SLEEP RELATED CRASH PROMPTS FEDERAL CALL FOR ACTION

According to a Federal safety board, trucking companies should work harder to enforce that their drivers get rest, and the Federal government should move toward mandating the use of alarm systems to alert exhausted truckers. While drivers are ultimately responsible for getting enough rest, trucking companies and the government should also make the nation's roads safer by studying fledgling technology that would keep drivers alert, the National Transportation Safety Board (NTSB) said after a hearing conducted on Tuesday, September 16, in Washington, D.C.

The board hearing was held in response to an early-morning crash in western Wisconsin three years ago. In that crash, a bus carrying a high school band slammed into an overturned semitrailer, killing five people. NTSB investigators concluded that the truck driver fell asleep at the wheel and began to drift off the interstate's shoulder. When the truck driver swerved back onto the road, the rig overturned. Shortly later, the bus drove right into the overturned truck.

The crash occurred around 2 a.m. on Oct. 16, 2005, on Interstate 94 near Osseo, Wisconsin. The NTSB found that the brakes on the bus had not been properly maintained, but said that poor visibility meant the bus driver could not have avoided the rig even if the brakes were in ideal condition. The driver of the semi, Michael Kozlowski, of Schererville, Indiana, was not seriously hurt. Last year, a jury acquitted him of negligent homicide, causing great bodily harm by reckless driving and causing injury in the crash.

At the trial Kozlowski, through counsel, argued that he did not fall asleep. This argument was countered by NTSB investigators, who stated that said their research suggested Kozlowski did fall asleep. Onboard equipment indicated the truck left the road at a gradual angle without slowing, and witnesses reported seeing the truck drift, according to NTSB investigators. Kozlowski's lawyer, Daniel A. Haws, said the NTSB's arguments had been dismissed by the jury in the criminal trial. "The evidence they use to say he fell asleep, the jury heard the exact same thing and said they didn't believe it," he said.

Kozlowski was on a 430-mile trip to haul groceries for Whole Foods Market Group. The crash occurred after he traveled about 320 miles from Munster, Indiana, to St. Paul, Minnesota. Records show that Whole Foods gave Kozlowski sufficient time to rest between assignments, but the NTSB said Kozlowski had not filled in his log book as required for five days before the crash.

At the hearing, NTSB board member Debbie Hersman proposed that Whole Foods Market Group be asked to implement a comprehensive fatigue-education program for its drivers. The board approved the proposal. The NTSB also called upon the Federal Motor Carrier Safety Administration to step up enforcement of trucking companies, making sure their record-keeping is up to date and drivers are being given adequate time to rest.

The hearing covered other means of making the roads safer. Investigators debated the use of technology designed to warn of impending collisions and automatically engage the brakes. They discussed concerns that automatic braking could interfere with the stability of large rigs, so the board recommended that the National Highway Traffic Safety Administration study the technology and mandate its use if it proves effective.

An NTSB investigator also discussed technology that detects when a vehicle is veering from its lane and alerts the driver with a light or an alarm. Even low-tech measures are effective. The NTSB investigator said studies found that rumble strips on the road reduced drift-off crashes by up to 60 percent.

While the measures discussed at this hearing indicate that the National Transportation Safety Board is serious about making roads safer for passengers, the simple fact of the matter is that human error is almost always a factor, especially in severe accidents. In some of these cases, the human error that occurs is a result of the current trucking system, which itself is flawed. Trucking companies pay more to drivers who deliver their loads ahead of schedule, proving a financial incentive for drivers to cut corners to conserve time. Every day, thousands of truck drivers transport huge loads on America’s highways, and are entrusted to take due care to protect themselves and those around them. While most truckers adhere to their duty to fellow drivers in a professional and courteous manner, it only takes one to cause a serious, or even fatal, accident. If you or a loved one has been injured as a result of an accident with a tractor-trailer, call the attorneys at Goldberg, Finnegan & Mester, LLC at 301-589-2999 today for your free consultation.

Tort-Liability for Patient Caused Accidents

A recent article in the New England Journal of Medicine highlights the growing controversy over a doctor’s liability in tort for a motor vehicle accident caused by one of the doctor’s patients. The article, written by George J. Annas, J.D., M.P.H., tries to address the question of whether a doctor owes a duty of care to individuals who may be harmed when a patient under the doctor’s care ingests a prescribed medication and attempts to operate a motor vehicle.

The article opens with disturbing numbers from a study conducted by the Centers for Disease Control and Prevention. According to a study conducted by this organization in West Virginia, there is a higher prevalence of prescription medication than illegal drugs in the blood of fatally injured drivers. Further, in over seven percent of all fatalities, and in nine percent of fatalities in drivers involved in motor vehicle accidents, blood samples contained two or more of five commonly prescribed drugs.

With this study as a backdrop, Annas analyzes a case decided in Massachusetts, in the matter of Coombes v. Florio. In this case, a doctor was treating a 72 year old man for a variety of conditions, including asbestosis, chronic bronchitis, emphysema, high blookd pressure, and metastatic lung cancer. During the first year of the treatment, the doctor advised his patient that it would not be safe to drive during cancer treatment, advice the patient heeded.

Once the treatment was concluded, the patient returned to the road. Months later, the patient was driving his car when he lost consciousness and struck a ten year old boy, killing the child. At the time of the incident, the patient was in possession of prescriptions for oxycodone, metolazone, prednisone, tamsulosin, potassium, Paxil, oxazepam and furosemide from his treating doctor. Possible side effects for these medications include drowsiness, dizziness, lightheadedness, fainting, altered consciousness, and sedation. These side effects, including any impairment they may cause behind the wheel, were not discussed between doctor and patient.

The mother of the young child brought suit against both the driver and his doctor. A trial court dismissed the suit, and it came up to the Massachusetts Supreme Court for review. The Supreme Court of Massachusetts, through a plurality decision, reversed the trial court. The judge issuing the plurality opinion noted that this was not a medical malpractice decision, but rather an ordinary negligence issue. Therefore, the issues to be decided were: Did the doctor owe a duty to the injured boy? Was that duty breached, and if so, did the breach cause the boy harm?

The plurality opinion cited numerous examples of similar situation to demonstrate that negligence could be found on the part of the doctor. Consider the liquor store held liable for a bicyclist’s injuries, when a bicyclist is injured by an intoxicated minor operating a vehicle after purchasing liquor from the store. Consider also the homeowner held liable for failing to store a gun properly, later used by the homeowner’s son in the killing of a police officer. As the Court stated: “Relying on these same principles, I conclude that a physician owes a duty of reasonable care to everyone foreseeably put at risk by his failure to warn of the side effects of his treatment of a patient.”

As to the issue of whether the accident was “foreseeable,” the court held that since the medications had known potential side effects which “were likely to impair a motorist,” that fact coupled with the prior advice that the patient could resume driving made it all the more foreseeable that such an accident could occur.

This case does not settle the issue, and courts in this area have not addressed this issue. The Massachusetts case should inform attorneys and individuals that the potential for such liability, and the dangers that arise when consuming prescription medication, do exist. If you are currently under the care of a doctor and taking prescription medication, make sure you speak with your doctor about all potential side effects and risks. Further, if you or a loved one has been injured in a motor vehicle accident, contact one of the attorneys at Goldberg, Finnegan & Mester, LLC at 301-589-2999 extension 102 for your free consultation today.

Mark A. Schofield, Esquire
Goldberg, Finnegan & Mester, LLC