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31 Temp. J. Sci. Tech. & Envtl. L. 205Temple Journal of Science, Technology & Environmental LawWinter 2012A PRIMER ON SPINAL CORD INJURIES - A MEDICAL/LEGAL OVERVIEWVirginia Graziani M.D.a1?Samuel?D.?Hodge?Jr.aa1Copyright (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 ReeveI. INTRODUCTIONAn 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.4At 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.7The 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 INJURYThere 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.13A. EpidemiologyTwelve 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.17The 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.20B. EtiologyNine 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.22When 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.25In 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.29C. Life ExpectancyThe 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 post-injury 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.32As 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 ventilator-dependent 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.34D. Causes of DeathRespiratory 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.40E. Fractures and DislocationsMost 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.47Dislocations 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.”53Approximately 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.58Traumatic 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.62The 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.67F. Levels of InjuryTo 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.74The 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.81The 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 T1-T12.89?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.98In 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.101Based 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.102The 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.114Injuries 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.116Injuries 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.119Depending 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 InjuriesWhen 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.126The 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.131Extent 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.138H. Prognosis for RecoveryPrognosis 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. TreatmentManagement 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.152Because 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.157An 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.159A 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.162Once 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 follow-up 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.165Although 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.”173Once 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.177In 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.”182Surgical 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.184It 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.”192J. Systems AffectedMotor and Sensory FunctionMotor 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.197Immediately 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.207Many 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.214Gastrointestinal TractPatients 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.216Between 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.219A 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.224Urinary SystemNeurogenic 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.231Neurogenic 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.237PulmonaryParalysis 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.243CardiovascularCardiovascular 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.248The 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.252Patients 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 SystemIn 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.261SkinPressure 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.269Musculoskeletal SystemFollowing 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.273Overuse 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.275Heterotopic 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.281Sexual and Reproductive FunctionsSexual 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%.287Psychological AdjustmentAlthough 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.292K. EconomicsThe 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 InjuryAverage Yearly ExpensesAverage Yearly ExpensesEstimated Lifetime Costs by Age at InjuryEstimated Lifetime Costs by Age at InjuryFirst YearEach Subsequent Year25 years old50 years oldHigh Tetraplegia (C1-C4)$985, 774$171, 1834,373,912$2,403,828Low Tetraplegia (C5-C8)$712,308$105,1033,195,8531,965,735Paraplegia$480,431$63,643$2,138,824$1,403,646Incomplete Motor Function at Any Level$321,720$39,077$1,461,255$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.295III. LEGAL CONSIDERATIONSSpinal cord injuries typically account for the largest verdicts in personal injury claims with multi-million 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%).299The following is a sampling of some of the cases involving spinal cord injuries.A. Product Liability Claimsa. Motor Vehicle AccidentsGraves 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.303Toyota 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.”309b. FallsThe 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 AccidentsDiving 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.324Litigation 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.”337This 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.”338Courts 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 11-year-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.”344In 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.”346In 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.”350Finally, 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.353d. Football InjuriesSpinal 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.”364B. Medical ComplicationsMedical 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.379C. Criminal ActsViolence 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.382Doctors 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.383After 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.390In 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 $3,500,481.398The 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.400D. IatrogenicAn 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.401In 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.416In 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 post-operative 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.428On 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.432E. Missed DiagnosisImmobilization 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.456A 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.477The 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.”484F. Secondary ComplicationsThere 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.”495Secondary 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.509Secondary 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.524G. Insurance IssuesThe 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.539ERISA 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.546The 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.”552The 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.556H. Constitutional ClaimsThe 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.568In 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.572I. Americans with Disabilities ActThe 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.579In 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.584Title 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 foreign-flagged 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.589J. DamagesWhen 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 non-economic damage award is reasonable.591In 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 37-years 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.”606The 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.608IV. CONCLUSIONSpinal 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.Footnotesa1Virginia 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.aa1Samuel?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.1Help Center: Spinal Cord Injuries, The Legal Examiner Wiki, http:// wiki.help-center/spinal-cord-injuries/ (last visited September 11, 2012).2Samuel?D.?Hodge, Jr. & Jack E. Hubbard, ABA Medical-Legal Guides, Clinical Anatomy for Lawyers, Chapter 6, (American Bar Association, 2012).3Help Center: Spinal Cord Injuries, supra note 1.4Id.537 Am. Jur. 2d Proof of Facts § 1 (1984) (updated 2012).6Id.7Id.8Ralph J. Marino, Dir. Reg'l Spinal Cord Injury Ctr., Spinal Cord Injury Model Systems of Care, Presentation at Magee Rehabilitation Hospital (Oct. 7, 2011).9Id.10Id.11Id.12National Spinal Cord Injury Statistical Center (NSCISC), University of Alabama at Birmingham, (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.13Unless otherwise noted, all statistical information in this article is based on NSCISC and/or the National Shriner's Hospital System database.14Michael J. DeVivo, Epidemiology of Spinal Cord Injury, in Spinal Cord Medicine: Principles and Practice 72 (Vernon W. Lin ed., 2d ed. Demos Medical 2010).15Id.16Traumatic Brain Injury in the United States: Emergency Department Visits, Hospitalizations and Deaths 2002-2006, Centers for Disease Control and Prevention, (last visited Sept. 11, 2012).17Spinal Cord Injury Facts and Figures at a Glance, University of Alabama at Birmingham, docs/Facts%202012%C20Feb%20Final.pdf (last visited Sept. 2, 2012).18DeVivo, supra note 14, at 73.19See 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).20Id.at 81.21Nat'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).22Id.23Id. at 39 tbl.28.24See 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 61-75, respectively).25Id.26Michael 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).27Id.28Id.29Id.30Id. at 79.31DeVivo & Chen, supra note 26, at 79.32Id.33Quadriplegia and Tetraplegia, Apparelyzed, http:// quadriplegia.html, (last visited Sept. 2, 2012) (noting that the terms quadriplegic and tetraplegic are used interchangeably).34DeVivo, supra note 14, at 80.35Id.36Id.37Id. at 81.38Id.39Pulmonary Embolism, , http:// health/pulmonary-embolism/DS00429 (last visited on Dec. 21, 2011). A pulmonary embolism refers to a blockage in one or more arteries in the lungs. Id.40Id.41Jared 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).42Id.43Id.44Id.; see also Vertebral Body, Medical College of Wisconsin, http:// mcw.edu/neurology/divisions/Neurointervention/Selected-Disorders-and-Conditi/Vertebral-Body-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.45Toman, Cervical Injuries, supra note 41 at 198.46Id.47Id.48What is a Subluxation, , http:// 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.49Toman, Cervical Injuries, supra note 41 at 197.50Id.51Id.52Id.53John 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).54Andrew K. Simpson, et al, Thoracolumbar Fractures, in Spinal Cord Medicine: Principles and Practice 202 (Vernon W. Lin ed., 2010).55Facet Joint Disease, NYU Medicine, (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.56Simpson, supra note 54, at 202.57Id.58Id.59Marcel 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).60Id.61Id.62Id. at 520.63Saadi 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).64Id.65D. Pang, Spinal Cord Injury Without Radiographic Abnormality in Children, 2 Decades Later. 55 Neurosurgery 1325 (Dec. 2004).66Id.67Id. at 1340.68Samuel?D.?Hodge, Jr. & Jack E. Hubbard, ABA Medical-Legal Guides, Clinical Anatomy for Lawyers, Chapter 6, (American Bar Association, 2012).69Spinal Anatomy: Overview of the Spine, University of Virginia Health System, (Last visited on Sept. 2, 2012).70Aetna Life Ins. Co. v. Evins, 199 So.2d 238, 240 (Miss. 1967).71Id.7237 Am. Jur. 2d Proof of Facts § 3 (1984) (updated 2010).73Id.74Samuel?D.?Hodge, Jr. & Jack E. Hubbard, ABA Medical-Legal Guides, Clinical Anatomy for Lawyers, Chapter 6, (American Bar Association, 2012).7537 Am. Jur. 2d Proof of Facts § 3 (1984) (updated 2010).76Id.77Id,78Id.79Id.80See id. (describing how lateral cells innervate distal muscles).8137 Am. Jur. 2d Proof of Facts § 3 (1984) (updated 2010).82Id.83Id.84Id.85Id. at § 4.86Id. at § 4 fig. 4.8737 Am. Jur. 2d Proof of Facts § 4 (1984) (updated 2010).88Id.89Id.90Id.91Id.92See 37 Am. Jur. 2d Proof of Facts §13 (explaining that a lesion to the fifth vertebrae can cause paralysis to the legs).93Id. at § 4 fig. 4.94Id. at § 18.95Id. at § 6.96Id.97See? HYPERLINK "(sc.Search)" \l "co_pp_sp_661_543" 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.”).98Steven C. Kirshblum et al., International Standards for Neurological Classification of Spinal Cord Injury, 34 J. Spinal Cord Medicine 535, 535 (2011).99What is a Spinal Cord Injury, National Spinal Cord Injury Association, (last visited Dec. 24, 2011).100Id.101Id.102Id.103See id. (describing the degrees of damage to the spinal cord).104See 37 Am. Jur. 2d Proof of Facts § 10.105Id.106Spinal Cord 101, Spinal Cord Injury Resource Center, http:// html/_spinal_cord_101.html (Last visited Dec. 24, 2011).107Id.108Id.109Id.110Spinal Cord 101, supra note 106.111Id.112Id.113Id.114Id.115Wise Young, Spinal Cord Injury Levels & Classification, SCI-Info-Pages, (Last visited Dec. 24, 2011).116This 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, (last visited December 24, 2011).117What is a Spinal Cord Injury, National Spinal Cord Injury Association, (last visited Dec. 24, 2011).11837 Am. Jur. 2d Proof of Facts § 13 (1984) (updated July 2010).119Id.120Spinal Cord 101, supra note 106.121Stephen C. Kirschblum, et al., International Standards for Neurological Classification of Spinal Cord Injury, 34 J. Spinal Cord Med., 536 (2011) [hereinafter ASIA Standards].122Id.123Wise Young, Spinal Cord Injury Levels & Classification, SCI-Info-Pages, (Last visited on Dec. 24, 2011).124Id.125Spinal Cord 101, supra note 106.126Id.127FM Maynard et al., Neurological Prognosis after Traumatic Quadriplegia: Three-year Experience of California Regional Spinal Cord Injury Care System, 50 J. Neurosurgery 611 (1979).128Id.129Id. (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).130Spinal Cord 101, supra note 106.131Kelley 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).132ASIA Standards supra note 121 at 29-31.133Id.134Id.135Id. at 36.136Id.137ASIA Standards supra note 121 at 30-31.138DeVivo, Epidemiology of Traumatic Spinal Cord Injury, supra note 14 at 75.139John 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).140Christina 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).141Id. at 139.142Id.143Id.144William 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).145Id.146Id.147Id. at 156.148Id. at 157.149William D. Whetston, Prehospital Management of Spinal Cord Injured Patients at 157.150Id.151A 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, (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.152Consortium 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).153Id. at 433.154W. Peter Peterson & Steven Kirshblum, Pulmonary Management of Spinal Cord Injury, in Spinal Cord Medicine 135, 136 (Stephen Kirshblum et al. eds., 2002).155Id.156Id.157Id.158Denise 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).159Id. at 124.160Consortium for Spinal Cord Medicine, supra note 152, at 437.161Id.162Id.163Id. at 428.164Id.165Consortium for Spinal Cord Medicine, supra note 152, at 428-29.166Id. at 435.167Gregory 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).168Id. at 540.169R. 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).170Id.171Id. at 90.172Consortium for Spinal Cord Medicine, supra note 152, at 435.173Edward 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).174Consortium for Spinal Cord Medicine, supra note 152, at 438.175Id. at 439.176Id. at 440.177Id.178Id. at 445.179John C. France & John R. Orphanos, Management of Cervical Facet Dislocations: Timing of Reduction in Controversies, in Spine Surgery, supra note 30, at 49.180Id.181Consortium for Spinal Cord Medicine, supra note 152, at 445.182John C. France & John R. Orphanos, Management of Cervical Facet Dislocations: Timing of Reduction in Controversies, in Spine Surgery, supra note 30, at 42.183Elizabeth 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).184Consortium for Spinal Cord Medicine, supra note 152, at 446.185Id.186Id.187Michael 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 et al., supra note 187.193Ralph 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).194Steven 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).195Id. at S62, S63.196Id. at S63.197Id.198Melanie Adams & Audrey L. Hicks, Spasticity: Pathophysiology, Assessment, and Management, in Spinal Cord Medicine: Principles and Practice 535 (Vernon W. Lin ed., 2d ed., 2010).199Id.200Id. at 534.201Id. at 534-35.202This information is based upon the clinical practice of Virginia Graziani, M.D.203Id.204Id.205Id.206Id.207This information is based upon the clinical practice of Virginia Graziani, M.D.208William 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).209Id.210Id. at 392.211Id.212This information is based upon the clinical practice of Virginia Graziani, M.D.213Bockenek & Stewart, supra note 128, at 394.214This 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”).215Consortium for Spinal Cord Medicine, supra note 152, at 456.216Id.217Id. at 457.218Id.219See 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).220See 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).221See 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).222David Chen & Steven B. Nussbaum, Gastrointestinal Disorders, in Spinal Cord Medicine 155, 157 (Stephen Kirshblum, Denise I. Campagnolo & Joel A. DeLisa eds., 2002).223See 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).224Id.225See 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).226See 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).227See 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).228Id.229Id. at 198.230See id. (incontinence may occur if there is a weak sphincter mechanism or if bladder pressure is higher than sphincter pressure).231Id. at 191-200.232Linsenmeyer, supra note 225, at 181.233See 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).234Id.235Id.236Id.237Linsenmeyer, supra note 225, at 203 (studies suggest that patients who have had indwelling catheters for more than ten years should have a yearly cystoscopy).238See 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).239Id. at 725.240See id. at 732 (almost all patients with C1 to C3 injuries will need assisted ventilation).241Id.242Anthony 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).243Id.244See 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).245See 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).246Campagnolo & Merli, supra note 158, at 129 (PE was reported as a major cause of death in patients with spinal cord injuries).247See 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).248Id.249Id. at 123.250Id. at 124.251Id.252Campagnolo & Merli, supra note 158, at 124.253Id. at 125.254Id.255Id. at 126.256Id.257Id.258Campagnolo & Merli, supra note 158, at 127.259Id.260Id. at 124.261Id.262Kevin 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).263Id.264Id. at 208.265Id. at 207-8.266Id. at 208.267Id. at 213.268O'Connor & Salcido, supra note 262, at 212.269Id. at 208.270James 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).271Id.272Id.273Id.274Id. at 243-44.275Id. at 244.276Kresimir 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).277Id.278Id.279Id.280Id.281Id.282Chiodo, supra note 242, at S78.283Id.284Id.285Id. at S79.286Id. at S 78.287Id. at S79.288Consortium for Spinal Cord Medicine, supra note 152 at 462; Kirshblum, supra note 194, at S66.289Kirschblum, supra note 194, at S66.290Id.291Id.292Id.293Michael 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).294National Spinal Cord Injury Statistical Center, Spinal Cord Injury Facts and Figures at a Glance, Feb. 2012 https:// nscisc.uab.edu/PublicDocuments/fact_figures_docs/Facts%202012%C20Feb% 20Final.pdf. (last visited on Sept. 17, 2012).295Priebe, supra note 293 at S85.296See, 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).297See, e.g.,? HYPERLINK "(sc.Search)" 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? HYPERLINK "(sc.Search)" 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).298National Spinal Cord Injury Statistical Center (NSCISC), University of Alabama at Birmingham, 2010 Annual Statistical Report, p. 13 and Table 26.299Id.300Graves v. Toyota Motor Corp., No. 2:09cv169KS-MTP, 2011 U.S. Dist. WL 4625606 (S.D. Miss. Oct. 3, 2011).301Id. at *1.302Id.303Id. at *2.304Id.305Graves, 2011 U.S. Dist. WL 4625606 at *9.306Moore v. Ford Motor Co., 332 S.W.3d 749 (Mo. 2011)?(en banc). Plaintiff fractured her T9 vertebra in the collision.307Id. at 754.308Id. at 755.309Id. at 758.310NSCISC, supra note 193, at p. 13 and 26.311Snoznik 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).312Snoznik v. Jeld-Wen, Inc., 2010 U.S. Dist. WL 1924483 at *4.313Id. at *6.314Id. at *7.315Id. at *5.316Id. at *12.317Snoznik, 2010 U.S. Dist. WL 1924483 at *13.318Id. at *27.319Nat'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).320Michael. J. Devivo & Padmini Sekar, Prevention of Spinal Cord Injuries That Occur in Swimming Pools, 35 Spinal Cord 509, 510 (1997).321Id.322Id.323Id.324Id. at 509.325See generally? HYPERLINK "(sc.Search)" 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); HYPERLINK "(sc.Search)" Glittenberg v. Doughboy Recreational Indus., 491 N.W.2d 208 (Mich. 1992) (diver sued the manufacturer and sellers of the pool).326See generally? HYPERLINK "(sc.Search)" Battistoni, 676 A.2d 890?(diver sued under products liability);?Bunch, 123 Cal. App. 4th 1278?(diver sued under negligence and strict products liability);? HYPERLINK "(sc.Search)" Glittenberg, 491 N.W.2d 208?(diver sued under a failure to warn assertion).327Battistoni, 676 A.2d at 895.328Id. at 892.329Id.330Id. at 892, n.4.331Id. at 892.332Battistoni, 676 A.2d at 892-93.333Id. at 892.334Id.335Id. at 893.336Id..337Battistoni, 676 A.2d. at 893.338Id.339Bunch, 123 Cal. App. 4th at 1293.340Id. at 1281.341Id.342Id. at 1300.343Id. at 1299.344Bunch, 123 Cal. App. 4th at 1299.345Glittenberg, 491 N.W.2d at 210.346Id. at 217-218.347Neff v. Coleco, 760 F. Supp. 864, 868 (D. Kan. 1991).348Id.349Benjamin v. Deffet Rentals, Inc., 419 N.E.2d 883, 885 (Ohio 1981).350Id.351Klen v. Asahi Pool, Inc., 643 N.E.2d 1360 (Ill. App. Ct. 1994), abrogated by?Barham v. Knickrehm, 277 Ill. App. 3d 1034 (1996).352Bunch, 123 Cal. App. 4th at 1297.353Id. at 1298.354Nat'l Statistical Spinal Cord Injury Statistical Ctr., supra note 13, at 38.355Kameno Bell., On-field Issues of the C-Spine-Injured Helmeted Athlete, 6 Current Sports Med. Rep. 32, 33 (2007).356Fiske v. MacGregor, 464 A.2d 719, 721 (R.I. 1983).357Id.358Id. at 722.359Id. at 722-23.360Id. at 721.361Fiske, 464 A.2d at 721.362Id.363Id. at 729.364Id.365Nat'l Statistical Spinal Cord Injury Statistical Ctr., supra note 13, at 38.366Evans v. Medtronic, No. Civ.A. 3:04CV00097, 2005 WL 3547240, at *1 (W.D. Va. Dec. 27, 2005).367Id. at *3.368Id..369Id. at *4.370Id. at *3.371Id. at *4.372Evans, 2005 WL 3547240, at *4.373Id. at *5.374Id. at *6.375Id.376Id. at *10.377Evans, 2005 WL 3547240 at *13378Id. at *14-16379Id. at *15-16.380NSCISC at Tables 26 and 27.381State v. Fox, 810 N.W.2d 888, 889-890, (Iowa Ct. App. 2011).382Id. at 890.383Id.384Id.385Id.386State v. Fox, 820 N.W.2d at 890.387Id. at 890-891.388Id. at 892.389Id.at 895390Id.391Gonzalez v. Safe & Sound Sec. Corp., 881 A.2d 719, 721 (N.J. 2005).392Id. at 723.393Id. at 724.394Id. at 725.395Id.396Gonzalez, 881 A.2d at 725.397Id.398Id.at 725.399Id. at 729-730.400Id. at 730.401See generally Donald Schreiber, Spinal Cord Injuries, http:// emedicine.article/793582-overview#aw2aab6b2b4, (last visited Dec. 17, 2011).402418 N.W.2d 795, 797 (Wis. 1988).403Id.404Id.405Id.406Id.407Id.408Kerkman, 418 N.W.2d at 797.409Id. at 798?n.2.410Id. at 798.411Id. at 800.412Id. at 801.413Id. at 803.414Kerkman, 418 N.W.2d at 802.415Id. at 803.416Id.417See generally?Woodard v. Custer, 719 N.W.2d 842, 851 (Mich. 2006) (referring to subspecialties generally).418654 S.E.2d 563 (Va. 2008).419Id. at 566.420Id.421Id.422Id.423Id.424Lloyd, 654 S.E.2d at 567.425Id.426Id.427Id.428Id.429Lloyd, 654 S.E.2d at 569-70.430Id. at 570.431Id.432Lloyd, 654 S.E.2d at 570-71.433William 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).434Edward 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).435See 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.dp/2011CNS/921.pdf).436See?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”).437D.C. v. Howard, 588 A.2d 683 (D.C. 1991).438Id. at 685.439Id.440Id.441Id.442Id. at 686.443Howard, 588 A.2s at 686.444Id.445Id.446Id.447Id.448Id.449Howard, 588 A.2d at 686.450Id. at 687.451Id. at 686.452Id. at 688.453Id. at 687.454Howard, 588 A.2d at 692.Id. at 693.455Id. at 693.456Id. at 696?.457Lord v. Lovett, 770 A.2d 1103, 1104 (N.H. 2001).458Id.459Id.460Id. at 1104-5.461Id. at 1106.462Lord, 770 A.2d at 1107.Id.463Id.464Id. at 1106.465Fitzgerald v. Vincent, No. 15052-6-III, 1997 WL 199055, at *3 (Wash. Ct. App. Apr. 27, 1997).466Id. at *1.467Id.468Id.469Id.470Fitzgerald, No. 15052-6-III, 1997 WL at *3.471Id. at *2.472Id. at *3473Id.474Id.475Fitzgerald, 15052-6-III,?1997 WL at *3.476Id.477Id.478Id. ................
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