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Medical Matters in Apportioned Settlements

by Personal Injury Claims Blawg on March 15, 2013

By Alice Adams 

Guest post by  Alice Adams, first published here http://www.naylornetwork.com/gtl-advertorial/articles/?aid=185553&issueID=30048 and republished with permission.

Imagine this scenario: An attorney has a pending 15 million dollar settlement offer for his clients1. They are four college athletes whose bus was struck by an 18-wheeler, and two are deceased. The offer stipulates that the funds be apportioned to each plaintiff and that the settlement resolve all claims of the parties. These assessments must be submitted within the next two weeks. How will he meet this deadline?

This scenario was unique, but individually, each boy could be anyone’s next personal injury case. Here is the story of four boys whose lives were either ended or drastically altered in the summer of 2010.

Atlanta has a mid-town exit ramp that instead of forking right, goes straight; the highway forks off instead. One summer morning at 5 am, a bus with 32 playoff-bound athletes flew past this fork and forward off the exit ramp at 60 mph, down a 40-foot embankment lined with granite. The driver and four of the boys were killed on impact, most were severely wounded, and some were barely injured.

As you can imagine, multiple defendants were named: the transportation company that provided the driver; the university that sent the boys on this trip; the driver whose alertness was called into question; and the city, county and state that constructed such a confusing exit ramp. By the time I was called, the parties had agreed to a settlement that summed well into nine digits. All but the university had disbursed money in equal portions to the claimants.

The university had agreed to a very large settlement offer stipulating that the funds be apportioned between six final boys based upon an assessment of their injuries.  These assessments were to be completed within seven days and the Provost of the university refused to read an analysis longer than five pages for each boy. Over 10,000 pages of medical documents were delivered to me electronically.

The lead attorney wanted a medical analysis of injuries, suffering, and residuals, and asked that the data be presented in a manner that all could understand. In such an emotionally charged setting, it is difficult to objectively present each boy’s injury or fatality.

Boy #1 (Roy) is a young man of 22 whose injuries were objectively the least severe. They included one uncomplicated lumbar fracture and a wrist strain, but no head injury or internal damages. Nonetheless, there were signs that Roy would demand a disproportionate amount of compensation for his pain and suffering. Roy’s pain complaints were increasing over time despite complete healing, and as he proceeded from a second to a third and a fourth opinion on his ability to play ball, and with each opinion, he was further from the original injury and described increasing complaints. His worried mother encouraged this behavior, but why? The review of past medical and academic records revealed that he was an anxious young man who self-medicated with marijuana and Valium, had two DUIs, had been a mediocre student and was often on the bench. Simply put, his ball-playing prospects prior to the accident were never assured. In such a setting, claimants may unconsciously use an injury to justify a foregone failure.

Based solely upon Roy’s urgent complaints and his mother’s anxiety, and without knowing his medical history and objective findings, one could easily overestimate future medical costs. Without orthopedic experience, a non-displaced T12 compression fracture with 15 degree step-off sounds like lasting damage. But this vertebra had healed, and Roy had no objective limitations.

Boy #2 (Barry) probably died upon impact. Propelled through the windshield, he landed head first on a large pile of rocks. Barry was pronounced dead at the scene, and his family was devastated at the thought of his last moments spent alone and in pain. This haunting thought was the primary impetus for a claim of Barry’s pain and suffering as well as their own.

An autopsy revealed massive head trauma with multiple skull fractures. His aorta, the largest artery in the body, was cleanly dissected, with more than half his blood volume compressing his lungs.  Evaluation of this case included several considerations.

  • Did Barry die upon impact or did he suffer in the 15 minutes it took EMS to find him? The autopsy report revealed three skull fractures, the most severe at the base of the brain in the area that controls basic life function.  The Medical Examiner believed Barry’s jaw struck first, forcing the head backwards.  Researching the mechanics of this shearing injury and speaking informally with a neurologist, all information suggested that he was instantly unconscious and did not suffer.
  • But absent his head injury, would Barry have died from the severed aorta? How long does it take to bleed to death internally? Statistics indicate that death would have occurred within 1 ½ to 2 minutes from a combination of compressed lungs and blood loss. With his aorta completely dissected, every beat of Roy’s heart was literally killing him. A conversation with a cardiothoracic surgeon confirmed this research finding.

The neurological and cardiovascular findings supported immediate unconsciousness and rapid demise, and his friends said that he was asleep at the time of the accident. Ostensibly, this analysis addressed the (non)issue of pain and suffering.

  • But what about the time between sleeping and impact? Was he jolted awake? Was there a time when Barry was aware of impending disaster? This question was central in the controversial Maryland ruling on a 2006 drowning of a five year old. The jury’s recommendation to remove non-economic caps and award the parents additional money for the child’s potential pain and suffering made this an important legal case. The trial judge upheld the cap, disregarding the consideration of suffering, because like Barry’s impact, the drowning was unwitnessed. The appellate court reversed his decision, but the Court of Special Appeals upheld the ruling. The court of public opinion and anguished parents disagreed. No one observed Barry in the chaos to know if he was frightened and aware in those seconds between the initial crash and his final impact, but the possibility must be considered in the award to his grief-stricken parents.

Boy #3 (Jason) suffered massive head trauma and internal injuries. He never regained consciousness and died six days after the accident. The central question here was whether or not he experienced pain or fear during those six days. Did he suffer, and what would you look for to answer this question? Scrutinizing the nursing and neurology notes to quantify consciousness or qualify pain, required a close look at injuries.

  • Jason’s left lung was punctured and collapsed; his lungs required bilateral chest tubes for re-expansion.
  • His spleen was ruptured and had to be removed, compromising his ability to fight infection; despite precautions, he became septic within days.
  • His abdominal wall was open at the scene (a “dirty wound”), and surgeons could not close his incision without fostering another infection.  Instead, they sutured a sterile plastic covering to the edges of the wound, allowing visualization and irrigation with antibiotics. What an image to for a parent to carry.
  • Jason’s head injury was not a simple blood clot in one area that could be surgically removed. His entire brain was diffusely swollen.

The issue of unconsciousness was not clear-cut, but it was the central question.

Neurologists measure level of awareness with the 15-point Glasgow Coma Scale, or GCS. Jason’s GCS fluctuated from 3 to 6. In this range, patients are considered comatose, with no meaningful response and no voluntary activities. Responses to pain are reflexive, not purposeful, and are described as decerebrate and decorticate posturing. Describing these critical conditions in detail would take up most of the five-page limit. Instead, pictograms and .jpgs from actual chart diagrams were used to communicate complex concepts.

This case required researching the Glasgow Coma Scale, assessing trauma resuscitation, reviewing CT scans, intracranial pressures, effects of concentrated saline in the body and numerous other technical matters. You do not require or even want a detailed description of all this, but you do want to know the impact of the injuries.

To complicate matters further, there was a strong possibility that none of Jason’s injuries were necessarily fatal but for a medical resident’s error.  Here is what happened.

The medical resident ordered a hypertonic (concentrated) IV saline solution. Hypertonic fluids have more particles than the body’s water. They pull water back into circulation from the brain cells, “drawing” fluid from a swollen brain. This delicate process requires close monitoring of blood sodium levels so they do not rise too high. The sodium levels were drawn every six hours and called to the resident, but he allowed the solution to run 18 hours longer than it should have: end result, kidney failure and pulmonary edema. So in addition to the trucking company, there may be secondary liability of the hospital, an issue you must address before signing a general release.

Boy #4, (Bryan) had been identified by all for the largest disbursement.  This boy also suffered a severe traumatic brain injury (TBI) but with a protracted recovery.  His medical record reflected right sided weakness and limb contractures on the left (elbow, knee and ankle locked into 45 degree positions). His “lost chance” was a career as a nurse anesthesthetist.  His family contended that he would never realize his career goals, walk, or be independent in his activities of daily living. The lives of his parents would be forever altered by his dependence upon them…a noneconomic consequence of the accident.  He would need yearly neuropsychological evaluations, home modifications, personal assistants, psychotherapy, physical therapy and other considerations.

Injecting reality into this perspective, a study of his four years of college revealed a C student who had barely passed his science classes and had yet to finish nursing school. His mediocre performance called into question his true ability to be a nurse anesthetist, so his attorney’s 50-year estimate of lost wages needed adjusting. Further, at the time of settlement, he had recovered remarkably, passed a driver’s test, took college courses with a scribe, walked without a limp, maintained his own home and was engaged to be married…all data to be factored into a fair apportionment.

These four cases included medical and academic records, autopsy reports, and horrifying photographs that jumped up without warning or a filename to suggest the content. I produced those five-page summaries (and did little else) during that first week, leaving the second week for the attorney to formulate a fair financial allocation.  No expert witnesses were called, and the maximum payout was awarded each boy.

For a field that is almost 30 years old, the definition of a legal nurse consultant is not always clear, even to the attorneys who hire us.  The confidential nature of our work product means that opposing counsel never knows when an LNC has written a medical questionnaire, prepared a witness for deposition, assisted with a plaintiff’s response to interrogatory or researched medical archives.  Opposing counsel only sees a well-prepared adversary.

You cannot erase an accident or the resulting change in a person’s life, but you can maximize their compensation by not missing important medical data or being surprised by opposing counsel.  If you are fortunate, you have a legal nurse to simplify your complex cases and free up your time to write briefs, research case law, prepare for trial and everything else that only you can manage.

Alice Adams is an independent legal nurse consultant and owner of Medical Case Consultants, LLC in Atlanta. Her nursing background is in critical care, head trauma and psychological assessment. Her practice is primarily personal injury, hospital malpractice and workers compensation. She is past and current President of the Atlanta chapter AALNC. Alice is a contributing author to the American Association of Legal Nurse Consultants’ 2011 textbook: Growing Your Practice: Resources, Tools & Reports with three other books in print. She can be reached at www.alicemadams.com.

Personal Injury Claims Blawg

Personal Injury Claims Blawg

PI claims blogger at PIClaimsBlawg
Personal Injury Claims Blawg is a personal injury law blog, inviting contributions from practitioners, PI law firms and legal academics across the UK, US and beyond. The post above has been published because of the high value associated with the author's work. Contact us if you'd like to get published today.
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