Catastrophic injury cases can be particularly difficult to defend. Burn injury cases are difficult to defend due to the severe, painful, and grotesque nature of the injury. With relatively few exceptions, there is no such thing as a short stay in a regional burn center. Such centers do not treat sunburns or minor cooking accidents. Based on our experience when defending serious burn cases, it is not uncommon for stays in burn centers to last weeks, months, or even in excess of a year. Stays of many months or exceeding a year typically cost well into the seven figures for past treatment. Such aftercare means that most burn cases are high-exposure cases that require serious evaluation and preparation.
Treatment After Discharge From the Burn Center
Serious burns are not “healed” at the point of discharge from the burn center. Release from the burn center in serious burn cases typically signals the beginning of a long series of follow up treatment visits and possibly scar revisions, as well as additional grafting or other procedures. Aftercare treatment may last months, years, or even decades in the most severe cases. Discharge typically begins with admission to a step-down facility. This is typically a residential facility affiliated with, and in close proximity to, the burn center. The length of stay in the step-down facility varies, but usually lasts about thirty days.
Both at the step-down facility and after return to home care, the victim of a serious burn will begin a series of follow up visits with the burn physician. The most common aftercare is a continuation of excision and grafting, both to those areas where grafts have been rejected or did not “take” sufficiently, or where multiple grafts are required for a structural or functional purpose. Depending on the nature of the necessary revision procedures and the skill required, this can be a complicating factor when the burn victim lives far from a regional burn center. Extensive travel time may be required and often the plaintiff will seek monetary damages for such travel, or argue that, by definition, it constitutes an impairment of earning capacity due to employment interruption.
Another common aftercare procedure is tissue expansion. With tissue expansion, a balloon expander is inserted under the skin in the area in need of repair. Over time, the balloon will gradually be filled with saline solution, slowly causing the skin to stretch and grow. Once enough extra skin has been grown, it is then used to correct or reconstruct a damaged body part. This is common for breast reconstruction and parts of the upper torso.
Typically burn surgeons and plastic surgeons will take an inventory approach to necessary reconstructive and plastic procedures. They will triage the most problematic areas, starting with the face, head and extremities, if affected, and work through a graded inventory of affected areas. This could go on for five-plus years. With many patients, the psychological aspect of treatment becomes the most difficult. It feels as though they are constantly having surgeries, even if the surgeries are, in fact, intermittent.
In burn cases, the major and minor reconstructive surgeries will eventually reach the point where scar repair has no functional relevance and is cosmetic only. However, this is more complicated with major burns because total body or near total body burns are tied to functional needs, and this makes the query about whether a given procedure will produce worthwhile, if any, additional cosmetic benefits more difficult. The total body surface area that is burned, particularly if it includes the face and hands, may drive some conflict in the debate regarding whether further procedures add function or are merely cosmetic and whether further cosmetic benefit can even be achieved.
Because Burn Cases Are Generally High-Exposure Cases, it is Important to Hire the Best Experts and Consider All Variables When Assessing Damages.
Some burn injuries, such as deeply burned hands, cannot ever be fully restored. Furthermore, some burn reconstructive surgeries go on for many years, even as many as thirty-plus years. It is imperative in the defense of burn cases to hire the best possible expert. Because a significant portion of the potential exposure lies in the intensive nature and long arc of the aftercare, the expert can be helpful in preparation for cross-examination of the plaintiff’s expert on whether some of the allegedly needed procedures will provide any functional, or even any significant cosmetic, benefit that would justify both the cost and the risks that are perennially associated with grafting, such as rejection, infection and additional scarring.
When a reasonable settlement is possible, it should be seriously considered, even when there appear to be good defenses. Those defenses can be useful negotiation points during a settlement. Variables in burn centers, surgical treatment, aftercare, the nature of the burn, and the presentation of the plaintiff all make any hard and fast rules for case assessment ineffective. But manufacturers and insurers should keep in mind that burns, unlike most other injuries, especially to children, have the potential to create unpredictable, and possibly soaring verdicts.