Category Archives: Burn injuries

New FAA Air Traffic Organization Policy Order to Establish Air Traffic Organization Safety Management System



Federal agencies, such as the Federal Aviation Administration (“FAA”), a branch of the U.S. Department of Transportation, are continuously working to improve air safety, and the enabling legislation for such agencies provides them with rulemaking power to accomplish the goal of improved safety.  With the recent series of commercial airline crashes, air safety is once again a source of anxiety for many air travelers.  Although statistically, decade after decade, air travel continues to prove itself as by far one of the safest modes of travel, air crashes capture the attention of the public in a way that is uniquely gripping as compared to other transportation disasters.  The recent commercial crashes, MH 370 on March 6 (location unknown), MH 317 on July 17 (Eastern Ukraine), Trans Asia Airlines flight GE 222 on July 23 (Penghu Islands) and Air Algerie flight 5017 on July 24 (Northern Mali) collectively represent approximately 700 fatal injuries to passengers and crew in the space of 138 days.

Although none of these incidents occurred inside United States-controlled airspace, parts of U.S. Airspace are unquestionably some of the busiest in the world.  Regulation and control of U.S. Airspace is controlled by federal law which preempts state law in all such matters.

On May 30, 2014, the FAA issued Order JO 1000.37A, entitled “Air Traffic Organization Safety Management System” (“Order”).  The Order will take effect on September 1, 2014.  This will provide a brief overview and summary of key aspects of the Order.

The mission of the Air Traffic Organization (“ATO”) is to provide a safe and efficient series of air navigation services in the National Airspace System and in the United States-controlled international oceanic air space.  This includes communications, navigation, surveillance and air traffic management services.  The Order specifically establishes the Safety Management System (“SMS”) as the foundation upon with the ATO’s safety efforts are conducted and measured.


The SMS is a multidisciplinary, integrated, and closed-loop framework used to help maintain safe and efficient air navigation services and infrastructure.  The Order requires the ATO SMS to be a framework for three specific areas:

  1. The development of safety policy and processes
  2. The promotion of a safety culture that identifies and reports activities that are potentially or actually detrimental to system safety; and
  3. The identification, continuous monitoring, auditing, and evaluation of hazards and the assessment and mitigation of safety risk within the National Airspace System (“NAS”) and United States-controlled international/oceanic airspace.

Structure of The Safety Management System

The four structural components that make up the SMS are

  1. Safety Policy.  This contains the requirements, standards and guidance to establish and execute SMS and promote a positive safety culture.
  2. Safety Risk Management.  This contains the processes and procedures established and followed ty ATO safety practitioners to identify hazards, analyze and asses risks.
  3. Safety Assurance.  This consists of the processes and procedures within the ATO SMS that ensure the ATO is operating according to expectations and requirements.  Safety Assurance provides validation of SR< efforts for proper operations, systems and equipment and identification of adverse safety trends.
  4. Safety Promotion.  Communication of proper safety practices through advocacy of the principles of a positive safety culture, employee training and compliance with ATO orders.


The bulk of the contents of the Order provide the intended mechanics for implementation and execution of the SMS and are beyond the scope of this summary.  However, with the skies becoming ever more crowded and the recent concerns over pilot fatigue, deficient CRM with some airlines, fly-by-wire and ever more complex aircraft, SMS appears to be a step in the right direction.  Whether the framework and structural components can be executed remains to be seen.

Olson Brooksby PC maintains an active aviation practice including the defense of aircraft and component part product liability claims and negligence claims resulting in personal injury and property damage and aviation related commercial disputes.


Defending the Pediatric Burn Case: How Knowing the Medical Literature and New Treatment Modalities Can Help Control Damages

Surgeons discussing computed tomography (CT) scans in operating theatre


Most seasoned defense attorneys are well aware of the three subjects that often tend to cause far higher-than-expected verdicts: burns, kids, and cancer.  In this article we will address the danger of situations where there is not only a child, but the child is severely burned.

In prior posts we addressed burn classification, conventional treatment modalities, and aspects of expected outcomes.  We will not repeat that information here but instead address some general mortality statistics and where children, specifically those age six and younger, fit in.  We will also address experimental and new therapies for children, as described in the recent literature, including the use of virtual reality, albuterol inhalants, and aerosolized Heparin/Acetylcystine therapies.  All of these therapies have been shown to lower mortality rates in children.

Regardless of the burn mechanism, defending a pediatric burn case, especially if it was fatal, can be extremely difficult.  Juries tend to be very sensitive to burn injuries, especially in cases involving children.  Therefore, the product liability or aviation defense lawyer must have an in-depth understanding of the mechanics of burn injuries and available treatment options, particularly in those cases where inhalation injury is a component.  Both an aircraft cabin and a home are confined spaces that can be filled with fatal levels of smoke, sometimes within seconds.  Given these considerations, it is essential that the defense attorney be thoroughly prepared, armed with both knowledge and empathy.

Statistical Overview of Burn Injuries

According to the National Burn Repository,[1] which gathers and analyzes statistical data from burn centers throughout the United States and Canada, there were 126,000 hospital admissions for burns from 1995 – 2005.  The mean burn size was 13.4 percent total body surface area (TBSA) with sixty-two percent of the full thickness burns covering less than ten percent TBSA.  Sixty-one percent of patients were transferred to another hospital for a higher level of care.  Six and one-half percent of admissions had inhalation injuries.  The data also show that the patients were seventy percent male with a mean age of 33 years.  Flame and scald burns accounted for seventy-eight percent of all burn injuries.

The prognostic burn index, a sum of the patient’s age and percentage of TBSA burn, was used as a gauge for patient mortality for many years.  This index suggested that by taking into consideration the patient’s age and the size of their full thickness TBSA burn, and adding twenty percent for inhalation, the patient’s mortality probability could be predicted.[2]  Advances in early excision of burn eschar,[3] skin grafting, early enteral feeding,[4] and wound closure with advanced techniques (skin substitutes) have altered the simple mathematical calculation.[5]  Patients with a prognostic burn index of 90 – 100 now have a mortality rate in the 50 – 70% range with poorer outcomes at both extremes of age.[6]

The Importance of Pediatric Treatment in Cases Involving Inhalation Burns 

As noted above, mortality rates are higher in pediatric patients.  Smoke inhalation injury continues to be implicated as the leading cause of death in persons with burn injuries.  Smoke inhalation injury has a reported mortality of 20 – 80%.[7]  This is also supported by the addition of 20% traditionally added to the prognostic burn index.

In smoke inhalation injury, there is a destruction of the ciliated epithelium[8] that lines the tracheobronchial tree.  Casts[9] from these cells cause upper-airway destruction, and this leads to obstruction, causing pulmonary failure.  In one recent study, the reduction in mortality in pediatric patients with inhalation injuries placed on a regimen of aerosolized heparin[10] and acetylcystine[11] was tested.[12]  Forty-seven children, acting against forty-three controls, received 5000 units of heparin and 3 ml of a 20% solution of acetylcystine aerosolized every four hours for the first seven days of injury.  All patients were extubated when they were able to maintain spontaneous oxygen levels.  The number of patients requiring re-intubation for successive pulmonary failure was recorded, as was mortality.

The results indicate a significant decrease in re-intubation rates, incidence of atelectasis,[13] and mortality for patients treated with the regimen of heparin and acetylcystine when compared with the controls.  Heparin/acetylcystine nebulization in children with massive burn and smoke inhalation injuries results in a significant decrease in incidence of re-intubation for progressive pulmonary failure and a reduction in mortality.

The Use of Virtual Reality For Acute Pain Management in Pediatric Burn Patients

In one experimental case, virtual reality was tested for pain management.[14]  Managing high pain levels associated with pediatric burns can result in a decreased reliance on opioid medications and can potentially minimize future risk of developing psychiatric problems.  During the study, hospitalized patients over the age of six and without facial burns were selected.  A lightweight helmet with binocular display provided patients with a Virtual Reality (VR) experience during acute pain procedures such as wound care or therapy.  Pain levels were assessed using the Faces Pain Scale (FPS).[15] Constitutional signs and symptoms, opioid medication usage, as well as nursing and family member assessments of pain were also recorded.  VR provided a three-dimensional computer-simulated environment where patients could see, hear, and interact with objects displayed in the virtual world.

Preliminary results suggested at least a 20% decrease on FPS during VR intervention.  Pediatric patients report an increased tolerance to exposed dressing sites during VR.  It remains unknown which patient factors (age, sex, characteristics of the burn, background pain level, etc.) are predictive of effective pain management with VR.


Olson Brooksby has defended many product liability and aviation cases where the resulting injury was a serious, sometimes fatal, burn.  From a defense perspective, such cases pose difficulties if defense counsel is not prepared to skillfully handle the cross examination of the treating burn physician.  The best way to do so is to be familiar with the prevailing treatment methods and the relevant literature.  Conversance with the literature will provide a working understanding of the techniques that were available to the treatment team to minimize the pediatric burn patient’s pain and increase the likelihood of survival.


[1] Miller, S.F.M., et al., National Burn Repository, 2005, American Burn Association: Chicago, IL. P. 1-51.

[2] Grunwald, T.B. and Garner, W.L. Acute Burns. University of Southern California; Los Angeles County + USC Burn Center, Los Angeles, California.

[3] Dead matter cast off the surface of the skin after a burn.

[4] Tubal feeding through the intestine.

[5] Rose, D.D. and E.B. Jordan, Perioperative management of burn patients.  Aorn J, 1999. 69(6): p. 1211-22; quiz 1223-30.

[6] N., K. Aoki, and M. Yamazaki, Recent advances in the management of severely burned patients.  Nippon Geka Gakkai Zasshi, 1999. 100(7): p. 424-9.

[7] Thompson PB, Herndon DN, Taber DL, et al.  Effects of mortality of inhalation injury. J. Trauma 1986; 26:163-5.

[8] Threadlike projections from the free surface of epithelial cells such as those lining the trachea, or bronchi.  The propel or sweep materials, such as mucus or dust across a surface such as the respiratory tract.  Taber’s Cyclopedic Medical Dictionary, 19th Ed.. 2001. Venes. D., Ed., F.A. Davis Co., Philadelphia.

[9] Pliable or fibrous material shed in various  pathological conditions, the product of effusion.  It is molded to the shape of the part in which it has been accumulated, i.e., bronchial or tracheal casts.  Taber’s Cyclopedic Medical Dictionary, 19th Ed.. 2001. Venes. D., Ed., F.A. Davis Co., Philadelphia.

[10] Heparin is an aparenteral anticoagulant drug with a faster effect than warfarin or its derivatives.  It is composed of polysaccharides that inhibit coagulation by forming an antithrombin. An antithrombin is anything that prevents action on the thrombin.  The Thrombin is an enzyme formed in coagulating blood which reacts with soluble fibrinogen to form a blood clot.  Taber’s Cyclopedic Medical Dictionary, 19th Ed.. 2001. Venes. D., Ed., F.A. Davis Co., Philadelphia.

[11] Acetylcystine is a chemical substance that, when nebulized and inhaled, liquefies mucus and pus.  Taber’s Cyclopedic Medical Dictionary, 19th Ed.. 2001. Venes. D., Ed., F.A. Davis Co., Philadelphia.

[12] M.H. Desai, MD, R. Micak, RRT, RCP, J. Richardson, RCP, RRT, R. Nichols, MD, and D.N. Herndon, MD.  Reduction in Mortality in Pediatric Patients with Inhalation Injury with Aerosolized Heparin/Acetylcystiine Therapy.  University of Texas Medical Branch and Shriners Burns Institute, Galveston.  American Burn Association, 1998.

[13] Collapse of part (or, less commonly, all) of a lung.

[14] Minassian, A PhD; Kotay, A MS; Perry, W PhD; Tenenhaus, M MD, FACS; Potenza, B M. MD, FACS.  The Use of Virtual Reality for Acute Pain Management in Pediatric Burn Patients.  University of California San Diego, The American Burn Association, 2006.

[15] The Faces Pain Scale, also known as the Wong-Baker FACES Pain Rating Scale, is intended for children over three years of age.  It provides a series of six drawn facial expressions with an associated numerical value from zero through 5 representing the associated pain.  Hockenberry MJ, Wilson D:  Wong’s Essentials of Pediatric Nursing, 8th Edition. St. Louis:  2009: Mosby.


Managing burn risks in the manufuacturing industry


Lawyers for the manufacturing industry should pay particular attention to assisting their clients with managing burn risks.  One of the under-recognized aspects of workplace injury risk has to do with the relationship between the level of technology and the potential for risk.  The following is from Scott Brooksby’s article published in a manufacturing trade online magazine,, which delivers to a global community the most up-to-date news, trends and opinions shaping the manufacturing landscape–

The Manufacturing Industry Should Assess Its Technology Ladders When Addressing Burn Risk

There are few more sophisticated and complex high-heat metallurgy manufacturing industry processes — and few with less tolerance for error — than the processes involved in manufacturing components of the hot-section of an aviation gas turbine engine. This precision minimizes the risk of catastrophic aviation disasters such as uncontrolled engine failure.

Involving super-heated, liquefied metals and extremely hot smelters, furnaces, crucibles or molds, it might be assumed that hot-section manufacturing constitutes a high-risk burn environment.  Actually, the danger of serious burns in any manufacturing environment often are misunderstood or underappreciated — as are the staggering human and economic costs. With a single bad burn, a worker can be scarred for life, and manufacturers or insurers may be exposed to tens of millions of dollars in worker’s compensation payments, settlements or verdicts. And no class of burns creates greater tragedy or higher financial costs than 4thdegree, full-thickness burns to the hands and face associated with super-hot metal production.

Just to illustrate, burn-center treatment of a 4th degree burn covering 20 percent of a victim’s body — a “serious large burn” — easily can exceed $750,000 for the first few months of intensive treatment at a burn center. Reconstructive surgery can continue for decades, and pain and the humiliation of disfigurement can be a life-long burden for the victim.

Precision not the only benefit of sophisticated automation

But burns in aviation hot-section parts production are relatively rare for three basic reasons. First, and principally, automated technology that delivers micron-level tolerances minimizes human error — systems that utilize computerized ovens and robots so complex that molten metals are measured to the microgram are unlikely locations for human error that leads to a burn injury.

Second, largely due to the complexity of the process and technology, the hot-section manufacturing workforce frequently is uncommonly long-tenured, highly skilled and well-educated. Last, workers are subject to disciplined safety training, and benefit from high-tech personal protective equipment — principally to reduce the risk of burns. Phenomenal technology, great training and a superior workforce all combine to mitigate the hazards of super-heated metals production.

With turbine fan blade manufacturing as a case in point, let’s review the correlation between technology sophistication, training and burn risk.

Moving down the technology ladder moves you up the burn-risk ladder

At the height of technology and its attendant safety halo are compressor, turbine disc and turbine blade manufacturing stages, with computer-controlled processes delivering incredible product quality while keeping workers safe from burns.

Highly trained technical workers oversee the automated process of powder metallurgy, in which titanium is heated to its melting point of 3,000°F and spun onto a rapidly rotating turntable, transforming the molten metal into microscopic droplets that quickly cool and form a fine metal powder. In enclosed ovens, the powder is reheated to more than 1,000°F, and pressed at 25,000 psi into a disc. All of this takes place in a sealed environment.

Turbine discs and blades, also formed through powder metallurgy, are subject to even greater stresses because of the intense heat of the nearby engine combustors.

Here we begin stepping down the technology ladder and up the risk ladder, as molten metal often is hand-poured into molds. First, copies of the blades are formed by pouring wax into metal molds. Once set, the wax shape is removed and immersed in a super-heated ceramic slurry bath, forming a ceramic coating. Each cluster of shapes is heated to harden the ceramic and melt the wax, and molten metal is poured into the hollow left by the melted wax.

Depending on the material being formed, turbine blades are subject to temperatures of from 1,000 to 2,500°F, so they are coated in ceramic thermal barrier coatings. The ceramic must be melted, and the blades dipped by workers into the molten ceramic, again at temperatures far exceeding 1,000°F.

While major portions of the fan blade stages take place in compartments, production of parts such as combustion chambers and compressor blades revert back to traditional casting methods, with workers directly exposed to liquefied titanium and metal alloys being poured into molds, which often are manually handled.

Burn risk skyrockets in secondary processes

It’s axiomatic to say that burn risk escalates as a production line transitions from fully automated to a blend of automated and manual processes, to strictly manual processes. Less well-recognized is the reality that for virtually all metals manufacturers, the least automated, dirtiest and most dangerous aspects of production are secondary processes — such as mold cleaning in aviation engine hot-section manufacturing. Unfortunately, the combination of “first assignment” areas for new, contract or temporary workers and lack of automation can lead to tragic result.

In hot-section cleaning departments, parts are dipped in large, open tanks of high-temperature caustic chemicals such as sodium hydroxide and potassium hydroxide to remove most of the casting shell.  The chemicals themselves pose a potential danger, and the threat of burns escalates due to combination of heat and the mechanical nature of the work — which industry to date hasn’t yet found a way to automate.

Further, in this setting, workers periodically climb into empty tanks to undertake a potentially perilous task known as “tank digging.” It’s been documented that in some cases, workers with less than 90 days on the job have been assigned a supervisory role in this processes.

A caution regarding temporary workers where burns may occur

Although as noted, aviation component manufacturing generally employs a highly skilled workforce, but even here, the intersection of low technology and temporary or less skilled workers is a dangerous one. First, new or inexperienced workers frequently aren’t fully aware of risks and dangers involved in a job, and secondly, because of legal and financial ramifications in the event of a burn injury to a contract worker.

This is especially critical since, in most states, worker’s compensation is the worker’s sole remedy against the employer. Worker’s compensation does not typically provide for non-economic damages (pain and suffering), which dramatically spike the value of litigated settlements or verdicts in burn cases. However, other classes of workers — notably temporary and other contract workers — may be able to sue for non-economic damages resulting in verdicts or settlements that can cripple a company.

Therefore, burned workers will look for employer targets who do not ensure protections typically afforded through worker’s compensation or indemnity across all classes of workers.

Decrease risk to the business as well as to workers

In addition to investing deeply in training and the safest manufacturing equipment, every manufacturer first needs to be aware of legal and financial ramifications in the event of a burn injury to a contract worker. Employers should exercise caution in the placement of temporary workers, and closely review contracts with temporary worker service providers to ensure that iron-clad provisions are in place to contractually obligate service providers to provide worker’s compensation for the temporary employee. Also, manufacturers also should insist on indemnity provisions that protect against any claims brought by the temporary worker for injury.

In many areas, the aviation hot section component manufacturing industry represents a pinnacle of safety training and manufacturing technology.  But a lesson can be learned in recognizing the increased threat of burn risk at stages where the technology footprint is light, and the workers are less trained and less invested.


Aftercare considerations in catastrophic injury cases, particularly burn injury cases

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.




Variables that can affect burn injury cases

Most experienced defense lawyers know that the variables in burn injury cases prevent anything resembling a guarantee of a good result.  The following variables can affect the outcome of a case, including the potential financial exposure that a defendant or its insurer or worker’s compensation carrier may face:

– the different types of skin grafts and skin graft surgical procedures commonly involved in burn cases;

– whether, in high total body surface area (tbsa) burns, complete excision and grafting can be completed in a single principal procedure;

– the treatment technique, surgical technique and treatment philosophy of the physician; and

– the relative size of the burn center, as larger centers tend to be able to perform certain procedures–not because of greater skill, but because of the size and number of  surgical teams necessary.

Skin Graft Classification and Skin Graft Surgical Procedures

In burn injury cases, surgical removal (excision or debridement) of the damaged skin is followed by grafting.  The grafting is designed to reduce the course of hospital treatment and improve function and cosmetic appearance.  There are typically two types of skin grafts–mesh grafts and sheet grafts.  A less-common, third type of graft is a composite graft.

Mesh Grafts

Mesh grafting is known as partial-thickness grafting, or split-thickness grafting.  With mesh grafting, a thin layer of skin is removed from a healthy part of the body, known as the donor site.  It is processed through a mesher, which makes apertures into the graft. The graft then becomes mesh-like, allowing it to expand approximately nine times its original size.  Such grafts are used to cover large areas and the rate of auto-rejection is lower.  Harvesting of these grafts from the same site can occur again after as little as six weeks.  The surrounding skin requires dressings and the donor site heals by reepithelialization.

Using a dermatome, the surgeon usually produces a split-thickness graft which is carefully spread on the bare area to be covered.   It is held in place by a few small stiches or surgical staples.   The graft is initially nourished by a process called plasmatic imbibition in which the graft drinks plasma.  New blood vessels begin growing from the recipient area and into the transplanted skin within 36 hours in what is called capillary inosculation.  To prevent accumulation of fluid, the graft is frequently meshed by making lengthwise rows of short interrupted cuts, each a few millimeters long, with each row offset to prevent tearing.  This allows the graft to stretch and more closely approximate the contours of the affected area.

Sheet Grafts

In the alternative, a sheet graft, which is a full-thickness graft, involves pitching and cutting away skin from the donor section.  Sheet grafts consist of the epidermis and entire thickness of the dermis.  Sheet grafts must be used for the face, head and hands because contraction must be minimized.  If sheet grafting is necessary but the donor sites are insufficient, the outcome is likely to be less satisfactory, and the financial exposure in such cases will be higher.

With sheet grafting, the donor site is either sutured closed directly or covered by a split-thickness graft.  Sheet grafts are more risky in terms of rejection, yet counter-intuitively leave a scar only on the donor section.  Sheet grafts also heal more quickly and are less painful than partial-thickness grafting.

Sheet grafting is usually difficult in severe aviation or manufacturing burns because those involve high-percentage tbsa burns and donor sites are therefore limited.

Composite Grafts

The third type of graft, a composite graft, is a small graft containing skin and underlying cartilage or other tissue.  Donor sites would include the ears and other cartilage to reconstruct, e.g., nasal rim burns.

In High TBSA Burns, When Immediate, Complete Excision and Grafting is Completed in a Single Procedure, Damages Amounts May Be Lower.

In cases involving clearly severe, high tbsa burns, whether full or partial thickness, immediate, complete excision and grafting is usually indicated.  If immediate excision and grafting is complete–that is, done in a single procedure–a much larger surface area surgery can be completed with less blood loss.  This minimizes transfusion needs and dangers and also speeds physiological restoration.

Furthermore, an immediate, complete excision and grafting procedure can often allow use of good skin for grafting that would otherwise need to be excised.  If the procedure is not done immediately, less skin may be available for grafting.  In other words, skin that otherwise may have been healthy and usable when the plaintiff was first admitted to the hospital may die if the procedure is not done immediately, particularly if that skin is close to the burn site.

Immediate, complete excision and grafting also cuts down on the number of procedures and allows important vascular redevelopment to begin occurring sooner and supplying the graft locations with blood flow, which is essential to healing.

 The Treatment Technique, Surgical Technique and Treatment Philosophy of the Physician Can Be Outcome-Determinative

The simple fact is that some surgeons are more skilled than others, so the outcome may be better or worse depending on the skill of the physician.

There are also some advances in burn surgery that particular physicians are able to employ.  For example, in the most serious burn cases, grafts may be taken from other animals.  Such grafts are known as heterografts and, by design, they serve as temporary dressings that the body will unquestionably reject within days to a few weeks.  They are used in severe cases to reduce bacterial concentration of an open wound and reduce fluid loss.

Additionally, some surgeons are able to use cell cultured epithelial autograft (CEA) procedures, which involve removal of skin cells from a patient and the growth of new skin cell sheets in a lab.  Although the new sheets will not be rejected, they are typically only a few cells thick and do not stand up to trauma.  As a result, many such grafts do not take and the procedure must be repeated or an alternate procedure employed.

Furthermore, some physicians prefer to do more sheet grafting versus mesh grafting.  The physicians who prefer mesh grafting like it because they can cover much larger areas in a shorter period of time.  Conversely however, mesh grafting requires more revision surgeries, more of a risk that the grafts don’t take, and more contraction, which is disfiguring and requires further surgery.

Different groups of surgeons have their own philosophies and cultural preferences.  In Portland, Oregon, for example, there is one group of approximately five, highly-skilled burn surgeons who staff the Oregon Burn Center at Emanuel Hospital.  Due to the relatively small size of the burn center, they tend to wait four to seven days before conducting major graft procedures so that they can have a better assessment of the full extent of the injury.

The Relative Size of the Burn Center Can Be Outcome-Determinative

Larger burn centers, such as the ones at UC Davis or Harborview in Seattle, do not necessarily provide better treatment, but they are typically capable of complete excision and grafting at admission when there is a high percentage of the total body that sustains full-thickness burns or a combination of full-thickness and lesser degree burns.  This is a function of burn center size, not the skill of the physicians.  A full excision and grafting procedure is lengthy and generally requires two full surgical teams and at least two attending physicians and two assistant surgeons.  This type of procedure is generally not possible at relatively smaller burn centers such as the Oregon Burn Center.

Using Variables in Burn Cases to Assess Case Value and Adequately Prepare

The variables discussed above vary from case to case.  It is important to assess each one when valuing a burn injury case in order to determine the defendant’s likely exposure and prepare adequately for productive settlement discussions and, if absolutely necessary, trial.


An Introduction to Burn Injury Significance and Burn Centers

Burns Are Significant Injuries and Can Lead to Some of the Highest Jury Verdicts

Olson Brooksby appreciates the potential high-exposure value of burn injury cases.  Scott Brooksby has significant experience in serious, total body surface area (tbsa) burn injury and wrongful death cases.  Our lawyers understand the delicate nature of large burn injury cases and work to minimize exposure to our clients.

Defendants potentially subject to burn injuries should employ best safety practices and make every attempt to avoid such injuries.  Burns are one of the most serious injuries in personal injury cases.  They may be the result of chemical fire or exposure, explosions, paints, solvents, or conventional fire.  Sometimes burns are the result of contact with hot equipment or other product liability related events.  The defense of serious burn injuries, including those related to aviation, product liability and heavy manufacturing is a large part of the defense practice of Olson Brooksby.  A bad burn case in an aviation or heavy manufacturing accident, or as the result of a product liability defect can easily present high financial exposure to manufacturers and/or insurers.  Settlement exposure can climb into the millions or tens of millions, with verdicts at least as high.

Even when there appears to be a strong defense, defendants should not underestimate the overwhelming sympathy a jury will feel when it sees a burn victim, particularly with serious facial burns or burns to the extremities.  A good plaintiff’s lawyer will ask the jury to consider things like the profoundly disfiguring effects of a bad facial burn and the pain that everyday exposure to sunshine will cause its victim for life, or the lifelong gawking stares it will draw.

Similarly tragic are severe burns to the hands, which cannot be restored to even near full function or pre-burn aesthetics and result in pain every time the victim is touched.  When liability is clear, burn cases should be settled because, unlike other personal injury cases, deformities caused by burns can incense juries to the point where they cannot put their emotions aside.  The result can be verdicts in the millions or tens of millions, including punitive damages (particularly if children are involved or there is perceived recklessness).  Although the amount of burn verdicts used to depend on the region of the country where the case originated, such verdicts are now generally high in every jurisdiction.

If the burn injury case must be tried, it must be done with great sympathy for the victim  and careful attention to the medical aspects of the case, including future treatment, which may last decades and cost into the six or seven figures.

When trying a burn injury case, it is important to know where the injury occurred.  If a plaintiff has to be air lifted to a burn center, that can radically change the extent of the injury.  Similarly, it is important to know the details of the burn center where the plaintiff was treated because that can also change the extent of the injury and thus affect the jury verdict amount.

The Location of the Accident Can Change the Extent of the Injury and the Jury Verdict

In those industries where serious conventional burns are common, such as aviation disasters or steel or metal manufacturing, “serious” can arbitrarily be defined as full-thickness burns over 20% or more of the tbsa.  The location of a burn center and the length of time to transport the victim to the burn center can be outcome-determinative.  This is also particularly true where babies and children or those over sixty-five are the victims, or where there are serious burns to the face, head, extremities, or internal organs.

Manufacturers and insurers obviously do not choose where burn centers are located.  After an accident, first responders will obviously make needed decisions about transport.  Most heavy manufacturing, including that of aviation hot section components, is done near large metropolitan areas that typically have at least one burn center.  Perhaps some of the greatest danger lies in cases in remote areas where individuals are subject to burns from allegedly defective products.  For example, a person camping in a remote area of the Western United States who is badly burned by kerosene at a remote campsite may not be able to reach a burn center for hours.  There may be no cellular phone service and a helicopter ambulance may have to be dispatched from hundreds of miles away.

Depending on the severity and tbsa burned, the size and related capabilities of the burn center will have a direct impact on the plaintiff’s recovery, and consequently, the ultimate exposure to the manufacturer and/or insurer in any settlement or verdict.

All Burn Centers are Not the Same–They May Have Varying Treatment Philosophies, Training and Capabilities

The size of the burn center can also be outcome-determinative because smaller centers, such as the Oregon Burn Center at Emanuel Hospital, are generally not large enough to perform a full excision and grafting in high tbsa burn cases.  A full excision and grafting is where they do all of the procedures at once instead of one at a time.  Some burn physicians believe that, depending on the case, better outcomes are achieved through full excision and grafting in high tbsa burn cases.

There are approximately 45 regional burn centers in the United States.  Verification of burn centers is a joint program administered in the form of a rigorous review of the applicant centers by the American Burn Association (ABA) and the American College of Surgeons (ACS).  Many states do not have a regional burn center and most states have only one or two.  California has the most, with seven.  Most burn centers are run by a single group or an extremely limited number of groups of burn surgeons who practice at the facility.

Unlike hospitals, burn centers do not typically extend general privileges to physicians.  Most burn surgeons have been trained as general surgeons, and then have gone on to receive additional specialized training in burns.   Along the population corridor running down I-5 between Seattle and Davis, California there are three verified regional burn centers, one each in Seattle (Harborview), Portland (The Oregon Burn Center at Emanuel Hospital), and The UC Davis Regional Burn Center.

Training and available resources vary from center to center.  Burn centers also tend to have more pronounced treatment philosophies and cultures because they are staffed by relatively few surgeons who generally practice in the same group or just a few groups.  However, although burn center practice varies, it is imperative that those who are seriously burned reach a regional burn center as soon as possible because specialized treatment is inarguably outcome-determinative

The mechanics of injury, lots of fire, accelerant, and contact with temperatures in excess of 1,000 degrees are factors that are considered when determining whether burns are graftable from point of admission.  In any serious burn case, most intermediate facilities such as a conventional hospitals will seek to transfer a seriously burned patient, almost always by air, to a regional burn center as soon as stabilization occurs.