CASE FACTS

It was a beautiful summer evening in late May. Becky, who had lived in Virginia for only a week, was on her way to the store. As she approached a 4-way intersection she slowed to a stop, then started across. Halfway across the intersection a large truck slammed into the right side of Becky’s car in a t-bone collision.

Becky was transported by ambulance to a local hospital. X-rays showed an abnormal curve of her cervical spine, but no obvious fracture. After returning home, Becky had significant pain in her neck and back, in addition to numbness and weakness in her arms. When the pain persisted, she went to see her primary care doctor. MRIs of the cervical spine revealed multiple herniated discs, some of which were impinging the nerve root in her spine. Becky was referred to a neurosurgeon, who recommended an initial course of physical therapy with surgery as a future possibility.

After trying physical therapy without improvement, Becky underwent a series of epidural injections in her cervical spine. When her symptoms still did not improve, she underwent surgery. She had 3 discs removed, 4 vertebrae fused together, and metal hardware implanted to stabilize her neck.

After surgery, some of Becky’s symptoms improved. Her neck pain lessened but her right shoulder was still painful, and numbness and tingling continued in her right arm. She underwent prolotherapy shots in her shoulder, which didn’t improve her condition, and physical therapy only worsened her symptoms.

Becky went back to her neurosurgeon, who sent her for new MRIs of her cervical spine. The MRI showed an additional disc herniation, just below her fused discs. As another level of fusion surgery wasn’t possible, Becky continued physical therapy and injection therapy for 6 weeks. She bought a cervical collar to wear during activities, a soft neck roll for sleeping, and even obtained a temporary disability parking placard.

With all of Becky’s medical procedures she was unable to work regularly, and the small start-up business she owned with her husband began to falter. Her family could no longer afford to live in Virginia and they returned to Ohio.

Back in Ohio, Becky was referred to a surgical program that performed spinal stimulator placements. She was approved for the program and underwent the procedure in which leads were inserted into the epidural space of her spine and a generator implanted in her lower back. The procedure was successful and Becky now manages her pain during her daily activities with a remote control.

The spinal stimulator doesn’t eliminate pain, it interferes with the transmission of pain signals to the brain. Stimulators are generally implanted as a last resort; the best result a patient can achieve is a 70% reduction in pain. Most experience less relief than that.

CASE CHALLENGES

Implantation of a spinal cord stimulator is not a “one-and-done” procedure. The battery in the generator wears out every 8 years, and at that point the surgery needs to be re-done. Becky was facing not only a future filled with surgery, which carries obvious risks, but extremely high medical bills for those procedures. Each stimulator procedure costs about $120,000; Becky was in her early 40s, and would need at least 4 replacement surgeries during her life. In addition, the spinal stimulator implantation carried its own risks including:

• leakage of spinal fluid
• bleeding
• paralysis
• headache
• dislocated stimulation
• battery leakage and failure
• nausea
• severe diarrhea
• acid reflux.

Becky faced all these risks in any one of her future surgeries, and even if she was compensated for the procedure itself, the amount might not cover the additional risks.

Before the accident, Becky was making about $50,000 a year. She and her husband Sam owned a family business that generated inconsistent profits but generally covered their wages. When they first moved to Virginia, they planned to expand their business in the booming local markets, but after Becky was injured, they were unable to run the business in a way that generated sufficient profit. Hiring an employee to fill her shoes diverted most of her prior wages out of the family.

Even though Becky was earning income prior to the accident, hers wasn’t a typical case for lost wages where a manager or HR department could verify the exact amount of her loss. In addition, the future of her business model was uncertain regardless of her injury. Though she could establish, somewhat reasonably, her past wages losses, future wages remained speculative.

After making a low initial offer, the insurance company agreed to mediation in order to settle the case.

SOLUTIONS

Becky was able to establish her previous income through business records and her husband’s testimony. At mediation, she and her husband offered information about their business model, growth strategy, marketing techniques, accounting methods, and more. Becky was able to explain that the physical exertion required was too strenuous for her after her surgery. She was also unable to sit at a desk for long periods of time, so management and accounting tasks became equally troublesome for her. Becky suffered from diminished earning capacity as a result of the accident. Her ability to provide information about her business and demonstrate her limitations was key in establishing future losses. Based on her previous income, we were able to present her future losses in a way that was effective and accurate, rather than speculative and remote.

Further, Becky had always been active. She grew up playing volleyball, doing gymnastics, and she joined the Army when she was 18. Physical fitness was an important part of her life. When she was injured, Becky could no longer handle the physical stress of exercise.

Becky’s case was unique in that it took extensive medical treatment in order for her to reach her maximum medical benefit after the accident; even after undergoing complex surgery on her neck, her symptoms continued for over a year. During mediation, we were able to show videos, photographs, and medical illustrations of the procedures and treatments Becky underwent in an effort to return to normal.

Becky had a video taken during one of her prolotherapy injection procedures that was helpful in explaining to the insurance company that not only was Becky’s everyday pain difficult, often the procedures contributed additional pain and stress to her life. She could demonstrate also demonstrate the limited range of motion in her neck and shoulder.

Becky showed the adjuster how she uses her spinal stimulator on a daily basis. She has to charge the battery almost every day, and wears a belt that lines up with the generator in her hip and charges it. She demonstrated the different equipment she uses and the setting options available to her.

Becky has to stay completely still for hours in order for her generator to reach a full charge, significantly interfering with her life at times. When her daughter was getting married, Becky was so busy helping to prepare that she forgot to charge her stimulator. She went through a day of severe pain on what should have been one of her happiest days of her life. Letting Becky tell her story made an impact with the mediator, opposing counsel, and the insurance adjuster, and allowed the other side to get to know her and better understand what she was dealing with on a daily basis.

CONCLUSION

Becky was able to recover for her future medical expenses through the use of a structured settlement which pays her a lump sum every 8 years for the rest of her life. Now Becky doesn’t have to worry about a future surgery straining her family’s budget. And a structured payment schedule assures the insurance company that Becky won’t run through her money and fail to use it responsibly for her future medical bills.

Even with the spinal stimulator, Becky still deals with residual pain and stiffness. While her pain has lessened, she continues to have days with severe pain, although they are less frequent than they once were.

Becky was fortunate that there was sufficient coverage available to compensate her extensive damages. The necessary elements of a case came together: negligence, causation, damages, and compensation. Although her damages were significant in light of other cases of similar negligence and causation, she was still entitled to recover for each category of her damages.

Creative solutions, including use of a structure for future treatment, made this case come together with a fair resolution.

Instruction No. 9.000 

General Personal Injury and Property Damage

If you find your verdict for the plaintiff, then in determining the damages to which she is entitled, you shall consider any of the following which you believe by the greater weight of the evidence was caused by the negligence of the defendant:

1)         Any bodily injuries she sustained and their effect on her health according to their degree and probable duration;

2)         Any physical pain [and mental anguish] she suffered in the past [and any that he may be reasonably expected to suffer in the future];

3)         Any disfigurement or deformity and any associated humiliation or embarrassment;

4)         Any inconvenience caused in the past [and any that probably will be caused in the future;

5)         Any medical expenses incurred in the past [and any that may be reasonably expected to occur in the future];

6)         Any loss of earnings and lessening of earning capacity, or either, that she may reasonably expected to sustain in the future;

7)         Any property damage she sustained.

Your verdict for such sum as will fully and fairly compensate the plaintiff for the damages sustained as the result of the defendant’s negligence.