While there may be benefits to alternative therapies and natural remedies, regulations of these products and services are weak to nonexistent. Dabbling in essential oils, nutritional supplements, and vitamins comes with certain risks to the consumer that the companies behind the products don’t tend to share. They often use waivers and vague language as a shield, leaving consumers feeling like they have no recourse if an injury occurs. The risk of injury grows in the alternative therapy world. Cupping, acupuncture, and cryotherapy all carry risks of serious injury and painful side effects.
Key to understanding how alternative treatments create a problem in filing lawsuits is the concept of duty of care. The duty of care for a business includes being aware of risks, maintaining facilities, and keeping a location safe from foreseeable dangers. Medical professionals have a high threshold set for their duty of care, they must act with a reasonable degree of care and skill.
The very nature of alternative treatments tends to skirt both of these definitions. They are not medical professionals, so they don’t have to use care and skill, nor are they able to called out on ‘foreseeable dangers’ because they don’t do the kind of testing that would set a baseline for what is and isn’t a possible negative outcome to a treatment.
Recently, a spa work was found dead in a cryotherapy chamber. This serves as a prime example of the difficulties in regulating and dealing with an injury or wrongful death in the alternative medicine sphere.
What is Cryotherapy?
This procedure involves exposing a person to extremely cold temperatures for short periods of time. The cold is generated by liquid nitrogen pumped into a chamber. The underlying concept is that exposure to extreme cold reduces inflammation, pain, and swelling in targeted areas of the body. Cryotherapy technicians claim the treatment is able to heal tissues of the body, increase energy, reduce aging, and combat depression.
Much like cupping, certain athletes are rumored to use it to heal injuries and enhance performance. Rather than spending an 5-10 minutes inside of an ice bath, why not spend a quick 2-4 minutes in a cryotherapy chamber?
A Fatal Cryotherapy Accident
On October 20th, the 24 year old manager, Chelsea Patricia Ake-Salvacion, was found dead inside the chamber. It appears the spa worker attempted to use the cryotherapy chamber while she was alone.
The coroner’s report listed asphyxiation as the proximal cause of death. It is known that oxygen levels in the machines can decrease to 25% of what is needed to maintain proper respiration. Whether Ake-Salvacion passed out from the drop in oxygen or inhaled nitrogen gas is unknown. Ake-Salvacion texted that the machine seemed to run through nitrogen quickly. If there was a leak, it could have caused her death.
Was this an incident caused by a leak in the machine or was it caused by operator error? The answer to this question underpins the difficulty of pursuing a personal injury lawsuit.
Liability in Wrongful Death
In situations with several unknowns it can be difficult to determine who is at fault. Nevada statutes follow a modified comparative negligence model. This allows for a party to collect damages if they are less than 50% responsible for an injury. Any compensation received would be modified by the percent at-fault they were found. This keeps the door open for a lawsuit, even if there was some error on the part of the deceased.
However, no regulatory agency oversees cryotherapy businesses. Users either sign waivers or abide by posted notices that indicate that cryotherapy has associated risks. A customer uses the device at their own risk.
This doesn’t mean they assume ALL risk. An injury associated with the cold is a known risk, a risk that would be described in a disclaimer or a waiver. Asphyxiation is not a known risk that a customer is aware of or could reasonably expect. When approaching a case like this, experienced personal injury attorneys look for who has a duty of care, if that care was breached, and if that breach caused an injury.
Assumed Risk
When a business provides a waiver the focus of the waiver must be narrow and cover the risks associated with the activity/product/service provided. If you go skiing, you take on a certain amount of risk inherent in the activity. If you are injured by a stump sticking out of the slope because of poor snow coverage, that could be an assumed risk. However, if you are the tenth person injured by that stump, this is a sign of negligence on the part of the ski resort. They have a duty of care to the skiers to keep the trails maintained and free of debris.
Operator Error
In the specific instance of Ake-Salvacion, things get even more complicated. She was an employee who operated the machine for other customers many times. She was familiar with how it operated and the parameters of the treatments in terms of times and temp. She was aware of the risks of the machine, she probably recited them to users many times. She was in the building after-hours and using the machine alone. If she had used the machine properly (as advised) would the outcome have been different?
Duty of Care
It would be fair to say she held at least some percent of fault in this incident. However, there are issues associated with the machine and the company that should be taken into account. Was there a failure to uphold the duty of care? There were no lock-outs on the machine that would prevent it from being operated solo. The question of if there was a leak points to either a product defect or a maintenance shortcoming. That she could enter the premises alone without being stopped by passive or active security is also an issue.
Products defects are a unique area of law which places a large burden on the manufacture of a product to anticipate reasonably foreseeable misuses. No amount of warnings and disclaimers can reduce liability if an economically feasible safety feature could have been incorporated into the product. An automatic shut-off device or a lock that ensured two operates were present, are examples of safety features that could have been foreseeable. A detector that could warn of leaks in the liquid nitrogen tank is another example.
Legal Professionals and Accountability
Instances such as this illustrate the difficulty of determining fault in a personal injury case. Attorneys work with investigators, relevant experts, and medical professionals to work out the facts of cases. This enables them to provide clear evidence and to illustrate the breach of duty that resulted in an injury.
It is a difficult task that takes experience, compassion, and dedication to undertake. The attorneys at Clear Counsel Law Group offer personalized attention, skilled negotiation, and robust legal representation, ensuring clients receive the compensation they deserve.