By Laina Dowd, JHBL Staffer
At age twenty-one, Manny Banuelos – the top Yankees pitching prospect – blew out his elbow.[1] At the age of eight, Scout Bassett – a track and field Paralympian – lost her leg in a chemical fire.[2] At eleven months old, Oscar Pistorius – professional sprinter – underwent amputation of both his legs.[3] At one point in time, each of these high-performing individuals thought their dreams might never come to fruition. While we live in a world bursting with innovative technology, these Cinderella stories of opportunity are not precluded from adversity.
Traditionally, the legal system has granted strong protections for an individual’s bodily integrity.[4] Early case law deemed prosthetics – constructed of wood, metal, and leather – as inferior to bodily harm, and accordingly treated them as property.[5] Moreover, throughout modern history, damage to a non-biological prosthetic device has been dealt with as property damage, as opposed to personal injury.[6] However, the awards for damages to prosthetic limbs generally do not exceed the replacement value of the device.[7] It follows that even when damage to a prosthetic device may render an individual completely disabled, the law still does not provide compensatory relief beyond the value of the device. Advocates of maintaining this approach point out that prosthetic limbs are not natural organs of the body and rather, are manmade body parts distinguished from biological human limbs. Others believe that modern technology narrows the gap between human and machine, so personal injury law should expand to include damage to prosthetic limbs. Investigation into this significant hole in the law is needed to expand our notions of personal injury to include damage to prosthetics and other technologies that some humans have become reliant on.[8]
Over the past few decades, advanced prosthetic limbs in particular have undergone significant developments, and through these technological strides, have become deeply integrated with the human body. Contemporary prosthetics are crucial to the physical and psychological rehabilitation of individuals suffering from limb loss.[9] Amputees no longer receive the wooden or plastic objects that prosthetic devices were once composed of. Rather, modern devices can be “activated by electronic signals from muscles; some have the capability to receive sensory feedback through the device; and others can even be permanently fused to the residual bone of an amputee.”[10] This advanced technology has developed through the integration of computer technology into prosthetic designs, wherein onboard microprocessors send bidirectional electric signals from the prosthetic to the brain.[11] This practice allows the prosthetic to send and receive commands from the central nervous system.[12] Such seamless integration between human and machine challenges the traditional distinction between the organic and non-organic elements of the human body.[13] The use of smart phones, virtual reality devices, pacemakers, and advanced robotic prosthetics exemplifies how human reliance on technology closely imitates human dependency on our own flesh and bone.[14] However, the comparison of these devices and prosthetic limbs downplays the intimate nature of prosthetics. Modern prosthetics are constantly evolving to become further integrated as a permanent feature of the wearer’s body. Moreover, by treating advanced prosthetic limbs as a form of disposable property, the present law completely disregards the personal relationship between an amputee and their prosthetic limb.[15] Consequently, the question becomes whether the law should recognize the interaction between a person and their prosthetic device as one entity as opposed to two.
The introduction of advanced prosthetics integrating man and machine renders current law an inadequate legal protection of the rights of persons with advanced prosthetic limbs.[16] Accordingly, when the issue of compensation under tort law is raised, a court will likely struggle to classify advanced prosthetics as property or an extension of the person. The legal treatment of prosthetics in the context of workers’ compensation disputes demonstrates the many discrepancies in tort law when applied to injuries to prosthetic limbs.[17] The inconsistency of law and policy found in different jurisdictions creates ambiguity as to the proper application of tort law. In some jurisdictions, prosthetic limbs are commonly recognized as more than just helpful tools; rather they are considered necessary medical devices, and that damage to these devices could cause debilitating consequences interfering with a wearer’s daily activities.[18] These jurisdictions depart from the traditional distinction between person and property by recognizing the advanced prosthetics of today as personal in nature.[19] Undoubtedly, damage to an advanced prosthetic would deprive the prosthetic wearer of their independence, ability to work, and overall quality of life; therefore the repercussions of the injury extend far beyond broken mechanics. However, other jurisdictions remain attached to traditional legal theory and classify prosthetics as non-biological tools wherein no compensation is warranted for their damage.[20] To remedy such disparity, a court ought to bridge the gap between conventional calculation for injury to one’s property and injury to one’s person.[21]
As innovative technology continues to merge human and machine, there is an increasing need for enhanced legal protections for individuals who suffer injury to their prosthetic devices. While it is true that prosthetic replacement of limbs does not constitute a ‘natural organ,’ the increasing advancement of medical technology allows the device to closely mimic the former limb. The loss of a limb is an experience that dramatically alters the course of one’s life; not only does it impact one’s ability to carry out basic pursuits of daily living such as caring for oneself, working, and engaging in social interaction, but also profoundly impacts one’s mental and emotional well-being. If current law remains unchanged, athletes like Banuelos, Bassett, and Pistorius – who defy their disabilities through the use of prosthetic limbs – could be excluded from adequate legal recovery. After all, the common law of personal injury was created to make an injured person whole again.
Laina Dowd s a second-year JD/MBA student at Suffolk University Law School and a staff member of the Journal of Health and Biomedical Law. As a former college athlete, Laina intends to combine her passion for sports and business with her Juris Doctor degree. She is currently working on a note analyzing the legal protections available to professional athletes with prosthetic limbs.
Disclaimer: The views expressed in this blog are the views of the author alone and do not represent the views of JHBL or Suffolk University Law School.
Sources
[1] See John Sickels, Yankees Prospect Manny Banuelos Needs Tommy John Surgery, Minor League Ball (Oct. 2, 2012, 12:16 PM), http://www.minorleagueball.com/2012/10/2/3443874/yankees-prospect-manny-banuelos-needs-tommy-john-surgery
[2] See Mae Ryan, Paralympic Athletes Gain Ground from Prosthetics Made in Orange County, S. Cal. Pub. Radio (Aug. 3, 2012), http://www.scpr.org/news/2012/08/03/33622/look-socal-prosthetics-give-athletes-olympic-chanc/
[3] See C.S., Prostheses in Sport: Running Foul?, The Economist (Aug. 15, 2011, 3:42 PM), http://www.economist.com/blogs/babbage/2011/08/prostheses-sport (discussing the story of Pistorius’ lifelong physical disability).
[4] See Martin A. Kotler, Competing Conceptions of Autonomy: A Reappraisal of the Basis of Tort Law, 67 Tul. L. Rev. 347, 351 (1992) (noting legal recognition for autonomy focuses on protection of bodily integrity, not private property rights); see also Luke Robert Mason, Is Harm to a Prosthetic Limb Property Damage or Personal Injury?, VICE: Motherboard (Jan. 26, 2016), https://motherboard.vice.com/en_us/article/mg7ewp/is-harm-to-a-prosthetic-limb-property-damage-or-personal-injury [https://perma.cc/HDP8-ZV4N] (emphasizing legal protections for individuals’ bodily integrity).
[5] See London Guar. & Accident Co. v. Indus. Comm’n of Colo., 249 P. 642, 642 (Colo. 1926) (holding injury to wooden leg not compensable because the leg constitutes property, not personal injury).
[6] See, e.g., Pac. Indem. Co. v. Indus. Accident Comm’n of Cal., 5 P.2d 1, 3 (Cal. 1932) (holding wooden leg is property, not part of a person, thus no compensation can be awarded for its injury); London Guar. & Accident Co., 249 P. 642 at 642 (Colo. 1926) (holding no compensation available for injury to prosthetic leg because device constituted property, not person); Behl v. Gen. Motors, 181 N.W.2d 660, 663 (Mich. Ct. App. 1970) (ruling personal injury recovery for damaged prosthetic not available where no bodily injury suffered).
[7] See Corbett v. S. C. Dep’t. of Youth Serv., 414 S.E.2d 778, 779-80 (S.C. 1992) (holding compensation for prosthetic limb damage limited to cost of repair or replacement); See also Jon D. Lichtenstein, Updating Tort Law for Advances in Prosthetics, N.Y. L.J. (Aug. 28, 2015), http://rightsofcyborgs.com/wp-content/uploads/2016/07/8-28-15-NYLJ-Updating-Tort-Law-Advances-Prosthetics.pdf [https://perma.cc/3A2U-MGYY] (holding an injured party cannot seek compensation beyond the value of the device).
[8] This occurred most recently at the University of Oxford’s Human Enhancement and the Law: Regulating for the Future Conference, which explored the legal issues that might arise as a result of developments in human enhancement technologies.
[9] See Raquel Chisholm, Not a Leg to Stand on: The Unconstitutionality of New Brunswick Regulation 84-20, Section 2(d), 24 Windsor Y.B. Access Just., 77, 83 (2006) (noting that prosthetics are fundamental to a person’s health, social, and psychological well-being).
[10] Id.
[11] See Gabriel W. Vattendahl Vidal et al., Review of Brain-Machine Interfaces Used in Neural Prosthetics with New Perspective on Somatosensory Feedback through Method of Signal Breakdown, Scientifica, Apr. 28, 2016, at 2, 2. “The principals behind modern day prosthetic [brain-machine interfaces] involve extracting motor control signals from pools of neurons and translating those signals into motor control of a device that control being fine-tuned through different feedback sources and assistance from computer algorithms.” Id.
[12] Id.
[13] See Wittes & Chong, infra note 10, at 3 (suggesting the divide between human and machine is disappearing and creating legal implications). For example, current law recognizes a person and their cell phone as two separate entities despite how reliant individuals may be on the use of their mobile device.
[14] See Benjamin Wittes & Jane Chong, Our Cyborg Future: Law and Policy Implications, Brookings Inst., 4 (2014), https://www.brookings.edu/wp-content/uploads/2016/07/cyborg_future_law_policy_implications_FINAL.pdf [https://perma.cc/VA7U-WVBF] (noting enhanced technology as the reason for “cyborgization” being integrated with human body).
[15] See Tanya Lewis, Prosthetic Hand Restores Touch, Heals Phantom Pain, Live Science (Oct. 8, 2014), http://www.livescience.com/48202-prosthetic-hand-restores-natural-touch.html [https://perma.cc/426F-DU65].
[16] Francesco V. Tenore & R. Jacob Vogelstein, Revolutionizing Prosthetics: Devices for Neural Integration, 30 Johns Hopkins APL Tech. Dig. 230, 230 (2011).
[17] See Bayard Brown, Article, A Farewell to Arms (and Legs): The Legal Treatment of Artificial Limbs, 47 Colum. J.L. & Soc. Probs. 69, 93-94 (2013) (provides overview of the contradictory legal treatment of artificial limbs).
[18] See, e.g., Ind. Code § 22-3-3-4(f) (2018) (sets forth replacement of prosthetic devices whenever medically necessary or due to wear).
[19] See Matt Bristol, The Evolution of Prosthetics: War Spurs Major Developments, VAnguard: VA’s Emp. Mag., May-June 2005, at 19, 19-20 (describing the personal connection felt by prosthetic wearers).
[20] See, e.g., S. Elec., Inc. v. Spall, 130 So. 2d 279, 279 (Fla. 1961) (holding statute allowing recovery for personal injury does not include damage to prosthetics).
[21] See 1 Frederick A. Raffa & Paul M. Deutsch, Damages in Tort Actions § 1.02(1) (Matthew Bender rev. ed., 2018)
(discussing calculations of personal injury and property damages).