Paralysis / Spinal Cord - Demand Letter
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It is obvious that Briten maintained exacting control over types of listings that could be sold and methods their salesmen used in closing their sales. It is submitted that such control has the unmistakable stamp of a master-servant relationship.
As part of the Plaintiff's proof in this case, the jury will be advised that Briten's exercise of control over Sara Glass is to be readily understood and accepted by the jury for the reason that Art. 6573a of Vernon's Annotated Civil Statutes required that:
Each real estate broker licensed pursuant to this Act is responsible to the commission, members of the public, and his clients for all acts and conduct performed under this Act by himself or by a real estate salesman associated with or acting for the broker.
It is obvious that if Briten is responsible to the commission, members of the public, and to all of their clients for all acts performed by Sara Glass in course and scope of her employment, that Briten not only has the right to control the details of her work but the corresponding duty to do so.
As the Real Estate License Act further provides:
...Sec. 9(a) Each salesman license issued shall be delivered or mailed to the broker with whom the salesman is associated and shall be kept under his custody and control.
...Sec. 13(a) When the association of a salesman with his sponsoring broker is terminated, the broker shall immediately return the salesman license to the commission. The salesman license then becomes inactive.
Therefore, the jury will be shown that under Texas Law not only does Sara Glass fall under the right and duty of Briten to control the details of her work, but also that her salesman license is maintained in the custody and control of Briten; and if she chose to terminate her association with Briten, she would be precluded from selling real estate, since her license would be returned by Briten to the State.
In addition to the statutory law, the case law of this State is clear on the proposition that the control maintained by Briten in this case is far in excess of that which is required to establish a master-servant relationship. In Home Interiors & Gifts v. Veliz, 695 S.W.2d 35 (Tex. App. 1985, writ ref'd n.r.e.), a national direct sales corporation was found responsible for injuries caused by the negligent driving of a freight distributor. The reason for the Court's upholding the master-servant relationship was the fact that Home Interiors furnished the distributor with detailed policies and procedures and expected the distributor to follow them. In the case at bar, the policies and procedures enforced by Briten are far longer, more detailed, more pervasive and exercise far more control than those which were upheld in the Veliz case.
Not only did Briten adopt the written manual, but actively enforced the policies and procedures contained in the manual as indicated in Sara Glass' deposition:
Q "Do you know of any real estate agents who have been disciplined or counseled at all because for some reason they weren't doing things the way that Jackson and Boday wanted them to or that Briten wanted them to?"
A "Yes".
Q "Informally, what would happen if somebody just didn't return lock boxes or signs or was violating a lot of these policies and procedures? Wouldn't Mr. Braswell say something to them about it to remind them?"
A "Yes. If it was a consistent thing that the agent was doing and knowing that it was violating some of the procedures."
Q "You have knowledge that Jackson and Boday and Briten had a right if people who were violating a lot of these provisions could talk to somebody and see that they followed the policies, don't you?"
A "Yes, and it was normally for the betterment of the whole office. We like to think that we have a certain image and we uphold certain standards with Harry S. Briten, and if they are not adhered to, we normally are told about it."
IV. MEDICAL SYNOPSIS
A. HEALTH CARE PROVIDERS
Mr. Day was taken directly from the accident scene to Flat Rock Community Hospital where the physician on duty immediately recognized that this was a very severely injured young man who needed the more sophisticated medical care that was available at Memorial Hospital to which Brad was immediately transferred. He was admitted to Memorial Hospital on January 12, 1996, the date of the accident and remained there until May, 1996. The following is a synopsis of the medical treatment which Mr. Day endured during his 102 day hospitalization. To date he has been treated by the following health care providers:
1. Physicians and Surgeons
a. Surgery: the principal surgeon was Orthopedist Laura D. Flawn who was assisted by Dr. Thomas Lance.
b. Dr. Lee Brick was the consulting Neurosurgeon.
c. Brad is currently under the care of Dr. Rodney Sanchez who has been his principal Physical Medicine Specialist and continues as his principal treating physician at this time.
d. Neuropsychologist Dr. Erin Crouch is currently treating Brad for the effects of the closed head injury and the psychological complications arising out of the paralytic injury.
2. Hospitals
FLAT ROCK COMMUNITY HOSPITAL
100 Flat Rock Avenue
Flat Rock, Texas 78681
(512) 555-6066
Dates: 1/20/96 - 1/20/96
Patient Control Number: 184MEMORIAL HOSPITAL
60 West 10th Street
Austin, Texas 78701
(512) 555-6461
Dates: 1/20/96 - 5/96
Patient Number: 59-593. Physical Therapy
TEXAS REHABILITATION INSTITUTE
Memorial Hospital
Austin, Texas
B. HOSPITALIZATIONS
1. Flat Rock Community Hospital
On admission to Flat Rock Community Hospital, x-rays were ordered on Mr. Day, and Dr. J.W. Crest, Radiologist, diagnosed a 50% dislocation of T-12 forward in its relationship to L-1. Additionally, there was a compression fracture and a cortical step-off of the superior aspect of T-12. The condition was immediately diagnosed as being much too serious to be handled at Flat Rock Community Hospital, and Dr. Waring, the physician on duty contacted Dr. Brick, a neurosurgeon at Memorial Hospital, who agreed to accept Mr. Day as a patient. Brad was then immediately transferred to Memorial by the same emergency medical service that had brought him from the accident scene to Flat Rock Community Hospital.
2. Memorial Hospital
On admission to Memorial Hospital, Dr. Laura Flawn immediately recognized the severity of the injury and noted that Brad's condition was worsening in that, in the emergency room he showed some trace of quadriceps function bilaterally; however, as they continued to observe Brad, he lost this function because of the severe malalignment of the spine, and he had to be taken to the operating room on an emergency basis.
The records reflect that Mr. Day was in a life-threatening condition on admission to Memorial Hospital due to the severity of the trauma to his body and the danger of shock. In order to save Mr. Day's life Orthopedists, Dr. Laura B. Fleck and Dr. Thomas Lance and General Surgeon, Dr. Clyde Smart, performed the following surgeries:
a. Surgeries
(1) Abdominal Laparotomy;
(2) Decompressive laminectomy T-12 - L-1;
(3) Insertion of Harrington rods for stabilization;
(4) Right posterior iliac bone graft to spine; and
(5) Open reduction of fractured metatarsus;b. Post Surgical Diagnosis
The post surgical diagnosis included the following:
(1) T-12 - L-1 subluxation and compression fracture, post-traumatic, with resultant paraplegia;
(2) status-post Harrington rod procedure;
(3) status-post abdominal laparotomy;
(4) fractures of the left foot, status-post reduction;
(5) neurogenic bowel;
(6) neurogenic bladder; and
(7) atelectasis.Brad was placed in a body cast for the next 145 days and undertook the most difficult task of his life, rehabilitation of his shattered body. That rehabilitation effort continues today and will continue for the remainder of his life.
V. MEDICAL EVIDENCE
A. SURGERIES
Mr. Day's catastrophic injuries as a result of this unfortunate accident will provide a basis for the introduction of four to five days of medical evidence on trial of this case. The perpetual nature of his medical problems renders the task of preparation and evaluation of medical evidence an ongoing proposition. However, the following is a general overview of the medical picture which we are currently preparing to present to a jury herein:
1. Decompressive Laminectomy
As a general proposition, decompressive laminectomy is not used in a spinal cord injury case unless absolutely necessary. However, the devastating nature of the injury to Brad's L-1 disc left Dr. Fleck with no other acceptable alternative. The laminectomy was necessary to prevent further irreversible neurologic damage, progressive central nervous system involvement, muscular atrophy and unrelieved pain between the intervertebral discs. As Mr. Day's pain and disability continued unabated, the decompressive laminectomy was performed by Dr. Fleck.
Brad's back was surgically opened, the muscles dissected, and the spinal column entered. The lamina was removed to expose the neural elements in the spinal canal. After viewing the extent of the damage to Brad's spinal cord, Dr. Fleck decided she had no choice but to do a spinal fusion with internal fixation. This procedure is used only in the most devastating type of spinal injuries due to the inevitable adverse sequelae and the possible complications arising from fusion and internal fixation.
2. Posterior Spinal Fusion
The factor which rendered fusion necessary in Brad's case was the unstable nature of Brad's spine which raised the distinct danger of encroachment of bony structures upon his vertebral canal or intervertebral foramina with additional damage to the spinal cord or nerve roots. Immediate reduction, fusion with bone graft and internal fixation were performed on Brad's unstable fracture-dislocation to prevent further injury and to relieve pressure on the cord.
The near total destruction of Brad's L-1 disc which, in conjunction with the 50% displacement of the T-12 disc, led Dr. Fleck to decide that the procedure of choice in Brad's case was posterior spinal fusion with iliac crest bone graft. The surfaces of the posterior bony elements of the laminae, articular and spinous processes in the damaged portion of Brad's spine were roughened to hasten spontaneous fusion. Strips of bone were grafted from the right iliac crest along the posterior bony elements in order to promote solid union of these structures.
The vertebrae to be fused were spread apart by an instrument inserted between the spinous processes. All disc material and the cartilaginous end plates were removed, and the surfaces of the vertebral bodies were roughened to provide a raw bony surface for the grafts. Four large bone grafts were used to completely fill in the interspace from pedicle to pedicle. The spreader was then removed. Since the ligaments were also ruptured, Harrington Rods were inserted for stabilization.
Considering the extensive nature of both the fracture-dislocation of the spinal column and the spinal cord damage, Dr. Fleck chose to use the most reliable of the stabilizing devices, i.e., the Harrington rods. There are two types of rods: a compression rod used to draw bony components together and a distraction rod used to hold the bony structures apart but in place.
In Brad's case, the extent of damage to the L-1 vertebral body required the use of distraction rods to hold the bony structures apart while the fusion could be held in place. For a period of 145 days Brad remained immobilized in a body cast to support the consolidation of the fusion site.
Like any type of internal fixation device, the Harrington Rod has its complications. Care must be taken not to cause or allow overdistraction at the fracture site when there is significant bone and ligament damage as in Brad's case. Overdistraction can result in pseudoarthrosis which causes a sharp pain and tenderness over the fusion site and may result in a progressive spinal deformity. The greater the extent of the fusion, the greater the incidence of pseudoarthrosis. If the pain and deformity are disabling, which they often are, Brad may need future surgical repair of the area.
Harrington Rods have also become dislodged and broken with inadequate immobilization. Thus, the presence of Harrington Rods in Brad's back provides another complication which may mandate future surgical repair.
3. Abdominal Laparotomy
Upon admission to Memorial Hospital, it was obvious that Brad had suffered very extensive internal injuries; therefore, an exploratory abdominal laparotomy was performed in order to determine whether or not internal bleeding was occurring and whether abdominal injuries were present, prior to beginning the spinal surgery.
4. Percutaneous Pinning - Fixation of the Metatarsals
In the accident, Brad crushed his left foot and fractured the metatarsals. He underwent surgical repair by open reduction and percutaneous K-wire pinning.
