The Lawyers Weekly - June 24, 2011

Lawddities

An oddity in Personal Injury

Lawddities Victim sues paramedic for stealing his foot

A former paramedic who stole a man’s severed foot from the scene of a car crash is now being sued by the victim.

Cynthia Economou, a former firefighter and paramedic from Florida, admitted taking Karl Lambert’s damaged foot after a major car wreck to train her cadaver-sniffing dog. Economou was originally charged with second degree petty theft and sentenced to six months probation. But now Lambert is taking her to court in a civil case, seeking unspecified damages, according to Aolnews.com.

Economou claims she only took the foot because she didn’t think it could be reattached to the victim.— Anum Lateef

Legal Oddities in (Blank) Law

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Recommendations ‘will unfairly deny benefits to severely injured people’

Spinal cord injuries

Impairment
Continued From Page 9

We are not aware of any significant difficulty with the existing definition, which simply requires quadriplegia or paraplegia. The panel recommends implementing a new scheme involving the American Spinal Injury Association (ASIA) Impairment Scale. When a simple test is replaced by a more complex one, there will be more disputes, at more expense, with concomitant delays. The panel also recommends that before someone can be deemed catastrophically impaired because of a spinal cord injury, the person must have been a patient at an approved public rehabilitation facility, as well as passing the ASIA test requirements.

The Spinal Cord Injury Alliance, in its submission to FSCO, said this: “The proposed changes would immediately eliminate 55% of the SCI [spinal cord injury] patient population who are not admitted into in-patient rehabilitation from accessing funds they are justly entitled to. An additional percentage of the SCI patient population would also lose access to funding they are justly entitled to due to the erroneous recommendation that clinical tools (or simply one measure within a tool) should be utilized for purposes for which they were never intended.”

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“We fear two
assessment battles,
where now there is
rarely even one.

excluded. The proposed interim catastrophic impairment would also apply to this category. This would likely result in two sets of assessments in most cases, which would add to the cost and delay for the injured person.

Amputations

Under the current SABS, the loss of use of an arm or leg results in a finding of catastrophic impairment. This clear, concise, simple approach would be replaced. The panel proposes that arm amputations should be dealt with under the established whole person impairment test of 55 per cent.

Leg amputations would require trans-tibial or higher amputation of one limb, or that the person will have sufficient issues with mobility that a walker or two canes would be required and, once again, the person must have been a patient in an approved public rehabilitation facility. This condition is arbitrary and unfair.

Since an accident victim cannot qualify under the GOSE scale for months, if not years, after the accident, the panel recommends an “interim designation” for the traumatically brain injured. However, the panel provides no detail as to how this will work.

With so much at stake in the classification, we fear two assessment battles, where now there is rarely even one. We also fear delay that is not in the interests of the victim. This part of the proposed amendments appears severely flawed.

Traumatic brain injuries

The current test requiring a Glasgow Coma Score (GCS) of 9 or less would be gone. Instead, an injured person would be required to meet a score under the Glasgow Outcome Scale—Extended (GOSE). The degree of disability under GOSE is assessed according to psychometric testing and developed standards.

Paediatric traumatic brain injury

Children are to be treated differently than adults. The panel proposes an “automatic criteria”: anyone under 18 who is admitted to a Level 1 trauma centre and has positive CT or MRI that shows bleeding on the brain or who is admitted to a publicly funded rehabilitation facility is automatically catastrophically impaired. One wonders why this much simpler approach wouldn’t have worked for adults.

For those children who do not fall within the automatic criteria, a determination based on clinical status is also possible.

Psychiatric disorders

To qualify with a psychiatric disorder, the panel recommends that the accident victim must have a major depressive disorder, a psychotic disorder or a major depressive disorder along with a global assessment of functioning (GAF) score of 40 or less. Health care experts say this standard is too high. This proposal also unfairly discriminates against accident victims with other psychiatric disorders such as obsessive compulsive disorder, somatoform disorder and anxiety disorder. Also, impairments due to pain are not to be considered unless the pain exacerbates one of the approved psychiatric disorders.

We have grave concerns that, if passed into law, the recommendations will unfairly deny benefits to severely injured people, increase costs, cause delay and result in more litigation between accident victims and their own car insurance companies. This view is shared by every legal organization and health care body that has made a submission to FSCO. n

Other physical impairments

For all other physical impairments, the 55 per cent whole person impairment test under the AMA Guides (4th ed.) will continue to apply, except that mental and / or behavioural impairments are specifically

Roger Oatley and Ryan Murray practise plaintiffs’ personal injury law at Oatley, Vig-mond LLP in Barrie, Ont. The Final Report of the Catastrophic Impairment Expert Panel to the Superintendent of the Financial Services Commission of Ontario is available at: www.fsco.gov. on.ca.