Driverless Cars (Redux)

car accident flier.jpgI am preparing for a trial and swore I wouldn’t have time for anything as frivolous as a blog post until trial is over, but when I learned that Abnormal Use, the defense side legal blog that is the darling of The New York Times, National Public Radio and Jackie Childs (I’m in too much of a hurry to hunt for the links explaining the back stories to Abnormal Use‘s well-deserved blogospheric celebrity), had posted a response to a blog post of mine about driverless cars, I felt compelled to post a rejoinder to the folks at Gallivan, White & Boyd.
As Abnormal contributor and GWB attorney Frances Zacher points out, it is rather incongruous for me, as a plaintiff’s lawyer, to be calling for immunity for the manufacturers of driverless cars. But what can I say? I really want to see driverless cars ASAP. There’s nothing I’d like more than to have my time in the car be time where I can get something done – whether it’s working on a memo or watching a DVD. And driverless cars might make that happen.
I agree with Zacher that my proposal would grant immunity to the party “at fault” (the car manufacturer who is to blame for the defective software). It’s an interesting point and I wonder how I can square my position on immunity for manufacturers of driverless cars with my view that caps on non-economic damages in medical malpractice cases violate the Plaintiff’s Due Process right (some would say natural right) to be made whole by the party who wronged her and many other positions I hold — positions that depend on the basic moral insight that Zacher affirms.
I thought that pseudonymous Abnormal commenter John Galt also made a very good point in a comment to the post: Couldn’t we invoke the last clear chance doctrine in some driverless car accidents? I guess I was envisioning the type of driverless car accident where one driverless car suddenly swerves into the opposite lane and neither driver has time to override the machine. But certainly there are a variety of accidents that might not conform to the scenario that I envisioned: accidents where a driverless car malfunctions and the driver has time and opportunity to avoid the collision but does not. I would certainly agree that a different set of liability rules should apply to such a scenario and Galt’s comment suggests that maybe the courts should deal with driverless car accidents on a case-by-case basis in common law fashion. That said, I would reject Galt’s proposed doctrine inasmuch as it would require vigilance on the part of the human “driver” of a driverless car. To my mind, the point of having a driverless car would be to enable the human “driver” to devote his time to other tasks (email, etc.) rather than to navigating the roadways. If a driver constantly had to have his or her finger poised over the Emergency Override button, it would sort of defeat the purpose of a driverless car.
Now back to my regularly scheduled trial prep. Until trial is over, our faithful readers (who make up for in devotion what they lack in numbers) will be treated to the musings of colleague, Patrick Banfield, and some canned/set-to-publish blog posts by me. Even further attention from the blogerati at Abnormal shall not drag me from my seclusion.
PS I know the picture is of a flying, rather than a driverless, car, but I’m in a hurry.

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Legal Blog Roundup

Sorry for the light posting lately. It’s the summer news doldrums and I am gearing up for a trial. At any rate, herewith the latest from the legal blogosphere:

  • Back in June, I blogged about how missed medications cost us $250 billion a year, dwarfing the cost of medical malpractice. If we could only get everyone to take their meds as scheduled, perhaps through text messaging, I theorized, we could save about twelve percent of our annual health care tab.
    Well now FICO, the credit score agency, is going to start rating people on how compliant they are with doctor’s orders. Good patients will get high Medication Adherence Scores and bad patients will get low ratings.
    Is this a way to reap a lot of savings? Or will it simply lead to the same kinds of abuses and discrimination that law professor Frank Pasquale and others have highlighted in their criticisms of the credit rating agencies’ credit rating machinations? Stay tuned.
  • According to a new study published in the New England Journal of Medicine, only twenty percent of medical malpractice cases result in a payout to the patient. Given that medical malpractice lawsuits are incredibly expensive for plaintiff’s lawyers to bring, it is no surprise that the study’s author, Amitabh Chandra, declares, “A lawyer would have to be an idiot to bring a frivolous [medical malpractice] case to court.”

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A New “Hotspot” Video

We’ve blogged before about so-called “medical hot spotting.” The technique promises to bring down the costs of health care dramatically by concentrating health care resources in the right places, much like, in the mid-1990s, police began to bring down crime rates by concentrating police patrols in the right areas. Now PBS’ Frontline has done a ten minute segment on hot spotting, which you can watch here:

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Link Roundup

  • Hundreds of doctors who have been disciplined by their own hospitals or insurance companies have escaped discipline by the board of medicine in California, according to this Los Angeles Times expose. The personnel at the board of medicine blame budget cuts for their inability to keep up with doctor misconduct.
  • The Freakonomics blog features a new research study showing that a car that weighs 1,000 pounds more than the average car is forty-seven more percent likely to cause a fatality when it is involved in an accident with another car.

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World’s First Driverless Car Accident Requires Rethinking Of Rules Of Legal Liability

google car accident.jpg

Today came news that a prototype robot-driven car, developed by Google, was at fault in a car accident near Google’s Mountain View, CA headquarters. Google’s engineers, for their part, claim that a human driver who overrode the robotic autopilot was at fault in the accident, rather than the software that normally drives the vehicle.
Robotically-driven cars are inevitable. The Google Car involved in the Mountain View accident had logged 160,000 miles without incident. We are really close to the mass development of very reliable robotically-driven cars.
And when the day comes that robotically-driven cars are common and their use widespread, we will have to have a reworking of the current legal regime of fault-based negligence in car accidents. Ideally, we should get started on that overhaul of our legal principles right now to insure that fear of liability does not stifle the marketing of driverless cars.
To see why we need to change the laws that govern car accidents in order to accommodate driverless cars, imagine a situation where a driverless vehicle is responsible for a car accident and the human operator did not interfere with or override the robot pilot. Who should be liable for the damages? The “driver” who did nothing other than sit in the car’s driver seat and select the car’s destination?
It would be difficult to hold the human “driver” at fault in such an accident under the fault-based negligence regime that currently governs car accidents. After all, the conduct of the driver who caused the accident (getting in the car, programming in the car’s destination) is indistinguishable from the conduct of the driver who gets in a car, programs its destination and arrives safely at his destination. It is difficult to see how the conduct of the former driver, who got in an accident, can be considered negligent, given that our Anglo-American concept of negligence requires that a person liable for negligence have acted “unreasonably” and the driver who was involved in the accident acted in the exact same way as the driver whose voyage was entirely uneventful.
Since, presumably, most accidents involving robot-driven vehicles will be due to some software error, perhaps the victims of robot car accidents will sue Google or other robot car manufacturers in product liability actions for selling defective products (defective software code). Such a system would insure that accident victims are compensated, but it would also mean that robot car manufacturers — the Googles, Fords and Toyotas of the world — would become the insurer of every car accident. Could any car manufacturer afford such a burden? Likely not.
It seems what we need therefore — in order to insure that the victims of robot-driven cars are compensated — is new legislation which would change the common law rules that govern car accidents. In particular, we need a system of compulsory auto insurance and a new legislatively-created rule that the owners of driverless cars are responsible for all accidents that they cause, regardless of whether they were piloting the car at the moment the accident occurred.
Such a change would replace our current negligence-based system of liability for car accidents with a strict liability regime that makes cars’ owners automatically liable for any damage caused by their cars, but it seems the only workable legal framework for a future of driverless cars.
Under the current legal regime, car manufacturers would have to insure every accident on their own, a burden that no company, even one as large as Google, can afford.

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Kaiser Health Sues Hospital Chain For Padding Bills

dollar-sign-clipart-profits-up-prev1175393776ezKR76.jpgKaiser Health, one of the largest health insurance companies in the nation, is suing Prime Health Services, Inc., for taking Emergency Room patients and unnecessarily having them stay for extended periods of times on an in-patient basis, as part of an alleged scheme to drive up the price tag of the hospital visits.
Patients who were victimized by this practice report having difficulty checking themselves out of the hospital — even when they were in good health.
This is just another example of the biggest problem with American health care. The costs of medical malpractice — direct and indirect — are a tiny portion of health care spending. The real problem with American health care is that the financial incentives all align for providing unnecessary care and overtreating, rather than preventative care.

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Law Blog Roundup

  • This is one that I wish I had time to blog about. The Atlantic‘s Andrew Cohen wrote an article about a train crash in California that killed twenty-four people and seriously injured a hundred more. In 1997, Congress passed a law called the Amtrak Reform and Accountability Act that capped damages in train crashes at $200 million. Sounds great — until you have a train crash that injures over one hundred people seriously and their lifetime’s lost incomes, future medicals, etc. amount to more than $200 million. Then you have a heart-wrenching situation where a judge has to determine who gets what, potentially leaving some people without enough money to pay for their medical care.
    PointOfLaw’s Ted Frank, a tort “reform” advocate has tried to distance the tort reform movement from the mess, saying, “no reformer I know of proposes per-accident caps [on damages] or economic damages caps,” insisting that bona fide tort reformers limit themselves to caps on pain-and-suffering.
    Professor Bernabe replies here. The idea that tort reforms do not support caps on economic damages or other drastic reforms is completely risible. For instance, if you search older posts on his blog, Professor Bernabe has chronicled a nascent tort reform program: the abolition of joint-and-several liability. (A definition of joint-and-several liability can be found here). Tort reformers don’t want to limit merely economic damages. They’ve embarked on a root-and-branch campaign to make lawsuits futile to file. And if mainstream tort reformers are opposed to caps on economic damages, they’re killing us with their silence.
  • Killer Cars: An Extra 1,000 Pounds Increases Crash Fatalities By 47 Percent

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