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  • Writer's pictureKirk Hartley

Science, Intensive Therapies and Damages – New Issues Ahead ?

More on science and tort law. Suppose medical malpractice destroys a woman’s inner ear balance function to the point she can stand up only when supported by a wall or other structure. Suppose you are the insurer for the doctor – how much do you offer to compensate for her inability to work or to live any kind of a normal life? Is the offer a structured settlement worth perhaps $ 10 million over 30 years? If you are the woman, do you accept that offer? Or, do you commit yourself to an experimental but potentially highly successful new approach to restore your balance by going around the destroyed system ?

The experimental approach may well be the better alternative for both the victim and the insurer. What is it? Helping the woman’s brain to rewire itself through an intensive therapy process that calls for rebuilding and rewiring the brain and balance system by routing signals up to the brain through a Rube Goldberg hat with wires connected to the tongue. In fact, as is detailed below, this technique worked and restored – fully – “the wobbler’s” balance. And, the therapy subsequently has worked repeatedly for other persons with similar problems.

Or, suppose you are the disability insurer for a physician who suffers a stroke in the prime of life and loses significant bodily function. Do you pay out millions in disability over the years or pay hundreds of thousands of dollars for an intensive therapy that may restore function by once again rewiring the brain ? The latter may well be the right choice.

Suppose you are a disability insurer facing the prospect of thousands more Alzheimer’s claims than the underwriters had expected. What to do – pay, take the insurance company into “run-off” or pay for “learning software” for which there is objective clinical data indicating that use of the software therapy helps to block or delay the onset of Alzheimer’s by helping the brain form new links ?

For all of the above fact patterns, consider some additional questions. Suppose the issues do not arise from insurance policies and instead arise from a lawsuit seeking remedies/damages for an injury caused by negligence ? Suppose the claim is based on strict liability – does that matter? Suppose the victim smoked or took some other action plainly viewed – today – as contributory fault – does that limit the remedy or damages?

Does the insurer get to choose the option or does the insured/victim make the choice? Suppose the insured/victim chooses not to try the intense therapy despite a proven track record of success in “like” patients – should that limit the amount of damages payable ? How “like” does “like” have to be ?

Suppose the therapy is available only at one or two facilities in the US – is there an obligation to pay for the travel and hotel expenses? How nice a hotel? What about paying for food and shelter for a supporting family member? What about paying for a family member or a professional nanny to stay with children while the wife goes through therapy and is supported by her husband? What about paying a supporting family member who goes with the patient to support the patient through the intensive, months-long therapy? What happens when the victim is from country x, speaks language y, and the therapy is – for now- available only in country q where they speak language b?

Excluding the insurance company parts, the examples above are all drawn from real world situations covered in a fantastic book on brain science. The thrust of the book is that brain rewiring principles today are well-accepted and indeed proven by “brain mapping,” but 30 or so years ago were considered heresy. The most basic scientific principle? Contrary to conventional medical wisdom, the brain in fact can and will rewire itself IF worked intensely by therapists who know what they are doing. Are the results purely subjective? No – they’ve been objectively proven by laborious “brain mapping” and by observable results.

The book? The Brain That Changes Itself — Stories of Personal Triumph from the Frontiers of Brain Science by Dr. Norman Doidge. Who is he? A physician turned researcher who took the time to write a brilliantly readable book explaining for everyone why and how science can cause seemingly miraculous recoveries for victims of strokes, disease, traumatic accidents and even psychological traumas. The book is in part an explanation of the insights of dedicated scientists who rejected conventional thinking about the brain and proved that in fact the brain is a remarkably “plastic” organ that can change and overcome profound injuries to the brain itself. The book also explains how the brain rewires to compensate for and overcome injuries to other parts of the body. The book begins, for example, with the story alluded to above regarding the brilliant new technique for rewiring the brain of the “wobbler” injured by a physician’s error. Other chapters describe how intense, out-of-the -ordinary therapies produced virtually complete recoveries for victims of strokes, some birth defects and even some mental health issues.

The book also is a must read for everyone worried about dementia in old age. Pages 70-91 describe demonstrably successful software and exercise programs being developed by a company known as Scientific Learning that has developed a program known as Fast For Word, and other software developed by Posit Science. Also significant is the description of the Aerosmith School at pages 36-44.

Conclusion? New issues lie ahead. Centers of excellence with intensive therapies can and do offer some people wonderful, life-saving opportunities not available anywhere else. Which lawyer among us is good enough to – successfully – argue to a jury why the injured person is not entitled to access the center of excellence when the requested remedy is based on sound logic and science ? And, aren’t all sides better off if the intensive therapy succeeds and produces fewer overall costs ?

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