Prosthetic Limb Damage – Personal Injury or Property?
Gregg Hollander | March 5, 2016 | Car Accidents
Although some people would argue they are “attached” to their cell phones, the reality is that under the law, these are two separate entities. No matter how dependent one feels on that little device, there is a clear distinction: The owner is a person and the phone is property.
Currently, there is a mostly similar distinction when it comes to a prosthetic limb and the person who uses it. However, an interesting point was raised recently at the University of Oxford’s Human Enhancement and the Law: Regulation for the Future Conference. This was a British conference, but the issues discussed are highly relevant this side of the pond.
The idea is that as new and advanced prosthetic devices become available and an increasing number of people are using them, the delineation between person and property becomes muddled. The traditional distinctions that have been upheld in the past may be challenged.
Perhaps one of the most common examples would be a person whose prosthetic was damaged in a serious car accident. Of course, there are those who will argue this type of damage isn’t serious because, like a car, these devices are replaceable. That may be true, but that doesn’t mean they are easily replaceable, and that is where one may be able to assert damages for pain-and-suffering.
In a study published in the 2012 edition of the journal Annals of Health Law, a researcher from Albany Medical College analyzed the case of a 6-foot-6-inch, 63-year-old Vietnam veteran who was also an incomplete quadriplegic, injuries he sustained in service to the country. He’d previously been classified as 100 percent disabled. He’d undergone numerous surgeries, but retained no functional use of either of his legs or his left arm. His right arm only allowed limited function. He required assistance for bathing, dressing, bowel and bladder care and transferring from one place to another. Even use of a manual wheelchair for extended period of time was unsafe because it was discovered he could slip in the chair into a position rendering him unable to breathe.
However, doctors and engineers at the Department of Veterans’ Affairs outfitted him with an advanced mobility assistance device that allowed him the freedom to move, perform some basic functions and have a degree of independence. One day in 2009, while in transit from Miami to Puerto Rico, the device was damaged to the point it was no longer functional. The airline apologized and offered to reimburse the man $1,500 – the total amount allowable for property damage. But, he argued, this was not property damage – it was a personal injury. This was not a situation wherein the device could simply be sent in for quick repairs. It took nearly 11 months to replace the device, and during that time, plaintiff was rendered bedridden.
Lawyers would later argue in his personal injury lawsuit that this device “was an extension of (plaintiff).”
Ultimately, the airline settled the case for $20,000.
Still, the case underscores the legal limitations that allow compensation for replacement value of the property, but don’t necessary consider those losses a personal injury.
The Amputee Coalition reports more than 1.6 million people in the U.S. have some type of limb loss, excluding those who have lost fingers and toes. An increasing number of those rely on prosthetic limbs to reduce the disabling effects of these losses.
If you have suffered personal injury or damage to your prosthetic device due to someone else’s negligence, contact us today.
If you have been injured in an accident, contact the Hollander Law Firm at (561) 347-7770 for a free and confidential consultation. There is no fee unless we win.
Is Harm to a Prosthetic Limb Property Damage or Personal Injury? Jan. 26, 2016, By Luke Robert Mason, Motherboard.vice.com
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