A lawyer's guide to representing burn survivors.

Burn injuries are among the most painful of all. You must understand the physical and emotional intricacies of this devastating injury to help your client--and your client's family--through this litigation.

Twenty-three-year-old John kissed his wife and two-year-old son good-bye before leaving for his job as a maintenance mechanic at a chemical manufacturing plant. He felt lucky to have landed this job. It paid well and allowed him to do everything from welding and machine maintenance to small electrical jobs.

When John arrived at work, he was assigned to repair a hinge on a large chemical storage tank. He prepared for welding. He inspected the tank and noted that it was empty. He did not realize the tank had just been drained of several hundred gallons of a highly explosive solvent. He saw no chemical residue and, therefore, assumed no explosive vapors remained in the tank.

John proceeded with the repair. An arc was struck, and he was engulfed in flames. He was momentarily shocked, but as the intense heat from the flames began to sear his flesh, he realized he was on fire. He ran in a panic, screaming. It was several minutes before a coworker heard John and rushed him to a safety shower.

John was airlifted to the nearest hospital that had a burn center. He had second- and third-degree burns over 50 percent of his body. Because John had disfiguring facial burns, his reflection would no longer be what he had seen in the mirror that morning. John and his family would be challenged to accept his new identity.

Because you know John's family, you are called to handle his legal matters. Although you feel competent to investigate a possible products liability or workers' compensation case, you are anxious about representing a burn survivor. You're not sure how best to meet his and his family's special needs.

To confidently represent John, you must keep in mind that bum injuries are among the most painful of all and will cause profound changes in his life. You need to understand the physical and emotional intricacies of this devastating injury to help him and his family through this litigation.

This article follows a burn survivor's road to recovery, focusing on hospitalization and rehabilitation; psychological adaptation; compensation benefits; Americans with Disabilities Act (ADA) protection in the workplace; and support groups to help with coping strategies.

Hospitalization and rehabilitation

Fire and bum injuries are the third leading cause of accidental death in the United States, yet not every large community has a burn center with the specialized equipment and staff required for proper treatment.(1) Therefore, your client may need to be hospitalized many miles from home, adding to the family's stress.

The severity of a burn injury is related to its extent and depth.(2) First-degree burns, known as superficial, involve only the very top, or epidermal, layers of the skin and usually heal without extensive treatment in 5 to 10 days.

Second-degree burns, sometimes referred to as partial-thickness burns, extend into the dermis or deeper skin layers and are generally very painful.

Full-thickness, or third-degree, burns involve destruction of the entire dermis, including nerves and, sometimes, tendons and muscles. The survivor may not be able to feel the effects of the immediate wound, yet pain is prominent because the outer borders of third-degree burns are extremely sensitive from the partial-thickness damage and nerve exposure.

The risk of medical complications is directly related to the amount of body surface affected. Therefore, the American Burn Association considers a severely burned patient as anyone who has partial- or full-thickness burns over 20 percent or more of his or her body, which includes the face.(3)

Because of the size (50 percent) and depth (second-and third-degree) of John's injury, he will have a prolonged hospital stay. He will undergo scores of surgeries and may lose partial or total use of any part of his body that was injured by the burns. Fusing of joints, nerve damage, and amputation are likely to be further complications of his injury. His clinical treatment will involve three phases of care--emergent, acute, and rehabilitative.(4)

Emergent phase. During this phase, which immediately follows the burn injury, the patient is in a state of physiological shock, and there is a rapid loss of fluid volume, which is proportional to the extent of body surface area burned. In the burn center, fluids will be replaced so that John will not die from hypovolemic shock or a decreased volume of circulating fluids in the body.

John's family should be prepared by the medical staff before seeing him, because the fluid replacement will cause massive swelling of his body that, combined with the burn disfigurement, will create a grotesque appearance.

Also during this phase, surgeons will work to replace blood loss and maintain adequate cardiovascular and respiratory function, especially if injuries were caused by inhalation.

Although the emergent phase is incredibly painful for the patient, the doctor's and nurse's notes do not always document this because they are obviously more concerned with the patient's life-and-death emergency care.

Your contact with the burn patient may be limited during this phase since these patients are vulnerable to infection by visitors, so you might advise a family member to keep a journal of your client's pain.

Acute phase. Grafting is necessary to "replace" skin lost from full-thickness burns. Surgeons generally do this using either the "conservative approach" or "immediate excision."

The conservative approach usually takes several weeks to complete. This approach is sometimes preferred when medical complications from burns make surgeons reluctant to operate so soon after the patient's initial injury.

Here, the surgeon waits for the eschar, or dead skin tissue, to separate naturally from the wound so that the wound can be prepared for grafting. Nurses encourage the eschar separation through a process known as debridement (removal of dead tissue using scissors and tweezers) during dressing changes or while the patient is immersed in a hydrotherapy tank (to irrigate the wound with water).

Once the eschar is removed and new skin is visible, a skin graft can be applied. The surgeon takes healthy skin from an unburned part of the body--the donor site--to close the wound. The donor site will also be painful as the trauma there is similar to that of a second-degree burn.

If the patient does not have a sufficient amount of unburned skin to use for grafting, pig skin, cadaver skin, or synthetic coverings are used to temporarily close the wound. These coverings will provide a barrier against bacteria, protecting the wound until it has healed or until the patient has grown new donor skin.

The process of immediate excision, as its name implies, requires no waiting. The patient is taken to the operating room as soon as he or she is adequately stabilized to surgically remove the eschar and to close the wounds with grafts.

This technique shortens the hospital stay and saves the patient many hours of debridement. However, severe burns involving 20 percent or more of the body are difficult to excise in a single operation.

During the acute phase, burn survivors are more aware of their condition and surroundings. They are constantly forced to deal with numerous surgeries and painful dressing changes.

This is also a time when the psychological impact of the injury begins to take effect. The family, physicians, social workers, and nursing staff need to pay close attention to patient morale.

Rehabilitative phase. During this phase, patients become prepared to return home. Their wounds are still healing, and they try to regain functioning. They usually need regular dressing changes as well as physical and occupational therapy.

Patients may return home with medical devices. Jobst stockings or pressure garments may be used 23 hours a day for months or even years. These garments, similar to tight nylon stockings, fit snugly over the healed skin to reduce scarring and disfigurement. Despite their obvious beneficial effect, the garments often are painful and uncomfortable to wear. Patients may also have to use splints and other devices. These are made and custom-fitted by physical and occupational therapists to stretch parts of the body to prevent contractures (tightening or thickening of the skin, muscles, or joints due to burns).

These procedures, garments, and devices--a necessity of rehabilitation--require tremendous endurance and commitment from the burn survivor. It is not uncommon to hear a survivor say that the treatment is more difficult to endure than the original trauma of the burn.

As rehabilitation continues, doctors periodically reevaluate patients' needs for further treatment to address functional or cosmetic impairments and conditions. These may include impairment of motion; itching of grafted skin; recurrent infections; hazards of skin tumors; contracture of scars; and the limitation of activities due to lost fingers, hands, feet, and eyes.

Because of the size of John's burn, he will wear pressure garments for at least one year. His wife must be trained to assist with his dressing changes and to help him put on his finger splints and mouth splint. These splints stretch the skin to prevent contractures.

John will also start daily occupational and physical therapy at home and on an outpatient basis at a nearby rehabilitation facility. He will need reconstructive surgery to rebuild his nose, which was severely burned, and he will be fitted for an ear prosthesis since the flap of his fight ear was badly damaged in the fire. Fortunately, most prostheses today are fabricated of silicone, which permits a reproduction of the body part to the optimum shape, fit, and color match.

Psychological adaptation

Most burn centers have a social worker who meets with the patient and family in the early stages of recovery. Psychiatric consultations also may be scheduled.

As the attorney, you can be instrumental in helping your client obtain additional psychological or psychiatric intervention. Because your investigation brings you into close contact with the survivor and his family, you can help them evaluate whether and when this intervention is needed. The family may be too overwhelmed with caring for the survivor's physical demands to pay proper attention to his or her emotional needs.

It is reported that three months after the accident is the optimal time for emotionally overwhelmed survivors to start psychological treatment.(5) After that time, patients are often reluctant to start, despite the presence of symptoms, such as extreme anxiety. Perhaps the best explanation for this reluctance is the patient's desire to seal off his or her emotional pain and to avoid reviving excruciating memories.

Psychological recovery requires a gradual adaptation to changes that result from the injury.(6) At the beginning of this adaptation, patients become aware of their injury and fear for their survival. This fear may become intense and all-consuming.

In addition to fear and anxiety, other symptoms may include intrusive memories of the accident, poor concentration, and lack of cooperation in treatment. The symptoms generally continue until the patient is convinced survival is possible.

Once the patient is convinced this is possible, he or she must adapt to the pain. Throughout recovery, survivors may experience two distinct types of physical discomfort: continuous pain from damaged tissues and acute pain caused by mechanical or chemical irritation of damaged tissue during necessary procedures, such as dressing changes and splinting. If adequate pain control is not provided, patients will associate pain with each treatment and may develop psychological behaviors that impede their treatment.

Once the pain is controlled, he or she will undergo what has been termed as "a search for meaning." The survivor will focus on the accident and try to discover an understandable explanation for the injury.

Patients who do not successfully complete this stage of adaptation may go on to develop post-traumatic stress disorder, a disabling and potentially chronic disorder resulting from acute traumatic events.(7)

Finally, once burn patients arrive at a "rational" explanation for the injury, they become psychologically prepared to involve themselves in their rehabilitation. They also begin to accept their losses. At this point, survivors are developing a realistic view of their permanent disabilities that will help them see how they have changed since their injury.

Although this adaptation process has been associated with those with severe burns, patients with less severe burns often experience a similar prolonged psychological recovery.(8) Also, a large and relatively unrecognized population of people have experienced hidden burns--comparatively small burns on parts of the body that can be hidden from view with clothing or hair. They, too, may suffer tremendous psychological problems as a result of these burns.(9)

People with facial burns are also particularly vulnerable to psychological complications. They are less accepted in society than are those with other types of physical disabilities. In fact, some authorities believe that psychic trauma caused by severe facial burns may put the individual at increased risk for suicide.(10)

Since John has severe burns and facial disfigurement, his family needs to be vigilant over the course of his rehabilitation for signs of psychological problems.

For example, John may have frightening flashbacks of the accident when he passes his place of employment. He may also feel inadequate when his wife begins to work, as this underscores the fact that he is no longer the family's sole wage earner.

Although John and his family will likely struggle through this psychological adaptation phase, awareness of the process--with appropriate professional assistance--will help ease the way to recovery.

Benefits

No matter what the source of medical coverage or disability benefits in a burn injury, you should play an active role in maximizing these benefits.

If your client's burns resulted from a work injury, he or she may be entitled to benefits under the state workers' compensation statute. Although coverage varies greatly in each state, benefits generally include wage replacement and medical expense coverage.

Payment for "disfigurement" may be included. However, most states give disfigurement benefits only to a person with disfigurement to the neck, head, or face. Therefore, if John had only been burned on the torso and limbs--no matter how severe--he would not have received any disfigurement benefits under the workers' compensation laws.

Another area of difficulty may be in obtaining payment for the psychiatric treatment needed by the burn survivor. All state workers' compensation statutes allow inclusion of psychiatric sequelae of a physical injury as a part of a compensable injury.

However, in many instances, a claim for psychiatric treatment will be contested because of an alleged lack of causal relationship between the original injury (the burns) and the emotional or psychiatric problems experienced by the survivor. Many times these cases must be litigated.

If the burn survivor is not involved in a work-related accident, it is a good idea to get the master provider agreement for your client's medical insurance to determine the full range of medical coverage. The agreement will define terms such as "prosthetic devices" and "durable medical equipment."

Although a medical insurer may not dispute the need for an ear prosthesis, it may refuse payment for another prosthetic device, such as an electric hand or foot, which is very costly but important for the rehabilitation of your client. If the insurer is denying benefits arbitrarily, it is acting in bad faith, and you should get involved to negotiate on behalf of the burn survivor.

ADA protection

If John can overcome his physical and psychological problems, there will come a time when his doctors determine he can return to work. He may face a new set of problems then. Despite his previous good service to his company, his work reputation and abilities may now be doubted.

In the workplace, the Americans with Disabilities Act offers unique protection for the burn survivor. Most important, the act's prohibition on disability-based employment discrimination embraces both "actual" disability and "perceived" disability.

Often, a burn injury does not result in a physical impairment that limits an individual's ability to perform his or her job. Instead, survivors may suffer from cosmetic disfigurement that creates in their employers a "perception" that they are unable to work. As in the case of actual disability, the ADA prohibits employers from discriminating against employees for perceived disabilities both in the hiring process and in the terms and conditions of existing employment.(11)

Looking first to the actual disability tier of the statute, the ADA defines "disability" to include a "physical or mental impairment that substantially limits one or more of the major life activities."(12)

The act's implementing regulations define "major life activities" as those that the average person in the general population can perform with little or no difficulty, such as caring for oneself, performing manual tasks, walking, seeing, hearing, and working.(13)

In our example, John's hands were severely burned: He lost one finger and the thumb on his nondominant hand and some grip strength in his other hand. Because his skin and nerve endings were destroyed in over 50 percent of his body, he lost his sense of touch as well as his ability to regulate body temperature. This means that John can no longer feel the proximity of hot objects nor withstand severe outdoor temperatures.

His doctors have placed restrictions on his ability to do heavy manual labor. Because John's medical restrictions prevent him from working in a broad range and class of jobs, he has a physical impairment that substantially limits one of his major life activities--working. In this scenario, John suffers from a physical disability under the ADA.

Suppose, however, that John suffered from only facial burns that left him severely disfigured but did not affect his major life activities. John's employer fires him because it perceives that he is unable to do his former job or any job at the plant. In this scenario, John may go forward on the perception tier of ADA disability.

The act's implementing regulations define a perception plaintiff as one who has (1) a physical impairment that does not substantially limit major life activities but is treated by a covered entity as constituting such limitation; (2) a physical impairment that substantially limits major life activities only as a result of the attitude of others toward such impairment; or (3) no substantially limiting impairment but is treated by a covered entity as having a substantially limiting impairment.

The burn survivor, particularly one with cosmetic disfigurement, is a clear example of a worker who may suffer job discrimination. Congress, in enacting the ADA's perception tier, expressly referred to burns as a category of injury that often results in the stereotyping and fear that the act was designed to prevent.

To invoke the protections of the act, however, burn survivors must be more than statutorily "disabled." They must also be "otherwise qualified" to perform their jobs. A "qualified person" is one "who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires."(14)

Though the ADA's regulations provide some guidance as to the definition of "essential functions," courts typically conduct a fact-specific inquiry on this issue. Employers are given ample leeway to determine the essential functions of jobs, but these determinations should reflect actual circumstances in their workplace.(15)

As to "reasonable accommodation," the regulations explain that accommodations may include restructuring the job to part-time work, modifying work schedules, or reassigning the worker to a vacant position. An employer can refuse to accommodate the worker if the change would be unduly burdensome or costly.

John will most likely need job restructuring, a part-time work schedule, and reassignment to a different position. Job restructuring may include assigning him maintenance jobs that allow for his medical restrictions while permitting him to use his prior mechanical skills. Alternatively, his employer may provide training so he can assume a supervisory role that would obviate the need for him to do outdoor work or work with or near hot objects.

With ADA protection, John will have an increased chance of returning to full-time work after rehabilitation and to regain his sense of self-worth and the socialization he once enjoyed on the job.

Support groups

It is important for a person struggling to cope with a traumatic injury to be part of a social network. This is especially true for burn survivors because their injuries are often accompanied by disfigurement.

Burn care centers and foundations provide support and services to bum survivors and their families.(16) These facilities distribute educational materials and organize seminars on the physical and psychological aspects of survivors' injuries. Through a nationwide network of volunteers, there are support groups that meet regularly at burn centers.

The gathering together of survivors and families dealing with the long-term consequences of burns is constructive. In these forums, they can reach out to one another to share coping strategies and other information that will help them reduce their anger and frustration.

Representing burn survivors presents many challenging issues for attorneys. Knowledge of the arduous rehabilitation and adaptation process is necessary to fully understand your client's path to recovery.

With that knowledge, you will have the framework to assist burn survivors with the legal matters necessary to sustain them and to help them cope with their lives as survivors.

Notes

(1.) See generally JAMES M. MANNON, CARING FOR THE BURNED: LIFE AND DEATH IN A HOSPITAL BURN CENTER (1985).

(2.) See generally ANDREW M. MUNSTER, SEVERE BURNS: A FAMILY GUIDE TO MEDICAL AND EMOTIONAL RECOVERY (1993).

(3.) The American Burn Association, an organization of medical professionals and firefighters, may be contacted at 625 N. Michigan Ave., Suite 1530, Chicago, IL 60611, [phone].

(4.) MANNON, supra note 1, at 21-23.

(5.) H. R. Mancusi-Ungaro Jr. et al., Posttraumatic Stress Disorder in Electric Burn Patients, 7 J. BURN CARE & REHABILITATION 521 (1986).

(6.) Patricia N. Watkins et al., Psychological Stages in Adaptation Following Burn Injury, 9 J. BURN CARE & REHABILITATION 376-83 (1988).

(7.) Id.

(8.) D.J. Courtemanche, Recognition and Treatment of the Post-Traumatic Stress Disorder in the Burn Victim, 10 J. BURN CARE & REHABILITATION 247 (1989).

(9.) Alan Breslau, Address at the National Foundation for Facial Reconstruction Conference (Nov. 18, 1992).

(10.) R. Konigova, The Psychological Problems of Burned Patients: The Rudy Hermans Lecture 1991, 18 BURNS 189, 196 (1992).

(11.) The ADA prohibits disability discrimination: "No covered entity shall discriminate against a qualified individual with a disability because of the disability of such individual in regard to... discharge of employees .... and other terms, conditions, and privileges of employment." 42 U.S.C. [sections] 12112(a) (1994).

(12.) 42 U.S.C. [sections] 12102(2)(A) (1994).

(13.) The definition section of the ADA's implementing regulations is found at 29 C.F.R. [sections] 1630.2 (1996).

(14.) 42 U.S.C. [sections] 12111(8) (1994).

(15.) See Hall v. United States Postal Serv., 857 F.2d 1073, 1078-79 (6th Cir. 1988).

(16.) For example, the Phoenix Society for Burn Survivors is a nonprofit, international organization that provides these services. For more information, contact the society at 33 Main St., Suite 403, Nashua, NH 03060, [phone], or by e-mail at wendy@ burns-phoenix-society.org. See also Burn Care Resources in North America, 1996-97, AM. BURN ASS'N, for a directory of burn care resources in North America.

Eunice Trevor, a partner with Galfand, Berger, Lurie, Brigham, Jacobs, Swan, Jurewicz & Jensen in Philadelphia, is a member of the Board of Trustees of the Phoenix Society for Burn Survivors. Kathleen D. Askland and Daniel Bencivenga assisted with the preparation of this article.