31 Temp. J. Sci. Tech. & Envtl. L. 205Temple Journal of Science, Technology & Environmental Law

Winter 2012

A PRIMER ON SPINAL CORD INJURIES - A MEDICAL/LEGAL OVERVIEW

Virginia Graziani M.D.a1 Samuel D. Hodge Jr. aa1

Copyright (c) 2012 Temple Journal of Science, Technology & Environmental Law; Virginia Graziani

M.D.; Samuel D. Hodge Jr.

“I think a hero is an ordinary individual who finds strength to persevere and endure in spite of

overwhelming obstacles.”

-Christopher Reeve

I. INTRODUCTION

An injury to the spinal cord is one of the most life-changing events that can occur. Although the

resultant paralysis is the most obvious consequence and what people would consider the most

devastating result of such trauma, these individuals also face a disruption in almost every other

aspect of their lives.1 After all, the spinal cord is the major pathway through which motor and sensory

signals travel between the brain and the body and is integral in the control of movement, sensation,

bowel and bladder activity, and autonomic functions such as temperature and blood pressure

control.2 Any disruption of this structure, therefore, can have devastating emotional, psychological,

physical and financial consequences. In addition to the obvious impairment of mobility, individuals

also suffer from a variety of related medical issues such as respiratory, bowel, skin, bladder and

sexual problems.3 The psychological significance of spinal cord injuries also challenges victims with

the task of comprehending their lost mobility, accepting a new dependency on others, *206 and

learning to establish altered goals for their lives.4

At one time, a paralyzing spinal cord injury (SCI) was usually a death sentence because of the

likelihood of pneumonia, an infection from pressure sores or a urinary tract infection.5 Since World

War II, however, an advanced understanding of the pathological processes that occur in the spinal

cord immediately following injury, in addition to the utilization of antibiotics, has made long-term

survival possible for most people with spinal cord injuries.6 Nevertheless, the recovery potential for

those with a total loss of motor control and sensation below the area of the injury remains grim

because of the inability of the spinal cord to regenerate itself.7

The legal issues involving spinal cord injuries can arise in relation to all aspects of the injury, from

the cause of the injury, the immediate and subsequent medical care, secondary complications and

insurance coverage to issues surrounding death. The financial toll is also enormous from the cost of

multiple hospitalizations to the need for caregivers, and these sums must be considered in

establishing the value of a claim. Lawyers can best represent spinal cord injury (“SCI”) clients by

understanding the complex nature and long-term consequences of the injury and how the problem

so comprehensively changes the lives of those affected.

This article has been crafted because not a lot has been written about the subject from a

medical/legal point of view. It is designed to act as a primer on the topic, and the article is divided

into two sections in order to provide a multifaceted overview of a spinal cord injury. The first part will

present a medical overview of traumatic SCI including epidemiology and etiology, evaluation and

treatment, systems affected, and prognosis. The second segment will explore some of the legal

issues that arise with spinal cord injuries.

II. SPINAL CORD INJURY

There is no mandatory reporting of spinal cord injuries in the United States; however, the National

Institute for Disability Rehabilitation and Research currently funds centers across the country to

provide specialty care for patients with spinal cord injuries, called SCI Model System Centers.8 There

are currently fourteen funded centers.9 The requirements to be funded as a SCI Model System

Center include the ability to provide comprehensive rehabilitation services, including emergency

medical services, acute care, vocational and other rehabilitation services, community and job

placement, and health maintenance.10 Additionally, centers are required to conduct spinal cord

research, including clinical research and the analysis of standardized data.11 The National Spinal

Cord Injury Statistical Center (NSCISC) supports and directs the collection, management and

analysis of the world's largest *207 spinal cord injury database gathered from these centers.12 The

Shriner's Hospital system also collects data on pediatric spinal cord injury.13

A. Epidemiology

Twelve thousands spinal cord injuries occur annually in the United States.14 This incidence has

remained relatively stable over the past thirty years.15 Nevertheless, this number is quite small when

compared to the 1.7 million traumatic brain injury patients per year. Although the majority of

traumatic brain injury patients are treated in the emergency room and released, 275,000 per year

(twenty times the number of spinal cord injuries) suffer injuries significant enough to warrant

hospitalization.16 The number of people in the U.S. who are currently living with spinal cord injury,

however, has been estimated to be approximately 270,000, despite the much smaller population

pool.17

The incidence of SCI is lowest for the pediatric age group, highest in the late teens and early

twenties group, and declines steadily in older ages.18 The mean age at time of injury is 32.4 years;

however, there has been a substantial trend toward increasing age at the time of injury in recent

years.19 Approximately 80% of spinal cord injuries occur in men, and this four-to-one ratio of male to

female spinal cord injuries has remained relatively constant over time.20

B. Etiology

Nine specific causes of traumatic spinal injury (TSI) accounted for the vast majority of new cases

enrolled in the National Spinal Cord Injury Statistical Center (NSCISC) database in 2010.21 Not

surprisingly, motor vehicle accidents ranked first (33.8%), followed by falls (20.9%), gunshot wounds

(15.8%), diving mishaps (6.3%), motorcycle accidents (5.9%), being hit by a falling/flying object

(2.9%), *208medical/surgical complication (2.5%), pedestrians who were struck by motor vehicles

(1.6%), bicycle accidents (1.3%), and person to person contact (1%). All other causes of spinal cord

injury accounted for less than 1% each.22

When considering etiology by age group, different trends emerge. In 2010, vehicular accidents

caused 46.4% of spinal cord injuries in the 16-30 year age group compared to 30% in the 61-75 year

group.23 Violence accounted for 23.5% of injuries in the younger group compared to 2.7% in the

older population; sports related injuries accounted for 14.4 % in the younger group compared to

2.3% in the older population, and falls correlated to10.6% of SCI in the younger group compared to

49.4% in the older population.24 In the 76-98 year age group, falls accounted for 64.4% of all

injuries.25

In the larger category of recreational sports, diving was the cause of 57.7% of all spinal cord injuries

reported between 1993 and 1996.26 Snow skiing ranked second (9.7%), followed by surfing

(including body surfing) (4.1%), wrestling (3.1%) and football (2.8%).27Diving, football, and

trampoline injuries have declined since the 1970's, whereas injuries due to skiing and surfing have

increased.28 The change of football rules in 1976 which banned “spearing” most likely contributed to

the decrease in football injuries, and the removal of trampolines from schools in some states likely

contributed to the decrease seen in those injuries.29

C. Life Expectancy

The life expectancy of those with spinal cord injury has improved significantly over the past several

decades but remains below the average population. The mortality rate during the first year 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.32

As the severity of the injury increases, as determined by the neurologic level and *209 completeness

of the injury, life expectancy declines steadily. For example, a 25 year-old able-bodied person has a

life expectancy of 52.4 years compared to 41.8 years in a paraplegic patient, 37 years in a C5-C8

quadriplegic patient, 33.1 years in a C1-C4 quadriplegic individual, and 23.5 years in a 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.34

D. Causes of Death

Respiratory issues are the leading cause of death following spinal cord injury, accounting for 20.8%

of all deaths. The majority of these deaths are due to pneumonia.35 Heart disease, including

hypertensive, ischemic, and other types, accounts for 20.6% of deaths.36Infections cause 8.8% of

deaths, with 90% of these being due to septicemia (blood infection), and are usually associated with

pressure sores, urinary tract infections, and respiratory infections.37 Cancer causes 7.2% of deaths,

and diseases of the pulmonary circulation cause 6.2% of deaths.38 The vast majority of pulmonary

circulation deaths are due to pulmonary emboli,39 which usually occur before discharge from the

hospital and decline sharply with time after injury.40

E. Fractures and Dislocations

Most injuries to the spinal cord (excluding those due to gunshot wounds, other penetrating trauma,

and medical/surgical complications) occur in association with a fracture and/or subluxation of the

boney elements of the spine.41 Surprisingly, most spine fractures do not result in a spinal cord

injury.42 For instance, fractures of the bone in the cervical spine occur in 2-6% of all trauma patients,

but only about half of them will have a concurrent injury to the spinal cord or nerve roots.43 Fractures

can occur in the vertebral body44 and in any of the posterior elements of the vertebra. *210 Minor

compression fractures of the vertebral body are usually orthopedically stable injuries, do not cause

spinal cord damage, and often do not require surgical intervention.45 On the other hand, burst

fractures (where the vertebral body is severely disrupted and breaks into several pieces), often

caused by abrupt axial loading of the cervical spine, frequently result in bone fragments going into

the spinal canal, with a resultant spinal cord injury.46 Due to the significant boney and ligamentous

disruption, these injuries are often also orthopedically unstable and require operative treatment to

align and stabilize the spine.47

Dislocations and subluxations48 of the spine can occur in association with a fracture or be

independent of a fracture.49 Dislocation implies that the facet joints are no longer side-by-side,

whereas subluxation occurs when the joint has slipped but some portion of the surfaces are still

apposed.50 These injuries can be unilateral or bilateral. Bilateral dislocation (sometimes referred to

as “bilateral jumped facets”) can cause a significant reduction in the diameter of the spinal canal and

often results in a SCI.51 Although there is human clinical evidence that immediate reduction of facet

dislocation (i.e., realignment of the spine to its normal position) can improve clinical recovery, the

evidence is weak because controlled studies are not possible.52 However, “animal data in favor of

immediate reduction are compelling and favor reduction as rapidly as possible.”53

Approximately 90% of spine fractures occur in the thoracic or lumbar regions, with the majority of

injuries at the thoracolumbar junction (T11-L2).54 Because of the alignment of the facet joints55 in the

lower spine and the supporting rib cage and muscles, dislocation without significant associated

fracture is less common than in the cervical spine.56 This increased rigidity, however, results in

greater biomechanical stresses at the thoracolumbar joint which, in turn, makes this area particularly

susceptible to fractures.57 Up to 50% of thoracic and lumbar spine *211 injuries result in a spinal cord

injury.58

Traumatic injury to the spinal cord can occur even without spine fracture or dislocation, particularly in

the elderly population. These injuries often result in a clinical picture, known as central cord

syndrome, where the upper extremities are weaker than the lower extremities.59 These patients often

have pre-existing cervical spondylosis, an arthritic condition of the spine that results in a narrowing

of the spinal canal.60 Although the patient may have been unaware of the spondylosis prior to injury,

a relatively low-energy fall or minor motor vehicle accident may cause compression of the spinal

cord, with no concomitant spinal fracture.61 This mechanism of injury is thought to be a pinching of

the spinal cord between the arthritic spinal elements during hyperextension of the neck.62

The pediatric spine is at the other end of the spectrum, has relative laxity of the ligaments, which

places the spinal cord at risk in flexion, extension, distraction, and rotation, and may be responsible

for a condition known as “spinal cord injury without radiologic abnormality” (SCIWORA).63 Coined in

1982, the term was used to describe spinal cord injuries in children, usually less than 8 years old,

with no evidence of fracture, subluxation, or dislocation noted on plain radiograph (X-ray) or CT

scan.64 The increasing use of MRI in SCIWORA, however, has revealed that damage is present in

the non-boney supporting tissues of the vertebral column, including torn and ruptured ligaments, and

intervertebral disc disruptions.65 MRI also demonstrates the degree of injury to the cord itself, which

can range from complete transaction, to edema only.66 Prognosis for recovery varies depending on

the degree of cord damage demonstrated on the MRI.67

F. Levels of Injury

To better understand the nature of a spinal cord injury, it is necessary to gain an appreciation of the

anatomy of this structure. The spinal cord is part of the central nervous system68 and is only the

diameter of a finger.69 It has been explained as “the cable of nerves in the spinal column”70 that

transmits signals between the brain and *212 the peripheral nervous system.71 For example, the

spinal cord has ascending pathways carrying sensation from the trunk and limbs on its way up to the

brain, and it also contains the descending fibers originating in the brain that regulate the muscles of

the body.72 These pathways are generally named from where they start and where they end.73 The

corticospinal tract is the primary descending pathway that initiates movement of the body.74

The core of the spinal cord is made up of gray matter that takes on an “H-shape” appearance.75 This

region contains all of the motor and sensory neuronal cells that control the trunk of the body and

extremities in addition to acting as a relay for autonomic control of the body's organs.76 The top

portions of the H “uprights” are dubbed the dorsal horns and contain the cell bodies of neurons in the

sensory pathways.77 The lower aspects of the H “uprights” are known as the ventral horns.78 These

structures contain the cell bodies of neurons that transmit signals to the muscles, called motor

neurons.79 Lateral horns are located in the thoracic and lumbar segments of the spinal cord and

project outward at the crossbar of the H-shape of the spinal cord's gray matter.80 These horns

consist of cell bodies that relay autonomic functioning, such as intestinal motility, heart rate, and

blood pressure.81

The spinal cord travels in the spinal canal, a structure surrounded by the bones (called vertebrae)

and ligaments of the spine.82 Nerves enter and exit the spinal cord through openings in the spinal

canal called foramina.83 At this level, the nerves are called nerve roots and are named according to

the associated vertebral (i.e. spinal) level.84 The spine, or spinal column, itself consists of 31

segments over five areas: cervical, thoracic, lumbar, sacral, and coccygeal.85 The cervical spine,

situated at the level of the neck, has seven bones, but because the nerve roots exit above vertebrae

C1 through C7, and an additional nerve root exits below C7, there are actually eight spinal cord

segments numbered C1 to C8.86 Portions of the C3, 4, and 5 nerve roots join to form the phrenic

nerve, which controls the diaphragm, the main muscle for respiration.87 Vertebral segments C5-C8

control the movements of the arms and hands.88 The thoracic region extends down the mid-back

area, has twelve *213 vertebrae, and has twelve corresponding spinal cord segments labeled 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.98

In most spinal cord injuries, the bones of the neck or back, ligaments, or disc material protrudes into

the cord, causing it to become swollen or bruised.99 Occasionally, the damage may even tear the

spinal cord and/or its nerve fibers.100 While the nerves above the level of injury keep working

properly, messages are blocked from being transmitted to the levels below the level of injury.101

Based upon the level of injury, damage to the spinal cord can cause a paralysis of the muscles used

for breathing; a loss of feeling in all or some of the trunk, arms, and legs; numbness; weakness; loss

of bladder and bowel control; and many secondary conditions such as respiratory issues, pressure

sores, and sometimes fatal increases in blood pressure.102

The level of injury to the spinal cord also plays a role in the degree of harm that results.103 For

instance, more displacement of a dislocated or fractured vertebra is required to harm the cord in the

lumbar region than in the thoracic area because of *214 the larger amount of available space within

the spinal canal in the lumbar spine.104 In fact, a lumbar fracture may cause no neurologic injury

while a similar break in the cervical or thoracic region may result in a catastrophic neural

loss.105 Injuries in the cervical spine are usually the most significant, usually causing

quadriplegia.106 Trauma above the C-4 level may mandate the use of a ventilator for breathing

because of the loss of innervation to the diaphragm as well as the chest muscles that assist in

breathing.107 However, even in lower cervical and upper thoracic injuries where the diaphragm is

functioning normally, patients often have diminished respiratory capacity due to impairment of the

chest muscles that assist breathing.108 C-5 injuries allow shoulder and biceps control to remain

intact, but the person loses control at the level of the wrist or hand while C-6 injuries usually cause

loss of hand function.109 Those with an injury at the C-7 and T-1 levels can straighten their arms but

may have dexterity issues with the hand and fingers.110 An injury in the thoracic region and below

results in paraplegia, but the hands are not affected.111 For instance, at T-1 to T-8 levels, the person

usually has control of the hands, but poor trunk control because of lack of abdominal muscle

control.112 Injuries in the lower thoracic region from T-9 to T-12 allow adequate control of the trunk

and good abdominal muscle control.113 Lumbar and sacral injuries tend to cause a decreasing ability

to control the hip flexors and legs.114

Injuries to the spinal cord further result in partial or complete disruption of motor and sensory

function below the level of the injury to the cord (known as the neurological level), which does not

always correlate with the level of the skeletal injury.115 Motor and sensory signals above the level of

the injury remain unaffected.116

Injuries are broadly divided into two categories: tetraplegia (also known as quadriplegia) and

paraplegia.117 In tetraplegia, there is disruption of the motor and/or sensory pathways in the cervical

segments of the spinal cord, resulting in impairment in the upper and lower extremities, as well as

the chest and abdomen.118 In paraplegia, the disruption is in the thoracic, lumbar, or sacral segments

of the spinal *215 cord; therefore, arm functioning is spared.119

Depending on the level of the injury, paraplegia impairs lower extremity sensory and motor function,

and the sensory and motor pathways as high as the chest may be disrupted.120 It is important to note

that most tetraplegics have some function in the arms, the degree of which depends on their

neurological level.121 The specific neurological level of injury (e.g. C5, T8) is determined by a precise

examination of ten muscle groups and twenty eight sensory points on each side of the

body.122 Further description of the levels of injury and their associated degree of impairment will be

discussed in the section entitled “Neurological Levels.”

G. Complete versus Incomplete Injuries

When individuals sustain spinal cord injuries, they are frequently informed that they have an injury at

a specific spinal cord level and are assigned a qualifier, “complete” or “incomplete,” which indicate

the severity of harm.123 A complete injury indicates the patient has no function below the level of the

injury, no voluntary movement and no sensation.124 Both sides of the body are also equally

affected.125On the other hand, an incomplete injury signifies that there is a degree of functioning

below the primary injury level. This person may be able to move one extremity more than the other,

may be able to feel an area of the body that cannot be moved, or may have more functioning on one

side of the body than the other.126

The degree of completeness of the injury is often referred to as the “extent of injury.”127 The

importance of the extent of injury cannot be overstated: prognosis for recovery of motor and sensory

function below the neurological level is based on the completeness of the injury.128 Research has

demonstrated that patients who have any sensation in the fourth and fifth sacral segments (known

as “sacral sparing”) have a significantly better prognosis for at least some motor recovery than those

that do not.129 This is true even for patients that have no other sensation in any area between their

neurological level of injury and the fourth and fifth sacral segments (S4-5).130For example, a

tetraplegic patient with no sensation in the chest, abdomen, or legs, but with sensation at S4-5, has

a better prognosis for motor recovery than a paraplegic patient (or another tetraplegic patient) with

some sensation in the chest, *216 abdomen or legs, but no sensation in the sacral segments. A

possible explanation for the improved prognosis in patients with sacral sparing is that sensation in

the S4-5 segments is evidence of the physiologic continuity of spinal cord long tract fibers.131

Extent of injury is assessed using the five-category American Spinal Injury Association (“ASIA”)

Impairment Scale (“AIS”) which evaluates the presence of any movement or sensation below the

level of neurological injury.132 Patients with no S4-5 sensation or motor function (i.e. cannot contract

the anal sphincter) are considered complete and are classified as ASIA A.133 Patients who have

sensation but not motor function in the S4-5 segments are considered sensory incomplete and are

classified ASIA B.134 Those who have sensation in the S4-5 segments and some movement below

the neurological level of injury, and those who have voluntary anal contraction (with or without any

other movement below the neurological level) are considered motor incomplete.135 Motor incomplete

patients are further classified into ASIA C and ASIA D, depending on the degree of strength in the

spared muscles (ASIA D patients have more motor sparing than ASIA C patients).136 Patients who

have a documented spinal cord injury, but at the time of evaluation, have normal neurological

function at all levels, are classified ASIA E.137 At the time of discharge from rehabilitation,

approximately 49% of injuries are classified ASIA A, 10% ASIA B, 11% ASIA C, 29 % ASIA D, and

1% ASIA E.138

H. Prognosis for Recovery

Prognosis for any meaningful motor recovery in ASIA A patients is extremely poor. Eighty percent of

these individuals remain complete. Only 2% to 3% of these patients improve to ASIA D, and it is not

known how many of these few patients regain the ability to walk.139 For patients classified ASIA B at

the time of their initial injury, 48% regain at least some ability to walk.140 For ASIA C patients, the

prognosis for recovery is significantly affected by age.141 Those under 50 years of age have a 91%

chance of regaining the ability to walk in the community versus only 42% chance for patients age 50

or older.142 Approximately 40% of ASIA D patients regain full neurological function, and almost all

regain the ability to walk.143

*217 I. Treatment

Management of a spinal cord injury begins by the emergency responders at the scene of the

accident.144 The pre-hospital evaluation attempts to quickly identify any signs of spinal cord

injury.145 If the victim is alert, any complaints of neck or back pain, numbness, tingling or decreased

ability to move are noted.146 An abbreviated motor exam, checking grip strength and ability to flex the

ankle, a gross examination of sensation and an assessment of any bowel or bladder involvement is

performed.147 Even absent any abnormal findings, all persons with major trauma should be treated

with immobilization until the injury has been excluded or definitive management has been

initiated.148 A cervical collar is placed on the neck before removing a victim from the seated

position.149 As many as 20% of spine injuries involve more than one noncontinuous vertebral level,

therefore, the entire spinal column should be immobilized by use of a rigid backboard.150 Once

properly immobilized, the patient with a suspected spinal cord injury should be transported to an

accredited trauma center, preferably a Level I trauma center,151 if local triage protocols and the

medical stability of the patient allows.152

Because most spinal cord injuries are associated with a significant trauma, emergency treatment

must first be directed at rapid restoration of the airway, breathing and circulation (the ABC's), if

indicated.153 Patients with impaired neurologic levels at C4 and above will almost certainly require

ventilatory support due to the loss of innervations to the diaphragm.154 However, even patients with

lower cervical neurologic levels and some thoracic neurologic level patients may require ventilatory

support, particularly if there is any chest trauma or if pulmonary infection develops.155 Although lower

cervical and thoracic level patients have normal diaphragm function, the chest muscles and

abdominal muscles used for *218 forceful expiration do not function.156 Therefore, these patients are

at risk for respiratory failure and must be monitored closely.157

An injury to the spinal cord interrupts the autonomic nervous system, so cardiovascular

derangements, including hypotension (low blood pressure) and, in cervical levels of injury,

bradycardia (slow heart rate), frequently occur immediately following injury.158 Intravenous fluids and

medications to maintain blood pressure are often necessary in the acute post-injury period.159

A baseline neurological assessment, utilizing the ASIA standards, should be performed and

documented as soon as feasible in the emergency room.160 Neurologic deficits evolve naturally over

time and can worsen due to inadequate immobilization during transport and improve or worsen

during traction or reduction maneuvers.161 Therefore, neurologic examinations should be repeated at

least daily and after any intervention that might affect the impairment.162

Once the patient is medically stable, expeditious transfer to a specialized spinal cord injury center

should be considered.163 These units have five major components of care: emergency medical

services, a trauma center with SCI trauma unit, a rehabilitation facility with SCI trauma unit, a 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.165

Although much of the injury to the nerves in the spinal cord is due to the initial mechanical trauma,

there is also a “secondary” injury that occurs due to processes such as diminished blood perfusion

(ischemia) and inflammation which occur immediately after the initial trauma, and which may be

preventable or reversible.166 Many neuroprotective therapies have been investigated in an attempt to

limit the deleterious effects of the secondary injury.167 Methylprednisolone, a steroid thought to block

inflammation following spinal cord injury, has been the most widely used treatment and has become

“entrenched in the clinical management of acute SCI as a ‘standard of care’. . .”168 Although

methylprednisolone has been investigated in three large-scale, multicenter clinical trials that

demonstrated improvements in ASIA scores, recent critics have questioned the way the results were

presented and the *219 validity of the conclusions drawn.169 These trials also reported that significant

adverse events, such as gastrointestional hemorrhage, wound infection, and pulmonary embolus,

were higher in the patients treated with methylprednisolone.170 After careful analysis of the studies,

several opinions have emerged suggesting that “methylprednisolone should not be considered an

obligatory standard or a necessary part of routine clinical practice.”171 Unfortunately, “no clinical

evidence exists to definitively recommend the use of any neuroprotective pharmacologic agent,

including steroids, in the treatment of acute spinal cord injury to improve functional

recovery.”172 However, not all experts agree with the critics of the methylprednisolone studies:

“considering the typically devastating nature of acute SCI to the patient and the patient's family, and

the fact that no other neuroprotective approach is currently available, the misleading assessments of

high-dose MP (methylprednisolone) treatment are likely a disservice to SCI patients.”173

Once a spinal cord injury has been identified, a CT scan of the entire spine should be

obtained.174 Plain x-rays alone have been reported to miss a significant number of spine injuries;

whereas, a CT scan is highly reliable in detecting spinal fractures and dislocations.175 CT, however,

is not adequate for visualizing the spinal cord itself, ligament or disc disruptions, or any soft-tissue

injury.176 MRI, therefore, should be performed to the known or suspected areas of spinal cord injury

in order to visualize these structures.177

In cases of bilateral cervical facet dislocation in the setting of an incomplete spinal cord injury, the

spine should be reduced to decompress the neural elements as soon as possible.178 This can be

done in a “closed” fashion, which can be accomplished by utilizing tongs screwed into the skull and

applying weights in five to ten pound increments to distract and then realign the spine.179 X-rays and

a complete neurologic exam must be performed at each weight increment to assure that the

impairment is not worsening; therefore, the patient must be awake, alert and cooperative.180 If closed

reduction is not possible or is unsuccessful, reduction can be accomplished surgically (i.e. “open

reduction).181 Although the human clinical evidence that immediate reduction of facet dislocation can

improve neurological *220 recovery is not strong, “it is generally accepted that the sooner a

successful reduction is accomplished, the better likelihood that some degree of neurological

recovery may occur.”182

Surgical intervention is commonly used to manage spine fractures. For example, following closed

reduction in cervical facet dislocation, patients will often undergo surgery to stabilize the spine in the

corrected position.183 The purpose of surgery in other cases is to reduce and realign the spinal

elements, to decompress compromised neural tissue, and to stabilize the spine.184

It is common clinical practice to urgently perform spinal canal decompression if a patient

demonstrates a worsening neurologic examination.185 However, in patients who are not

neurologically deteriorating, there has been significant controversy over whether there is any benefit

to surgery being performed soon following injury, or if surgery should be postponed several days

because of the risk of neurologic deterioration and surgical complications.186 A recent study, the

Surgical Trial in Acute Spinal Cord Injury Study (STASCIS)187, may put this controversy to rest.

STASCIS prospectively evaluated 313 patients with acute cervical spinal cord injury.188One hundred

eighty two patients underwent “early” decompressive surgery (less than 24 hours post injury), and

131 underwent delayed surgery (at or after 24 hours post injury).189 At their six month follow-up,

19.8% of patients undergoing early surgery showed at least a two grade improvement in ASIA

Impairment Scale as compared to 8.8% of patients in the delayed decompression

group.190 Additionally, there were fewer incidents of major inpatient complications in the early surgery

group.191 The authors concluded that “early decompressive surgery after cervical SCI can be

performed safely and is associated with improved neurologic outcome as measured by AIS grade

conversion.”192

J. Systems Affected

Motor and Sensory Function

Motor impairment (paralysis) is the most obvious harmful outcome of a spinal cord injury. It is

important to note, however, that many patients will “gain” a level *221 within the first one to two

years following the trauma, depending on their initial level of injury.193 An improvement of one

neurological level can make a significant impact on a patient's function, again, depending on the

initial level of injury.194 For instance, C4 patients cannot bend their elbows, therefore, cannot drive a

specially adapted upper extremity-controlled vehicle.195 However, C5 patients can bend their elbows

and can independently drive a van that is specially adapted.196 Therefore, if a C4 patient gains one

neurological level, he or she may be able to drive independently.197

Immediately following a SCI, there is a period where muscle tone and reflexes are markedly

decreased.198 Within a few weeks, however, there is a gradual return of muscle tone and

reflexes.199 By one year post injury, up to 78% of patients have an exaggeration of muscle tone and

reflexes, a condition known as spasticity.200 Not all patients with spasticity are negatively affected by

it.201Nevertheless, the increased muscle tone causes a tightness and resistance to passive range of

motion and can lead to a permanent shortening of the muscle, known as contracture, which can

further impair function.202 Additionally, spasticity often causes involuntary muscle activity, called

spasms, which cause the limbs and/or trunk to flex or extend spontaneously or to certain

stimuli.203 Some patients are not bothered by the spasms. Indeed, some patients find them beneficial

for maintaining some muscle tone and bulk.204 However, in some patients, the spasms can be severe

enough to cause pain, interfere with their mobility and activities of daily living, and even throw them

from their wheelchairs.205 Spasticity can be ameliorated with passive stretching of the affected

muscles and with medications.206However, some patients with severe spasticity may require nerve

blocks or treatment with medications delivered directly into the spinal canal by an implanted pump

and a catheter system to control their symptoms.207

Many patients experience pain following spinal cord injury.208 This pain can be *222 severe and

disabling, interfere with function, and compromise quality of life.209 Because patients rely heavily on

their upper extremities for mobility and daily care, many patients develop musculoskeletal pain due

to degenerative joint disease and overuse of their shoulders, elbows, wrists and

hands.210 Additionally, patients may experience pain below the level of their neurologic injury, even if

they are sensory complete (i.e. cannot feel any sensation when the skin is touched).211 This is called

neuropathic pain and is sometimes referred to as central or spinal pain.212 Patients usually describe

this discomfort as burning or aching but sometimes as tingling, shooting, stabbing, pressure, cold,

numbness, pins and needles or electric sensations.213 Neuropathic pain can be ameliorated with

medications, including anticonvulsants and antidepressants, but some patients continue to

experience a degree of neuropathic pain despite treatment.214

Gastrointestinal Tract

Patients with acute spinal cord injury are at high risk of gastrointestinal bleeding, due to stress

ulcers, so they must be placed on medications to prevent ulcers for at least four weeks following

injury.215 Once past this acute period, there is no increased risk of bleeding unless other risk factors

are present.216

Between seventeen and forty-one percent of patients with tetraplegia may have dysphagia, which is

difficulty swallowing.217 Risk factors for dysphagia include “tracheotomy, presence of a halo orthosis,

anterior cervical spine surgery, and higher neurological level.”218Dysphagia is usually transient, but

acute patients with risk factors should be evaluated prior to oral feeding.219

A neurogenic bowel is the loss of normal bowel function due to damage anywhere in the nervous

system.220 In patients with a spinal cord injury, there is a significant loss of colon motility and a

decreased or absent ability to voluntarily control evacuation of stool.221 Many patients consider bowel

dysfunction to be a *223 significant limiting factor in their life, and “fear of bowel accidents is a

frequent cause of people with SCI not to participate in social and other outside

activities.”222 However, if managed appropriately, patients can have bowel movements at scheduled

times and generally remain continent otherwise.223 This is usually accomplished through the use of

medications to keep the stool soft and stimulate motility, and the use of a suppository and digital

stimulation of the rectal vault as needed to trigger a bowel movement once a day.224

Urinary System

Neurogenic bladder is the loss of normal bladder function due to damage anywhere in the nervous

system.225 Immediately following spinal cord injury, the bladder loses all reflex activity, resulting in

urinary retention; therefore, a urinary catheter must be placed immediately.226 Usually, reflex bladder

contractions return after six to eight weeks, but a patient may experience detrusor hyperreflexia up

to twenty-two months after the spinal cord injury.227 Additionally, there may be an “intermittent or

complete failure of relaxation of the urinary sphincter during a bladder contraction and voiding”

resulting in reflux of urine up into the kidneys.228 Patients with sacral injuries will be unable to

voluntarily control bladder contractions and will experience weaker sphincter activity.229 Therefore,

patients will be incontinent of urine unless the bladder is managed appropriately.230 Management of

the bladder may include medications, indwelling urinary catheter, intermittent catheterization, an

external collection device and surgical procedures.231

Neurogenic bladder in spinal cord injured patients is associated with “increased urinary tract

infections, bladder stones and other lower urinary tract morbidity,” but can also lead to bladder

cancer and kidney function deterioration.232 Renal failure was previously the leading cause of death

after spinal cord injury, but close monitoring of renal function and adequate bladder management

reduced the rate of *224 death from renal failure.233 Paraplegics have “sixteen to twenty-eight times

higher risk” for bladder cancer than able-bodied people.234 Possible causes include “chronic irritation

from UTIs [urinary tract infections], stasis of urine, and bladder stones.”235 A few patients with

bladder cancer had an indwelling urinary catheter in for at least fifteen years.236 Therefore, patients

should be monitored closely for signs and symptoms of bladder cancer, and should receive a

cystoscopy, an internal examination of the bladder, yearly if the patient has had an indwelling

catheter for more than ten years.237

Pulmonary

Paralysis of the diaphragm, chest and abdominal muscles impairs the ability to breathe in spinal cord

injured patients.238 Patients who are “older and have sustained a higher neurologic level of injury

have been shown to be the most vulnerable to pulmonary problems.”239C1 through C3 patients will

require life-long mechanical ventilation.240 Patients with injuries at C4 and below may require

mechanical ventilation temporarily post-injury due to “a variety of factors, including associated

injuries and pulmonary complications.”241 Sleep apnea is common in patients with spinal cord

injuries, with up to sixty percent of tetraplegics demonstrating sleep disordered

breathing.242 Diseases of the respiratory system are the leading cause of death after spinal cord

injury, with 72.3% of respiratory deaths due to pneumonia.243

Cardiovascular

Cardiovascular complications occur following spinal cord injury due to the neurologic impairment

itself as well as to changes that occur with immobility.244 Venous thromboembolism, a kind of blood

clot, is a serious complication, occurring in up to fifty percent of patients if preventive treatment is not

initiated.245 These clots can travel to the lungs, causing a pulmonary embolism (PE), which can

be *225fatal.246 Preventive treatment includes the application of pneumatic compression devices to

the legs for the first two weeks following injury and a low dose blood thinner for three months

following trauma.247 If there is a contraindication to the blood thinner or the patient develops a

venous thromboembolism despite preventive treatment, a filter can be placed in the vena cava, the

large vein between the legs and the lungs, to prevent a clot from travelling to the lungs.248

The cardiovascular system is controlled by the autonomic nervous system. Therefore SCI can affect

heart rate and blood pressure.249Bradycardia, or slow heart rate, occurs in up to 100% of tetraplegic

patients within the first 2 to 3 weeks after injury and usually resolves by 6 weeks.250 In the first few

weeks following injury, patients often experience orthostatic hypotension, a condition in which the

blood pressure drops when there is a change in body position toward the upright posture. Patients

with this condition experience lightheadedness, dizziness, nausea, and sometimes loss of

consciousness.251 This usually resolves after the first few weeks of rehabilitation as the patient's

body adjusts to being out of bed.252

Patients with neurologic level T6 and above may experience autonomic dysreflexia, a syndrome

characterized by a sudden exaggerated reflex increase in blood pressure, sometimes accompanied

by bradycardia.253 An episode occurs in response to a noxious peripheral stimulus below the

neurologic level, which incites a reflex release of sympathetic activity.254 The symptoms often include

headaches, sweating, and flushing above the level of injury.255 The inciting stimulus is most often

distension of the bladder, but other causes, such as urinary tract infection, bladder stones, bowel

distension, pressure sores, ingrown toenails, fractures, and body positioning, can also cause an

episode.256 Possible complications of autonomic dysreflexia include retinal hemorrhage, brain

hemorrhage, myocardial infarction, seizure, and death.257 The mainstay of treatment is to address

and relieve the underlying cause of the episode.258Medication may be required to reduce the blood

pressure if the episode does not resolve quickly.259

*226 Autonomic System

In addition to the effect of autonomic system disruption on the cardiovascular system, autonomic

disruption causes disturbances in body temperature control.260 In patients with a complete injury

above T6, thermoregulation is significantly impaired and there is difficulty in maintaining a normal

core temperature in response to environmental changes in temperature.261

Skin

Pressure ulcers are one of the most common and serious complications of spinal cord

injury.262 Between 50% and 80% of patients will develop a pressure ulcer at some time after their

injury.263 Primary factors leading to pressure ulcers include pressure, shear forces, moisture, anemia,

nutritional deficiencies, aged skin and moisture.264 Pressure ulcers are graded on a scale from I to IV

based on severity. A class I ulcer causes redness of the skin but leaves the epidermis intact A class

IV ulcer causes skin loss and deep tissue destruction down to the bone.265 Pressure ulcers result in

significant physical, social, vocational and economic costs.266 Depending on the location of the

pressure ulcer, patients may not be able to sit in their wheelchairs until the wound heals.267 The

general principles of treatment are to relieve pressure; eliminate reversible underlying predisposing

conditions; avoid pressure, shear and moisture; and to remove any dead tissue.268 Estimates for

pressure ulcer treatment costs range from $20,000 to $30,000 for a less severe wound and upwards

to $70,000 for a more severe wound.269

Musculoskeletal System

Following SCI, secondary musculoskeletal complications can develop such as osteoporosis and

fracture, joint pain, and heterotopic ossification.270 After spinal cord injury, there is a rapid loss of

bone mass in the lower limbs and pelvis. 16 months post injury, a patient's bone mass in this area is

50-70% of normal and near fracture threshold.271 This bone loss leads to an increased risk for

fractures which occur most commonly due to falls during transfers.272 In patients who are

severely *227 osteoporotic, fractures can even occur from minor stresses such as prolonged sitting

or range of motion exercises.273

Overuse of the upper extremities resulting from wheelchair propulsion, transfers, and other activities

of daily living contributes to shoulder, elbow, wrist and hand pain, which happens in 30 to 50% of

spinal cord injured patients.274 Because these individuals are so reliant on the upper extremities, any

limitation in upper limb function because of pain may have adverse effects on mobility and functional

independence.275

Heterotopic ossification (HO) is the formational development of bone in abnormal sites.276 HO occurs

in approximately 50% of adult patients with spinal cord injury.277 The most common site for HO is the

hip, but it can occur at any joint below the neurologic level.278Symptoms of the early stage of HO

include fever, joint pain and swelling, and discomfort if the patient has preserved sensation.279 About

20% of patients with HO develop significant restrictions in joint range of motion which can affect

transfers, bowel and bladder care, and other activities of daily living.280 There is no definitive

treatment to prevent HO, however, if diagnosed in the early stage treatment with medication, it can

prevent the maturation of the bone and the resultant restriction on range of motion.281

Sexual and Reproductive Functions

Sexual and reproductive functions are affected following SCI. In women, there is no data to suggest

a decline in fertility; however, pregnancies in women with spinal cord injuries are considered high

risk due to a significant incidence of complications specific to the spinal cord injury.282 For many

women, libido is preserved, and orgasm is possible in up to 50% of this female population.283 92% of

men with SCI are able to achieve an erection, but about half are successful with intercourse and less

than 5% can have unassisted ejaculation.284 Sperm quality is frequently deficient following SCI285 but

erectile dysfunction can be treated with devices, implants and medication.286 Fertility can be assisted

with a combination of technologies to produce ejaculation and assistive reproductive techniques

(e.g. intrauterine insemination and in vitro fertilization), with pregnancy success rates as *228 high

as 40%.287

Psychological Adjustment

Although many individuals initially feel grateful at surviving the traumatic event that caused their

injury, depression may affect between 20 to 45% of SCI patients within the first month of the

traumatic event.288 Longer term difficulty with emotional adjustment may also contribute to drug

addiction and divorce.289 In fact, the suicide rate after a spinal cord injury is 2 to 6 times greater than

that of the able-bodied population.290 Treatment for emotional difficulties includes psychological

counseling and education for the patient and family, along with peer support.291 Antidepressant

medication may be required for patients with depression.292

K. Economics

The average yearly health care and living expenses and the estimated lifetime costs that are directly

attributable to SCI vary greatly according to severity of injury. Costs include initial hospitalization and

acute rehabilitation, home and vehicle modifications, and recurring costs for medical equipment,

medications, supplies, and personal assistance.293 The table below is a sample outline of yearly and

lifetime costs for different severity of injury and age at injury.Severity of Injury Average Yearly

ExpensesAverage Yearly Expenses

Estimated Lifetime Costs by Age at Injury

Estimated Lifetime Costs by Age at Injury

First Year Each Subsequent Year

25 years old 50 years old

High Tetraplegia (C1-C4)

$985, 774 $171, 183 4,373,912 $2,403,828

Low Tetraplegia (C5-C8)

$712,308 $105,103 3,195,853 1,965,735

Paraplegia $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.295

III. LEGAL CONSIDERATIONS

Spinal 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%).299

The following is a sampling of some of the cases involving spinal cord injuries.

A. Product Liability Claims

a. Motor Vehicle Accidents

Graves v. Toyota Motor Corporation provides an example of a spinal cord injury in an accident

arising out of an alleged defect in a motor vehicle.300 Although he was wearing a seatbelt and

remained inside the vehicle during the accident, the plaintiff was rendered quadriplegic when his

1995 Toyota 4 Runner rolled over and the roof was crushed.301 Suit was filed on the basis that

Toyota negligently failed to design and/or manufacture the roof properly.302 The plaintiff's expert, a

biomedical engineer, opined that the occupant protection system failed to safely restrain the victim

within the occupant survival space during a foreseeable crash, that an occupant would have

sustained only minor or moderate injuries had the system functioned properly, and that the vehicle

failed to provide adequate protection to a restrained driver in a reasonably foreseeable rollover

crash.303

Toyota moved to exclude this testimony, contending that the expert's opinion regarding the design of

the seat belt buckle was unsupported by sufficient testing and that the witness' injury causation

opinions were incomplete and flawed, and therefore must be excluded under Daubert.304 The court

disagreed and held that the expert “rigorously adhered to the proper scientific method of analysis.”305

*231 In Moore v. Ford Motor Company, a motorist instituted suit on a products liability theory

claiming that the driver's seat collapsed in a rear-end collision, causing her head to strike the back

seat with such force that it rendered the 300 pound claimant paraplegic.306 It was asserted that the

car was defective because “[n]owhere in the owner's manual or on the on-product labels did Ford tell

people who might use the Explorer that it intended the front seats to collapse in a rear

impact.”307 The trial court granted the defendant's motion for directed verdict on the failure to warn

claim involving an overweight occupant.308 The court reversed this determination, finding that the

plaintiff presented enough evidence for a jury to conclude that the vehicle was “unreasonably

dangerous without a warning imparting knowledge of its characteristics despite the finding that the

design of the seats themselves was not defective.”309

b. Falls

The origin of a spinal cord injury is not confined to motor vehicle accidents. In fact, falls accounted

for 20.9% of these types of injuries in 2010.310 This is demonstrated by Snoznik v. Jeld-Wen, a case

in which the plaintiff was injured while cleaning windows manufactured by the defendant.311 It is

alleged that, while the plaintiff was cleaning a window, it pulled out of its casement, causing the

plaintiff to fall from the second floor to the ground and rendering him a quadriplegic.312 The plaintiff's

expert, a mechanical engineer, opined that the window was defective and unreasonably dangerous

due to its lack of a positive attachment method and lack of a safety screw.313Although the expert

measured the force necessary to disconnect the hinge with a digital force gauge “two or three times,”

he did not write down any of the measurements nor did he make any written notes or videos of his

testing.314 The defendant moved to exclude this expert's testimony.315 The court concluded that,

although the expert was qualified to testify, his testimony lacked factual foundation, he did not

employ a reliable scientific methodology, calling his methods “haphazard tinkering.”316 Therefore, his

testimony was excluded under Daubert.317 The court also granted the defendant's motion for

summary judgment on all of the claims.318

*232 c. Diving Accidents

Diving is the fourth leading cause of SCI, accounting for 6.3% of all such claims in 2010.319 It is

unknown, however, what percentage of these injuries occur in swimming pools as opposed to

natural environments.320 A study of patients enrolled in the NSCISC database between1973 and

1997 did shed some light on the topic when it reported that 1,106 people were classified as having

sustained cord injuries due to diving.321 Of these, 57.1% occurred in natural environments, 30.8%

occurred in swimming pools, and 12.1% happened in an unknown location.322 Of those injuries

occurring in swimming pools, 86.7% took place in private residential pools.323 Injuries due to diving

almost always occur in the C4-C6 range and are usually classified as neurologically complete,

making them among the most severe.324

Litigation involving a SCI sustained in swimming pool diving accidents often involves product liability

claims against the pool manufacturer and/or retailer.325 These claims are usually based on

negligence or strict liability and frequently involve a failure to warn assertion.326For instance, in

Battistoni v. Weatherking Products, the appellate court reversed the defendant's motion for summary

judgment, holding that a genuine issue remained as to whether the plaintiff would have dove into the

pool even if adequate warnings were posted.327 The plaintiff, a twelve year old girl, was rendered a

quadriplegic after diving into and striking her head in the shallow end of an in-ground pool.328 It was

maintained that the pool was defective because the manufacturer failed to affix depth markings and

warnings of the risk of potential harm to users that could not be removed by the purchaser.329 The

facts demonstrated, however, that removable warning signs and decals were “issued” in conjunction

with the sale of the pool, but the pool owners had not installed them.330 The pool manufacturer

submitted only the deposition of the plaintiff in support of its motion for summary judgment.331 This

testimony indicated that the plaintiff was an experienced swimmer and diver, that she was aware

that the water in the shallow end did not go over her head, and that she could hit the

bottom *233 and be injured if she dived too deeply into the shallow end of a pool.332 The defendant

claimed that the potential dangers of diving head first into shallow water are open and obvious to the

typical pool user.333 Therefore, it had no duty to warn.334 The plaintiff stated that, although she knew

she could be injured by hitting the bottom of the pool, she did not know she could sustain a

SCI.335 The trial court granted summary judgment to the defendant, concluding that the plaintiff had

failed to establish that the alleged failure to warn was the proximate cause of her injuries.336 The

court considered the plaintiff's experience as a swimmer, her familiarity with the pool, and the

admission that she knew she was diving into shallow water, and concluded that a warning would

have merely communicated what the plaintiff already knew would have had no effect on her decision

to dive in, and that “a reasonable mind could only conclude that her own action was the proximate

cause of her injury.”337

This decision was reserved on appeal when the court concluded that, based on the plaintiff's

deposition testimony, there was a genuine issue of material fact to determine “whether a reasonable

mind could conclude only that the plaintiff would have elected to perform the dive even if there had

been depth markers and warnings installed on the pool on the day of the accident.”338

Courts may take into account the age of the person when considering whether the danger of diving

into a pool is open and obvious.339In Bunch v. Hoffinger Industries, an eleven-year-old was rendered

quadriplegic when she dove into an above-ground swimming pool.340She sued the pool

manufacturer, and a jury awarded over $12 million.341 The appellate court affirmed the finding,

holding that “the danger of diving into a shallow aboveground pool is not open and obvious to an 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.”344

In Glittenberg v. Doughboy Recreational Industries, three adults sustained spinal cord injuries while

attempting shallow dives into above ground pools.345 The court held that there was no duty to warn

because:

*234 “The obvious risk of this simple product is the danger of hitting the bottom. When such a risk is

objectively determinable, warnings that parse the risk are not required. The general danger

encompasses the risk of the specific injury sustained. In other words, the risk of hitting the bottom

encompasses the risk of catastrophic injury.”346

In Neff v. Coleco, the court similarly held that the potential consequences of diving headfirst into

shallow water should be readily apparent to a reasonable man.347 Therefore, the manufacturer had

no duty to warn the 25 year old plaintiff.348 In Benjamin v. Deffet Rentals, Inc. the court held that the

manufacturer had no duty to warn a fifteen-year-old who was an experienced swimmer and was

injured when he dove off a sliding board platform into a five foot deep below ground swimming

pool,349 stating that:

“[I]t may be assumed that a person of whatever age is able to appreciate the obvious risks incident

to any sport or activity in which he may be able to engage with intelligence and proficiency, and must

act accordingly.”350

Finally, Klen v. Asahi Pool, Inc., involved a fourteen-year-old who attempted a shallow dive from a

trampoline into an above ground pool and sustained a spinal cord injury.351 The plaintiff sued the

pool manufacturer, alleging a failure to warn of the risk of permanent neurologic injury presented by

the intended and foreseeable use of the pool. The plaintiff was an experienced swimmer and

testified that he knew the water was chest deep but that he was attempting a flat, racing-type dive

that he believed was safe.352 The court held that the determination of whether the risk of paralysis

was open and obvious must be judged by the reasonable or objective class of fourteen-year-olds.353

d. Football Injuries

Spinal cord injuries sustained in football accidents receive much media attention, but they are

relatively rare and accounted for only 0.5% of all spinal cord injuries in 2010.354 Spearing, which was

banned in football in 1976 because of its risk for causing cervical spinal cord injury, occurs when a

player uses the helmet/head as the first point of contact with another player.355 Despite this ban,

cervical spinal cord injuries still occur in all levels of football. In Fiske v. MacGregor, a high school

football player sustained a cervical spinal cord injury when he collided with another player during an

attempted tackle.356 He sued the *235 manufacturer of his helmet for a defective design as well as

his school and coach for negligent coaching and supervision.357 The plaintiff's expert testified that,

because of the dimensions of the face mask, the helmet worked as a brace so that the plaintiff's

cervical spine was unable to flex forward and was thus kept in a straightened position, allowing an

axial loading injury to occur.358 The defendant's experts testified that the helmet-face mask

combination did not contribute to the injury and that bracing of the neck was not necessary for an

axial loading spinal cord injury to occur.359 The jury found in favor of the coach and school but found

against the helmet manufacturer on a strict liability and breach of implied warranty claims.360 The jury

concluded that the plaintiff had not assumed the risk of his injury but found 40% of the negligence

attributable to the plaintiff.361 Accordingly, the award was reduced from $3,500,000 to

$2,100,000.362 On appeal, the court concluded that a jury question existed regarding whether a

defective design of the helmet caused the plaintiff's injury and denied the defendant's motion for a

directed verdict.363 The court also clarified the distinction between the doctrines of assumption of the

risk and contributory negligence based on different types of culpable conduct on the part of a

plaintiff, with the former being “a knowing encounter with danger” and the latter being “a negligent

encounter with a risk of danger.”364

B. Medical Complications

Medical and surgical complications accounted for 2.5% of spinal cord injuries in 2010.365 Although

SCI plaintiffs more frequently advanced claims for medical malpractice, product liability theories

were also made in some cases. For instance, in Evans v. Medtronic, Inc., the plaintiff sustained a

spinal cord injury during surgery in which an infected spinal cord stimulator lead that had previously

been implanted was removed from her cervical spine.366 After tugging on the lead to remove it, the

surgeon noted that the insulation cover was broken, the coils stretched, and one of the wires was

broken.367 The lead was then handed to the scrub nurse, who discarded it.368 The surgeon performed

a laminectomy and implanted a new surgical lead, which was accomplished with some difficulty

because of scarring from the previous procedure.369 Two sales representatives from the defendant

manufacturer *236 were present in the operating room throughout the procedure.370 When the

patient awoke from surgery, she complained of pain and an inability to move her limbs, and an MRI

showed that she had suffered a SCI.371 The plaintiff did not claim that the damaged lead caused her

spinal cord trauma in an immediate sense but asserted that the defect in the percutaneous lead

caused the lead's damage, requiring the surgeon to remove it, and that the subsequent laminectomy

and placement of the surgical lead caused the spinal cord injury.372 The plaintiff's expert opined that

the tugging on the lead by the doctor in the operating room could not have caused the damage in the

absence of a defective lead.373 Because he saw nothing else in the medical record, aside from the

tugging, that indicated any other force could have caused the damage, the expert concluded that the

harm must have been due to defective manufacturing.374 Upon questioning by defense counsel,

however, the expert admitted that he could not rule out the possibility that the lead had experienced

other types of forces during the period between initial placement and removal.375 The court ruled

that, although the expert was qualified to testify, his test was not based on a reliable methodology,

did not apply to the facts of the case, and did not exclude other reasonably conceivable explanations

for the damage to the lead. His testimony was, therefore, excluded.376 The plaintiff also claimed a

product defect through a spoliation of evidence inference.377 The court held, however, that the

defendant manufacturer's sales representatives reasonably did not anticipate that the lead would be

relevant to future litigation, that they had no duty to preserve the lead, and that there was no

evidence of willful destruction on their part.378 Therefore, the plaintiff's motion for a spoliation

inference was denied.379

C. Criminal Acts

Violence accounted for 17.8% of spinal cord injuries in 2010, with about 89% of those due to

gunshot wounds.380 Spinal cord injuries caused in this way may lead to either criminal or civil

charges. In State of Iowa v. Fox, Mayo sustained a complete cervical SCI in a car accident where

the defendant was the intoxicated driver and Mayo was his passenger.381 A few days after injury, the

doctors concluded that the patient's prognosis for recovery was extremely low and that he would

need a ventilator to breathe for the rest of his life.382

Doctors explained that Mayo would not be able to move his arms or legs and would be wheelchair

dependent. He had tubes in his bladder to control waste, was *237 not able to control bowel

movements and was provided fluids and medicines through intravenous lines. He would be prone to

skin ulcers and bedsores. He would be dependent on a ventilator and subject to increased risk of

infection and pneumonia. The doctors could not predict how long Mayo would live, but that it would

be less than normal life expectancy. Significant financial costs would also be associated with Mayo's

care.383

After hearing this information, Mayo indicated that he did not want to continue receiving life-support

measures, and the doctors disconnected his ventilator.384 He died a few hours later.385 Fox was

charged and convicted of homicide by vehicle.386 On appeal, the defendant claimed that Mayo's

conscious decision to remove life-sustaining medical assistance constituted an intervening and

superseding cause of death.387 The court noted that a normal consequence of a situation created by

the actor's negligent conduct is not a superseding cause of the harm and further clarified that

“normal” meant not “so extraordinary as to fall outside of the class of normal events.”388 The court

concluded that, because of the severity of his injuries and the near impossibility of recovery, Mayo's

decision to remove life support was a “normal” consequence of the situation created by the

defendant's criminal conduct.389 Fox's conviction was therefore upheld.390

In Gonzalez v. Safe & Sound Security Corp., the plaintiff sued several defendants, claiming

negligence in failure to provide adequate security at the apartment complex where he suffered a

gunshot wound with resulting SCI.391 The plaintiff presented evidence that the owner of the

apartment complex, the security company, and the management firm were all aware of the frequent

violence at the site and the need for greater security.392 The plaintiff's medical expert testified that the

gunshot wound left the plaintiff paralyzed from the mid-chest down, and that there was no more than

a 5% chance that he would recover any significant use of his legs.393 The plaintiff refused to testify,

and the judge instructed the jury that they could draw an adverse inference from this refusal.394 The

jury rendered verdicts against the complex owner and the management company but found the

security company not liable.395 The jury awarded $1,140,000 for future expenses; $1,000,000 for

pain, suffering, and loss of enjoyment of life; $142,272 for loss of past and future earnings; and

$82,059.45 for past medical expenses.396 The court also *238 awarded the plaintiff an additional

$782,496.55 in pre-judgment interest.397 Because the verdict exceeded 120% of an offer that was

made before trial, the court allowed an additional $260,343 in counsel fees, $64,851 in litigation

costs, and $28,458 in enhanced interest, for a total award of $3,500,481.398

The New Jersey Supreme Court noted on appeal that defendants had the right to plaintiff's testimony

in presenting their defense and that, because he was an eyewitness to all of the events, he was

uniquely qualified to testify concerning the circumstances of the shooting and the security at the time

of the event.399 Therefore, the Court reversed the finding, holding that the plaintiff's refusal to testify

was so fundamentally unfair that the plaintiff should have been advised that he was facing the

immediate dismissal of his cause of action, and that if he continued to defy the court's order, then his

case should have been dismissed.400

D. Iatrogenic

An iatrogenic injury is one that occurs during a medical procedure and includes those things that

happen during the use of anesthesia, especially spinal injections and epidural catheter placements,

spinal surgeries, chiropractic treatments, and during other medical and surgical care.401

In Kerkman v. Hintz, the plaintiff sought treatment with a chiropractor for soreness in his “upper

shoulders and neck and numbness in his hands.”402 Over the course of two weeks, the chiropractor

performed several cervical spine adjustments, but the plaintiff's condition deteriorated.403 The patient

was then evaluated by a neurosurgeon who diagnosed him with compression of the spinal cord and

a herniated disc requiring two surgeries.404 Following the second surgery, the plaintiff continued to

have numbness in his hands, difficulty walking and problems with bladder control.405 The patient then

sued the chiropractor, alleging negligent treatment.406 The plaintiff presented the testimony of two

neurosurgeons, both of whom testified that the chiropractor “had not conducted a proper diagnosis”

of the patient.407 On the other hand, the defendant presented evidence that he had exercised the

“same degree of care which is usually exercised by a reasonable chiropractor.”408 The trial court

instructed the jury that “a chiropractor must exercise the same degree of care and skill that is usually

exercised by a recognized school of the medical profession.”409 The jury returned a verdict for the

plaintiff, awarding $241,000 in *239 damages, but issued no award for the patient's wife for loss of

consortium.410 On appeal, the court noted that chiropractors were licensed professionals, subject to

administrative regulations which established that the legislature “recognized the practice of

chiropractic as a separate and distinct health care discipline.”411 Therefore, the chiropractor should

not be held to a medical standard.412 The court held that a chiropractor's duties included determining

“whether the patient's problem is treatable through chiropractic means; refraining from treatment if

the condition will not be responsive; and informing the patient if the ailment is not treatable through

chiropractic means.413 The court noted that a chiropractor does not, however, “have a duty to refer

the patient to a medical doctor” if the ailment is outside the scope of chiropractic care.414 In

determining whether a chiropractor breaches these duties, he will be held to “that degree of care,

diligence, judgment, and skill which is exercised by a reasonable chiropractor under like or similar

circumstances.”415 The court ordered a new trial on the question of negligence consistent with the

“reasonable chiropractor” standard of care.416

In cases where a spinal cord injury occurs in the course of spinal surgery, courts will consider the

expert's medical subspecialty in determining whether they are qualified to testify on the surgeon's

standard of care.417 In Lloyd v. Kime, the plaintiff attempted to present the expert testimony of a

neurologist to establish the standard of care for an orthopedic surgeon performing spine

surgery.418 The plaintiff had suffered a neck injury while at work, resulting in “severe neck and left

arm pain as well as motor and sensory deficits on the left side.”419 The defendant orthopedist, Dr.

Kime, performed a surgical procedure to remove two herniated cervical discs that were compressing

nerve roots.420 When the patient awoke from surgery, a nurse noted that he could not move his right

leg.421 Although several hours after surgery Dr. Kime noted the patient's right leg weakness and

documented that he might have “a small cord contusion,” the physician did not begin treatment with

intravenous steroids or obtain an MRI until the following day when the patient demonstrated

“weakness in his right arm and leg, milder weakness in his left arm, and numbness in his

abdomen.”422 The MRI demonstrated “swelling in the spinal cord at the C6-7 level.”423 The plaintiff

filed suit against the doctor for “malpractice in the performance of the . . . [surgery] and for his 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.428

On appeal, the court noted that, in order to qualify a witness as an expert on the standard of care,

the proponent of the expert must show that the specialty of the expert is the same as the defendant's

specialty or a related field of medicine.429 The court concluded that, to determine whether the

specialty is in a “related field of medicine,” it is sufficient if, in the expert's clinical practice, he

performs the procedure at issue and the standard of care for performing the procedure is the

same.430 Because the neurologist did not perform spinal surgery in his clinical practice, the court held

that the trial court correctly excluded his testimony regarding intraoperative negligence.431 However,

because the neurologist evaluated and treated patients with spinal cord injuries in his clinical

practice and because the plaintiff presented evidence that the standard of care for neurologists and

orthopedists in treating a new spinal cord injury is the same (and Dr. Kime offered no evidence to

contradict this), the court held that the trial court had abused its discretion by excluding the

neurologist's testimony with regard to the allegation of postoperative negligence and remanded the

case for further proceedings.432

E. Missed Diagnosis

Immobilization of a fractured spine at the time of injury is critical in preventing further damage to the

spinal cord;433 administration of high dose steroids within eight hours of injury may improve

outcome;434 and early surgical intervention may improve the patient's prognosis.435 Therefore, a

missed or delayed diagnosis of spinal cord injury can result in compensable harm.436 For instance,

in *241District of Columbia v. Howard, the decedent's wife brought a wrongful death action for the

alleged failure of emergency technicians to diagnose her husband's spinal cord injury and for a

police officer's mishandling of him during transport.437 The facts show that the Mr. Howard was

intoxicated when he fell down a flight of stairs onto a cement patio at a friend's house.438 Mr. Howard

told his friend that he was unable to get up because of pain in his arm and neck, and numbness in

his neck.439 When the emergency medical technicians (EMTs) arrived, Howard was coherent and

able to move his arms.440 There was a dispute as to whether the EMTs were told that Mr. Howard

had fallen down the stairs or of his complaints of pain and numbness.441 The only tests that the

EMTs performed were a blood pressure check and a reaction test that involved shining a flashlight

into the patient's eyes.442 When Mr. Howard refused to be transported to the hospital, the police were

called to take him to a detox center. The police were advised that Mr. Howard was intoxicated but

otherwise “all right.”443 The police then carried him by his arms and belt and placed him face down on

the floor of the paddy wagon.444 Upon arrival at the detox center, the police propped him up against a

wall in a sitting position.445 The doctor at the center immediately recognized Howard's spinal cord

injury, instructed the EMTs to immobilize his neck, and transferred Howard to the hospital.446 Upon

arrival, the patient suffered a cardiac arrest, became comatose, and died thirteen days later.447 The

decedent was found to have had a severe fracture of two cervical vertebrae.448 At trial, the plaintiff's

expert, who was qualified in orthopedics and the standard of care for EMTs in respect to spinal

immobilization and transport of persons with spinal injuries, opined that properly trained EMTs would

have recognized that the patient had a broken neck and would have immobilized his head before

moving him.449 Plaintiff's expert also testified that, because Howard could move his limbs when he

was at the bottom of the stairs, Mr. Howard was still “neurologically intact” at that point, and proper

immobilization by the EMTs would have prevented his subsequent paralysis and death.450 The

plaintiff's treating physician, however, felt that the spinal cord injury had occurred at the time of the

initial impact when Mr. Howard fell down the stairs.451 The trial judge restricted the treating

physician's testimony in regard to the mechanism of Mr. Howard's injury because he had

not *242 been listed as an expert witness.452 The jury found that the EMTs and police were negligent

and awarded $676,548 for the decedent's injuries, mental anguish, and discomfort between the time

of the injury and his death, net future earnings, services to Mrs. Howard, funeral expenses, and

medical and hospital services.453 On appeal, the court held that the treating physician's opinion about

the mechanism of injury was improperly excluded, as the treating physician indicated that he always

tried to determine mechanism of injury in the course of treating his patients.454 The court noted that

prior case law established that a treating physician may testify as an actor and viewer of

occurrences that are part of the subject matter of the lawsuit and may testify about opinions that he

develops in the course of treating the patient.455 Because causation was a critical part of the case,

the court found that the restriction of the treating physician's testimony resulted in prejudicial error

and granted the defendant a new trial.456

A delayed diagnosis of spinal cord injury can result in the loss of the opportunity for an improved

outcome.457 In Lord v. Lovett, a plaintiff, who suffered a broken neck in a car accident, claimed the

physicians at the hospital negligently misdiagnosed her spinal cord injury, failed to immobilize her

properly and to administer steroid treatment, which caused her to lose the opportunity for a

substantially better recovery.458 The plaintiff conceded that her expert could not quantify the degree

to which she was deprived of a better recovery by the defendant's negligence, and the trial court

dismissed the lawsuit on the basis that the state did not recognize loss of opportunity as a cause of

action.459 On appeal, the court noted that the loss of opportunity doctrine “is a medical malpractice

form of recovery which allows a plaintiff, whose preexisting injury or illness is aggravated by the

alleged negligence of a physician or health care worker, to recover for her lost opportunity to obtain

a better degree of recovery.”460 It was held that a plaintiff may recover for a loss of opportunity injury

“when the defendant's alleged negligence aggravates the plaintiff's preexisting injury such that it

deprives the plaintiff of a substantially better outcome.”461 With this approach, the plaintiff may prevail

even if her chances of recovery are less than fifty-one percent.462 However, the plaintiff must still

prove that the lost opportunity for a better outcome was caused, more probably than not, by the

defendant's negligence.463 Additionally, the litigant would not receive damages for the entire injury,

just for the portion of damages actually attributable to the defendant's negligence.464

*243 Even when a spinal cord injury is recognized, a physician's choice of treatment, or timing of

treatment, may be the basis of a negligence claim.465 In Fitzgerald v. Vincent, the plaintiff sustained a

subluxation of the cervical spine, with bilateral “jumped facets” at C5-6, when she fell from a

horse.466 Upon arrival at the emergency room approximately one hour after her fall, she was

examined by the defendant neurosurgeon and started on a steroid protocol.467 At that time, she had

“approximately 40 percent of her biceps function, a trace of wrist rotation, but no movement

elsewhere below” and a sensory level at the nipple.468 The defendant attempted, unsuccessfully, to

reduce the patient's subluxation with traction.469 He diagnosed the plaintiff with a C5-6 complete SCI

and scheduled a surgical reduction three days later.470 About 24 hours after her injury, a nurse

reported that the plaintiff could no longer use her biceps, and her sensory level was at the

shoulders.471 The physician examined the patient, believed that she had lost nerve root function to

her biceps, but found that her spinal cord injury had not ascended.472 He partially based his

conclusion on the fact that she had no change in her breathing function, which would likely be

affected if her spinal cord injury had worsened.473 The physician was unaware that the nurses,

respiratory therapist and pulmonologist had all documented deterioration in the plaintiff's breathing

capacity throughout the day.474 Approximately four hours after the defendant's assessment, the

plaintiff's breathing status deteriorated to the point that she was placed on a ventilator.475 Her injury

eventually ascended to the C1-2 level.476 Surgical reduction was performed, and the plaintiff's spine

was stabilized three days after her injury, though she never regained any function and remained

unable to breathe on her own, move any muscle below her chin or feel or touch anywhere but on her

face.477

The plaintiff claimed that her initial injury was incomplete and that she lost function unnecessarily

when the doctor did not reduce her subluxation immediately.478 She contended that she would not

have lost any additional function if she had been taken immediately to surgery when traction failed

or, at the very latest, as soon as her injury began to worsen.479 The defendant asserted that the

worsening of the patient's spinal cord injury was the result of an ascending myelopathy, a rare

condition which occurs in two percent of patients with spinal injuries and which has occurred in both

patients whose injuries have been reduced *244 and in those whose injuries have not been

reduced.480 The defendant's experts testified that the severe trauma of the injuries themselves

caused chemicals to be released which resulted in the death of tissue above the site of the

injury.481 The jury returned a verdict of $5,215,935.72, for past economic damages ($659,685.72),

future economic damages ($3,037,500), and noneconomic damages ($1,518,750).482 “The appellate

court affirmed the award, rejecting the defendant's contention that the court erred when it refused to

give his proposed instruction that there were two schools of thought about the timing of surgery; one

school supporting that emergency surgery was required, and the other school supporting the

decision to delay surgery,” and that “a physician was not liable if he followed a course of treatment

advocated by a considerable number of medical professionals.”483 The court concluded that the

defendant's instruction did not fit the facts of the case and would have confused the jury because it

was “not clear that the treatments advocated by the experts were alternate choices or that there

were only two choices available.”484

F. Secondary Complications

There are numerous potential secondary complications associated with spinal cord injuries leading

to the possibility for many types of causes of action.485 In Bamberger v. Freeman, Eckstein was

rendered a quadriplegic when his car was struck by a truck driven by one of the defendants in the

course of his employment.486 Eckstein filed a personal injury action but died prior to the resolution of

the lawsuit.487 The lawsuit was substituted by a wrongful death action and a $1 million settlement

agreement was reached “relinquishing any and all claims against the defendants.”488 The court

approved the settlement and found that no hospital liens attached.489 The personal representative of

the estate then filed a survivorship action against the defendants seeking to recover damages

separate from the wrongful death settlement and the hospital that treated the decedent filed a claim

to enforce its lien.490 Defendants' motion for summary judgment was granted and the plaintiffs

appealed.491 The emergency room report noted that the cause of death was cardiopulmonary arrest,

but the court considered the note of the emergency room *245 physician, which stated that the

patient probably had “a massive pulmonary embolus, as an etiology of his sudden demise.”492 The

death certificate listed the cause of death as “complications of cervical spine fractures with

quadriplegia.”493 Because the medical literature describes pulmonary embolism as “a common

medical complication after a spinal cord injury” “as well as an important cause of morbidity and

mortality,” the court concluded that the medical research supported the conclusion that the decedent

had suffered a complication common to those suffering spinal cord injuries.494 The court further

stated that because the patient's death “resulted from his quadriplegia, which was caused by the . . .

accident, [the] personal representative was barred from bringing a survivorship action on behalf of

the estate as a matter of law.”495

Secondary complications in spinal cord injuries can give rise to product liability claims.496 For

instance, in Needham v. Roho Group, the plaintiff brought suit for negligent design, defective

manufacture, and failure to warn, against the manufacturer of the Roho air cushion he was using

when he developed a pressure sore.497 The cushion was “marketed as one that allows the disabled

to sit for hours without developing pressure sores.”498 The plaintiff, who had been rendered a

quadriplegic in an auto accident fourteen years earlier, had used the cushion for four years prior to

the day that he contended that it lost air which allowed him to “bottom out” and develop a pressure

sore.499 On that day, after transferring the plaintiff from the chair onto his bed, an attendant noted

that the cushion did not have much air.500 When she checked his skin, she noted a “cherry spot,” or

pressure sore, on his buttock.501 Over the next few weeks, the sore became infected, “eventually

requiring surgery that left the plaintiff bed-ridden for three years.”502 The plaintiff presented several

theories as to why the cushion did not function as expected.503 He first argued that a change of

twenty-six degrees in the ambient temperature on the day in question caused the volume of air

within the cushion to decrease and allowed his buttock to contact the hard wheelchair seat.504 His

other arguments included that his positioning in the chair made the cushion either unsuitable for use

or ineffective, that the cushion had been shown in a clinical study to be defectively designed

because it routinely allowed occlusion of the capillary vessels to occur, and that an air valve may

have loosened and leaked.505 The court held that all of these theories suffered from “a common

defect, which is the failure of the plaintiff to come forward with *246 evidence that creates a triable

issue on the element of causation.”506 Circumstantial evidence may permit a reasonable inference of

causation if the plaintiff introduces evidence which affords a reasonable basis for the conclusion that

it is more likely than not that the conduct of the defendant was a cause in fact of the result.507Here,

because there was uncontested evidence that pressure sores can develop in quadriplegic patients

even under the best of circumstances, it was the plaintiff's burden to prove that it was more likely

than not that some fault in the cushion was the cause of his injury.508 The court felt that the plaintiff

did not meet this burden and granted the defendant's motion for summary judgment.509

Secondary complications in spinal cord injuries can also give rise to medical malpractice claims.510 In

Freed v. Geisinger Medical Center, a patient sued the defendants for pressure sores he developed

following a car accident that rendered him paraplegic.511 The plaintiff was hospitalized for

approximately one month following his injury then transferred to a rehabilitation center where he

developed pressure sores on his buttocks and sacrum, which became infected, requiring

surgery.512 He claimed that the nursing staff at both institutions failed to meet the nursing standard of

care with regard to the treatment and prevention of pressure wounds on an immobilized patient.513 At

trial, the plaintiff's expert, a registered nurse, was asked her opinion as to the cause of the plaintiff's

bedsores. The defense objected.514 The court sustained the objection on the basis that the expert

was not a medical doctor and, therefore, was not qualified to give a medical diagnosis.515 The court

cited Flanagan v. Labe,516 which held that “an opinion regarding the specific cause and identity of an

individual's medical condition constitutes a medical diagnosis, which a nurse is prohibited from

making under the Professional Nursing Law.”517 Because the plaintiff was unable to present evidence

of a causal connection between the alleged breach of the nursing standard of care and the

development or worsening of the pressure sores, the trial court granted the defendant's motion for a

non-suit.518 The intermediate appellate court reversed, holding that the nurse was competent to

testify on both the standard of nursing care and the issue of causation.519 The defendants appealed,

arguing that the holding was in conflict with Flanagan and must be vacated.520 The Pa. Supreme

Court agreed that the Superior Court's decision was in conflict with Flanagan but determined

that, *247“to the extent that it prohibits an otherwise competent and properly qualified nurse from

giving expert opinion testimony in a court of law regarding medical causation, [[Flanagan] is flawed

and must be overruled.”521 The court evaluated the general rule that, in order to qualify as an expert

witness in a given field, “a witness need only possess greater expertise than is within the ordinary

range of training, knowledge, intelligence, or experience.”522 The Court reasoned that “it is in the

context of the practice of nursing” in which a nurse is precluded from making a medical diagnosis

and that there is no language in the statute to suggest that the laws are applicable in the distinct

legal arena of malpractice or negligence actions.523 The Court overruled Flanagan retroactively and

affirmed the Superior Court's order reversing and remanding the case for trial.524

G. Insurance Issues

The high costs of the acute care and ongoing medical needs of spinal cord patients often result in

litigation involving insurance coverage.525 Even those with what would appear to be good insurance

coverage may find it difficult to receive benefits.526 In Atanacio v. New Jersey Manufacturers

Insurance Company, the plaintiff's insurance claim was dismissed due to the Employment

Retirement Income Security Act of 1974 (ERISA) preemption clause.527 The facts show that the

plaintiff sustained a spinal cord injury in a car accident and required extensive medical care,

modifications to his home, and a specially equipped van.528 At the time of the accident, he was

insured under a New Jersey Manufacturer's (NJM) personal automobile policy, which provided

personal injury protection (PIP) coverage up to $250,000 for catastrophic injury.529 He was also

employed by Verizon at the time of the accident and was covered under a Verizon Managed Care

Network administered by Aetna.530 That plan provided “extensive medical care benefits for active

employees without limitation.”531 Additionally, the patient was covered as a dependent under the plan

provided to his wife through her employment (the SBH plan).532 In reading the plans, the court

determined that NJM provided the primary coverage so that the plaintiff was entitled to $250,000 of

PIP coverage, that the Verizon plan was secondary, and that the SBH was tertiary.533 The court

also *248 noted that SBH's plan provided that, if the primary health care plan benefit equals or

exceeds the SBH plan benefit, the beneficiary will receive no additional benefits from their

plan.534 The court, however, held that parts of the plaintiff's claims were preempted by ERISA.535 All

employee welfare benefit plans are covered under ERISA.536 Both the Verizon and the SBH plans,

therefore, were covered under the federal legislation.537 Because Verizon's plan specifically stated

that it did not cover services or supplies covered under any federal or state “no-fault” motor vehicle

insurance provision, and the SBH plan also denied the claims on the basis of the plan's terms.538 The

court held that both plans' decisions must be upheld.539

ERISA preemption, however, is not always upheld.540 In Watts v. Organogenesis, Inc.,541 the court

granted a preliminary injunction against an employee's benefit plan that had denied home care

nursing for the plaintiff. The claimant had suffered a C4 spinal cord injury in a car accident and, at

the time of discharge from the rehabilitation hospital, was suffering from frequent and extreme

episodes of autonomic dysreflexia.542 Her physician ordered home care nursing to administer the

patient's bowel and bladder care regimen and to control her episodes of dysreflexia, but the

defendant health benefit plan denied that she was covered for such services.543 The claimant sued

her benefit plan, former employer, and claims administrator to recover the costs of the nursing care,

and moved for a preliminary injunction ordering the defendants to cover her for 16 hours of home

nursing services per day, seven days per week.544 The defendants claimed that the plaintiff had

failed to exhaust the procedural steps prescribed in the plan document, as well as on the basis of

various exclusions specified in the plan.545 The plaintiff countered that her circumstances rendered

the exclusions irrelevant to her claim or did not justify denial in her case.546

The court first determined that an ERISA plan's procedural requirements need not be exhausted

when they are inadequate.547 If the particular care sought is of an urgent nature, such as when there

is an imminent threat to health or life, inadequacy is clear and exhaustion not required.548 Because

the plaintiff's dysreflexia was an *249 imminent threat to her life, the court rejected the defendant's

exhaustion argument.549 The court then looked at the construction of the plan document to determine

whether the particular care requested was excluded and concluded that the nursing services were

available to the plaintiff, provided that the services sought were “medically necessary,” that the

services were prescribed by a physician, and that the services were “reasonably expected to

improve the underlying condition.”550 The court concluded that the plaintiff fulfilled all of these

requirements, based on the evidence, particularly on the testimony of the patient's treating

physician.551

“The severity of Watts' dysreflexia is undisputed. . . In response to a problem or stimulus in her lower

body, Watts' blood pressure rises rapidly and to particularly dangerous levels, and she suffers, on

average, one to four such attacks each day. . .. Her blood pressure must be decreased within ten

minutes of an attack, which requires that effective treatment be commenced within about half that

amount of time. Watts' current nurse testified that it ordinarily takes between 5 minutes and one hour

to stabilize Watts' blood pressure fully. . .. If effective steps are not taken with sufficient speed, Watts

runs a serious risk of a stroke, heart attack, or death.”552

The court concluded that the care prescribed, therefore, was medically necessary.553 The defendant

next argued that each of the tasks involved in the management of the plaintiff's dysreflexia, when

broken down, was simple “custodial” or “domestic” type care, which was excluded by the plan.554 The

court rejected this argument, stating that, for most people, even most disabled people, these tasks

may be considered custodial, but in the case of the plaintiff, they are not, as they must be performed

with the utmost care and skill.555 The court ordered the health plan to authorize and pay for the

nursing care prescribed and to reimburse the plaintiff and family for any and all payments that they

had made for skilled at home nursing care to date.556

H. Constitutional Claims

The Government's duty to provide for prison inmates' basic human needs, including medical care, is

linked to the Eighth Amendment's protection against cruel and unusual punishment.557 Inmates with

spinal cord injuries, therefore, must be provided with the appropriate medical care for their unique

needs.558 However, in regard to medical care, the Supreme Court has held that “a prisoner must

allege acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical

needs” in order to establish an Eighth Amendment claim.559 In *250 Rahoi v. Franks, an inmate

claimed that the physicians at the detention facility were deliberately indifferent to his serious

medical needs.560 The petitioner was incarcerated about five months after he suffered a cervical

spinal cord injury in a motor vehicle accident.561 Prior to his incarceration, he developed significant

spasticity and a right rotator cuff tear.562 He was scheduled for botox injections for the spasticity and

shoulder surgery for the rotator cuff tear, but was incarcerated before he received those

treatments.563 His doctor had advised him that it was imperative that he have the surgeries and the

injections or his rotator cuff muscles would shrink, surgical repair would become impossible, and he

would have increasing pain and other difficulties.564 A physician at the correction facility noted that

the petitioner had missed the scheduled surgery and stated that no follow-up was needed.565 The

prisoner was then transferred to a series of other facilities, and at each facility, he wrote health

service requests seeking attention for extreme pain and muscle spasms.566 He was prescribed

physical therapy but never received it and was inadequately medicated for spasticity, neuropathic

pain, and bowel movements.567 He was finally approved for an appointment with the pain clinic;

however, more than one year after his incarceration, he had not yet seen a doctor for his pain or

received treatment and was in line for a transfer to another institution.568

In granting the petitioner's leave to state an Eighth Amendment claim in forma pauperis, the court

noted that the inmate's medical needs must be objectively serious.569 This standard is met if a

physician has mandated treatment or if it is so obvious that even a lay person would recognize the

need for a doctor's attention.570 This includes conditions in which “the deliberately indifferent

withholding of medical care results in needless pain and suffering.”571 The court concluded that the

petitioner stated sufficient facts to suggest that he had a serious medical condition and to state a

claim that the doctors showed deliberate indifference to his serious medical needs.572

I. Americans with Disabilities Act

The Americans with Disabilities Act (ADA) guarantees full participation in American society for all

people with disabilities.573 The legislation applies to every individual with an impairment that

substantially limits one or more major life *251 activities.574 The act prohibits private employers, state

and local governments, employment agencies and labor unions from discriminating against people

with disabilities in job application procedures, hiring, firing, job training, advancement, compensation,

and other aspects of employment.575An individual with a disability is defined as a person who has a

physical or mental impairment that substantially limits one or more major life activities; has a record

of such impairment; or is regarded as having such an impairment.576 A qualified employee or

applicant with a disability is an individual who, with or without reasonable accommodations, can

perform the essential functions of the job in question.577As one can imagine, this legislation plays an

important role in the lives of those with spinal cord injuries.

Despite this remedial legislation, if the person with a spinal cord injury is not able to perform the

requirements of the job even with accommodations, this legislature will not help. For instance, in

Ebbert v. Daimler Chrysler Corp.,578 a former employee sued her employer for failing to reasonably

accommodate her spinal cord injury under the ADA. The claim was denied because her injuries

prevented her from performing the essential functions of her former position with or without

accommodations.579

In Equal Employment Opportunity Commission v. Du Pont De Nemours & Co., the plaintiff was

awarded over $90,000 in back pay and over $1 million in punitive damages following dismissal from

her job as a lab clerk that involved copying and filing.580 The plaintiff's employer had required her to

undergo an evaluation of her functional capacity and, as a result, determined that she was unable to

perform the essential functions of her job because she was unable to evacuate the office building

because her disability made it difficulty to walk.581 The court noted that essential functions are “the

fundamental duties of the job at issue and do not include the job's ‘marginal functions'.”582 In

considering whether a function is essential, a court may consider the employer's judgment as to

which functions are essential, written job descriptions, the amount of time spent on the job

performing the function, and the work experience of both past and current employees in the

position.583 Here, the court upheld the trial court's decision that the plaintiff's ability to evacuate the

building was not an essential function of her job and upheld the award of back pay and punitive

damages.584

Title III of the ADA prohibits discrimination based on disability in places of public accommodation

and in “specified public transportation services” and requires *252 covered entities to remove

“architectural barriers. . .that are structural in nature” where such removal is “readily

achievable.”585 In Spector v. Norwegian Cruise Line Ltd., the Supreme Court held that 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.589

J. Damages

When a plaintiff prevails in a spinal cord injury claim, damages can be quite high and include

compensation for past and future pain and suffering, past and future health care expenses, lost

earnings, and loss of future earnings.590 Courts consider the extent of paralysis, the degree of

physical pain suffered the presence of secondary complications, life expectancy, and the impact on

the plaintiff's lifestyle, family life, and emotional well-being in determining if the amount of a non-

economic damage award is reasonable.591

In ascertaining whether an award is excessive or inadequate, courts may also consider whether it

deviates materially from reasonable compensation.592 In Saladino v. Steward & Stevenson Services,

Inc., the court upheld an award of $15 million for pain and suffering, $18 million for future health care

expenses, and $750,000 for loss of consortium to a plaintiff who was rendered quadriplegic at 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.”606

The court also concluded that, based on the nine-year period between the time of the plaintiff's injury

and the marital separation, the significant impact on their social and physical relationship during that

time, and the ultimate loss of their marriage, the $750,000 loss of consortium award to the plaintiff's

wife did not deviate materially from reasonable compensation.607 Finally, the court found that the

jury's award of $18 million for future medical costs was supported by evidence of a current life care

plan and a year-by-year breakdown provided by the plaintiff's expert and did not deviate materially

from reasonable compensation.608

IV. CONCLUSION

Spinal cord injury is a devastating and comprehensive injury that affects almost all aspects of a

person's life.609 Unfortunately, there is no current cure for this complicated medical problem, and

treatments to improve the outcome have very limited effects. Additionally, spinal cord injury results in

life-long medical, emotional, and social issues. Many legal issues arise in relation to spinal cord

injury, and attorneys who understand the complex nature of the injury will be in a better position to

advocate for such clients.

Footnotesa1

Virginia Graziani Lowe recieved her MD from Jefferson Medical College in Philadelphia, PA. She is

an Assistant Professor in the Department of Rehabilitation Medicine at Thomas Jefferson University

Hospital and a law student at Temple University Beasely School of Law.

aa1

Samuel D. Hodge, Jr. is a professor and chair of the Legal Studies Department at Temple

University where he teaches both law and anatomy. He lectures nationally on anatomy and trauma

and is the co-author of the ABA Medical-Legal Guides, Clinical Anatomy for Lawyers, ABA, 2012,

and Anatomy for Litigators, 2nd Edition, ALI-ABA (2011). He has also written more than 100 articles

on medical/legal topics. Professor Hodge is a graduate of Temple University Beasley School of Law

and the Graduate Division of the Law School. He is also a member of the College of Legal Medicine.

Virginia Graziani Lowe recieved her MD from Jefferson Medical College in Philadelphia, PA. She is

an Assistant Professor in the Department of Rehabilitation Medicine at Thomas Jefferson University

Hospital and a law student at Temple University Beasely School of Law.

1

Help Center: Spinal Cord Injuries, The Legal Examiner Wiki, http:// wiki.legalexaminer.com/help-

center/spinal-cord-injuries/ (last visited September 11, 2012).

2

Samuel D. Hodge, Jr. & Jack E. Hubbard, ABA Medical-Legal Guides, Clinical Anatomy for

Lawyers, Chapter 6, (American Bar Association, 2012).

3

Help Center: Spinal Cord Injuries, supra note 1.

4

Id.

5

37 Am. Jur. 2d Proof of Facts § 1 (1984) (updated 2012).

6

Id.

7

Id.

8

Ralph J. Marino, Dir. Reg'l Spinal Cord Injury Ctr., Spinal Cord Injury Model Systems of Care,

Presentation at Magee Rehabilitation Hospital (Oct. 7, 2011).

9

Id.

10

Id.

11

Id.

12

National Spinal Cord Injury Statistical Center (NSCISC), University of Alabama at Birmingham,

https://www.nscisc.uab.edu/ (Last visited Jan. 12, 2011). This organization supports and directs the

collection, management and analysis of the world's largest spinal cord injury database. In addition to

maintaining the national SCI database, NSCISC personnel conduct ongoing research; many of the

findings resulting from their investigative efforts have had a large impact on the delivery and nature

of medical rehabilitation services given to spinal cord injury patients. Id.

13

Unless otherwise noted, all statistical information in this article is based on NSCISC and/or the

National Shriner's Hospital System database.

14

Michael J. DeVivo, Epidemiology of Spinal Cord Injury, in Spinal Cord Medicine: Principles and

Practice 72 (Vernon W. Lin ed., 2d ed. Demos Medical 2010).

15

Id.

16

Traumatic Brain Injury in the United States: Emergency Department Visits, Hospitalizations and

Deaths 2002-2006, Centers for Disease Control and Prevention,

http://www.cdc.gov/traumaticbraininjury/tbi_ed.html (last visited Sept. 11, 2012).

17

Spinal Cord Injury Facts and Figures at a Glance, University of Alabama at Birmingham,

https://www.nscisc.uab.edu/PublicDocuments/fact_figures_ docs/Facts%202012%C20Feb

%20Final.pdf (last visited Sept. 2, 2012).

18

DeVivo, supra note 14, at 73.

19

See id. (noting the mean age at injury from 1973-79 was 28.9 years, whereas among persons

injured since 2000, the mean age at injury was 35.6 years).

20

Id.at 81.

21

Nat'l Spinal Cord Injury Statistical Ctr., University of Alabama at Birmingham, The 2010 Annual

Statistical for the Spinal Cord Injury Model Systems 38 tbl.26 (2011).

22

Id.

23

Id. at 39 tbl.28.

24

See id. (noting that violence accounted for 23.5% and 2.7% of all spinal cord injuries in the 16-30

and 61-75 age groups, respectively and 10.6% and 49.4% of falls in the age groups 16-30 and 61-

75, respectively).

25

Id.

26

Michael J. DeVivo and Yuying Chen, Epidemiology of Traumatic Spinal Cord Injury, in Spinal Cord

Medicine: Principles and Practice 72, 74 (Stephen Kirshblum Denise I. Campagnolo and Joel A.

DeLisa eds., Lippincott Williams & Wilkins 2002).

27

Id.

28

Id.

29

Id.

30

Id. at 79.

31

DeVivo & Chen, supra note 26, at 79.

32

Id.

33

Quadriplegia and Tetraplegia, Apparelyzed, http:// www.apparelyzed.com/quadriplegia.html, (last

visited Sept. 2, 2012) (noting that the terms quadriplegic and tetraplegic are used interchangeably).

34

DeVivo, supra note 14, at 80.

35

Id.

36

Id.

37

Id. at 81.

38

Id.

39

Pulmonary Embolism, MayoClinic.com, http://

www.mayoclinic.com/health/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.

40

Id.

41

Jared Toman, Christopher M. Bono and Mitchel B. Harris, Cervical Injuries: Indications and Options

for Surgery, in Spinal Cord Medicine: Principles and Practice 187 (Vernon W. Lin ed., Demos

Medical 2010).

42

Id.

43

Id.

44

Id.; see also Vertebral Body, Medical College of Wisconsin, http://

www.mcw.edu/neurology/divisions/Neurointervention/Selected-Disorders-and-Conditi/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.

45

Toman, Cervical Injuries, supra note 41 at 198.

46

Id.

47

Id.

48

What is a Subluxation, eChiropratic.net, http:// www.echiropractic.net/what_is_a_subluxation.htm

(last visited on Dec.21, 2011). A subluxation is a term frequently used by chiropractor to refer to a

medical condition where one or more of the vertebrae move out of anatomic position and place

pressure on, or irritate spinal nerves. Id.

49

Toman, Cervical Injuries, supra note 41 at 197.

50

Id.

51

Id.

52

Id.

53

John C. France & John R. Orphanos, Management of Cervical Facet Dislocations: Timing of

Reduction, in Controversies in Spine Surgery: Best Evidence Recommendations 42 (Alexander R.

Vaccaro & Jason C. Eck eds., Thieme 2010).

54

Andrew K. Simpson, et al, Thoracolumbar Fractures, in Spinal Cord Medicine: Principles and

Practice 202 (Vernon W. Lin ed., 2010).

55

Facet Joint Disease, NYU Medicine, http://pain-medicine.med.nyu.edu/patient-care/conditions-we-

treat/facet-joint-disease (last visited on Dec. 20, 2011).The facet joints are the structures in the back

portion of the vertebrae that connect the vertebrae to one another. Id.

56

Simpson, supra note 54, at 202.

57

Id.

58

Id.

59

Marcel F. Dvorak and Charles G. Fisher, Central Cervical Cord Injury in the Presence of Cervical

Spondylotic Stenosis, in 13 Spine: State of the Art Reviews: Spinal Cord Injury 519, 520 (Jens R.

Chapman ed., Hanley & Belfus 1999).

60

Id.

61

Id.

62

Id. at 520.

63

Saadi Ghatan, Anthony M. Avellino and Richard G. Ellenbogen, Spinal Cord Injuries in Pediatric

Patients in Spine: State of the Art Reviews: Spinal Cord Injury, Vol. 13, No. 3, p.550 (Jens R.

Chapman ed., Hanley & Belfus 1999).

64

Id.

65

D. Pang, Spinal Cord Injury Without Radiographic Abnormality in Children, 2 Decades Later. 55

Neurosurgery 1325 (Dec. 2004).

66

Id.

67

Id. at 1340.

68

Samuel D. Hodge, Jr. & Jack E. Hubbard, ABA Medical-Legal Guides, Clinical Anatomy for

Lawyers, Chapter 6, (American Bar Association, 2012).

69

Spinal Anatomy: Overview of the Spine, University of Virginia Health System,

http://www.uvaspine.com/overview-of-the-spine.php (Last visited on Sept. 2, 2012).

70

Aetna Life Ins. Co. v. Evins, 199 So.2d 238, 240 (Miss. 1967).

71

Id.

72

37 Am. Jur. 2d Proof of Facts § 3 (1984) (updated 2010).

73

Id.

74

Samuel D. Hodge, Jr. & Jack E. Hubbard, ABA Medical-Legal Guides, Clinical Anatomy for

Lawyers, Chapter 6, (American Bar Association, 2012).

75

37 Am. Jur. 2d Proof of Facts § 3 (1984) (updated 2010).

76

Id.

77

Id,

78

Id.

79

Id.

80

See id. (describing how lateral cells innervate distal muscles).

81

37 Am. Jur. 2d Proof of Facts § 3 (1984) (updated 2010).

82

Id.

83

Id.

84

Id.

85

Id. at § 4.

86

Id. at § 4 fig. 4.

87

37 Am. Jur. 2d Proof of Facts § 4 (1984) (updated 2010).

88

Id.

89

Id.

90

Id.

91

Id.

92

See 37 Am. Jur. 2d Proof of Facts §13 (explaining that a lesion to the fifth vertebrae can cause

paralysis to the legs).

93

Id. at § 4 fig. 4.

94

Id. at § 18.

95

Id. at § 6.

96

Id.

97

See Funke v. Fieldman, 512 P.2d 539, 543 (Kan. 1973) (noting that “the spinal cord ends at the

upper part of the small or our back, normally you would not expect it to end lower than the body of

the second lumbar vertebra. The cord tapers down gradually and at the very bottom there is a slight

enlargement which is called the conus medullaris and the cauda equina extends from the conus

medullaris and exits through the lower lumbosacral coccygeal foramen.”).

98

Steven C. Kirshblum et al., International Standards for Neurological Classification of Spinal Cord

Injury, 34 J. Spinal Cord Medicine 535, 535 (2011).

99

What is a Spinal Cord Injury, National Spinal Cord Injury Association,

http://www.spinalcord.org/what-is-spinal-cord-injury-and-disease/ (last visited Dec. 24, 2011).

100

Id.

101

Id.

102

Id.

103

See id. (describing the degrees of damage to the spinal cord).

104

See 37 Am. Jur. 2d Proof of Facts § 10.

105

Id.

106

Spinal Cord 101, Spinal Cord Injury Resource Center, http://

www.spinalinjury.net/html/_spinal_cord_101.html (Last visited Dec. 24, 2011).

107

Id.

108

Id.

109

Id.

110

Spinal Cord 101, supra note 106.

111

Id.

112

Id.

113

Id.

114

Id.

115

Wise Young, Spinal Cord Injury Levels & Classification, SCI-Info-Pages, http://www.sci-info-

pages.com/levels.html (Last visited Dec. 24, 2011).

116

This information is based upon the clinical practice of Virginia Graziani, M.D. See also, What is a

Spinal Cord Injury, National Spinal Cord Injury Association, http://www.spinalcord.org/what-is-spinal-

cord-injury-and-disease/ (last visited December 24, 2011).

117

What is a Spinal Cord Injury, National Spinal Cord Injury Association,

http://www.spinalcord.org/what-is-spinal-cord-injury-and-disease/ (last visited Dec. 24, 2011).

118

37 Am. Jur. 2d Proof of Facts § 13 (1984) (updated July 2010).

119

Id.

120

Spinal Cord 101, supra note 106.

121

Stephen C. Kirschblum, et al., International Standards for Neurological Classification of Spinal Cord

Injury, 34 J. Spinal Cord Med., 536 (2011) [hereinafter ASIA Standards].

122

Id.

123

Wise Young, Spinal Cord Injury Levels & Classification, SCI-Info-Pages, http://www.sci-info-

pages.com/levels.html (Last visited on Dec. 24, 2011).

124

Id.

125

Spinal Cord 101, supra note 106.

126

Id.

127

FM Maynard et al., Neurological Prognosis after Traumatic Quadriplegia: Three-year Experience of

California Regional Spinal Cord Injury Care System, 50 J. Neurosurgery 611 (1979).

128

Id.

129

Id. (This is determined by testing the sensation in the skin immediately surrounding the anus, and

also by testing for deep anal pressure sensation during rectal examination).

130

Spinal Cord 101, supra note 106.

131

Kelley S. Crozier, et al., Spinal Cord Injury: Prognosis for Ambulation Based on Sensory

Examination in Patients Who Are Initially Motor Complete, 72 Archives of Physical Med. and Rehab.

119 (1991).

132

ASIA Standards supra note 121 at 29-31.

133

Id.

134

Id.

135

Id. at 36.

136

Id.

137

ASIA Standards supra note 121 at 30-31.

138

DeVivo, Epidemiology of Traumatic Spinal Cord Injury, supra note 14 at 75.

139

John F. Ditunno et al., Predicting Outcome in Traumatic Spinal Cord Injury, in Spinal Cord Medicine,

111 (Stephen Kirshblum, Denise I. Campagnolo and Joel A. DeLisa eds., Lippincott Williams &

Wilkins 2002).

140

Christina V. Oleson et al., Outcomes Following Spinal Cord Injury, in Spinal Cord Medicine:

Principles and Practice 138 (Vernon W. Lin ed., 2d ed., Demos Medical 2010).

141

Id. at 139.

142

Id.

143

Id.

144

William D. Whetstone, Prehospital Management of Spinal Cord Injured Patients, in Spinal Cord

Medicine: Principles and Practice 155 (Vernon W. Lin ed., 2d ed., Demos Medical 2010).

145

Id.

146

Id.

147

Id. at 156.

148

Id. at 157.

149

William D. Whetston, Prehospital Management of Spinal Cord Injured Patients at 157.

150

Id.

151

A trauma center is a type of hospital that has resources and equipment needed to help care for

severely injured patients. The American College of Surgeons Committee on Trauma classifies

trauma centers as Level I to Level IV. Injury Prevention & Control: Trauma Care, Center for Disease

Control, http://www.cdc.gov/traumacare/access_trauma.html (Last visited on Jan. 5, 2012). A Level I

trauma center provides the highest level of trauma care. Id. Higher levels of trauma centers have

trauma surgeons available, as well as specialists in fields such as Neurosurgery and Orthopedic

surgery, and highly sophisticated medical diagnostic equipment. Lower levels of trauma centers may

only be able to provide initial care and stabilization of a traumatic injury and arrange for transfer of

the victim to a higher level of trauma care. Id.

152

Consortium for Spinal Cord Medicine, Early Acute Management in Adults with Spinal Cord Injury: A

Clinical Practice Guideline for Health-Care Providers, 31 J. Spinal Cord Medicine 403, 427 (2008).

153

Id. at 433.

154

W. Peter Peterson & Steven Kirshblum, Pulmonary Management of Spinal Cord Injury, in Spinal

Cord Medicine 135, 136 (Stephen Kirshblum et al. eds., 2002).

155

Id.

156

Id.

157

Id.

158

Denise I. Campagnolo & Geno J. Merli, Autonomic and Cardiovascular Complications of Spinal Cord

Injury, in Spinal Cord Medicine 123, 123 (Stephen Kirshblum et al. eds., 2002).

159

Id. at 124.

160

Consortium for Spinal Cord Medicine, supra note 152, at 437.

161

Id.

162

Id.

163

Id. at 428.

164

Id.

165

Consortium for Spinal Cord Medicine, supra note 152, at 428-29.

166

Id. at 435.

167

Gregory W. J. Hawryluk et. al., Translational Clinical Research in Acute Spinal Cord Injury, in Spine

and Spinal Cord Trauma, Evidence Based Management 539, 539 (Alexander R. Vaccaro et al. eds.,

2011).

168

Id. at 540.

169

R. John Hurlbert, Pharmacologic Management of Acute Spinal Cord Injury, in Spine and Spinal Cord

Trauma, Evidence Based Management 87, 89 (Alexander R. Vaccaro et al. eds., 2011).

170

Id.

171

Id. at 90.

172

Consortium for Spinal Cord Medicine, supra note 152, at 435.

173

Edward D. Hall, Acute Treatment Strategies for Spinal Cord Injury: Pharmacologic Interventions,

Hypothermia, and Surgical Decompression, in Spinal Cord Medicine: Principles and Practice 883,

890-91 (Vernon W. Lin ed., 2d ed., 2010).

174

Consortium for Spinal Cord Medicine, supra note 152, at 438.

175

Id. at 439.

176

Id. at 440.

177

Id.

178

Id. at 445.

179

John C. France & John R. Orphanos, Management of Cervical Facet Dislocations: Timing of

Reduction in Controversies, in Spine Surgery, supra note 30, at 49.

180

Id.

181

Consortium for Spinal Cord Medicine, supra note 152, at 445.

182

John C. France & John R. Orphanos, Management of Cervical Facet Dislocations: Timing of

Reduction in Controversies, in Spine Surgery, supra note 30, at 42.

183

Elizabeth M. Yu & Ahmad Nassr, Management of Cervical Facet Dislocations: Anterior versus

Posterior Approach, in Controversies in Spine Surgery, Best Evidence Recommendations 48, 48

(Alexander R. Vaccaro & Jason C. Eck, eds., Thieme 2010).

184

Consortium for Spinal Cord Medicine, supra note 152, at 446.

185

Id.

186

Id.

187

Michael G. Fehlings et al., Early vs. Delayed Surgical Decompression for Traumatic Cervical Spinal

Cord Injury: Results of the Surgical Trial in Acute Spinal Cord Injury Study (STASCIS) (2011). Poster

session presented at 2011 Annual Meeting of Congress of Neurological Surgeons, Washington, DC,

available at http://w3.cns.org/dp/2011CNS/921.pdf.

188

Id.

189

Id.

190

Id.

191

Id.

192

Fehlings et al., supra note 187.

193

Ralph J. Marino & Kelley S. Crozier, Neurologic Examination and Functional Assessment after

Spinal Cord Injury,in Physical Medicine and Rehabilitation Clinics of North America: Traumatic

Spinal Cord Injury 837, 837 (George H. Kraft et al. eds., 1992).

194

Steven S. Kirshblum et al., Spinal Cord Injury Medicine. 3. Rehabilitation Phase After Acute Spinal

Cord Injury, 88 Supplement 1 Archives of Physical Medicine and Rehabilitation S62 (March 2007).

195

Id. at S62, S63.

196

Id. at S63.

197

Id.

198

Melanie Adams & Audrey L. Hicks, Spasticity: Pathophysiology, Assessment, and Management, in

Spinal Cord Medicine: Principles and Practice 535 (Vernon W. Lin ed., 2d ed., 2010).

199

Id.

200

Id. at 534.

201

Id. at 534-35.

202

This information is based upon the clinical practice of Virginia Graziani, M.D.

203

Id.

204

Id.

205

Id.

206

Id.

207

This information is based upon the clinical practice of Virginia Graziani, M.D.

208

William L. Bockenek & Paula J. B. Stewart, Pain in Patients with Spinal Cord Injury, in Spinal Cord

Medicine 389, 389 (Stephen Kirshblum et al. eds., 2002).

209

Id.

210

Id. at 392.

211

Id.

212

This information is based upon the clinical practice of Virginia Graziani, M.D.

213

Bockenek & Stewart, supra note 128, at 394.

214

This information is based upon the clinical practice of Virginia Graziani, M.D.; see also Consortium

for Spinal Cord Medicine, supra note 152, at 450 (stating that “Topical use of amitryptiline and

ketamine has also been reported to lessen neuropathic pain in an open-label pilot study, although it

did not appear to be of benefit during a blinded assessment”).

215

Consortium for Spinal Cord Medicine, supra note 152, at 456.

216

Id.

217

Id. at 457.

218

Id.

219

See id. (in patients with “cervical spinal cord injury, halo fixation, cervical spine surgery, prolonged

intubation, tracheotomy, or concomitant TBI,” a swallowing evaluation needs to be done prior to oral

feeding).

220

See Steven A. Steins, Ashwani K. Singal & Mark Allen Korsten, The Gastrointestinal System after

Spinal Cord Injury: Assessment and Intervention 392 (Vernon W. Lin ed., 2010) (neurogenic bowel is

caused by a spinal cord injury and slows down the movement of stool through the colon).

221

See Consortium for Spinal Cord Medicine, supra note 152, at 457 (after a spinal cord injury, there is

a loss of colon motility, and poor gut motility or ileus can be attributed to trauma, surgery or

medications).

222

David Chen & Steven B. Nussbaum, Gastrointestinal Disorders, in Spinal Cord Medicine 155, 157

(Stephen Kirshblum, Denise I. Campagnolo & Joel A. DeLisa eds., 2002).

223

See Consortium for Spinal Cord Medicine, supra note 152, at 457 (with proper care, patients with

neurogenic bowel dysfunction can have one bowel movement a day).

224

Id.

225

See generally Todd A. Linsenmeyer, Neurogenic Bladder Following Spinal Cord Injury, in Spinal

Cord Medicine 181 (Stephen Kirshblum, Denise I. Campagnolo & Joel A. DeLisa eds., 2002)

(patients with spinal cord disorders normally experience voiding dysfunction, which may result in

kidney complications, renal deterioration, urinary tract infections, bladder stones and lower urinary

tract morbidity).

226

See Consortium for Spinal Cord Medicine, supra note 152, at 455 (a bladder catheter should be

placed in a spinal cord injury patient while the patient is in the emergency room receiving IV fluids).

227

See Linsenmeyer, supra note 225, at 186 (normal bladder contractions slowly return after six to eight

weeks, but a patient may experience detrusor hyperreflexia up to twenty-two months after injury).

228

Id.

229

Id. at 198.

230

See id. (incontinence may occur if there is a weak sphincter mechanism or if bladder pressure is

higher than sphincter pressure).

231

Id. at 191-200.

232

Linsenmeyer, supra note 225, at 181.

233

See id. at 202 (renal failure was the leading cause of death after a spinal cord injury, but IC and

sphincterotomy has reduced the death rate).

234

Id.

235

Id.

236

Id.

237

Linsenmeyer, supra note 225, at 203 (studies suggest that patients who have had indwelling

catheters for more than ten years should have a yearly cystoscopy).

238

See Indira S. Lanig & Daniel P. Lammertse, The Respiratory System in Spinal Cord Injury, in

Physical Medicine and Rehabilitation Clinics of North America: Traumatic Spinal Cord Injury 725,

727 (George H. Kraft et. al. eds., 1992) (paraplegics may have loss of abdominal motor function,

loss of intercostal function, loss of inspiration-and-expiration function, weakened diaphragm and

ventilator failure).

239

Id. at 725.

240

See id. at 732 (almost all patients with C1 to C3 injuries will need assisted ventilation).

241

Id.

242

Anthony E. Chiodo et al., Spinal Cord Injury Medicine. 5. Long-Term Medical Issues and Health

Maintenance, 88 Archives Physical Med. & Rehab. S76 (Supp. Mar. 2007).

243

Id.

244

See Campagnolo & Merli, supra note 158, at 123 (cardiovascular problems are caused directly by

the neurologic injury itself or indirectly by complications that result from a sedentary lifestyle).

245

See Consortium for Spinal Cord Medicine, supra note 152, at 451-52 (at least fifty percent of

patients will develop venous thromboembolism if preventative measures are not taken).

246

Campagnolo & Merli, supra note 158, at 129 (PE was reported as a major cause of death in patients

with spinal cord injuries).

247

See id. at 132 (Paralyzed Veterans of America guideline suggests that patients receive a pneumatic

compressive hose within the first two weeks of injury, and if there is no active bleeding or evidence

of a head injury, then an anticoagulant be administered within seventy-two hours of the injury).

248

Id.

249

Id. at 123.

250

Id. at 124.

251

Id.

252

Campagnolo & Merli, supra note 158, at 124.

253

Id. at 125.

254

Id.

255

Id. at 126.

256

Id.

257

Id.

258

Campagnolo & Merli, supra note 158, at 127.

259

Id.

260

Id. at 124.

261

Id.

262

Kevin C. O'Connor and Richard Salcido, Pressure Ulcers and Spinal Cord Injury in Spinal Cord

Medicine, 207, 207 (Stephen Kirshblum, Denise I. Campagnolo and Joel A. DeLisa eds., Lippincott

Williams & Wilkins 2002).

263

Id.

264

Id. at 208.

265

Id. at 207-8.

266

Id. at 208.

267

Id. at 213.

268

O'Connor & Salcido, supra note 262, at 212.

269

Id. at 208.

270

James W. Little and Stephen P. Burns, Neuromusculoskeletal Complications of Spinal Cord Injury in

Spinal Cord Medicine, 241, 241 (Stephen Kirshblum, Denise I. Campagnolo and Joel A. DeLisa

eds., Lippincott Williams & Wilkins 2002).

271

Id.

272

Id.

273

Id.

274

Id. at 243-44.

275

Id. at 244.

276

Kresimir Banovac and Filip Banovac, Heterotopic Ossification in Spinal Cord Medicine, 253

(Stephen Kirshblum, Denise I. Campagnolo and Joel A. DeLisa eds., Lippincott Williams & Wilkins

2002).

277

Id.

278

Id.

279

Id.

280

Id.

281

Id.

282

Chiodo, supra note 242, at S78.

283

Id.

284

Id.

285

Id. at S79.

286

Id. at S 78.

287

Id. at S79.

288

Consortium for Spinal Cord Medicine, supra note 152 at 462; Kirshblum, supra note 194, at S66.

289

Kirschblum, supra note 194, at S66.

290

Id.

291

Id.

292

Id.

293

Michael M. Priebe, et. al., Spinal Cord Injury Medicine. 6. Economic and Societal Issues, in Spinal

Cord Injury 88 Supplement 1 Archives of Physical Medicine and Rehabilitation S84 (March 2007).

294

National Spinal Cord Injury Statistical Center, Spinal Cord Injury Facts and Figures at a Glance, Feb.

2012 https:// www.nscisc.uab.edu/PublicDocuments/fact_figures_docs/Facts%202012%C20Feb%

20Final.pdf. (last visited on Sept. 17, 2012).

295

Priebe, supra note 293 at S85.

296

See, e.g., Waldorf v. Borough of Kennilworth, No. 84-3885, 1992 U.S. Dist. WL 740270 (D.N.J. Sept.

1992) (awarding sixteen million dollars to an individual that suffered a severed spinal cord causing

complete quadriplegia).

297

See, e.g., Dinsmore v. Rubin, No. 98-7509C121, 2000 WL 35064987 (Unknown Fla. State Ct. Nov.

2000), (awarding zero dollars to a pregnant 32-year-old woman who suffered a spinal cord injury

which she alleged was caused by her doctor's negligence in incorrectly inserting a nephrostomy tube

in her spinal cord instead of her urinary tract). See also Cerny v. Longley, 270 Neb. 706, 708 N.W.2d

219 (Neb. 2005) (awarding zero dollars to a man rendered paraplegic after spine surgery because

he could not establish a prima facie case for the physician's negligence).

298

National Spinal Cord Injury Statistical Center (NSCISC), University of Alabama at Birmingham, 2010

Annual Statistical Report, p. 13 and Table 26.

299

Id.

300

Graves v. Toyota Motor Corp., No. 2:09cv169KS-MTP, 2011 U.S. Dist. WL 4625606 (S.D. Miss. Oct.

3, 2011).

301

Id. at *1.

302

Id.

303

Id. at *2.

304

Id.

305

Graves, 2011 U.S. Dist. WL 4625606 at *9.

306

Moore v. Ford Motor Co., 332 S.W.3d 749 (Mo. 2011) (en banc). Plaintiff fractured her T9 vertebra in

the collision.

307

Id. at 754.

308

Id. at 755.

309

Id. at 758.

310

NSCISC, supra note 193, at p. 13 and 26.

311

Snoznik v. Jeld-Wen, Inc., 259 F.R.D. 217 (W.D.N.C. 2009). This opinion dealt with procedural issue

concerning the productions of certain documents involving the plaintiff's economic loss. Eventually,

the claim was dismissed. See Snoznik v. Jeld-Wen, Inc., No. 1:09cv42, 2010 U.S. Dist. WL 1924483

(W.D.N.C. 2010) (granting defendant's motion for summary judgment and dismissing the case).

312

Snoznik v. Jeld-Wen, Inc., 2010 U.S. Dist. WL 1924483 at *4.

313

Id. at *6.

314

Id. at *7.

315

Id. at *5.

316

Id. at *12.

317

Snoznik, 2010 U.S. Dist. WL 1924483 at *13.

318

Id. at *27.

319

Nat'l Spinal Cord Injury Statistical Ctr., 2010 Annual Report for the Spinal Cord Injury Model Systems

38 tbl.26 (Univ. of Ala. at Birmingham 2011).

320

Michael. J. Devivo & Padmini Sekar, Prevention of Spinal Cord Injuries That Occur in Swimming

Pools, 35 Spinal Cord 509, 510 (1997).

321

Id.

322

Id.

323

Id.

324

Id. at 509.

325

See generally Battistoni v. Weatherking Prods., 676 A.2d 890 (Conn. App. Ct. 1996) (diver sued

pool's manufacturer);Bunch v. Hoffinger Indus., 123 Cal. App. 4th 1278 (2004) cert. denied, 546 U.S.

817 (2005) (diver sued pool manufacturer);Glittenberg v. Doughboy Recreational Indus., 491 N.W.2d

208 (Mich. 1992) (diver sued the manufacturer and sellers of the pool).

326

See generally Battistoni, 676 A.2d 890 (diver sued under products liability); Bunch, 123 Cal. App. 4th

1278 (diver sued under negligence and strict products liability); Glittenberg, 491 N.W.2d 208 (diver

sued under a failure to warn assertion).

327

Battistoni, 676 A.2d at 895.

328

Id. at 892.

329

Id.

330

Id. at 892, n.4.

331

Id. at 892.

332

Battistoni, 676 A.2d at 892-93.

333

Id. at 892.

334

Id.

335

Id. at 893.

336

Id..

337

Battistoni, 676 A.2d. at 893.

338

Id.

339

Bunch, 123 Cal. App. 4th at 1293.

340

Id. at 1281.

341

Id.

342

Id. at 1300.

343

Id. at 1299.

344

Bunch, 123 Cal. App. 4th at 1299.

345

Glittenberg, 491 N.W.2d at 210.

346

Id. at 217-218.

347

Neff v. Coleco, 760 F. Supp. 864, 868 (D. Kan. 1991).

348

Id.

349

Benjamin v. Deffet Rentals, Inc., 419 N.E.2d 883, 885 (Ohio 1981).

350

Id.

351

Klen v. Asahi Pool, Inc., 643 N.E.2d 1360 (Ill. App. Ct. 1994), abrogated by Barham v. Knickrehm,

277 Ill. App. 3d 1034 (1996).

352

Bunch, 123 Cal. App. 4th at 1297.

353

Id. at 1298.

354

Nat'l Statistical Spinal Cord Injury Statistical Ctr., supra note 13, at 38.

355

Kameno Bell., On-field Issues of the C-Spine-Injured Helmeted Athlete, 6 Current Sports Med. Rep.

32, 33 (2007).

356

Fiske v. MacGregor, 464 A.2d 719, 721 (R.I. 1983).

357

Id.

358

Id. at 722.

359

Id. at 722-23.

360

Id. at 721.

361

Fiske, 464 A.2d at 721.

362

Id.

363

Id. at 729.

364

Id.

365

Nat'l Statistical Spinal Cord Injury Statistical Ctr., supra note 13, at 38.

366

Evans v. Medtronic, No. Civ.A. 3:04CV00097, 2005 WL 3547240, at *1 (W.D. Va. Dec. 27, 2005).

367

Id. at *3.

368

Id..

369

Id. at *4.

370

Id. at *3.

371

Id. at *4.

372

Evans, 2005 WL 3547240, at *4.

373

Id. at *5.

374

Id. at *6.

375

Id.

376

Id. at *10.

377

Evans, 2005 WL 3547240 at *13

378

Id. at *14-16

379

Id. at *15-16.

380

NSCISC at Tables 26 and 27.

381

State v. Fox, 810 N.W.2d 888, 889-890, (Iowa Ct. App. 2011).

382

Id. at 890.

383

Id.

384

Id.

385

Id.

386

State v. Fox, 820 N.W.2d at 890.

387

Id. at 890-891.

388

Id. at 892.

389

Id.at 895

390

Id.

391

Gonzalez v. Safe & Sound Sec. Corp., 881 A.2d 719, 721 (N.J. 2005).

392

Id. at 723.

393

Id. at 724.

394

Id. at 725.

395

Id.

396

Gonzalez, 881 A.2d at 725.

397

Id.

398

Id.at 725.

399

Id. at 729-730.

400

Id. at 730.

401

See generally Donald Schreiber, Spinal Cord Injuries, http://

emedicine.medscape.com/article/793582-overview#aw2aab6b2b4, (last visited Dec. 17, 2011).

402

418 N.W.2d 795, 797 (Wis. 1988).

403

Id.

404

Id.

405

Id.

406

Id.

407

Id.

408

Kerkman, 418 N.W.2d at 797.

409

Id. at 798 n.2.

410

Id. at 798.

411

Id. at 800.

412

Id. at 801.

413

Id. at 803.

414

Kerkman, 418 N.W.2d at 802.

415

Id. at 803.

416

Id.

417

See generally Woodard v. Custer, 719 N.W.2d 842, 851 (Mich. 2006) (referring to subspecialties

generally).

418

654 S.E.2d 563 (Va. 2008).

419

Id. at 566.

420

Id.

421

Id.

422

Id.

423

Id.

424

Lloyd, 654 S.E.2d at 567.

425

Id.

426

Id.

427

Id.

428

Id.

429

Lloyd, 654 S.E.2d at 569-70.

430

Id. at 570.

431

Id.

432

Lloyd, 654 S.E.2d at 570-71.

433

William D. Whetstone, Prehospital Management of Spinal Cord Injured Patients, in Spinal Cord

Medicine: Principles and Practice, 155 (Vernon W. Lin ed., 2d ed., Demos Medical 2010).

434

Edward D. Hall, Acute Treatment Strategies for Spinal Cord Injury: Pharmacologic Interventions,

Hypothermia, and Surgical Decompression, in Spinal Cord Medicine: Principles and Practice, 883,

888 (Vernon W. Lin ed., 2d ed., Demos Medical 2010).

435

See generally Michael G. Fehlings, et.al., Early vs. Delayed Surgical Decompression for Traumatic

Cervical Spinal Cord Injury: Results of the Surgical Trial in Acute Spinal Cord Injury Study

(STASCIS), Poster Presentation, Congress of Neurolofical Surgeons, 2011 Annual meeting,

Washington, DC, October 1-6, 2011. (Available at http:// w3.cns.org/dp/2011CNS/921.pdf).

436

See D.C. v. Howard, 588 A.2d 683, 689 (D.C. 1991) (holding there was sufficient evidence that

victims paralysis and death was a result medical technicians negligent failure to detect injuries when

victim was “neurologically intact”).

437

D.C. v. Howard, 588 A.2d 683 (D.C. 1991).

438

Id. at 685.

439

Id.

440

Id.

441

Id.

442

Id. at 686.

443

Howard, 588 A.2s at 686.

444

Id.

445

Id.

446

Id.

447

Id.

448

Id.

449

Howard, 588 A.2d at 686.

450

Id. at 687.

451

Id. at 686.

452

Id. at 688.

453

Id. at 687.

454

Howard, 588 A.2d at 692.Id. at 693.

455

Id. at 693.

456

Id. at 696 .

457

Lord v. Lovett, 770 A.2d 1103, 1104 (N.H. 2001).

458

Id.

459

Id.

460

Id. at 1104-5.

461

Id. at 1106.

462

Lord, 770 A.2d at 1107.Id.

463

Id.

464

Id. at 1106.

465

Fitzgerald v. Vincent, No. 15052-6-III, 1997 WL 199055, at *3 (Wash. Ct. App. Apr. 27, 1997).

466

Id. at *1.

467

Id.

468

Id.

469

Id.

470

Fitzgerald, No. 15052-6-III, 1997 WL at *3.

471

Id. at *2.

472

Id. at *3

473

Id.

474

Id.

475

Fitzgerald, 15052-6-III, 1997 WL at *3.

476

Id.

477

Id.

478

Id.