Paraplegia and Quadriplegia: The Lawyers Guide to Representation of the Spinal Cord Injured Client

 

By E. Marcus Davis, Esquire, of Davis, Zipperman, Kirschenbaum and Lotito, Atlanta, Ga. and Edward C. Davis

 

You have been practicing law for a number of years and your reputation as a skilled, tenacious and dedicated trial lawyer has grown steadily through the years.  You have a few million dollar verdicts under your belt and several multimillion dollar settlements to your credit.  One sunny afternoon, while many of your peers are out enjoying the golf course, you get the telephone call you have been hoping for since you started the arduous climb to prominence as a personal injury lawyer.  A good friend who has referred a number of difficult but lucrative cases over the years calls with a possible referral - a nine year old boy has been paralyzed in a traffic accident.  His vehicle was struck by a county ambulance with twenty million dollars in liability insurance.  Cognizant of the awesome responsibility handling such a case entails, you agree to accept the case. 

A former client calls with a possible new case.  Her 62 year old father has recently had back surgery, a lumbar laminectomy.  Initially he did well, but his condition steadily deteriorated over several months.  Finally, his surgeon referred him to a rehabilitation hospital.  He walked into the hospital, but day by day his condition worsened until one night he became incontinent of bowel and bladder and unable to move his extremities.  Ten hours later, he was sent to a trauma center where a methicillin resistant staff infection abcess was diagnosed in his cervical spine. Even after emergency decompression, permanent quadriplegia resulted.  The family does not know who, if anyone, is at fault.  Neither do you, but with the severity of the damage, you agree to investigate the case.

A law firm that handles primarily motor vehicle tort cases refers a possible medical malpractice case.  A worker’s compensation client with a history of back pain and radiculopathy over the years had a percutaneous laser discetomy procedure wherein a laser is inserted into a lumbar disk and the laser burns the interior of the nucleus pulposis causing a disk hernation to retract and remove pressure from nerve roots.  Following this outpatient procedure, the client was sent home sedated and with narcotics to ease the pain for the next few days.  Unfortunately, the client wakes up the next morning paraplegic and incontinent of bladder and bowel.  With an imminent statute of limitations, you rush to find an expert witness knowledgeable about “PLDD” procedures and file the malpractice lawsuit.

Representing those who suffer from paraplegia or quadriplegia presents the most challenging, yet potentially most rewarding damages case a lawyer can undertake.  The spinal cord injured client has lifetime care needs that will cost in the millions of dollars.  The reward to the lawyer of knowing he or she has fulfilled those needs in a skillful, dedicated and compassionate manner results in the highest degree of career satisfaction.  Such a case also represents an opportunity for the lawyer to earn a multimillion dollar fee, “doing well while doing good” for a human being in dire need.  Such a case deserves the very best representation you can deliver.

So where do you begin?  Most lawyers and the general public are misinformed or under-informed about the myriad complications and conditions that are associated with spinal cord injuries.  This is not altogether surprising given the fact that traumatic spinal cord injury only occurs in three people per 100,000 population.[1] 

Actor Christopher Reeve’s sad plight following a horse jumping accident, which left him a ventilator dependent quadriplegic, has heightened public awareness and interest in spinal cord injuries.  Reeve’s injury has also resulted in funding for cutting edge research concerning spinal cord injury in the areas of treatment, technology for adaptive devices and the like.

Reeve, in his book Still Me, has written that after his spinal cord injury his definition of a hero is completely different, “I think a hero is an ordinary individual who finds the strength to persevere and endure in spite of overwhelming obstacles.”[2]  Fortunately for Reeve, his movie career had made him independently wealthy so that he could afford optimal care.  Even with such care, Mr. Reeve has been hospitalized for autonomic dysreflexia, pneumonia, broken bones, blood clots, urinary tract infections, decubitus ulcers, and the like.  He has found that the longer he sits in a wheelchair, the more his body breaks down and the harder he has to fight against it. Unlike Mr. Reeve, however, many potential clients cannot afford the sort of care that their injuries require.  Furthermore, many suffer paralysis through no fault of their own and thus should be compensated for their life altering injuries so that they can afford good care.  In handling these cases, the lawyer will represent some real life heroes like Reeve.

Being paraplegic or quadriplegic does not simply mean that a person experiences an inability to move extremities nor does it mean that your client can no longer act as a functioning member of society; what it does mean is that he or she will require expensive medical care and assistive devices in order to carry out day to day activities and return to work in meaningful productive activities..  In order to become accustomed to living with a spinal cord injury, occupational and physical therapy should be implemented, and more than likely psychological therapy will be necessary in order to help the client cope with the loss of function, subsequent life changes and the very real possibility that the client will suffer further injury or even premature death due to his or her condition.

In order for the lawyer to competently represent the client with a spinal cord injury, he or she must be aware of all the ramifications and complications of this catastrophic injury, both physical and emotional, but since the physical injuries cause the emotional and mental harm, these will be examined first. 

Both paraplegics and quadriplegics experience a breakdown of bodily tissue due to the lack of movement in and pressure on their extremities.  A visible sign of this breakdown is the development of decubitus ulcers, also known as pressure sores, on any part of the body that remains stationary with pressure applied to it. Sustained contact with a chair or a bed for more than two hours may cause these sores to develop.    According to one study, 60% of quadriplegics developed pressure sores.[3]  In order to avoid the formation of these ulcers, the client must be constantly moved and readjusted by mechanical means or caregivers so that pressure is dissipated over various parts of the body.  Also, pressure dissipating beds and chairs can reduce the pressure on the skin to below that of capillary arterial pressure and thus prevent such sores.[4]

If ulcers are allowed to develop due to improper care, infections will appear and possibly erode down to and into the bone and cause overwhelming, life-endangering sepsis. If and when the spinal cord injury patient sustains pressure sores, there is a risk of cross infection between the pressure sores and the urinary tract as well. Nutritional depletion can have a direct impact on the intact skin’s ability to withstand pressure injury.  Once a decubitus ulcer forms, treatment and recovery are very difficult and expensive.  Each episode could cost between $2,000 and $40,000.[5]   These decubitus ulcers can also result in osteomyoetis, a life threatening bone infection that is difficult to treat and can take weeks or months to heal. 

Another serious complication of paraplegia or quadriplegia is a propensity to develop deep venous thrombosis, (DVT) which may result in a pulmonary embolism (PE).[6]   Without proper nerve conduction to the limbs and lack of movement to maintain muscle tone, the flow of blood through the veins is severely impaired as it travels back towards the lungs.  Paralysis causes the active muscle pump in the client’s paralyzed limb to cease functioning.[7]  The consequent sluggishness of venous return is further exacerbated by the hypercoagulation associated with spinal cord injury.[8]  These thromboembolic complications cause clots to develop in the lungs or blood clots to form elsewhere and migrate towards the lungs, ultimately causing a rupture in the one-cell thick membranes of capillaries in the lungs.  Larger “saddle” emboli may clot off large blood vessels in the lung vasculature and cause death.  Smaller emboli can cumulatively cause death.  Immobility is the most common precipitating factor in the development of venous thrombosis.  In addition, intrusion of catheters into the body, a common facet of a spinal injury patient’s medical care, also is a known cause of DVT. 

A number of methods must be used to prevent DVT including: adjusted-heparin, low dose heparin, warfarin, dextran, external pneumatic compression, pressure elastic stockings, surgically implanted Greenfield filters and TED hoses.[9]  Because blood clots that result in pulmonary embolism normally originate in the calf muscle, both paraplegics and quadriplegics are at risk.  The best way to prevent PE is to prevent DVT.[10]

Quadriplegics are at risk for further pulmonary complications.  Because of the inability of these patients to effectively expand lung volume and clear airway secretions due to paralysis of muscles involved in breathing, pulmonary atelectasis and bronchio-pulmonary infection ensue.  Mucous plugging is another potentially disastrous problem associated with inadequate ventilatory effort and secretion pooling.  Infection and erosion of the trach stoma due to the plastic trach tube or Passy-Muir valve used for speaking in ventilator dependent quadriplegics are looming complications.  Constant trach care and hygiene is required.  Even with the best of care, infections occur.

Unfortunately, the likelihood of pulmonary complications increases with time. With breathing already entirely dependent on the diaphragm due to paralysis of the intercostal and abdominal muscles, the injured person no longer can cough, so clearing the lungs is impossible without intervention such as breathing treatment by respiratory therapists. To further complicate matters, quadriplegics often develop restrictive lung disease five to ten years after the initial injury, which can increase the incidence of pneumonia and aspiration. In order to avoid pneumonia, percussion and drainage methods should be employed along with abdominal binders that increase the resistance on the diaphragm and thus strengthen it.  Early mobilization is also a key element of prevention.

Although some paraplegics retain normal bladder function, most paraplegics and all quadriplegics need a system of mechanical intervention in order to void urine from a neurogenic bladder.  Most patients use a catheter of some sort, either a condom type or one that is inserted. These catheters increase the likelihood of urinary tract infection, especially if indwelling catheters are used instead of intermittent catheterization.[11]  The development of urinary calculi (mineral deposits) will also increase the likelihood of UTI.  Most clients with severe spinal cord injuries will experience UTIs. 

UTIs may result in further complications such as renal failure.  Other causes of renal failure are neurogenic bladder and sphincter dysfunction resulting in high pressure voiding and impaired renal tubular drainage and amyloidosis in the kidneys (abnormal protein build-up) as a result of chronic pressure sores.[12]  Other factors include chronic infection complicated by sepsis, hypertension, vasomotor instability and exposure to toxic medications and radiographic contrast agents.[13]  Even with expensive care, paraplegics and quadriplegics remain at risk for various diseases involving the kidneys and urinary tract.

Another risk to the spinal injury victim is tubular necrosis;[14] in which the filtering function of the kidneys is severely hampered by tissue death.  Progression of renal disease, associated with quadriplegia, may result in reduction of excretory function and renal related metabolic and endocrine dysfunction. 

A further complication of renal insufficiency is platelet dysfunction, which causes bleeding problems.[15]  Dysfunctional kidneys can also cause disruption of bone and mineral metabolism, including negative calcium balance and osteomalacia.[16]  Bones will become weak and fracture if this condition is not diagnosed and treated, especially since quadriplegics and paraplegics already have weakened bones due to lack of load bearing and movement resulting in osteoporosis. 

A quadriplegic or paraplegic person will likely develop osteoporosis because of the lack of muscle activity and weight bearing that results from normal physical activity, thus increasing the likelihood of bone fractures. Using the legs to help support the body during transfers may help.  Standing exercises or parallel bar walking will help prevent osteoporosis if the patient is capable.[17]  Newer techniques that flex the paralyzed muscles through external electric stimulation also are thought to help. 

Due to kidney failure, clients also experience wide-ranging neurological effects because the central and peripheral nervous systems are affected by uremia. Some of the major central nervous system manifestations of kidney failure include: the reversal of normal sleep patterns, reduction in cognitive function, confusion, obtundation, and coma.  Severe renal insufficiency also predisposes patients to dehydration and volume depletion,[18] fluid overload, congestive heart failure, pulmonary edema, and hypertension.[19]  Frequent follow-up with a urologist will be required of all clients with a neurogenic bladder.

Spinal injury sufferers also frequently have a condition known as a neurogenic bowel in which fecal matter builds up until it causes an impaction, unless relieved.  Many patients require a stoma or hole into the large intestine known as a colostomy in order to evacuate waste into a bag.  Others must be manually stimulated with a gloved finger after a suppository is inserted to evacuate their bowels either daily or every other day.

Spasticity, the sometimes violent rapid flexing of muscles at will, occurs because the nerves connecting the brain and muscle no longer conduct impulses.  When any sort of stimulus occurs below the region of paralysis, the muscles respond by flexing.  This may indicate that muscles are being overstretched. However, spasticity may also be an indication that a urinary tract infection, renal infection, bowel impaction [20] or large pressure sore[21] is present.

For unknown reasons the body begins to create bone outside of the normal skeletal dimensions in paralyzed people.  Heterotopic ossification begins to limit the range of movement at major joints such as the hips and knees.[22]  When either this abnormality occurs or muscle spasticity has become so severe that joints cannot move properly, surgery may be required.  If untreated, heterotopic ossification may result in complete joint fusion. 

Surgical intervention may be required to prevent contracture in the joints of paraplegics and quadriplegics and improve dexterity so that the client can be moved, clothed, and bathed, etc. As an alternative or adjunct to surgery, botox therapy may be required to release contractures and prevent spasticity.[23]  While it might seem unnecessary to maintain flexibility in a paralyzed person’s non-functioning limbs, the limbs must be exercised daily and regularly by a care-giver to prevent further deterioration, such as pressure sores.

During the range of motion exercises, which must be carried out by family members or caregivers such as nurses or therapists, the paralyzed limbs must be moved.  A typical assisted range of motion exercise would involve one person holding down one leg, while another attendant stretches out the other one.  First working at almost 90 degrees out to the side, then pushing the knee up to the chest, then straight up and finally doing the “frog”, pushing the knee from side to side in a bent position.  All the while, the attendants must be looking for any red spots that might indicate the first stage of a skin breakdown.  The redness is almost always caused by some kind of pressure, the heel of a shoe or the outside of a knee pressing too tightly against a wheelchair.  Since the client cannot tell that he or she has a sore spot, extraordinary care must be exercised in while examining the body in order to find sores before they become infected.

Not surprisingly, spinal cord injured people are at greater risk for cardiovascular disease due to their sedentary lifestyle.  Whenever possible, exercise is recommended.

Gastrointestinal complications are common as well. Gastrointestinal problems such as partial ileus (paralysis of the intestines) occur.  These episodes of ileus and subsequent fecal retention result from unbalanced actions of the vagus nerve.[24]  In some cases, a gastrostomy must be performed so that the client can be fed through a tube.  Gastroesophageal Reflux Disease (GERD) is also common.[25]   Pancreatitis can occur in cervical spinal cord injury patients, because of predominate visceral parasympathetic tone.  

Quadriplegia results in alterations of body composition and endocrine profile.  Quadriplegic patients experience potassium depletion, low mean body osmolality, and loss of weight.[26]  Potassium depletion reveals the existence of a permanent metabolic change in a paralyzed patient.[27]  Quadriplegic patients also experience persistent elevation of aldosterone.  Weight loss at the expense of lean body mass occurs.  Potassium depletion can cause heart arrhythmia and death.

Peripheral vascular disease occurs in spinal cord injured patients including: intermittent claudication, rest pain, numbness and coldness of the limbs.[28]

Perhaps the most frightening complication of paralysis below the sixth thoracic vertebrae is autonomic dysreflexia, a symptom that occurs in 85% of tetraplegics.[29]  The complications of this syndrome are stroke and death.  What happens is that a pain stimulus below the level of injury will activate the sympathetic nervous system, the part of our body responsible for fight or flight behavior.  The blood pressure rises to potentially dangerous levels as a result.  The parasympathetic nervous system tries to restore homeostasis. When the body attempts to slow the heart rate, but blood pressure remains high, a potentially life threatening condition occurs. Signs that this condition is present include sudden sweating, flushing of the skin, goose bumps, piloerection and possibly nasal stuffiness or anxiety.[30]  In order to treat this condition, the painful stimulus must be removed immediately.  When either a urinary tract infection, constipation or impaction, or a skin infection lasts too long, the paralytic’s body reacts by releasing norepinephrine into the blood, causing heightened blood pressure and a slowed heart rate.  When this condition persists untreated, it can result in unconsciousness, seizures, cerebral hemorrhage and possibly death.[31]  Thus, the necessity of constant proper medical supervision is paramount.

On top of all the physical maladies that plague the paralyzed client, he or she may also experience pain akin to that experienced by amputees.  It is a myth that spinal cord injured patients do not experience pain.  Neuropathic pain or phantom limb pain is generated by the nerves when there may be no actual impetus.  This type of pain varies from an aching to pain so severe that it has been described as “electric shock-type quality.”  Neuropathic pain can be treated either with medicine or nerve blocking procedures such as surgery.  There are three headings into which nerve blocks can be grouped: temporary nerve block, semi-permanent nerve block and permanent nerve block   Temporary nerve blocks consist of injections of a local anesthetic around the nerve.  Semi-permanent nerve blocks consist of freezing the nerve which may block the pain for weeks or even months until the body repairs the nerve damage.  Finally, permanent nerve block, also known as rhizotomy, means surgically or electrically cutting the nerve.  This procedure is also referred to as neurolysis.   This permanent type of nerve blocking is done by heating the nerves by passing a high frequency electric current into them through the tip of a needle.  This procedure is intended to be permanent, however, the nerves may grow back again in a year or so and the pain can sometimes be worse.  This treatment can be repeated.

The psychological trauma associated with spinal cord injury may be the worst aspect of the injury. Client’s lives are altered in a devastating and lasting way.  Depression is a common response to sudden loss of bodily function.  For most spinal cord injury patients, dramatic deterioration of self-image ensues.  The client and his or her family feels like he or she is no longer the same person in a very profound way.

In day to day life, the injured person no longer can be completely independent.  While paraplegic clients can function virtually independently in some areas of their life with the aid of a wheelchair, they will have to receive routine medical check-ups and be aware of the possibility of sudden complications that may require emergency care.  Independence is not possible for quadriplegia due to lack of ability to move and interact with their surroundings.

Although our society is becoming more handicapped friendly, much of the world is still inaccessible by wheelchair.  Imagine the frustration that a wheelchair dependent person must feel when he or she can no longer climb the stairs to get to the bedroom, go through a certain doorway, or reach into a kitchen cabinet.  Driving somewhere for an outing requires a wheelchair accessible van and a wheelchair accessible venue for the outing.

With quadriplegic people, the loss is greater.  One cannot get out of bed, feed oneself, scratch an itch, or use the bathroom without assistance.  All of these complications of injury lead to embarrassment and loss of self-esteem.  The quadriplegic may not be able to escape a fire or reach a phone to call for help.  In most respects the quadriplegic is a prisoner in his or her own body.

For the adult who suddenly loses the function of the legs or the entire body, drastic changes will be necessary to continue working, if keeping the same job is at all possible.  Any sort of manual labor obviously is precluded.  Employers will likely have to make adjustments to the work environment in order to accommodate the employee.  For a quadriplegic, the chance of continuing work is very slim.  Even with current advances in computer interfacing for quadriplegics, they simply cannot operate a computer with nearly the speed that a person with the function of the hands can.  As a result of spinal injury, most victims leave work causing additional problems of financial dependency both for themselves and their families, loss of self esteem, and loss of direction, purpose and meaning in life.

With children who suffer spinal cord injuries, the effects can be worse. While other children can run and play at will, the severely injured child becomes a spectator to life rather than a happy active participant.  Some children have concerns that no one will take care of them. School work becomes much more difficult without the ability to take notes and operate a computer quickly.

Romantic relationships become more difficult for those who suffer spinal cord injuries due to the burdensome constant care they need, and of course, due to the physiological changes that occur. Certainly, getting out of the house and dating becomes much more difficult with a spinal injury.  Many paraplegics and quadriplegics fear that they will never find a mate.  Instead, they envision a life of solitude for themselves.  Furthermore, concerns of spinal cord injured patients about their altered sexuality are common.  They mourn losses of specific capabilities and sexual sensitivities such as; erectile function, orgasm, use of hands or limbs, arousal thresholds, ability to please a partner, and to enjoy sensation. A loss of consortium claim is a valuable claim for the spouse of a spinal cord injured patient.  Injured men likely will not be able to procreate without surgical intervention, but paraplegic women can become pregnant if a doctor has weighed the risks and approved of this decision.  Of course, caring for young children is a daunting if not impossible task for paralyzed people.

As a result of all of the negatively impacted aspects of life, most people suffer at least an initial period of depression, requiring therapy.  They need to reestablish their self-esteem.  They need to understand that despite their loss of function, they are still capable of being valuable participants in society and leading productive lives.  Psychotherapy, counseling and antidepressant medications are needed to deal with the psychological aspects of a paralyzed person’s injury.  Amazingly most spinal cord injured patients who were married at the time of injury remain married.

For the attorney to properly represent the spinal cord injured client, he or she must plan for this person’s future and ascertain all of the special needs that surround an injury of this magnitude.  In order to provide the proper medical care for the duration of the client’s life, the plaintiff’s lawyer should hire a professional preferably a certified life care planner to design a life-care plan.  The plan should provide itemized expenses for all medical treatment, caregivers, and special housing needs that the client will need throughout his life time broken down on an annual basis.  Not only should the plan include routine care such as an in-house nurse, but it should also provide for the expensive medical care that will be necessary when the paralyzed client has one of the many adverse events which are known to appear suddenly as a result of an inability to fight off injury occur. 

Critical to demonstrating to the jury the need for expensive caregivers is the ability of the lawyer to educate the jury as to the grueling day to day routine of maintaining a spinal cord injured patient.  Spending a full 24 hour day with the client and his family and creating a log of each element of the care required is the best way for the lawyer to understand and be able to explain to the jury the care required.  It is only after actually living through a day in the life of the client that the lawyer can really understand and articulate the care required and the incredible burdens and demands it places on the client and his or her family.  A poster-sized blow up of the care schedule will strongly affect the jury!  It might include bowel evacuation, catheter care, skin care, range of motion exercises, bathing, dressing, transfers between bed and a wheelchair, linen washing, sanitary care of trach equipment and stoma, care of gastrostomy or colostomy stoma, delivery of myriad medications, and certainly other types of care.  Jury members will be stunned at the amount of work required to care for a paraplegic or quadriplegic. 

Special equipment such as hand controlled or head controlled wheelchairs will allow the paralytic to move about as freely as possible.  It is essential to provide the client with as much independence as possible to promote psychological well-being.  To this end, the lawyer should realize that a person’s home may have to be modified or swapped for one with wheelchair accessible doors, lowered counter surfaces, handicapped accessible showers, and room for bulky medical equipment such as Hoyer lifts or ventilator machines.  Furthermore, the client will now need a wheelchair accessible van for transportation.  Specially designed laptop computers with either a forehead controlled mouse or voice activation certainly will help the quadriplegic as will computer activated environmental controls.

A qualified economist may then translate the life-care plan into present cash value.  This number can be used to negotiate with defense lawyers and insurance company adjustors or as powerful damages evidence for the jury.  The life care planner witness should be thoroughly prepared for trial.  The lawyer should have photographs and/or the actual devices to demonstrate the aids and home modifications needed by the client.

A loss of wages claim may also be in order when a person loses the use of his or her limbs.  An economist can testify as to the present cash value of lost and diminished wages.  There are relatively few jobs that a paralyzed person can hold immediately following an injury, but with time and occupational and physical therapy, a paralyzed person may be able to work again.  Hopefully, as the world becomes more computer automated and technological innovation continues rapidly, more jobs will become available for those with spinal cord injuries.

We as trial lawyers have a valuable and important role to play in society in helping spinal cord injured patients to obtain full compensation for their loses and enough money to pay for all their specialized medical, caregiver, housing and transportation needs.  With effort and study the trial lawyer can acquire the knowledge base required to provide the excellent representation these clients deserve.