THE HUMAN BODY IN A LAWSUIT

Part I:Medical & Legal Cause

By Renn A. Holness B.A., LL.B.

I. The Sanctity of the Human Body

It is worth reiterating to even the most experienced trial lawyer that the essential purpose of tort law is to restore the injured person to the position he or she would have enjoyed but for the negligence of the at-fault person.

It is also of equal importance to acknowledge that the essential purpose of Medicine is to restore and maintain health through the prevention, alleviation, and curing of disease and injury.

The legal advocate and healthcare provider are guided by the overarching social ideal of restoring the individual and maintaining health.

A personal injury case involves the application of civil law which is concerned with private rights and remedies. Civil law in Canada recognizes the sanctity of the human body and protects life and the human person. "Tort" is a frequently used word in our civil law and is defined as a legal wrong committed upon a person which causes injury, loss or damage. Our civil law has established principles of causation and evidence that guide judges and juries when they are asked to decide personal injury cases involving tortious acts.

This short paper, written by a lawyer and reviewed by a Neurosurgeon, will address questions of medical and legal cause in a personal injury claim. Case citations and referral to medical literature have been purposely left out to allow for plain language. I will limit my discussion to legal cause, medical cause and the law of evidence. I will not address any issues relating to civil procedure and warn readers that civil procedure can impede or enhance the application of the legal principles discussed. I will not address the issue of damages, which determines the actual dollar amount a person will receive. Also, I will not address psychological injuries in this paper.

This paper will address issues of interest to doctors and lawyers and will avoid the use of professional terminology. Claimants, their families, friends, healthcare providers, advocates, insurers, employers, co-workers, academics, and others may find some of the following topics of interest. This paper is neither legal nor medical advice for a reader's specific legal case or medical ailment.

II. The Systems of the Human Body

Financial restoration after an injury is meant to compensate for one's inability to work, play, and function in daily pre-injury activity. Impairment of function, either temporary or permanent, is the cornerstone in the determination of what a person has lost. Medical evaluations, opinions, and work capacity assessments, to name a few, will often be important data to help evaluate impairment of function. Once impairment of function has been determined a person's disabilities and resulting loss can be calculate and assessed.

To help understand the human body and how trauma can cause impairment of function it is instructive to break the body down into it's basic units. The human body has several different levels of structural organization. The chemical, cellular, tissue, organ and system are all levels of structural organizations. I will only address the system level.

The systems of the body are always trying to keep the internal environment of the body within normal limits even though the outside environment is constantly changing. This is referred to as homeostasis.

There are 11 systems of body that continually try to maintain homeostasis. A system is essentially a group of organs that perform a common function.

1. Nervous System

Brain, spinal cord, nerves, and sense organs, such as the eyes and ears. This system controls and coordinates body activities by sending nerve action potentials(nerve impulses) to effectors of the body (muscles and glands). Pain plays a fundamental role in the proper function of the nervous system.

The nervous system can be divided into the central nervous system (CNS)and peripheral nervous system (PNS). Pain is the way the PNS warns the CNS of injury or potential injury to the body. The CNS comprises the brain and spinal cord, and the PNS is composed of the nerves that stem from and lead into the CNS. Essentially, the PNS includes all nerves throughout the body except the brain and spinal cord.

A pain message is transmitted to the CNS by special PNS nerve cells called nociceptors. Nociceptors are distributed throughout the body and respond to different stimuli depending on their location. When a nociceptor is stimulated, neurotransmitters are released within the cell. Neurotransmitters are chemicals found within the nervous system that facilitate nerve cell communication. The nociceptor transmits its signal to nerve cells within the spinal cord, which conveys the pain message to the thalamus, a specific region in the brain.

Once your brain has received the pain message and coordinated a response, pain has served its purpose. The body then uses natural pain killers, called endorphins, to stop further pain messages from the same source. However, these pain killers don't always eliminate the continuing pain. Certain hormones, such as prostaglandins, may be released and have been found to enhance pain messages and play a role in tissue inflammation. Certain neurotransmitters are also known to actively enhance the pain message at the injury site and within the spinal cord.

The most significant injuries to the nervous system are brain and spinal cord injury.

The forces inflicted on the head in an accident can produce a complex mixture of diffuse (spread out)and focal (in one area) damage within the brain. Damage resulting from an injury can be immediate or develop within days or weeks of the trauma. Oxygen deficiency in bodily tissue due to injury can also significantly affect recovery.

The spinal cord is really just an extension of the brain, consisting of a thick bundle of nerve fibers that connect the brain to the muscles, skin and organs.

Damage to the spinal cord is usually caused by one of five different types of injuries: (1) Concussion of the spinal cord occurs when a sudden jolt damages the tissues around the cord; (2) A spinal contusion causes bleeding to occur in the spinal column. The pressure of the blood on the spinal cord can kill neurons; (3) Spinal compression occurs when an internal object, like a tumor, or an external object puts pressure on the spinal cord; (4) When the spinal cord becomes torn the neurons are also damaged; Or, injury occurs when the spinal cord is severed completely. Many spinal cord injuries occur as a result of motor vehicle accidents, falls, and sports activities.

When an injury to the spinal cord occurs the flow of information from that point down is stopped or interrupted. This break in instructions to the arms, legs, and other parts of the body can prevent movement and breathing, reduce the sense of feeling or touch, and can affect bladder and bowel function.

2. Skeletal System

All of the bones of the body, including cartilages, and the joints of the body. This system supports and protects the body, assists in bodily movements, contains cells that produce blood cells, and stores minerals.

Skeletal injuries include fractures of arms, legs, skull, pelvis and other bones and joints of the body. These injuries can have a profound affect on the nervous and muscular systems.

3. Muscular System

Specifically refers to skeletal muscle tissue and other muscle tissues. Skeletal muscles have a large supply of nerves and blood vessels. This system participates in bringing about movement, maintains posture, and produces body heat. This system enables movement of the body in conjunction with the nervous system and the skeletal system.

The most common muscular injuries include whiplash associated disorder, chronic pain syndrome, shoulder rotator cuff injuries or impingement, spinal torticollis, and abnormal spinal curvature.

Injury to both muscular and skeletal systems, like joints and cartilages, can lead to various musculoskeletal conditions. Musculoskeletal injury is an injury or disorder of the muscles, tendons, ligaments, joints, nerves, blood vessels, or related soft tissues including a sprain, strain, and inflammation. Symptoms of musculoskeletal injury include: discomfort, pain, change in color, tightness, loss of flexibility, tingling, burning, and swelling.

There are also neuromuscular conditions that arise out of trauma. Pinched nerves can result from pressure on a nerve by an inflamed muscle. Myofascial pain syndrome, thoracic outlet syndrome, and peripheral nerve entrapments are common examples of neuromuscular disorders.

4. Cardiovascular System

This is your blood, heart and blood vessels. This system circulates oxygen and nutrients to cells to maintain homeostasis and a proper cellular environment. This system also protects against disease, prevents hemorrhage by forming blood clots, and helps regulate body temperature.

Shock is an example of a condition that can have an immediate affect on the cardiovascular system. Although shock is a nervous system response to a traumatic event, it causes a failure of the cardiovascular system to deliver blood within the body resulting in an inadequate supply of oxygen and nutrients.

Stress has been found to worsen high blood pressure, affecting the cardiovascular system. Sudden changes in heart rate also increased demands on this system and can precipitate angina and increase the risk for a heart attack.

5. Lymphatic System

Lymph (a transparent slightly yellowish fluid), lymphatic vessels, and structures or organs containing lymphatic tissue such as lymph nodes, the spleen, thymus, and tonsils. This system responsible for returning proteins and plasma to the cardiovascular system, it transports fats from the gastrointestinal tract into the cardiovascular system, it filters body fluid, produces white blood cells and protects against disease.

Lymph nodes help prevent infection. Swelling of lymph nodes generally results from localized or systemic infection. When swelling appears suddenly and is painful, it is usually caused by injury or an infection. Swelling that happens gradually may result from malignancy or tumor.

Damage to the lymph drainage routes after an injury, infection, or surgery can result in swelling in the lymphatic system.

6. Endocrine System

All glands and tissues that produce hormones. This system controls and integrates body activities by sending chemical signals (hormones) via the blood to muscles and glands. The endocrine glands and their hormones regulate the growth, development, and function of various tissues and coordinate many of the processes of metabolism.

This system works with the nervous system to put the body in emergency mode if life is in immediate danger. This is often referred to as the fight or flight response. The adrenal gland produces adrenaline which controls the rate of breathing and the pulse when you are scared. This increases oxygen intake at the same time the body releases fats into the bloodstream, giving the body maximum strength. The fat is fuel for the muscles and the oxygen helps burn the fuel. Increase in heart rate, sweating, muscle tension and reflex action can also occur.

The fight/flight response can also cause the body to shut-down non-emergency processes. Digesting food can be stopped, which can cause stomach upset. The blood supply to the front of the brain, responsible for higher levels of reasoning, is reduced while the blood supply to the more primitive parts, near the brain stem, is increased. This will sometimes cause people to do and say things they may regret later.

Disorders of the endocrine system can cause sleep disturbance, fatigue, blood imbalances, joint pain or weight gain or loss can arise. For example, if the body can no longer maintain the fight/flight response it will begin to take vital hormones that would normally be going to other endocrine glands to keep the adrenals in the state of emergency. This can later interfere with the sex hormones which can lead to reduced libido, male impotency, and female menstrual and menopausal issues.

7. Respiratory System

The lungs and associated passageways such as the throat, voice box, windpipe, and bronchial tube leading into and out of them. This system supplies oxygen, eliminates carbon dioxide and helps regulate the acid-base balance of the body.

One of the most dangerous complications of a spinal cord injury is damage to the respiratory system. Signals from the brain no longer flow through the spinal cord to control the respiratory muscles and, in some cases of respiratory damage, the use of an artificial breathing device is required. Respiratory complications may also result in sleep apnea, a breathing disorder that causes irregular nighttime breathing, snoring and disrupted sleep patterns.

Exposure to toxic chemicals is also a known cause of damage to the respiratory system.

8. Digestive System

The gastrointestinal tract and associated organs from the mouth to the anus, such as the saliva glands, liver, gallbladder and pancreas. This system breaks down and absorbs food for use by cells and eliminates solid and other waste. The organs of the digestive system are fed by external and internal nerves.

In cases of spinal cord injury damage can occur to the nerves that control bowel movements. Depending on the location of the spinal cord injury the ability to feel when the rectum is full may be lost. A reflex bowel injury allows some control of the anal sphincter muscle with no sensation, whilst a flaccid bowel injury results in complete loss of the defecation reflex and no control of the anal sphincter muscle.

Irritable bowel syndrome (IBS) is a disorder that interferes with the normal functions of the large intestine and is one of the most common disorders diagnosed by doctors relating to the digestive system It is characterized by a group of symptoms which include cramping, abdominal pain, bloating, constipation, and diarrhea. Medical research suggests that people with IBS may have a colon that is more sensitive than usual making them more vulnerable to having symptoms when under stress. Some evidence indicates that the lymphatic system, which fights infection, is also involved.

9. Urinary System

Organs such as the kidneys, urethra, and bladder, that together produce, collect and eliminate urine. This system regulates the chemical composition of the blood, eliminates waste, regulates fluid and electrolyte balances, helps maintain acid-base balances, and helps maintain red blood cell count.

The most common traumatic injuries that affect the urinary system include bone fractures, lesions of intraabdominal organs, and brain traumas. In the cases of multiple traumatic injuries, the kidneys tend to be the most involved part of the urinary system.

People suffering from a spinal cord injury that require the use of a catheter have an increased risk of complications to the urinary system. Whenever a catheter is passed through the channel between the bladder and the outside of the body it can pick up bacteria from the skin. This bacteria can grow and multiply in the urine causing a urinary tract infection.

10. Integumentary System

The skin and structures of the skin such as hair, nails, sweat and oil glands. This system helps regulate body temperature, protects the body from minor trauma, eliminates waste, helps synthesize vitamin D, and recovers certain stimuli such as temperature, pressure, and pain.

Injuries to this system include burns, lacerations, abrasions, and avulsions (forcible tearing away). Injured pedestrians most frequently sustain integumentary injuries when compared to other victims. The integumentary system can also be at risk in patients with spinal cord injury.

Injuries to the integumentary system are often very painful and can cause stress and anxiety. Complex or opens wound can also impair the proper function of other body systems.

11. Reproductive System

This system is composed of the male and female sexual organs which produce sperm and eggs for conception. The goal of this system is to reproduce the human organism.

Multiple traumatic injuries have been known to lead to impotence where there has been a direct injury to the urinary tract. There are also toxins that can damage the reproductive system and a fetus may also be harmed during the process of development, if the mother is exposed to these toxic substances.

III. Types of Physical Injury

Traumatic injuries can be classified as chronic, occurring for longer than 3 to 6 months, or acute, occurring suddenly due to a trauma like a car accident, fall, surgical mishap, or crushing injury. "Syndromes" such as chronic pain syndrome, myofascial pain syndrome and thoracic outlet syndrome are defined as a group of symptoms which occur together over time.

Physical injuries may also be referred to as open, in which the skin has been compromised and underlying tissues are exposed or closed, in which the skin has not been compromised, but trauma to underlying structures has occurred. Acute injuries can be put into eight general categories:

• Abrasions Also called scrapes, they occur when the skin is rubbed away by friction against another rough surface (e.g. road rash).
• Avulsions Occur when an entire structure or part of it is forcibly pulled away, such as the loss of an arm or an ear lobe. When tendons, nerves, and bones are exposed due to an injury this is referred to as degloving.
• Contusions Also called bruises, are the result of a forceful trauma that injures an internal structure without breaking the skin. Blows to the head in a car accident or fall can cause contusions.
• Crush wounds Occur when a heavy object falls onto a person, splitting the skin and shattering or tearing underlying structures. A pedestrian run over by a car or a rock falling on a vehicle can produce crush wounds.
• Cuts Slicing wounds are made with a sharp instrument, leaving even edges. They may be as minimal as a paper cut or as significant as a surgical incision.
• Lacerations Also called tears, these are separating wounds that produce ragged edges. They are produced by a tremendous force against the body, either from an internal source as in childbirth or from an external source like being hit by a vehicle.
• Missile wounds Also called velocity wounds, they are caused by an object entering the body at a high speed, typically a bullet.
• Punctures Deep, narrow wounds produced by sharp objects such as nails, knives, and broken glass.

IV. Medical Cause

When an acute injury occurs medical cause is often straightforward. For example, if a person falls from a bicycle and suffers multiple abrasions and avulsions, it is usually not in issue that the wounds were caused by the fall. But what if weeks or months after the fall doctors find an abnormality in that person's spine? Did the fall cause the abnormality or was it there before? If the condition becomes chronic, such as a chronic pain syndrome, medical cause becomes obscured.

The discussion as to who caused an abnormality is not of much interest to the medical doctor as it is usually irrelevant in determining the appropriate course of medical treatment. The causal issue for the doctor is whether the symptoms the patient experiences are consistent with a particular disease or injury. The mechanism if injury can also be a factor in determining the extent and nature of injuries suffered.

Causal analysis in Medicine usually investigates the reasonable degree of certainty of the relationship between an event, such as a car accident, and the effect, such as a whiplash associated disorder.

Epidemiology is the branch of medicine that deals with the study of the causes of health effects in human populations. An epidemiological study often compares two groups of people who are alike except for exposure to a substance or the presence of a health condition. The object is to determine the factors associated with the substance or health condition. The public is familiar with the use of these studies in areas like cancer research, to help understand how prevalent certain cancers are in a given population.

Similar studies have been used to help understand the long-term effects of traumatic injuries like brain injury, spinal cord injury, and whiplash associated disorder. The studies, depending on how reliable they are, can help the doctor determine the best course of treatment for a patient. On the other hand many of these studies only suggest trends in populations and the individual claimant may not fit neatly into these populations. Claimants can be the exception to the general rule and fall into a category which requires a different course of treatment. Sometimes permanent impairment of function from a condition can be predicted by reference to studies even though the doctors do not fully understand the physical mechanism that led to the condition.

Hence, to determine cause modern Medicine relies largely on empirical analysis to establish a reasonable degree of medical certainty.

V. Legal Cause

Legal causation, on the other hand, is an expression of the relationship that must be found to exist between the action of a wrongdoer and the injury to the innocent victim. Our law has established this legal cause in order to provide financial restoration to innocent victims. Financial accountability for personal behaviour is used to deter activity that leads to personal injury.

The general test for legal causation is the "but for" test, which requires the claimant to show that the injury suffered would not have occurred but for the negligence of the wrongdoer.

A common example of the use of the "but for" test are car crash cases were there is little or no damage to the vehicles but a person is left with injury. Our Canadian Courts have reiterated that the severity of the impact is only one factor to be considered in determining causation in relation to injury which an individual may sustain as the result of an accident.

The "but for" test is unworkable in many personal injury cases in which multiple body systems have been injured and the victim has multiple pre-existing conditions. As a result the courts have recognized that causation is established where the wrongdoer's breach of duty "materially contributed" to the injury. A contributing factor is material if it is not so small a contribution as to be trivial.

Causation in law is established where the claimant proves to the civil standard on a balance of probabilities that the wrongdoer contributed to the injury. It is not necessary for the claimant to establish that the wrongdoer was the only cause of the injury.

As long as a wrongdoer is part of the cause of an injury, the wrongdoer is responsible, even though his or her actions alone may not have been enough to create the injury. The law in Canada is clear - there is no reduction of responsibility of the wrongdoer just because the innocent victim has a preexisting condition. The Wrongdoer remains responsible for all injuries caused or contributed to by their negligence.

The law does not excuse a wrongdoer from responsibility merely because other factors for which he or she is not responsible also helped produce the harm.

VI. The Law of Evidence

The rules of evidence control what can be presented as fact in our court system. The object of these rules is to get at the truth by allowing only accurate and reliable evidence to be considered by the court. This goal has to be balanced with other important social concerns like personal privacy and national security. Sometimes documents will not be allowed in as evidence if doing so would reveal confidential communications that permit advocates and others to function within the judicial system. The law, however, is very much, as in Plato's Allegory of the Cave, like an imperfect shadow representing our attempt to balance to our human relationships.

Causation in law need not be determined by scientific precision. It is, as stated by Lord Salmon in Alphacell Ltd. v. Woodward, [1972] 2 All E.R. 475, at p. 490:

"... essentially a practical question of fact which can best be answered by ordinary common sense rather than abstract metaphysical theory."

In the typical personal injury case the victim has to prove that their story of events is more likely than what the insurance company is saying. However, both the burden and the standard of proof are flexible concepts. All evidence is to be weighed according to the power of one side to produce proof and in the power of the other side to contradict that proof.

A common scenario in a personal injury case is when a car crash causes an immediate aggravation of a pre-existing condition( old back injury made worse). The jury's power to draw the conclusion that the aggravation of the condition after the accident was in fact caused by that accident is not impaired by the failure of any medical witness to testify that it was in fact the cause. Neither can it be impaired by the lack of medical consensus as to the likelihood of the potential causes of the aggravation, or by the fact that other potential causes of the aggravation existed and were not conclusively negated by the proofs.

The matter of legal cause does not turn on the use of a particular form of words by the medical doctors in giving their testimony. The members of the jury are entitled to take into account all the circumstances, including the medical witnesses and other non-medical witnesses , in determining cause.

In some cases the circumstantial evidence adduced by the injury victim can lead the court to draw an inference that a wrongdoer's behaviour caused a victims injury, despite the absence of any scientific proof of causation. The wrongdoer then has the tactical burden of providing the court with a plausible theory of causation contrary to that of the victim.

Medical experts ordinarily determine causation in terms of certainties whereas a lesser standard is demanded by the Canadian civil law. When it comes to the personal injury case it is the function of the judge or jury, not the medical witnesses, to determine legal causation.

The Evidence Act and the Supreme Court Rules in British Columbia help to govern what becomes evidence in many personal injury cases. In addition, there has developed over the years a body of "judge-made" law, called the "common law", which is also used to determine what becomes evidence in court.

VI. Conclusion

The importance our society puts on the health and well-being of our citizens is a watermark for our civility. The protection of the human body is highest goal for which our law has been created to achieve. Collaboration between healthcare providers, legal advocates, and law makers on issues of medical and legal cause will help promote the overarching social ideal of restoring and maintaining the health of all people in need.

I am grateful to Dr. R.O. Holness, my father, for taking the time to review this paper and provide invaluable advice and comments, but note that any opinions expressed are the author's responsibility.