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Burns - Automobile Accident Demand Letter

Automobile Accident

Demand Letter

VI - LEE LYNETTE WAYMOND

A. PERSONAL INJURIES AND MEDICAL SEQUELAE

After the accident which killed her father and brother and severely burned her mother and cousin, eight-year-old Lee Lynette was airlifted by the emergency rescue team of LifeFlight to Lakeside Hospital. She was assessed in critical condition but responsive and alert. The emergency room professionals immediately began life support measures, including resuscitative techniques of intravenous fluid replacement, insertion of an oral intubated airway, chest x-ray, pelvis x-ray and cervical spine series, placement of a catheter threaded into her bladder to measure urine output, and a nasogastric tube was threaded into her nose to her stomach to assist in nourishment and hydration.

Due to the devastating amount of charred skin, Lee Lynette was vigorously hydrated intravenously with Lactated Ringer's solution and an arterial line was inserted to determine and monitor the oxygenation of the cells and fluid status. After life support measures were stabilized, Lee Lynette was immediately emergency air ambulanced by LifeFlight to St. Stephen Burn Institute and the Smithville Regional Medical Center at Smithville. A computerized tomography evaluation of the head and abdomen revealed free fluid within the pelvis of an unknown origin.

Lee Lynette was admitted for hemodynamic monitoring and a series of surgeries that entailed cutting off her burned skin, cutting off portions of her remaining viable skin and grafting live skin, artificial skin and banked skin over the tissues underlying the excised eschar. A bronchoscopy was performed to determine the extent of damage to her lungs caused by the flame burn trauma and noxious fumes. An airway tube was placed down her throat and connected to a ventilator to assist her breathing. She was admitted under the care of Dr. Trent Baker, General Surgery Resident, Dr. Jacqueline Thompson, Clinical Burn Fellow and Dr. Steven Wolf, Assistant Professor of Surgery. (Bates 00057)

Eighty-five percent (85.5%) of Lee Lynette's total body surface area was covered with flame burns, seventy percent (70%) of those burns were third degree, the full thickness burn which destroyed the epithelium cells, epidermis and dermis. The affected third degree burn areas are detailed as indicated below:

1. Burn - neck 2%
2. Burn - anterior trunk 10%
3. Burn - posterior trunk 13%
4. Burn - right upper arm 4%
5. Burn - left upper arm 4%
6. Burn - right lower arm 4%
7. Burn - left lower arm 4%
8. Burn - right hand 1 1/4%
9. Burn - left hand 2.5%
10. Burn - right thigh 4%
11. Burn - left thigh 8%
12. Burn - right thigh 8%
13. Burn - right upper leg 5.5%
14. Burn - left upper leg 5.5%
15. Burn - right lower leg 5.5%
16. Burn - left lower leg 5.5%
17. Burn - buttocks 2nd degree
18. Burn - face 2nd degree

In an attempt to save Lee Lynette's life after the accident and combat the complications concomitant with burn injuries, the following procedures were performed:

1. Eschar skin excision surgeries x 5
2. Viable skin excision and grafting surgeries x 5
3. Swan-Ganz cardiac catheterization
4. Bronchoscopy for visualization of lung
5. Bladder catheterization
6. Nasogastric tube insertion
7. Oral intubation connected to ventilator
8. Insertion of arterial line
9. Insertion of intravenous line
10. Antibiotic infusion
11. Tissue cultures
12. Blood and albumin transfusions
13. Graft biopsies

The valiant efforts of the medical teams from Lakeside Hospital, LifeFlight, the Smithville Regional Medical Center at Smithville and St. Stephen Burn Institute saved Lee Lynette's life. Despite their efforts, the degree and enormous extent of Lee Lynette's burned skin and the lack of unburned donor skin, created serious and numerous crises and complications, including:

1. Ghosting, graft versus host reaction
2. Necrotic and lost graft in left axilla
3. Nectoric and lost graft on buttocks
4. Fever spikes
5. Sepsis
6. Colonization of antibiotic resistant bacteria
7. Hallucinations
8. Severe itching
9. Drug reactions
10. Disorientation
11. Dystonic reactions
12. Myoclonic reactions
13. Tachypnea

B. HOSPITAL COURSE OF TREATMENT - LEE LYNETTE

On August 28, 1996, Lee Lynette was admitted to the St. Stephen Burn Institute. On August 29, 1996 Lee Lynette was taken to the operating room for excision of the charred skin on her trunk, thorax, both legs and buttocks and excision of the limited areas of viable skin on her scalp, lower abdomen, right thigh, and upper back. She recovered in the Intensive Care unit and remained intubated on a mechanical ventilator. Her system was flooded with three kinds of antibiotics to prevent infection.

On August 1, 1996, Lee Lynette's hematocrit was low, so she was transfused 250 cc's of blood and albumin. (Bates 000059) She was extubated from the ventilator thereafter.

On August 6, 1996, Dr. Herndon notes, "Disorientation status...Donor sites not really healing well...very agitated during exercises...and tried to jump out of bed." (Bates 000091) He believes this disorientation may be due to the Ketamine drug.

On August 8, 1996, Lee Lynette was transported to the operating room for excision and grafting of the anterior thorax, lower back, left upper arm and both legs with donor skin taken from her back, arm, right hip, lower abdomen and right thigh.

On August 9, 1996, Lee Lynette spiked a temperature and was placed on intravenous antibiotics.

On August 12, 1996, bolsters were taken down and Lee Lynette was taken to the tub room for water bath cleansing.

On August 13, 1996, Dr. Desai, Professor of Surgery notes, "Currently, grafts are showing signs of ghosting. ...possible septic episode. The biopsies done yesterday reveal gram negative rods...the last one showed Pseudomonas that is becoming resistant to the (antibiotics). We need to wash her wounds assiduously with .25% acetic acid." (Bates 000104) The health care professionals began meticulous care and cultured her tissues to determine which bacteria had infected her.

On August 15, 1996, Lee Lynette was again operated on for autograft placement to her scalp, right thigh and abdomen, arm, both legs and right flank.

On August 20, 1996, Dr. Herndon, Chief of Staff, became increasingly concerned as he notes,

...she still has open areas of the bilateral lower extremities. ...get an EKG...Bobbie has become disoriented to person and place. She also developed a dystonic reaction when her feet turned inward and a myoclonic reaction when her hands turned outward. ...We clearly believe that she has become septic...She was resistant to aminoglycoside...she grew out a pseudomonas aeruginosa. She is now growing E. coli and Enterocloacae and Methicillin sensitive Staph Epi...

(Bates 000123)

It is readily apparent that Lee Lynette's mental status is deteriorating and infection has overtaken her body.

On August 23, 1996, Lee Lynette was taken to the operating room for surgical debridement and autograft excision from the upper back, right thigh and scalp.

On August 27, 1996, Dr. Herndon notes,

She is now in the prone position (lying face down). We will attempt to get the grafts on her buttocks to heal. Her wounds are contaminated. Her operative cultures revealed an Enterobacter cloacae which is multi resistant and sensitive only to Ciprofloxacin. She also cultured out a MSRE. We need to continue the Bactroban dressing changes and consider soaks. (Bates 000140) At this point, there is major concern that the grafts will not take and the wounds are infected with antibiotic resistant bacterium. Death could result if the infection is not discovered and resolved. (Emphasis Added)

On August 30, 1996, Lee Lynette was again operated on for excision of donor site skin from the lower abdomen, upper back and placement made on her left lateral foot and ankle, upper and lower left leg, patch graft to the left leg, both buttocks, right chest and left axilla.

Lee Lynette was maintained on debridement wound care, occupational and physical therapy to maintain movements in her ligaments, tendons and joints. Complications from the failure of her buttocks graft forced her to be placed in bilateral arm airplane splints over the graft and left axilla that refused to take to the grafting process. The health team utilized skin bank graft, but Lee Lynette's body also refused to graft properly and remained an open wound.

Lee Lynette began itching and was prescribed Atarax to relieve the pain. It was noted that Lee Lynette had adverse reactions to Benadryl and to Ketamine drugs utilized for their antihistamine effects. She was finally discharged for rehabilitation on September 7, 1996.

C. SURGICAL PROCEDURES - LEE LYNETTE

The medical team attempted to balance the disturbed hemodynamics, metabolic stabilization, and complete the surgical grafts with Lee Lynette's limited viable skin, artificial skin and banked skin. Under the guidance of an outstanding team of burn injury specialists, Bobbie endured five surgical excisions of eschar skin, excision of viable skin and grafting. These surgeries are described below:

1. DATE: 7-29-96

DIAGNOSIS: Flame burn second and third degree eighty-five percent (85.5%) of Lee Lynette's body, seventy percent (70%) of that is third degree.

PROCEDURE: Excision of third degree burned skin and of burns to posterior trunk, anterior thorax, both legs and buttocks. (Bates 00058) Chief of staff, Dr. Herndon, stated that "The wounds are quite deep and donor sites are limited." (Bates 00078) Therefore, donor sites of skin were cut out from the lower abdomen, scalp, right thigh, and upper back. An artificial skin, Integra, was placed to cover her chest area that was burned so badly.

The doctor notes that Integra is expensive and warns that assiduous care of the grafts need to be undertaken. (Bates 00078) A 2:1 homograft was placed on both legs, anterior thorax and 2:1 homograft placed on the left arm, 4:1 autograft to the left hand and right arm, 4:1 autograft to the back and chest, 4:1 autograph to the left anterior thigh, left side of the anterior thorax. (Bates 00058) In order to ward off infection and contamination, Lee Lynette was flooded with three antibiotics, Amikacin, Piperacillin and Vancomycin.

DOCTORS: Dr. David Herndon, Chief of Staff
Dr. Trent Baker, Lakeside Surgery Resident
Dr. Steven Wolf, Asst. Professor of Surgery

2. DATE: 8-8-96

DIAGNOSIS: Flame burn injury of eighty-five percent (85.5%) of Lee Lynette's body, seventy percent (70%) are third degree burns.

PROCEDURE: Excision of the third degree burned skin of the anterior thorax, lower back, left arm, both legs, cutting off donor skin from Lee Lynette's back, right arm, right hip, lower abdomen and right thigh, 4:1 autograft applied to her lower back with 2:1 homograft to right axilla, 2:1 homograft to left forearm, 2:1 autograft to left upper arm, 2:1 homograft to right buttock, 4:1 autograft and 2:1 homograft to right posterior thigh, 4:1 autograft 2:1 homograft to the right leg, left leg, 2:1 homograft patch. Lee Lynette remained intubated and connected to a ventilator, on nasogastric feeding and on intravenous antibiotics.

DOCTORS: Dr. Trent Baker, General Surgery Resident
Dr. Steven Wolf, Assistant Professor of Surgery

3. DATE: 8-15-96

DIAGNOSIS: Flame burn injury of eighty-five percent (85.5%) of Lee Lynette's body, seventy percent (70%) are third degree burns.

PROCEDURE: Excision of eschar and grafting with autograft applied to Lee Lynette's scalp, right thigh, abdomen, 2:1 autograft to the left arm, 4:1 autograft to both legs, 2:1 autograft applied to the right flank.

DOCTORS: Dr. Trent Baker, General Surgery Resident
Dr. Steven Wolf, Assistant Professor of Surgery

4. DATE: 8-23-96

DIAGNOSIS: Flame burn injury of eighty-five percent (85.5%) of Lee Lynette's body, seventy percent (70%) are third degree burns.

PROCEDURE: Debridement of crusting skin and autograft excision from upper back, right thigh and scalp meshed 2:1 to the abdomen.

DOCTORS: Dr. Trent Baker, General Surgery Resident
Dr. Steven Wolf, Assistant Professor of Surgery

5. DATE: 8-30-96

DIAGNOSIS: Flame burn injury of eighty-five percent (85.5%) of Lee Lynette's body, seventy (70%) are third degree burns.

PROCEDURE: Autograft harvest from the lower abdomen and upper back, autograft 2:1 to the left lateral foot and ankle, upper and lower left leg. Patch graft to the left leg, both buttocks, right chest, left axilla.

DOCTORS: Dr. Trent Baker, General Surgery Resident
Dr. Steven Wolf, Assistant Professor of Surgery

D. PERMANENT DAMAGE -LEE LYNETTE

Dr. Parks states that he observed Lee Lynette this summer at a children's camp for recovering burn victims and agrees that she had very massive, major second and third degree burns. With respect to Lee Lynette's problems in the future, he states, "...the number of further complications are virtually innumerable." (DP 12) The doctor notes that the complication of burn scar contractures, the build up of scar tissue that prohibits the movement of joints in the hand, the elbows, the shoulders, the legs, virtually any part of the body, can be affected by burn scar contractures. He believes that surgically, the doctors can correct or alter these contractures, but not completely.

A particular problem with children is that kids grow, and as they grow, the scar tissue does not grow as quickly as the rest of their internal body structure and problems are unpredictable at this point in time. (DP 12) Generally, progressive burn scar contractures disrupt some aspects of growth. The psychological effects must be considered in children with such massive injuries. He adds that the same type of problems with environment as experienced by adults poses major problems by limiting their vocational outlook and activity outlook in the future. (DP 12)

Special garments and splints will be necessary to control the development of contracture of scar tissue, although there is absolutely no way known to prevent or to completely control scar tissue. The scars are permanent and really can be modified very little in the future. (DP 10)

Webbing and scarring between Lee Lynette's fingers do limit her from spreading the fingers a part and surgical correction will be necessary to correct this complication. Additionally, she will need to avoid outdoors and apply sunscreens, due to the sun and light sensitivity of the scar tissue and practice conscientious hygiene due to her susceptibility to infection.

The scar tissue that covers the majority of her body will never grow hair, never manufacture oil or sweat glands. She cannot regulate her body temperature and has no reserve or physiology to help control her internal temperature. She is at risk of sunstroke or heat stroke or dehydration. Lee Lynette must avoid any outdoor work due to the temperature and high humidity.

This will be difficult since Lee Lynette is a nine-year-old child. This psychological distress that accompanies her physical disfigurement is permanent and will be a major factor for the rest of her life.

E. MEDICAL EXPENSES -LEE LYNETTE

The reasonable value of medical services rendered to Lee Lynette Waymond have been calculated by Dr. Charlene F. Johansen as part of a life-care plan. Those expenses include the following:

a. Past medical: $420,190
b. Future medical: $362,025

TOTAL MEDICAL EXPENSES: $782,21

F. HEALTH CARE PROVIDERS - LEE LYNETTE

Eastern Regional Medical Services
K. Riggs
T. Riggs
J. Miller
600 Halberry Blvd.
Red Oak, Texas 55555
(555) 555-5555
P. O. Box 555555
Orchard, Texas 55555
(555) 555-5555
7/28/96

Lakeside Hospital LifeFlight
Lakeside Hospital Emergency Room
Michael McCallum, M.D.
S. Ibister, R.N.
4444 Farmington Road
Orchard, Texas 77030
(713) 704-4000
7/28/96

MSRDP
John Harris, M.D. (Radiologist)
Michael McCallum, M.D.
P.O. Box 55555
Orchard, Texas 55555
(555) 555-5555
7/28/96

St. Stephen Burn Institute
Steven Wolf, M.D. - Assistant Professor of Surgery
David N. Herndon, M.D. - Chief of Staff
Jacqueline Thompson, M.D.
Clinical Burn Fellow
Manu H. Desai, M.D. - Professor of Surgery
Mitchell, M.D. - Surgeon
G. Khan, M.D. - Surgeon
Schaffer, M.D. - Surgeon
Tent Baker, M.D. - General Surgery Resident
Joseph Centeno, M.D.
Cohn, M.D.
Jaoquin Cortiella - Anesthesia
R. Griffin, M.D.
Walter Meyer, M.D.
E. B. Evans, M.D.
J. Mlakor, M.D.
R. L. McCauley, M.D.
R. J. Nichols
Patricia Blakeney, Ph.D. - Psychologist
S. Skew, M.D.
555 Market Street
Smithville, Texas 55555
(555) 555-5555
7/28/96

Physical Therapy
Elcamino, Arkansas

SRMC Smithville
William Mileski, M.D. - Trauma Faculty
Darien Bradford, M.D. - Chief Trauma Resident
Griffin, M.D. - Trauma Resident
Sankaw, M.D. - Education Faculty
Paranee Sun, M.D.
Thompson, M.D.
Susan John, M.D. - Radiology
Deborah Carlson, Ph.D. - Audiology
555 University Blvd.
Smithville, Texas 55555
7/28/96

G. DAMAGES - LEE LYNETTE

1. Basis of Recovery

Lee Lynette Waymond is entitled to recover personal injury damages for her own extensive personal injuries; wrongful death damages for the loss of her father, Lee Leonard Waymond; and loss of parental consortium damages for the injury to her mother, Sally Waymond.

2. Life Expectancy

Lee Lynette Waymond was born on March 18, 1988 and was and was eight years old at the time of this tragedy. Her life expectancy according to the 1993 United States Life Tables was 72.1 years.

3. Per Diem Evaluation

One of the accepted methods under Texas Law for arguing damages in cases of this type is the per diem argument. While the multitude of damages in this case offers an opportunity for a veritable panoply of persuasion, for purposes of our present evaluation we will use a per diem approach to Lee Lynette's damages. Also, for the sake of simplicity, we will calculate all damages from the date of the tragedy rather than breaking them down as accrued and future. However, in the event this matter is not resolved we would be entitled to recover additional damages in the form of prejudgment interest.

Lee Lynette had on the date of this tragedy a life expectancy of 72.1 years or 26,316 days, or 421,064 waking hours. This is the calculation we will use for the per diem computations.

4. Personal Injury Damages

a. Physical Pain: The physical pain which this child endured during the first ninety days after this tragedy is incalculable, but we will ask a jury to award a minimum of $100 per hour for this ninety-day period at sixteen waking hours per day. This will be a total of $144,000.

After the first three months, the pain associated with this injury was materially reduced and we ask for an award of one dollar per hour after the first ninety days which is a total of $419,624. Thus, the total which we will seek from a jury for the physical pain and suffering of Lee Lynette Waymond as a result of her personal injury is $563,624.

b. Mental Anguish: For the mental anguish which this child will endure for every waking moment for the remainder of her life we will ask the jury for a comparatively modest award of five dollars per hour. At 421,064 hours this totals $2,105,320, an amount for which no juror would trade places with Lee Lynette Waymond.

c. Physical Disability: Dr. Stan V. Smith, President of Corporate Financial Group, Ltd. will testify that the loss of enjoyment of life to Lee Lynette Waymond is $3,438,250 as set out in the exhibit which is provided with this demand letter.

d. Physical Disfigurement: The videotape accompanying this demand letter shows graphically the horrible disfigurement which this child has experienced over eighty-five percent (85% o)f her body. We will ask a jury to award five dollars per hour to compensate Lee Lynette for the horrors of this disfigurement. At 421,064 hours this totals $2,105,320.

e. Loss of Wage Earning Capacity: Dr. Stan V. Smith, President of Corporate Financial Group, Ltd. will testify that the loss of wages and benefits which Lee Lynette Waymond will experience as a result of this horrible tragedy will be $1,253,201.

f. Medical Expenses: Dr. Charlene F. Johansen, President of LifeCare Planning, Inc. will testify that the reasonable medical expenses which Lee Lynette can anticipate after age eighteen total $175,066.56.

It will be interesting for a jury to note that the total medical to begin to repair the horrors done to this child total $782,215.05.

5. Wrongful Death of Lee Leonard Waymond

Lee Lynette has a substantial claim for the wrongful death of her father, Lee Leonard Waymond. Lee Leonard was born on August 5, 1952, and he was forty-four years old at the time of his death on August 28, 1996. According to the 1993 United States Life Tables, Lee had a life expectancy of 32.3 years at the time of his death.

Lee Lynette's losses will be calculated on the basis of the 188,632 waking hours which remained in Lee's life expectancy at the time of his untimely death.

a. Mental Anguish: We will ask the jury for an award of mental anguish damages in the amount of five dollars per hour for Lee's life expectancy of 188,632 hours which totals $943,160.

b. Pecuniary Loss: This element of damage in Texas means the loss of the care, maintenance, support, services, advice, counsel, and reasonable contributions of pecuniary value. Dr. Stan Smith, President of Corporate Financial Group, Ltd., will testify that the reasonable value of the pecuniary loss which Lee Lynette Waymond suffered as a result of the death of her father is $549,502.

c. Loss of Society and Companionship: We will evaluate the loss of the positive benefits flowing from the love, comfort, companionship and society that Lee Waymond would have given to his daughter, Lee Lynette, at $1 per hour for the duration of Lee's life expectancy. This will be a total amount of $188,632.

6. Personal Injury to Sally Waymond

a. Basis of Recovery: Pursuant to the authority of Reagan vs. Vaughn, 804 S.W.2d 463 (Tex. 1991), a child is entitled to recover for loss of consortium if the injury to the parent is a serious, permanent, and disabling injury.

b. Damages: Parental consortium means the positive benefits flowing from the parent's love, affection, protection, emotional support, services, companionship, care, and society.

c. Loss of Parental Consortium: While Sally is showering Lee Lynette with love and affection on a near minute-by-minute basis now, we are particularly concerned about the period of hospitalization of Lee Lynette when she was left alone, of necessity, during the most difficult and trying time of her life.

Lee Lynette was taken to St. Stephen Burn Institute with burns over eighty-five percent of her total body surface area and she was experiencing incalculable physical pain and mental anguish. At the same time, she was gravely concerned over the fact that her father, brother and mother were not with her in the hospital during her time of need. In addition to the horrible mental anguish which she was already experiencing, it became necessary to advise Lee Lynette that her father was dead. This is a time when she truly needed the love, comfort, affection and support of Sally to sustain her. Then she was advised that her favorite playmate and her best friend, her younger brother, Timothy, was also dead. At this time she truly needed Sally's love, affection, protection, emotional support, services, companionship, care, and society. But Sally was not there to comfort her. Then Lee Lynette was advised that her cousin, Annette, was also dead, and that her other cousin, Wendy, was also severely burned. During this time which had to be one of incalculable mental anguish for an eight-year-old child to tolerate and survive, her mother's love and comfort were sorely missing. Of course, the reason they were missing is because Sally was hospitalized at Lakeside Hospital attempting valiantly to survive her own physical injuries.

As a result of this loss of parental consortium during the most difficult time any human should ever have to experience, Lee Lynette now claims damages from the time she was left alone on August 28, 1996, until her mother finally was allowed to visit her on August 31, 1996.

Bobbie was alone for a period of 560 hours, which we calculate on the basis of $100 dollars per hour for a total recovery of $56,000.

H. JURY VERDICT POTENTIAL - LEE LYNETTE

1. Personal Injury Damages
a. Physical pain $ 563,624
b. Mental anguish $ 2,105,320
c. Physical disability $ 3,438,250
d. Physical disfigurement $ 2,105,320
e. Loss of wage earning capacity $ 1,253,201
f. Medical expenses after age eighteen $ 175,066

2. Wrongful Death of Lee Leonard Waymond
a. Mental Anguish $ 943,160
b. Pecuniary Loss $ 340,819
c. Loss of Parental Consortium $ 188,632

3. Personal Injury to Sally Waymond
a. Loss of Parental Consortium $ 56,000

I. SETTLEMENT DEMAND - LEE LYNETTE

Based upon the foregoing review of the liability and damages aspects of this case, we are offering to settle all claims of Lee Lynette Waymond arising out of this tragic occurrence for cash or a combination of cash and structured settlement of equal value on the following basis:

1. Personal Injury: Self $ 4,800,000
2. Wrongful Death: Father $ 725,000
3. Personal Injury: Mother $ 25,000
TOTAL: Lee Lynette Waymond $ 5,550,000

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