Speed Kills; The Consequences Are Forever

Via Andrew Sullivan (h/t Dave Hoffman), an arresting graphic about how a small difference in speed can multiply severalfold a pedestrian’s likelihood of dying in a car accident:

This is fact that could be played up a bit more by the public safety community. I’m aware of only one locale in the US where this fact is effectively publicized:  New York City. I’m not sure if they’re still up, but the Big Apple had a number of billboards showing a skull superimposed over a child’s face and saying, “At 20 mph, it is likely he’ll survive an accident; at 30 mph, he will most likely die. That’s why the City speed limit is 20 mph.”

Maybe instead of doing idiotic things like banning Segway tours, Mayor Menino could take a page from our friends in New York and have billboards plastered all over the City warning how a little difference in speed can make a big difference in survivability.

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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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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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Replacing Intersections With Roundabouts Reduces Accidents Forty Percent

roundabout.jpgFor years, traffic safety experts have been big boosters of the idea of replacing intersections with roundabouts (or as we call them here in Massachusetts “rotaries”). Now, as the BBC reports, the idea is finally catching on in America.
For those of us whose first thought of a roundabout is Chevy Chase exclaiming, “Look kids, Parliament! Big Ben! Look kids, it’s Parliament again! Big Ben!” the idea that a roundabout could be safer than an intersection with traffic signals is a bit counterintuitive. For a lot of American drivers, the roundabout is odd and intimidating; the four-way intersection is familiar and comfortable.
But the statistics don’t lie. According to the Insurance Institute for Highway Safety, if you replace a four-way intersection with a roundabout, you’ll see a forty percent reduction in accidents and a ninety percent reduction in fatal accidents.
That’s why 3,000 intersections have been replaced with roundabouts in the last decade.
I love it when there’s a simple way to save lives.

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Are “Children At Play” Signs Endangering Children?

Child At Play.jpgWe’ve blogged the work of Tom Vanderbilt before — most recently in our post, “Don’t Drive With A Divorced Doctor In A Pick-Up Truck On Super Bowl Sunday” — and we’re fans of his blog howwedrive.com.
Vanderbilt’s latest is a thought-provoking Slate essay entitled “Little, Yellow, Dangerous: Children At Play Signs Endanger Our Kids.” As Vanderbilt writes, such signs are generally despised by traffic engineers. They take drivers’ attention away from the roadway and – potentially – away from children who might dart into the street. Moreover, much like a “Roadway Freezes” sign in summer, “Children At Play” signage conditions drivers to ignore its warning every time a driver travels through a neighborhood and sees no playing children. Traffic engineers have codified their disdain for “Child At Play” signs in their professional bible — The National Cooperative Highway Research Program — which forbids “Children At Play” signs.
In addition to being ineffective, “Children At Play” signs are also dangerous because they distract us from the hard work that we need to be doing to actually improve safety for pedestrians. Thinking in terms of “Children At Play” warnings or other signage makes us think that the there are quick-fixes for livable roadways.
Really improving the safety of children at play requires a serious reengineering of neighborhood streets. Having a 35 mph posted speed limit is not compatible with children’s safety, as accidents at that speed are very likely to cause a child’s death.
Besides, drivers take their cues not from roadway signage but from the conditions they see with their own eyes. When a highway speed limit is 65 mph, drivers slow down if it’s heavy snow. Likewise, when drivers see a roadway marked with a double yellow line, they feel it’s appropriate to go fast even if it’s a residential neighborhood.
Protecting children from cars requires a lot more than signs. It involves changing the subtle cues that make drivers think it’s OK to speed.

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Is The Peltzman Effect A Fiction?

Nader.jpgWe’ve discussed the Peltzman effect before on this blog. The “Peltzman effect” describes a supposed phenomenon wherein the utility of new safety devices – like seat belts in cars – is offset by the new risks that it encourages people to take.
Put seatbelts in cars, the thinking goes, and it will just encourage people to speed, thus negating a lot of the benefit of having seat belts in the first place. Put a new safety guard on a cutting machine and it will just make people more careless.
The Peltzman effect is an important enough result that it is taught in many introductory level economics classes. In fact, the Peltzman Effect is extensively cited in the first chapter of Greg Mankiw’s “Principles of Economics” – the most widely-used undergraduate econ textbook in the country – as an illustration of principle Number Four of the “Ten Principles” of economics, which states, “People respond to incentives.” The passage in Mankiw’s “Principles” suggests that the benefit of Ralph Nader’s work in getting seat belts installed in cars was offset by the greater number of accidents that resulted from people’s driving at higher speeds. For a lot of economists, Peltzman’s work, originally published in 1975, sounded the death knell for the type of consumer crusading favored by people like Nader.
But a new, soon-to-be-published study by economist Bae Yong-Kyun, calls the Peltzman effect into question. (H/t Tyler Cowen). Unlike most previous researchers, Yong-Kyun does not draw upon state-level accident data. Yong-Kyun findings are that mandatory seat belt laws actually cause people to drive more carefully rather than less carefully. The paper finds that the offsetting effects found by Peltzman do not exist when all accidents, including fatal accidents, are factored in.
It may be that it is the Peltzman effect that is unsafe at any speed.

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Lawyers Have Made Cars So Safe That There Are Now More Suicide Deaths Than Car Accident Deaths

1978_ford_pinto_cover_001.jpgNHTSA just announced the number of US traffic deaths for 2010 and it was staggeringly low – 32,788. There are fewer traffic deaths now than there were in 1949, despite the fact that we drive a lot more. In fact, we drove 28.5 billion more miles in 2010 than we did in 2009, when deaths numbered more than a thousand more.
According to Freakonomics co-author Steven Dubner, there are now more suicides than traffic deaths in America.
The declining number of car wreck deaths is a testament to the power of safety engineering, but, as American Association for Justice president Gibson Vance explains in this Washington Post editorial, it’s also a tribute to trial lawyers, who have been forcing safety measures on auto manufacturers since the days of the Ford Pinto.

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Boston Personal Injury News Roundup

  • You may recall last April’s recall of Simplicity cribs, which we previously blogged about. Now, in the form of a Boston Herald story, comes news that the death of a Massachusetts infant from Attleboro was a “key factor” that prompted the Consumer Product Safety Commission to recall full-sized Simplicity cribs because of the risks they posed of suffocation and strangulation.
    CPSC spokesman Scott Wolfson said, “In the full history of Simplicity cribs and bassinets, there were more than a dozen deaths, including the tragic case in North Attleboro. Simplicity cribs are one of the deadliest products that we’ve dealt with in recent years.”
  • Five Massachusetts auto insurance companies are now offering optional pet injury coverage that will pay veterinarian’s bills for your pets if they are injured in a car crash.
  • If you went to Fenway Park at all last year, they were a familiar sight: scantily clad young women in bright-colored wigs who were attempting to sign up Red Sox fans for a bone marrow registry. Now comes news that UMass Medical Center was behind the program and was spending $50,000 a week on the models. For every volunteer who signed up, UMass Medical Center would bill insurance companies for $4,300, when others in the industry perform the same test for approximately $100. See the WHDH-TV and Boston Herald stories here and here.
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Medical Malpractice And Car Accidents: A Tale Of Two Public Health Problems

DoctorCar.jpgIn 2009, 33,963 Americans died in car accidents. 100,000 Americans are killed each year by medical errors. Given the large number of lives lost to both medical malpractice and car accidents, both qualify as important public health problems. But while we are making strides in reducing the number of lives lost in car accidents, a recent study shows the number of deaths due to medical errors has held steady over the past decade. The divergent outcomes in these two areas may be due to the different approaches we take with respect to curbing car accidents and medical malpractice deaths.
From 2005-2008, the number of traffic deaths declined twenty-two percent. What explains this precipitous drop? As reported last week by The Wall Street Journal, researchers at the University of Michigan’s Transportation Research Institute think they have some of the answers. They chalk up the decline of car accident deaths to a combination of factors, most notably improved safety technology, more aggressive treatment of drunk drivers and stricter licensing requirements for teens.
When you look more closely at some of these factors – improved safety technology, aggressive prosecution of drunk drivers – they are largely the result of government regulation and resort to our court systems. Many car safety improvements are the result of government mandates and product liability litigation. And harsher treatment of drunk driving requires that our courts have more involvement in our lives.
While traffic deaths due to certain factors – such as distracted driving – are climbing steadily, we can see the way that society is dealing with that threat: we are passing more and more laws banning texting while driving or talking on the phone and driving. In short, when it comes to car accident deaths, we are not afraid to unleash the legal system to address problems.
But we seem to be doing the exact opposite when it comes to medical errors. We have lax regulation of medical technology, which leads to the problems you see here, here, here and here.
And instead of holding doctors legally accountable for medical malpractice, the tort reformers have us passing caps on pain-and-suffering in medical malpractice cases, caps that have virtually eliminated lawsuits against doctors in many states. Are insurance companies really going to insist that doctors implement error-avoidance technologies when the insurance have to shell out so little even in the minority of lawsuits where patients are successful?
The decline in traffic deaths that we’ve seen over the past several years is probably attributable to a lot of things – including people not being able to afford gas and therefore driving less. But the long-term graph of traffic deaths is clearly trending downward. And perhaps there’s a public health lesson in that.

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