The medicine and technological assistance surrounding those who have sustained a spinal injury is constantly evolving. These advancements offer real hope for the future where those who have suffered a catastrophic and life changing spinal injury will be able to regain function and mobility. A good example of this is the article that appeared on the Popular Mechanics website on 18 November 2016 entitled “Implants can overcome spinal injury in monkeys. Are humans next?”
This article summarised the achievements of Swiss researchers who have successfully made partially paralysed monkeys walk again following the insertion of a wireless brain implant. Within a week or two of surgery the monkeys were able to overcome a lower spine injury. The authors of the research state that this is just the beginning. More research, and a greater understanding of muscle stimulation, is required before these advancements can be transferred to humans. Despite this there is hope that one day those with a spinal cord injury will be able to mobilise.
Wireless brain implants is new technology and different to robotic therapy which is a technique already in existence. This therapy involves repetitive stimulation of muscles to enable the body to relearn lost motor function. This technique has been used in partially paralysed stroke patients, and if the outcomes prove successful the technique has the capability of improving the mobility of thousands of individuals who have suffered a spinal injury.
It is the hope of those involved in dealing with the consequences of spinal injury that one day there will be a cure whereby full neurological function is restored. This hope and the recent developments should not be overlooked by lawyers working within the field of spinal injury. It is essential that the law keeps pace with scientific developments and lawyers think of creative solutions to improve the lives of their clients who have sustained a spinal injury. There is no one size fits all approach.
What other developments have we seen in recent years? In terms of therapy, aquatic therapy and FES (Functional Electrical Stimulation) are now commonly used and readily available across the country. As for equipment and technology, the latest wave of technological advances can be seen in relation to verticalisation (whereby a person with a spinal cord injury is placed in a standing frame and undergoes cyclic leg movements together with FES). Robots are also becoming increasingly prevalent in the treatment and management of spinal injury. Robot assisted gait training devices are now readily available within the private sector and form part of individual therapy regimes. One of the most advanced, high-tech and expensive pieces of equipment at present relates to Robotic Exoskeletons (RE) which are essentially powered lower limb orthotics which enable a patient with a severe neurological injury to stand and walk. These devices go some way to restoring independence and self-esteem to those who have suffered the devastating consequences of a spinal injury. It is only a matter of time before medical knowledge and science advances to such an extent that the effects of a spinal injury can be reversed. Although it has its limitations, the Swiss study is a very significant step in achieving this goal.
Has the law kept up with this changing environment?
Put simply, no. The law is slow to react in this field and adopts a reasonableness test approach. The Court will only order a defendant to meet the claimant’s reasonable needs as a result of the injury sustained. To an extent the cost of the input as against the likely benefits, are assessed. For example, the cost of aquatic therapy at local swimming pools can be recovered. However, it is rare to recover the cost of installing an aquatic therapy pool in a claimant’s own home because the benefit derived is often considered not enough to warrant such high levels of expenditure. It is usually felt that access to local aquatic therapy services, rather than domestic provision, can meet reasonable needs.
Sports, leisure and holiday costs are likely to be significantly higher following a spinal cord injury but remain challenging areas to recover damages which are routinely disputed by defendants. Access to sailing, camping or skiing pursuits for instance are viewed by defendants as being unnecessary and disproportionate due to the costs involved. Recovering the cost of purchasing RE devices has been confined to a handful of cases. Again this expenditure is challenged on the basis that it is unreasonable due to the costs involved.
A spinal injury is life changing and affects the individual concerned, their family and loved ones. It is often a catastrophic injury that turns a life upside down. New advances in technology are welcomed but are always prohibitively expensive and rarely available via the NHS. Individuals who have the right to pursue a claim for damages are often told the expense involved is unreasonable in the circumstances of their case. To stand the best shot of recovering such items of expenditure more research is required. Independent research evaluating the benefits of each type of medical treatment/input is necessary in order to persuade defendants, and ultimately the courts, that the expenditure to be incurred is justified. The emphasis must be on research which in turn has the potential to further raise hope that one day those who suffer a spinal injury will gain full neurological function again.