.
346
Id. at 217-218.
347
Neff v. Coleco, 760 F. Supp. 864, 868 (D. Kan. 1991).
348
Id.
349
Benjamin v. Deffet Rentals, Inc., 419 N.E.2d 883, 885 (Ohio 1981).
350
Id.
351
Klen v. Asahi Pool, Inc., 643 N.E.2d 1360 (Ill. App. Ct. 1994), abrogated by Barham v. Knickrehm,
277 Ill. App. 3d 1034 (1996).
352
Bunch, 123 Cal. App. 4th at 1297.
353
Id. at 1298.
354
Nat'l Statistical Spinal Cord Injury Statistical Ctr., supra note 13, at 38.
355
Kameno Bell., On-field Issues of the C-Spine-Injured Helmeted Athlete, 6 Current Sports Med. Rep.
32, 33 (2007).
356
Fiske v. MacGregor, 464 A.2d 719, 721 (R.I. 1983).
357
Id.
358
Id. at 722.
359
Id. at 722-23.
360
Id. at 721.
361
Fiske, 464 A.2d at 721.
362
Id.
363
Id. at 729.
364
Id.
365
Nat'l Statistical Spinal Cord Injury Statistical Ctr., supra note 13, at 38.
366
Evans v. Medtronic, No. Civ.A. 3:04CV00097, 2005 WL 3547240, at *1 (W.D. Va. Dec. 27, 2005).
367
Id. at *3.
368
Id..
369
Id. at *4.
370
Id. at *3.
371
Id. at *4.
372
Evans, 2005 WL 3547240, at *4.
373
Id. at *5.
374
Id. at *6.
375
Id.
376
Id. at *10.
377
Evans, 2005 WL 3547240 at *13
378
Id. at *14-16
379
Id. at *15-16.
380
NSCISC at Tables 26 and 27.
381
State v. Fox, 810 N.W.2d 888, 889-890, (Iowa Ct. App. 2011).
382
Id. at 890.
383
Id.
384
Id.
385
Id.
386
State v. Fox, 820 N.W.2d at 890.
387
Id. at 890-891.
388
Id. at 892.
389
Id.at 895
390
Id.
391
Gonzalez v. Safe & Sound Sec. Corp., 881 A.2d 719, 721 (N.J. 2005).
392
Id. at 723.
393
Id. at 724.
394
Id. at 725.
395
Id.
396
Gonzalez, 881 A.2d at 725.
397
Id.
398
Id.at 725.
399
Id. at 729-730.
400
Id. at 730.
401
See generally Donald Schreiber, Spinal Cord Injuries, http://
emedicine.medscape.com/article/793582-overview#aw2aab6b2b4, (last visited Dec. 17, 2011).
402
418 N.W.2d 795, 797 (Wis. 1988).
403
Id.
404
Id.
405
Id.
406
Id.
407
Id.
408
Kerkman, 418 N.W.2d at 797.
409
Id. at 798 n.2.
410
Id. at 798.
411
Id. at 800.
412
Id. at 801.
413
Id. at 803.
414
Kerkman, 418 N.W.2d at 802.
415
Id. at 803.
416
Id.
417
See generally Woodard v. Custer, 719 N.W.2d 842, 851 (Mich. 2006) (referring to subspecialties
generally).
418
654 S.E.2d 563 (Va. 2008).
419
Id. at 566.
420
Id.
421
Id.
422
Id.
423
Id.
424
Lloyd, 654 S.E.2d at 567.
425
Id.
426
Id.
427
Id.
428
Id.
429
Lloyd, 654 S.E.2d at 569-70.
430
Id. at 570.
431
Id.
432
Lloyd, 654 S.E.2d at 570-71.
433
William D. Whetstone, Prehospital Management of Spinal Cord Injured Patients, in Spinal Cord
Medicine: Principles and Practice, 155 (Vernon W. Lin ed., 2d ed., Demos Medical 2010).
434
Edward D. Hall, Acute Treatment Strategies for Spinal Cord Injury: Pharmacologic Interventions,
Hypothermia, and Surgical Decompression, in Spinal Cord Medicine: Principles and Practice, 883,
888 (Vernon W. Lin ed., 2d ed., Demos Medical 2010).
435
See generally Michael G. Fehlings, et.al., Early vs. Delayed Surgical Decompression for Traumatic
Cervical Spinal Cord Injury: Results of the Surgical Trial in Acute Spinal Cord Injury Study
(STASCIS), Poster Presentation, Congress of Neurolofical Surgeons, 2011 Annual meeting,
Washington, DC, October 1-6, 2011. (Available at http:// w3.cns.org/dp/2011CNS/921.pdf).
436
See D.C. v. Howard, 588 A.2d 683, 689 (D.C. 1991) (holding there was sufficient evidence that
victims paralysis and death was a result medical technicians negligent failure to detect injuries when
victim was “neurologically intact”).
437
D.C. v. Howard, 588 A.2d 683 (D.C. 1991).
438
Id. at 685.
439
Id.
440
Id.
441
Id.
442
Id. at 686.
443
Howard, 588 A.2s at 686.
444
Id.
445
Id.
446
Id.
447
Id.
448
Id.
449
Howard, 588 A.2d at 686.
450
Id. at 687.
451
Id. at 686.
452
Id. at 688.
453
Id. at 687.
454
Howard, 588 A.2d at 692.Id. at 693.
455
Id. at 693.
456
Id. at 696 .
457
Lord v. Lovett, 770 A.2d 1103, 1104 (N.H. 2001).
458
Id.
459
Id.
460
Id. at 1104-5.
461
Id. at 1106.
462
Lord, 770 A.2d at 1107.Id.
463
Id.
464
Id. at 1106.
465
Fitzgerald v. Vincent, No. 15052-6-III, 1997 WL 199055, at *3 (Wash. Ct. App. Apr. 27, 1997).
466
Id. at *1.
467
Id.
468
Id.
469
Id.
470
Fitzgerald, No. 15052-6-III, 1997 WL at *3.
471
Id. at *2.
472
Id. at *3
473
Id.
474
Id.
475
Fitzgerald, 15052-6-III, 1997 WL at *3.
476
Id.
477
Id.
478
Id.