Recovery for Injuries to Pets

 May a pet owner recover for emotional distress when another intentionally injures his pet?  It depends.  While in other states pet owners may recover for emotional distress, up until last month California courts only allowed juries to award economic damages to a pet owner and refused to award an owner for his emotional distress including pain and suffering related to his pet's physical injuries. But recently, the Court determined that an owner can recover under a theory of trespass.  

Under the law of trespass, dogs are considered personal property and trespass to personal property allows recovery for intentional interference of personal property causing injury including emotional distress.  In the recent case the jury awarded the dog owners about $2800 for the amount of the veterinarian bills and an additional $50,000 for emotional distress to the dog owners.  This decision stated:  “the affection of a master for his dog is a very real thing and . . . the malicious destruction of the pet provides an element of damage for which the owner should recover, irrespective of the value of the animal.”


The Future of Pain Assessment

Objectively measuring physical pain has been impossible. Doctors have relied on a patient’s self-report. And when asked to compensate accident victims for pain and suffering, so have juries.

But all that may soon change. Recently Stanford University researchers have used brain images and computer technology to assess pain.  In this study, a computer was “trained” to read brain images and assess pain levels. The researchers began by taking brain images of participants who were presented with painful and non-painful stimuli. The patterns of brain activity provided an objective physiologic assessment of whether someone is experiencing pain. The computer was 81% accurate at distinguishing painful v. non-painful stimuli.

Clinically, this tool will be most helpful to detect pain in infants, seniors with dementia, and sedated patients. But practically, it may lead to advances in pain management while establishing the credibility of victims who report they are living with ongoing pain.

Another Way Insurance Companies Avoid Compensating Innocent Accident Victims

Proposition 213 became law in 1996.  That law says that an uninsured driver who is injured in an auto accident  may not recover certain damages due her, even though the accident was entirely the fault of the other driver.  The damages the innocent driver is prohibited from collecting are her non-economic damages, which include pain and suffering.

The insurance companies passed Prop 213 to save money and maximize profits at the expense of the driver who was not at fault in an accident. The only exception: an uninsured driver my collect damages for pain and suffering if the negligent driver who caused the accident is later convicted of drunk driving.

By its terms, Prop 213 applies to those uninsured drivers who were actually at the wheel when they were struck by another driver.  But courts have  applied this law broadly to keep compensation from drivers who weren't even in their cars when the accident took place.  For example, courts have ruled that Prop 213 deprives uninsured drivers of the right to be compensated for the injuries even if they were outside their parked car when they were run down. 

Given the harsh results, it is important  that all drivers carry liability insurance on their cars and trucks.

Proving PTSD with MEG Imaging Studies of the Brain

A recent study shows for the first time that post-traumatic stress disorder (PTSD) can be objectively diagnosed using magnetoencephalography (MEG), a non-invasive measurement of magnetic fields in the brain. Researchers at the University of Minnesota and Minneapolis VA Medical Center published a study this month in the Journal of Neural Engineering identifying a biological marker in the brains of those exhibiting symptoms of PTSD.  Conventional brain scans such as an X-ray, CT scan, or MRI are unable to detect PTSD.

According to one of the rearchers, Dr. Apostolos Georgopoulos,

These findings document robust differences in brain function between the PTSD and control groups that can be used for differential diagnosis and which possess the potential for assessing and monitoring disease progression and effects of therapy.

In addition to diagnosing those with PTSD, the researchers also were able to judge the severity of  the patient’s suffering. 

Attorneys representing accident victims suffering from PTSD may be able to use these imaging techniques to support their clients' claims for pain and suffering  against those responsible for causing their accidents.

What Damages May a Victim Seek for an Injury?

When a jury finds that a wrongdoer is responsible for the victim's injury, then the Judge will ask the jury to decide how much money will compensate the victim for his injuries.  The law refers to the compensation award as “damages” and has divided them into two categories: economic and non-economic.

Economic injuries/damages include:

·        Past medical expenses -- the reasonable cost of reasonably necessary medical care related to the victim’s injury.

·        Future medical expenses -- the reasonable cost of reasonably necessary medical care for the victim’s medical care in the future

·        Loss of earning capacity – Past and future  loss of  – the reasonable value of the victim’s loss of the ability to earn money as a result of the injury

Non-Economic injuries/damages include:

·        Pain and suffering as previously discussed here.

·        Loss of consortium -- loss of a spouse's companionship and services discussed in more detail here.

Can Traumatic Brain Injury Victims Develop PTSD?

One would assume that if a TBI victim cannot remember the injury producing event, he cannot suffer flashbacks or nightmares re-experiencing the event. Right? Wrong.

Indeed, a diagnosis of a TBI generally requires a loss of consciousness. But the victim's loss of consciousnesss does not shield him from post traumatic stress disorder, or PTSD.  Apparently PTSD can occur after a TBI, but the TBI may alter the symptoms' development.  A TBI victim's symptoms may relate to events that just preceded his loss of consciousness, or to events that occurred immediately after.  The symptoms may even relate to details about the trauma-producing event itself that the victim learned about later in his recovery.


Accident Victims and PTSD

Even after the physical injuries have healed, an accident victim may still suffer from Post Traumatic Stress Disorder (PTSD).  She may continue to experience flashbacks, nightmares, or daydreams in which the traumatic event is replayed again and again. The person may also suffer an abnormally intense “startle response” – like a rush of anxiety that bursts from her brain and shoots to her fingertips accompanied by a rapid heart rate. Other symptoms of PTSD may include impaired memory and difficulty concentrating and insomnia (or even a fear of sleeping due to the nightmares). The trauma of the accident disrupts various intellectual and emotional processes. It is sometimes referred to as "a normal reaction to abnormal event."

PTSD symptoms are among those that may be included in an award for pain and suffering as discussed here.

Surgical Interventions to Release Burn Swelling

Victims with full thickness burns, as discussed here, on their arms and legs experience tremendous swelling from the fluids necessary to heal. The swelling puts pressure on the nerves and tissues of the healthy sections of the burned limbs.  The pressure may cause a complete loss of blood flow and tissue damage to the distal limb.  To relieve the pressure and promote blood flow, the burn surgeon may perform the following procedures:

  • Escharotomy -- slitting of the burned skin (eschar);
  • Fasciotomy -- slitting of the burned  skin and splitting of the fascia (the thick white covering of the muscle) to inspect how the muscle is doing.

Although gruesome, the surgeons often take photos before and after the procedure to document the health of the tissue and progression toward recovery.  Such photos may be helpful to educate the jury about the victim's pain and suffering.


Dealing with Pain: Virtual Reality Devices Assist Burn Victims

When burn victims are resting (most of the time), opioids (morphine and morphine-related chemicals) are adequate for controlling their burn pain. In sharp contrast, during wound care such as daily bandage changes, wound cleaning, staple removals etc., opioids are not enough, not even close.  Researchers at Harborview Burn Center in Seattle have developed a virtual reality program to fully immerse a patient in an alternative reality.  Patients are equipped with goggles and "enter" a computer-generated environment .  Entering another world distracts the patients from the painful wound care process and decreases their perception of the pain.

Moving and stretching are also very painful but crucial for a successful recovery.  Recently, physical therapists at New York-Presbyterian Hospital/Weill Cornell Medical Center have reported that burn patients who need to move and stretch benefit from "Wii-habilitation".  The Wii is much more accessible and affordable than the Harborview program.  It too promotes recovery while getting their minds off the injury and pain.

Recognizing the impact of long-term pain is important.  A recent article in Rehabilitation Psychology,  Pain, Depression and Physical Functioning Following Burn Injury concludes that that pain and depression may contribute independently to compromise physical function. And, when a burn patient suffers from both pain and depression, he is at a greater risk for reduced physical functioning over time.

Researchers look forward to further applications of virtual reality programs and games to promote successful rehabilitation in burn survivors.  However,one area of burn recovery that virtual reality will likely not reduce is the relentless itching of the healing process.  Although wound care, moving and stretching are undeniably painful, one of our clients felt tortured by the constant itching. The opioids and topical balms provided little or no relief.  While research may improve treatments, the reality remains, burn victims endure tremendous suffering at every stage of their recovery.



The Burn Pain Myth: "full thickness burns are not painful because the nerves are destroyed".

Full thickness (third and fourth degree) burn victims suffer pain

  • Nerves may partially function.  
  • Burns on arms and legs cause swelling and pressure on the nerves and tissues of the healthy sections of the burned limbs.
  • Repeated painful interventions to prevent infection and promote healing.

Burn pain worsens over time:

Unlike other types of trauma, in which pain over time plateaus or diminishes, the interventions necessary to prevent infection and promote healing actually worsen the pain of burn injury. 

Pain continues after scars heal:

  • Joint and skin stiffness 
  • Relentless itching
  • Emotional pain of scars and physical deformity

Because of the long, complicated, painful path to recovery, we advise family members of burn victims to photograph the various medical interventions necessary to promote recovery. Photographs of the stages of recovery may help the victims see their improvement and communicate the painful recovery process to a jury.