Amputation / Limb Loss

//Amputation / Limb Loss
Amputation / Limb Loss 2017-05-30T08:34:59+00:00

Like other catastrophic injuries, limb loss as the result of an accident at work, a car accident, or an accident around the house has wide-ranging impacts on the victim. Victims of involuntary amputations must contend with surgery, weeks or months of rehabilitation, often in a hospital setting, the cost of a prosthesis, and likely life-long care under the supervision of medical professionals.

When limb loss is the result of an accident at work, like at a factory, employees are often confused by the options available to them for recovery. In general, in California, employers in California are required to hold and maintain workers’ compensation insurance. These policies are specifically crafted to pay for injuries as a result of an accident, like an accident that results in the loss of a limb. California law also mandates that these policies be part of a “no fault” worker compensation insurance system. See Torres v. Parkhouse Tire Serv., Inc., 30 P.3d 57 (Cal. 2001). No fault, in this context, means that, even if an employee is at “fault” for the loss of limb—for example, by negligently placing their hand under a heavy press at a factory—that employee can recover on the same basis as another employee who might have been injured due to no fault of their own.

California law also specifies that workers’ compensation is the so-called “exclusive remedy” against an employer for injuries at work. This means that, unless an exception applies (such as the employer not carrying workers’ compensation insurance at all), bringing a claim against an employer’s workers’ compensation policy is the only way that a victim of limb loss will receive financial recovery from his or her employer.

While this system is effective for limb loss victims who may have unintentionally been the cause of their accident, workers’ compensation insurance often offers inadequate financial recoveries, especially for workers who lost a limb due to the negligence of another employee, or unsafe job conditions, or any other condition outside of their control. This is because, while insurance may cover the cost of medical treatment, some future medical care, and may cover the loss of wages due to the accident, it will not cover damages as a result of pain and suffering: the physical pain and discomfort that the loss of limb may have caused. Oftentimes, these sorts of damages can be substantial given the catastrophic nature of limb loss.

In situations where a worker suffered a loss of limb due to the fault of someone else, like another employee (due to their negligence or bad actions), the owner of the factory (for maintaining unsafe working conditions), or someone not affiliated with the job, the injured victim may be able to sue this third party directly for negligence.

All negligence actions that result in limb loss are treated similarly under California law. This includes, for example, car accidents in which another driver may have been at fault, and even slip and fall injuries in which an employee or owner of a shop may be at fault. To succeed on an action for negligence, the limb loss victim must first show that the at-fault party had a duty. For example, the owner of a factory likely has a legal duty to keep the factory reasonable safe and clean for workers. A driver has a duty to maintain control of their vehicle at all times. A shop owner owes a duty to keep his shop reasonably free from debris and hazards. Next, a limb loss victim must show that the at-fault party violated this duty: for example, by failing to keep the factory reasonable safe, or by driving at an excessive speed that exceeded the speed limit. Third, the victim must show that the breach of this duty actually caused the limb loss: essentially that, because the factory was unsafe, the victim’s leg was caught in a dangerous situation leading to the amputation or, because the driver was speeding, the driver crashed into the victim’s car, injuring the victim’s arm leading to limb loss. Finally, actual damages must be shown: for example, an actual limb loss (as opposed to simply a fear or apprehension of injury).

The power of negligence claims, whether in the workplace or in a car accident, is that limb loss victims can recover more fully at law compared to a workers’ compensation action against an employer. In a negligence action, a victim can obtain financial recovery for medical care, lost future wages, pain and suffering, emotional distress, and any other compensatory damages that flow from the injury. Sometimes, these recoveries are limited by the financial solvency of the at-fault party—for example, an at-fault driver with no assets will be functionally unable to pay for extensive limb loss expenses—however many limb loss victims are able to obtain very full recoveries through the insurance policy of the at-fault party. Skilled attorneys can use expert witnesses and other facts to convince insurance companies to compensate for such expenses even without litigation.

Tragically, some victims of limb loss have had their limbs removed unnecessarily, or even accidentally, by doctors during surgery. In these cases, limb loss victims can pursue medical malpractice claims against a doctor, nurse, other medical professional, or the hospital. Medical malpractice claims are broadly treated similarly to other negligence actions, however the duties imposed on doctors and medical professionals are quite unique. Doctors are under a duty to use the degree of care and skill that an average health care provider in the specialty would provide. Therefore, for example, if an average doctor would not have unnecessary removed or limb, or would not have become confused during surgery and removed the wrong limb, that doctor would have breached his duty to the victim.

Limb loss from whatever cause is a life-altering, devastating event for the victim and his or her loved ones. The myriad of laws in California governing recovery for such tragic injuries make the prospect of a full financial recovery daunting, and only a skilled attorney familiar with the underlying claim—whether it be workers’ compensation, negligence, or something different entirely—can skillfully guide victims towards fair recoveries.

At the Thompson Law Offices, we understand that your ability to receive the medical care you need, your ability to support your family during your recovery and beyond, and even your peace of mind may depend on receiving the compensation you deserve. Our goal is always to recover the full value of your claim.

If you’re ready to start fighting for your rights, request a free consultation.