Think Crashworthiness!

Think Crashworthiness!

 When investigating a serious personal injury or death case arising out of an automobile collision, particularly where automobile liability insurance coverage is inadequate, always be alert to the possibility that factors other than driver action may have contributed to the collision or to the severity of injury. Some examples would be possible highway design defects, traffic signal malfunctions, defects in vehicle design or manufacture, or vehicular malfunctions from lack of maintenance such as tire or headlight failures. The focus of this article is on vehicular design cases commonly called "crashworthiness" cases.

A crashworthiness case is based upon the failure of a manufacturer to fulfill its duty to design and manufacture a reasonably crashworthy vehicle that will protect the occupants from serious injury or death during reasonably foreseeable collisions. It is up to the first responding attorney or investigator to consider crashworthiness and preserve the evidence.

The following steps should cover the basic elements initially involved in crashworthiness cases. The single most important one is to preserve the physical evidence:

• Step 1: Preserve all the evidence. If there is any possibility of a crashworthiness case, all of the evidence relating to the collision must be immediately preserved. The vehicle or vehicles involved must be located, impounded and stored in a safe place. This may mean purchasing the vehicles involved. In addition, all accident reports and investigative documents including officers' field notes and continuation reports must be obtained. Photographs, videotapes, and any other records relating to the collision and its investigation, must also be secured. Witness statements must be taken while the events are still fresh in everyone's memory. Highways and roads are often changed or modified, and marks on the roadway may disappear quickly with time or weather, which means that evidence of the scene must also be documented and preserved; and a location diagram may be advisable. Timing of traffic control devices may be important to document as well.
• Step 2: Immediately involve an accident reconstruction expert. The accident must be investigated and reconstructed by an expert as soon as possible. It is vital that the expert inspect the scene of the collision and all physical evidence, and even interview witnesses, right away. Every dent and piece of evidence is important to a reconstruction expert.
• Step 3: Determine the occupant kinematics. The accident reconstruction expert will be able to provide specific information concerning the vehicle kinematics (movement) during the accident sequence. In addition, the accident reconstruction expert and/or a biomechanical or bio-medical engineer can then determine the occupant kinematics during the accident sequence. This information is critical to establishing a potential crashworthiness case.
• Step 4: Injury mechanism. Determine the mechanism of injury or death. The injury mechanism must be caused or enhanced by the lack of crashworthiness of the vehicle. If the injury appears to be related to lack of crashworthiness (e.g., failure of occupant restraint system; excessive roof crush; post crash fire; seat or seat back failure; or door latch failure), then further investigation and evaluation of a potential crashworthiness case should be undertaken.
• Step 5: Determine causation. Through the expertise of the accident reconstruction expert and biomechanical or biomedical expert, the specific mechanism of injury or death can now be clearly established. At this point, depending upon the injury mechanism, a vehicle design expert must determine whether there is a design or manufacturing defect that caused, or contributed to cause, the injury mechanism.

If you are representing someone who has been seriously injured or killed in an automobile collision, particularly at relatively low speeds, you should always think of the potential for a crashworthiness case. Crashworthiness cases are difficult, expensive and time consuming. We are always prepared to offer advice or assistance in these matters.

Go Back to the Top

David Morris Opts for New Direction

After ten years as a principal with our firm, David Morris has decided to take a different course, and is pursuing a new venture in the practice of law here in Kansas City, Missouri. David joined our firm after working for twelve years at Shook, Hardy & Bacon.

At his request David's cases have been reassigned throughout our firm so that he will be free to control the pace and direction of his new practice. We express our feelings of respect and affection for David. We all appreciate the many contributions he made to our firm, and we look forward to the future with David as our friend and colleague.

"Good Morning, Shamberg, Johnson and Bergman"

Those who call our offices will recognize that greeting, but might not recognize the name of Pat Cooper, the person behind the cheerful voice on the switchboard and the warm hospitality in the lobby. On February 16, 1995 Pat celebrated her twenty-fifth anniversary with the firm.

 Pat originally joined our firm when we were located in the Huron Building in downtown Kansas City, Kansas. The firm was called Schnider, Shamberg & May. She wasn't looking for a job when the firm found her, in fact, she was painting her kitchen! But the firm was in need of a receptionist and friends who knew Pat recommended her highly. Although she wasn't really interested in a job, Pat put down the paintbrush and came in for an interview with the attorneys. 'My friend who recommended me pushed me to come in, so I did." After her interview she went back to painting the kitchen; the phone call telling her she had the job surprised her. Pat now says that one phone call was probably the best thing that happened to her career.

During her twenty-five years with the firm, Pat has seen and done some pretty amazing things. "The most bizarre thing that ever happened was when two guys came into the firm to steal purses. One guy went back to talk to one of the attorneys while another one stayed out front to steal," Ms. Cooper recalled. "I came back to my desk and found the guy with my purse I caught him in the act. He dashed away without taking anything, and we detained the second guy in the attorney's office and called the police." That's where the story gets interesting. Through a fluke in the police communications system, the call for a minor purse-snatching at the law firm became intermingled with a call about an armed robbery at another location. The police department sent a full armed response to the law office, complete with helicopter. "It was the full meal deal," Pat remembered. "We had uniforms and suits coming off the elevator at both ends of the building."

Pat has seen numerous changes at the firm since she joined twenty-five years ago. The firm has reorganized and refocused its efforts during that period, and moved to its present Johnson County location while maintaining a presence in both Wyandotte and Jackson Counties. With the sole exception of John Shamberg, Pat has been the one to meet and greet every current firm employee when they arrived for their initial interview and first day on the job.

"Every call is different from the last one," Pat said. She recalls how once she had to act as suicide prevention counselor when a distraught client called and none of the attorneys were available to talk. "I kept the guy on the line for over an hour and a half before one of the attorneys came in and could take the call. The client had the gun loaded and pointed at his head when he called." Pat admits to being pretty alarmed by the experience. "I just put myself in his place. I still don't know what we talked about for that time, I just knew I had to keep him talking!"

When visitors come to our offices Pat is usually the first person they see. She is quick to offer them refreshments, or engage them in conversation while they wait. We are proud of the professional and friendly image that she presents. Pat enjoys her job and takes pride in doing it well. "It's been a great twenty-five years." We are looking forward to the next twenty-five.

Settlement Includes Changes Aimed at Prevention

There was a bittersweet conclusion to the litigation arising from the tragic death of thirty-one month old Danielle Johns. She went into Blackwell Regional Hospital, in Blackwell, Oklahoma, for a routine tonsillectomy and died as a result of medical negligence. Danielle's family wanted answers, accountability, and significant changes in hospital policies to make sure others would not be victimized as Danielle was.

 Danielle's post-surgery care was placed in the hands of an uncoordinated and ill-informed medical team. Her surgery was performed by an out-of-town "itinerant" surgeon who left the city without notifying the family doctor that Danielle was still in the hospital. after surgery, Danielle received a grossly excessive injection (a 300 cc bolus) of intravenous solution, resulting in a marked decrease in her total serum sodium (hyponatremia). This produced brain swelling (cerebral edema) and vomiting. Her level of consciousness declined through the afternoon and this was not appreciated or reported by the nurses. Ultimately she had seizures. The family doctor was then called to treat Danielle and he failed to diagnose the cause of her seizures. Eventually the untreated swelling caused brain death. It was every parent's worst nightmare for David and Carolyn Johns.

David and Carolyn first brought their concerns and questions to the hospital administration and the doctor. They wanted to know why Danielle had died. But no one connected to the case provided satisfactory answers and so David and Carolyn Johns sought assistance from Lynn Johnson of our firm. His investigation uncovered evidence of negligence on the part of both the hospital and the family doctor.

On the first day of trial the case was settled by payment of 1.25 million dollars by both defendants, and in addition, according to the terms of the settlement, the hospital agreed to make six policy changes that will prevent the Johns' tragedy from occurring again. The hospital must: (I) require that all pediatric patients receive care from registered nurses; (2) require infusion pumps and volume limiting devices for all pediatric patients; (3) hold hospital-wide in-service training for nurses providing IVs; (4) make IV training a part of all future new employee orientation; (5) require changes in pharmacy policy to prevent overdoses; and (6) establish policies on itinerant surgery that will require joint rounds with the surgeon and family physician at each surgery patient's bedside.

"I think it's great," David Johns said about the settlement. "We wanted to make sure this didn't happen to anyone else." Co-counsel, Jack Shears, froin Ponca City, Oklahoma, pointed out that the settlement was a victory for the community: 'This is a settlement that everyone benefits from." Jack assisted the trial team in preparing the case by handling the lay witnesses and providing office space and advice on local procedure.

From the beginning the focus of the case was on the prevention of a future disaster. Allegations in the pleadings informed the community that the hospital had failed to investigate the cause of Danielle's death. Physicians and nurses admitted in their depositions that, until the lawsuit was filed, no one at the hospital even thought about fixing the problems.

"It is a fact of life that the only thing a jury can do is award money. This settlement, for a substantial amount of money, along with policy changes that are literally priceless, accomplishes more than taking this case to the jury would have. Everyone in the community is safer after this settlement," Lynn Johnson noted. "This is an example of the civil justice system at its finest!"

In This Issue

• David Morris Opts for New Direction
  
• "Good Morning, Shamberg, Johnson and Bergman"
  
• Obstetrical Malpractice Cases Settled
  
• Recognizing Prematurity Cases
  
• Oklahoma Settlement Includes Important Changes
  
• Defeating Objections in Missouri Medical Cases
  

Over the years, our firm has handled many interesting and challenging obstetrical malpractice cases. Two recent cases are of interest. One case involved the issues of whether forceps should have been used during delivery, whether they were properly applied, and whether the trauma from the multiple forceps applications caused a child's cerebral palsy and developmental disabilities. Another involved the mismanagement of maternal preeclampsia that resulted in a premature delivery and a constellation of developmental consequences caused by the prematurity.

The use of forceps in delivery can be a controversial subject in obstetrical practice. In the action brought on behalf of a five-year old boy born in December of I 989, the critical issue was the justification for the use of forceps. During the delivery, the Fort Scott obstetrician elected to use forceps to assist in the delivery, ostensibly because of maternal fatigue and fetal distress. There was doubt about the defendant's claim of fetal distress because the precautions normally taken by obstetricians in the face of fetal jeopardy were absent in the case. For example, no oxygen was provided to the mother, ainnioinfusion was not provided to relieve intrauterine umbilical cord pressure, and no preparations were made for the possibility of an emergency cesarean section in the event the forceps delivery failed. In addition there was also a dispute about whether there was any significant fetal stress indicated on the fetal heart monitor tracings, which would have justified the obstetrician's decision to perform what was identified in the record as an "emergent" forceps delivery. Finally, the parties disputed whether the delivery was achieved by the use of mid or low forceps based on inconsistencies in the record.

Even more hotly contested was whether the trauma resulting from the application of the forceps during delivery caused the neurological injury to our young client evident from seizures following delivery and documented on CT Scans following birth. The pediatric neurologist retained by the defendant expressed the opinion that the infant's brain injury was caused by an embolus from an unknown source that was unrelated to the use of the forceps. Experts retained by our firm linked the trauma from the forceps directly to the neurological injury, which was manifested by permanent motor impairment and developmental delay.

The case was settled by Lynn Johnson and John Parisi after mediation and before trial for a present value of $950,000.00. Multiple experts were involved in the case, including those with specialized knowledge in obstetrics, maternal fetal medicine, diagnostic neuroradiology, pediatric neurology, neonatology, pediatric neuropsychology, and medical economics.

The other case involved issues of obstetrical management of chronically hypertensive women, of whom there are millions in America. Our maternal client had a medical history of hypertension and had previously been successfully managed as a high risk obstetrical patient with her first child. During the pregnancy at issue, however, the obstetrician took none of the precautions normally taken with high-risk mothers. For example, the doctor failed to schedule frequent visits and failed to monitor her blood pressure appropriately. The physician's office staff did not document, and in fact denied, numerous telephone calls reporting headaches, and the doctor ignored or failed to appreciate the importance of an early third-trimester one month weight gain of over nine pounds. Despite these red flags and several phone calls to the physician's office reporting the symptoms of high blood pressure and suggestive of worsening preeclampsia, our minor client's mother was not seen in the office until her next regular visit one month later. By then the preeclampsia was severe and nothing could be done to delay delivery of our client at 28 weeks gestation.

The infant, an 860 gram girl, remained hospitalized for five months following birth, suffering from the pulmonary effects of prematurity along with painful complications like kidney stones. During the first two years of her life, our young client was hospitalized eight times. She requires glasses to correct visual deficiencies linked to prematurity, and she has a hearing loss that requires bilateral hearing aids.

At age six the plaintiff has improved medically but still requires special education, and is physically limited by ongoing breathing difficulties which will likely subside with time. Expert witnesses testified that she will require special education indefinitely, and will be impaired in the competitive workplace. The terms of the settlement are confidential. The amount will be sufficient to offset the vocational losses and provide ongoing medical care to our client. The case was handled by Victor Bergman and Tony DeWitt.

Recognizing Prematurity Cases

"Preterm labor" occurs between the beginning of the 28th week and the end of the 37th week of pregnancy; full term encompasses the beginning of the 38th week through the end of the 42nd week. Newborns weighing less than 2,500 grams are classified as low-birth-weight infants. While preterm labor is a threat to the life and health of a newborn, the degree of risk varies dramatically with gestational age and birth weight. Every passing day in utero increases the fetus' chance for survival without the complications of prematurity. The most serious complication is lung disease at birth. At 28 weeks gestation, treatment can be given, in utero, to accelerate fetal lung maturity and avoid injury, but this requires postponement of delivery for 72 hours. At 32 weeks gestation, even though still preterm, there is very little risk of injury to the newborn, so long as delivery is accomplished in a facility with a neonatal nursery and proper advanced life support equipment.

In looking at cases of preterm labor resulting in fetal death or significant injury to a newborn, pay particular attention to: (1) the specific gestational age and weight, (2) the cause of the preterm labor, (3) whether the preterm labor should have been anticipated or could have been avoided with proper prenatal care, (4) whether there was an opportunity to postpone delivery for 72 hours to give medications to accelerate fetal lung maturity for those infants between 28 and 32 weeks gestation, (5) whether delivery was accomplished at an appropriate facility with properly qualified pediatricians or neonatologists in attendance, and (6) whether the neonatal care was appropriate.

Be aware that medical evidence has identified subtle developmental consequences of prematurity which may not be detectable until a child is old enough to test. Sometimes these are only delays which will disappear with time, and sometimes the delays become more pronounced with time. The chart above displays recent data on the relationship between birth weight and developmental delay.

Defeating Peer Review and Work Product Objections In Missouri Medical Malpractice Cases

Defense attorneys often claim that any documents or testimony relating to hospital care are protected from discovery by the Missouri Peer Review Statute, RSMo. ß 537.035 or as "work product" prepared in anticipation of litigation. Particularly if the item to be discovered was created or the conversation was held after the alleged negligence, on the subject of the conduct at issue, you can bet that one or the other of these doctrines will be cited as the reason it cannot be disclosed. For example, post-incident conversations or admissions, particularly with supervisors or departmental chair-persons, incident reports, personal notes, and credentials or privileges records, often draw these objections. The plaintiff's focus must be on the limitations of these two doctrines.

The Peer Review Statute protects information gathered by committees of healthcare professionals who obtain the information while in the process of reviewing the quality and utilization of healthcare. As such, certain documents generated by those committees may be shielded from discovery, and people who present before such committees cannot be questioned about their testimony or opinions. The protection afforded is not as broad as is usually asserted by the defendant. There is a statutory exception and a case law interpretation that narrow the protections. However, the case law demands specificity in crafting discovery requests.

The statutory exception provides that information otherwise discoverable or admissible from original sources is admissible even if it was used or considered by the committee or its members. An individual who provides testimony to the peer review committee cannot be silenced by the statute, and may testify or be questioned about information within their personal knowledge; they cannot be questioned about the testimony given the committee. Likewise documents created for any purpose other than those narrowly defined in the peer review statute are not immune from discovery simply because they figure into a peer review committee's deliberations. Such documents cannot be transformed into peer review material by forwarding them to the hospital risk management department or peer review committee.

The principal case interpreting the peer review statute, State ex rel. Faith Hospital v. Enright, 706 S.W.2d 852, (Mo. banc 1986), narrowed the protections afforded by the statute. The defendant there attempted to shield the records of its credentials committee on the basis of the peer review statute. The court held that Credentials Committee reports are not exempt from discovery under the statute unless those reports specifically concern the health care provided a patient." !d. at 855.

In one recent case handled by our firm, nurses concerned about the treatment a patient received from an obstetrician, wrote statements about the incident and did not put the statements in the chart. In the suit that followed, these statements were claimed to be protected by the peer review statute and as work product. These statements, written by the nurses, for the nurses own benefit, and not at the request of a hospital committee or officer (they were generally advised to do this by hospital risk management at a training session), were not immunized by later presentation to a peer review committee, and were held discoverable.

In St. Louis Little Rock Hospital Inc., v. Gaertner, 682 S.W.2d 146 (Mo. Ct. App. 1984), the court dealt with the issue of whether incident reports written by hospital staff were work product. Rule 56.01 (b)(3) defines work product as documents or materials prepared in anticipation of litigation or for trial, or those prepared by an attorney, consultant or agent. The incident reports were discoverable because they were not prepared in anticipation of litigation. Thus, carefully crafted questions may defeat claims of work product and peer review privilege.

Discovery documents must be carefully drafted to fall within the statute and avoid claims of overbreadth. When attempts to discover documents under RSMo. ß 537.035 fail, it is often because the language of the request is simply too broad. See State ex rel St. Anthony's Medical Center v. Provaznik, 863 S.W.2d 21 (Mo. Ct. App. 1993); Language in requests that asks for "all reports and records..." has been held overbroad because the term "all" implies not only discoverable documents, but protected ones as well. Id.