Gas, fire or explosion cases oftentimes result in one of the five areas of catastrophic injuries - spinal cord injury, brain injury, multiple amputations, total blindness and severe burns. Each has its own unique and horrendous affect on every aspect of the inured person’s life. However, damages brought about by burns may arguably be one of the most difficult with which to cope and live. This article will briefly discuss some of the issues involved in gas, fire and explosion litigation.
GENERAL STEPS FOR REVIEW PRIOR TO LITIGATION
Initially, in the acute phase of medical management for burns a determination is made of the percentage of body surface burned, the depth of the burn, the nature of the caustic agent and the involvement in which it occurred.
The old first, second and third degree burn classification generally has been replaced by the terms superficial, partial-thickness and full-thickness burns.
Superficial burns only involve the outer surface or epidermis with symptoms such as tingling, hyperesthesia, some pain and some relief by cooling and healing within a week or so.
Partial-thickness burns involve the epidermis and varying depths of the underlying dermis. Symptoms include pain, hyperesthesia, sensitivity to cold, blistering and drainage. Recovery is usually within 2-3 weeks unless infection converts it to a full-thickness injury.
Full-thickness burns involve the epidermis and the full layer of dermis as well as possible involvement of subcutaneous tissue. Appearance is generally a charred look with pale white and dry broken skin and ederna. Symptoms are extreme pain, shock, hematuria and/or hemolysis of the blood. The course and duration of treatment depends upon the depth of the burn and amount of bodily surface affected.
In assessing percentage of burn surface involved, the “rule of nine” is typically applied in most burn centers. This involves dividing the body into multiples of nine to develop a percentage. For example, the head and neck equal nine percent, the front and back equal eighteen percent, each arm is nine percent, and each leg is equal to eighteen percent. As the percentage of body involvement increases there is decline in survival rate.
The causation of the burn is generally due to one of four primary agents: thermal burns, chemical burns, electrical burns or radiation. Example of causative agents for thermal burns are boiling water, flames, hot water bottles, heat in metals and hot grease. Examples of causative agents for chemical burns are exposure to acids, caustic soda, strong alkaline, phosphoreus or similar chemical agents. Electrical burns are generally based upon voltage and amperage. Radiation burns offer unique problems in that it may take years to develop. Examples of these types of causative agents are x-rays and radium.
Disfigurement due to burns may include loss of ears, eyes, nose, lips, digits, toes, extremities or any other parts of the body. Severe scaring may also lead to discoloring, pitting, bunching of the skin, erratic hair growth, inability to show expression or actual defect of facial expression.
Frequently burn patients may be required to wear pressure garments about their hands, face, and neck which can be alarming to the public as well as humiliating to the victim. These garments may be worn for months. Additionally, burn victims may be required to undergo painful surgeries for many years throughout their life.
Burns may cause pulmonary or circulatory complications or both. The pulmonary complications may appear months later. The victim’s ability to fight off infection can be severely compromised throughout the victim’s life. Inhalation burns and burns to the neck, chest, and upper abdomen can result in intrinsic airway obstruction. Circulatory complications and destruction of sweat glands may require a life of controlled temperature environment. A burn victim may develop reactions to airborne pollutants, a susceptibility to colds, upper respiratory infections and reduced pulmonary function.
Other factors which impact the burn victim’s short-term and long-term rehabilitation planning include the age of the victim, areas of body burned, and race of the victim.
Dr. Norman Bernstein, professor of psychiatry at Harvard Medical School, indicated in his book, The Emotional Care of the Facially Burned and Disfigured (1976) that the number one complaint was “The way I look”. Thus, disfigurement may be the most devastating of all catastrophic injuries. Disfigurement can result in psychiatric complications which include hospitalization, counseling, social isolation, lack of family support in addition to multiple surgical procedures including skin grafts.
Hypertrophic scarring over a joint may cause immobilization resulting in shortening of tendons, muscles, and associated structures which can lead to deformity of the joint and contractures. While the contracture deformity is a by-product of the hypertrophic scarring, the cosmetic appearance can be equally debilitating. Eventually, significant plastic surgery, amputations, tendon releases, tendon transfers and skin grafts may be necessary.
Another burn complication may be pruritus (itching). Although medications and topical lotions may be sedative many burn patients indicate that their constant itching drives them “in sane” which may very well be a life-long problem. The complication from itching may be affected by heat exposure, airborne irritants or sunburn exposure.
Patients with severe burns require ongoing medical care throughout their life. Many patients have surgeries over prolonged periods of time with debilitating treatments between those surgeries. Treatment of children may be especially difficult in that rehabilitation may be complicated by their natural growth process. Further, in between surgeries treatment such as expanding skin with balloons under the surface in order to achieve viable tissue for grafting may cause additional disfigurement and pain. Again, with respect to children time loss from school may result in the children falling behind in their studies and not graduate with their peers. This additional social stigma can affect the burn victim’s ability to obtain an education and future employment. Furthermore, maintaining employment for the adult victim may be impossible during the rehabilitation phase. It is not unheard of to have as many as twenty or more surgeries for severely burned victims. Therefore, it is important that competent rehabilitation professionals are retained who are aware of the different phases within the burn patient’s rehabilitation period in order for the victim to be fully compensated. The periods of rehabilitation and treatment may last several years. Therefore, a burn patient’s life care plan must reflect all of the medical, psychological, social, vocational and educational mentalities available to maximize recovery and avoid complication.
Assessment of damages for the burn injured victim should include a vocational evaluation if any opportunity for gainful activities is to be appreciated. Some of the following factors may eliminate a burn victim’s ability to work;
- Contractures of joints
- Psychological impairments
- Loss of vocational skills or the ability to use vocational skills
- Academic or educational limits
- Visual impairment
- Severe pulmonary or circulatory complications or damages.
Life care planning for any individual is unique to that individual. In the case of a burn injured patient assessing both current and future needs is essential. A burn injured patient’s life care plan should include all the evaluations necessary throughout his or her lifetime. Occupational and physical therapy will be necessary after each surgery. The physician coordinating the surgical team should specify on the life care plan the necessity of surgeries and services to be provided thereafter. For example, with burn patients any one anticipated surgery may lead to a host of other surgeries not initially anticipated. Examples of some complications which may arise following each surgery are as follows:
- Additional contractual releases
- Additional therapies
- Attendant care
- Care management, job placement or additional job training
- Complications resulting in need for additional surgeries
- Drug dependance
- Emotional/psychological adjustment problems
- Pain management program
A burn patient may very well need to be treated/evaluated by the following health care providers:
- Plastic surgeon
Examples of future treatment may include but not be limited to:
- Bone scans
- CBC studies
- Pulmonary function test
- Ophthalmology exams
Each case involving a burn victim is fact dependant and each one must be developed by dealing with the issues for each different victim. However, it is extremely important to retain competent counsel immediately to begin the coordination of developing the burn case not only from the medical and recovery standpoint but also for the reason shown below.
DEVELOPING THE CASE
Facts are the most important aspect of a gas, fire or explosion case.
Utility companies, propane companies, appliance manufacturers and their insurance companies all have investigation “swat” teams already in place 24 hours per day. The “swat” team includes attorneys, engineers, fire and explosion investigators and insurance adjusters. This team moves in quickly, examines the scene, takes statements and oftentimes “mold” their employees and witnesses’ memory into favorable positions for the companies. Evidence has even disappeared or been misplaced which could potentially amount to spoliation of evidence if you are fortunate enough to find out that the evidence even existed in the first place. For this reason it is extremely important that the victim quickly retain an attorney who has experience in handling cases involving gas, fire or explosions and preferably one with a technical background such as an engineering or science degree.
It is important to immediately retain a competent expert knowledgeable of the National Fire Protection Association (NFPA) 921 Guide for Fire and Explosion Investigations, along with potentially other applicable statutes or regulations. NFPA 921 was adopted as part of a training program at the National Fire Academy and other agencies and organizations and may serve as the minimum level of knowledge for your expert’s test of competency.
Investigators should immediately canvas neighborhoods, contact police and fireman and other persons who may have some factual information regarding the incident. It is important to contact these persons at or near the time of the incident so that the company attorneys and representatives do not have an opportunity to effect there memory or make the witness fearful of sharing his or her knowledge.
All physical evidence must be identified and, if possible, retained and preserved.
If physical retention is impossible preservation should be made through competent photography. Examples of physical evidence may include: appliances, gas tank (plug and seal it securely), gas sample, gas piping, regulators, fire debris, glass fragments, and soil samples.
It is extremely important to establish cause and origin. This must be accomplished through a competent expert who can withstand close scrutiny by the companies’ attorneys through vigorous cross-examination and motions to exclude your witness. It may actually require several experts to establish cause and origin. For example, a fire expert may be needed to establish the origin (i.e the location of the origin of the fire and/or explosion such as an appliance or gas line) and another expert or experts to actually link the cause to a particular product or failure of a product or gas line and the reason for the failure. Additionally, analytical chemists and warning and human factor engineers may also be needed and, if so, retained as soon as possible to assist in guiding the investigation.
An effort should be made to obtain all photographs or video of the accident scene taken by newspaper or television photographers, law enforcement or fire departments, witnesses or representatives of the companies.
Gas, fire and explosion cases may result from numerous causes. For example, fires may arise as a result defective products contained within the house or structure. Gas explosions may be caused by violations of applicable codes, standards or recommended safe practices; a defective product or combination of defective products; or minimal or no public or consumer information on the safe handling and use of propane or natural gas.
Propane (LP Gas) has ignition temperatures of 920 to 1120 degrees F; whereas natural gas (Methane) has ignition temperatures of 900 - 1170 degrees F. Propane gas is thinner than air (and settles to low areas generally); whereas, natural gas (methane) is lighter than air (and rises generally). Both are odorless in their natural state and both are suppose to have odorant added as a warning agent. Many propane companies service the same area; whereas, one large utility company generally serves a general geographic area for natural gas. Generally, approximately 26 million people use propane gas; whereas, more than 100 million people use natural gas. You are four times more likely to be involved in a fire or explosion using Propane (LP Gas) vs Natural Gas (Methane). You are 13 times more likely to be severely incurred or burned with Propane (LP Gas) vs. Natural Gas (Methane). You are more than 100 times more likely to be killed or severely incurred if there is a product failure using Propane (LP Gas) vs. Natural Gas (Methane).
Propane gas is required to be odorized. However, there are several processes which cause odor fading:
- Oxidation which causes the odorant to undergo chemical change resulting in little or no odor. Oxidation can occur if the odorant comes into contact with rust, air, oxygen, or other oxidizing agents as well as, and an out-of-gas situation.
- Absorption which occurs when odorant materials are physically separated from gas by adhering to the surface of surrounding materials which occur in storage tanks, piping and after gas escapes, or when gas escapes into consumers home, or the odorant is filtered from gas by passing through soil.
There are better alternative odorants available then may be used such as those used in natural gas. The propane industry has known of this problem for many years but has suppressed knowledge from the public.
Additionally, there are human factors and olfactory considerations:
- Odors are present which mask the odor of LP Gas
- Misidentification of the odor of LP Gas
- Distractions preventing detection of the odor of the LP Gas
- Anosmia (odor blindness) or any other disorder of the sense of smell
- Olfactory fatigue
- Certain types of food may affect smell
There is a also a requirement for odoriazation of natural gas. This is governed by 49 CFR 192.625(a). The same odor fading processes that affect LP gas affect natural gas but to a lesser degree because of the different odorants used in natural gas and because natural gas is always in the vapor or gaseous state.
The following are some examples of gas leaks or explosions;
- Leaking pipes
- Improper pipe joints
- Faulty flexible connectors
- Appliance and control valve malfunction
- Regulator failure of malfunction
- Using appliances with the wrong fuel
- Amateur installations
- Underground leaks
- Violations of fire and safety codes
There exist a multitude of liability theories ranging from negligence for violation of fire and safety codes, product liability theories including manufacturing defect and failure to warn, manufacturer’s negligent training of retail distributors to negligent installation maintenance and/or repair. Each accident is fact driven based upon its own separate facts which will, of course, dictate the available theories of liability and available defendants.
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