Black-Box Recorders in Automobiles

Most drivers are unaware that their vehicle is equipped with a “black box” gathering information regarding the events immediately before and during a motor vehicle accident.
Eighty five percent (85%) of current automobiles have event data recorders (EDR), more commonly known as black boxes, installed in them.

The National Highway Traffic Safety Administration (“NHTSA”) defines an EDR as a device recording a “vehicle's dynamic, time-series data during the time period just prior to a crash event or during a crash event, intended for retrieval after the crash event."

On March 14, 2012, the U.S. Senate passed “Moving Ahead for Progress in the 21st Century Act” (“MAP-21”), a transportation bill making event data recorders mandatory in all new cars and there is pending Pennsylvania EDR legislation - - the Pennsylvania Motor Vehicle Event Data Recorder Act - - currently under review by the Committee on Transportation.

While those protective of privacy may not support a law making black boxes mandatory, in all vehicles, data obtained from an EDR can help establish liability and deconstruct a motor vehicle accident streamlining accident claims and litigation processes, facilitating prosecution of drivers disobeying traffic laws and resulting in improved vehicle and roadway design.

Background on Black Boxes in Cars

Although historically identified with airplane crashes in which downloaded data was used by aircraft accident investigative engineers, the use of black boxes in automobiles dates to the early 1970s, when the National Transportation Safety Board (“NTSB”) recommended that automobile manufacturers and the NHTSA use onboard sensors and recorders to gather crash data.

Within a few years, General Motors began installing early versions of EDRs in its vehicles mainly used to control airbag deployment and document crash severity data.

Black boxes became more sophisticated recording data from minor accidents during which airbags did not deploy and by 2005, General Motors, Ford, Isuzu, Mazda, Mitsubishi, Subaru and Suzuki were voluntarily equipping their vehicles with EDRs.

Recent Vehicular Black Box Legislation

Beyond making EDRs mandatory in all vehicles, starting in 2015, MAP-21 requires manufacturers to make EDR data accessible with commercially available equipment.

Starting with 2013 models, EDRs must keep a record of 15 discrete variables in the seconds before a crash including the car's speed, how far the accelerator was pressed, the engine revolutions per minute, whether the driver hit the brakes, whether the driver was wearing a safety belt, and how long it took for the airbags to deploy.

On March 10, 2012, the Pennsylvania Motor Vehicle Event Data Recorder Act was filed and transferred to the Committee on Transportation and requires that a manufacturer of a new motor vehicle sold or leased in Pennsylvania disclose both whether the car is equipped with ,and what type of data can be recorded by, an EDR.

The pending act also provides an outline for information retrieval, requiring consent from the motor vehicle owner to download data and provides that illegally downloaded information is inadmissible as evidence in any civil, criminal or administrative action and is insufficient to support an adjudication of the motor vehicle accident’s cause unless corroborated by other evidence.

Vehicular Black Box Data’s Impact and Privacy Protections

If made readily available, this information gathered by EDR’s will greatly affect criminal and civil cases involving motor vehicle accidents.

Specifically, accident claims and litigation processes should be streamlined for insurance companies leading to settlement and saving insurers millions of dollars in litigation fees.

Additionally, retrieved data can establish the speed of vehicles and lead to the prosecution of drivers disobeying traffic laws.

Further, increased awareness of, and accessibility to, black-box data will result in improved vehicle and roadway design and lead to safer driving.

Although previously unclear if black-box data to belonged to the car owner or to the manufacturer, MAP-21 establishes that EDR compiled data from belongs to the car owner.

Therefore, outside of a court order granting law enforcement access, where an emergency medical team needs the data, or in the event of an NTSB investigation, insurance companies would be unable to collect EDR data without owner consent.

Electronic Medical Records

Within the next few years, all health care providers will transition from paper charts to electronic medical records (“EMRs”) and operate exclusively within an EMR system.

ESI and EMR

Both the recently enacted “Patient Protection and Affordable Care Act” and “Health Information Technology for Economic and Clinical Health Act” and monetary incentives and compliance deadlines created by the Centers for Medicare and Medicaid Services are spurring health care providers to hurriedly transition to EMRs.

Beyond amassing and organizing existing Electronically Stored Information (“ESI”), EMRs will have an active role in patient treatment ranging from enabling providers to interface to offering clinical decision support.

Further, while sharing core functionalities, more sophisticated EMR systems may suggest courses of treatment upon an analysis of medical data, remind a provider of clinical practice guidelines or automatically warn of a patient's allergies or a dangerous combination of medications.

EMR and Personal Injury Litigation

EMRs widespread adoption may aid personal injury litigation by both placing unwieldy amounts of information in a user-friendly and searchable format and "definitively" provide the facts surrounding a patient's care.

EMRs may also alter fundamental elements of medical malpractice litigation including increasing the number of parties to sue, the costs of bringing a claim and the amount of time needed to resolve a dispute.

For example, because copying and pasting information from EMR to EMR is a basic system function, perpetuating an existing error or inaccuracy that will follow a patient from provider to provider will increase. Thus, errors like omitting a medication allergy during one provider's treatment may result in an adverse event through the course of treatment with other providers.

This error’s origin may only be discovered well into a claim’s litigation necessitating amending pleadings and creating liability disputes.

Extending liability to an EMR vendor is inevitable and will require significant technical discovery further complicating an already complex medical malpractice claim.

Further, beyond carefully choosing an EMR vendor and system, health care providers will need to avoid contractual agreements immunizing from technical errors (like software bugs and hardware malfunctions) causing adverse events.

EMR use may also change how medical malpractice standards of care are defined.

Providers implicated in an adverse event may be weighed and measured against a sophisticated EMR system providing differential diagnoses or recommending courses of treatment.

If a provider deviates from an EMR's recommended course of treatment, a jury may equate it to deviating from a legally defined standard of care requiring the defense to provide both a standard of care set forth by an expert and a justification for deviating from EMR-generated treatment recommendations.

Further, providers not using EMR systems may face exposure for failing to adhere to the diagnoses or courses of treatment that the EMR system would have provided.

Legislation has been proposed in Pennsylvania’s State House to provide medical malpractice claim immunity to suppliers of medical data to electronic databases and on the federal level, the proposed “Safeguarding Access for Every Medicare Patient Act” seeks to create legal protections for providers if an adverse event occurs as a result of EMR errors.

Van Rollovers

Because it’s 3 times more likely to rollover with 10 or more occupants, a 15-passenger van is the most dangerous vehicle on the road.

Half a million 15-passenger vans are currently operating often by schools, day care centers, hotels, churches, and scout troops.

Since 2000, more than 400 people have died and thousands have been seriously injured in 15-passenger van rollover accidents involving roof pillar failure or collapse (causing the roof to crush the passengers), tire failures, seatback failures, seatbelt injuries, lack of headrests, lack of glazing of windows, fuel-fed fires, gas tank fires, and fuel tank explosions.

The federal government has banned their purchase by schools, most insurers won’t cover them, and several universities no longer permit athletes to be transported in 15-passenger vans.

Engineers place the problem in the van’s design, weight and balance. First, the van’s manufacture with a car’s wheel base and an “extended back end” comprised of a 4 passenger seat behind the rear axle weigh down the rear end causing it to swing out following a “sudden swerve”, i.e., emergency action after steering in one direction and then being forced to rapidly correct in the opposite to avoid a hazard.

Second, 15-passenger vans are top heavy with a high center of gravity which increases with additional passengers.

According to National Highway Traffic Safety Association (“NHTSA”) research, 15-passenger van’s rollover risk increases dramatically with the number of occupants in that vans with 10 or more occupants have 3 times the rollover rate as those with fewer than 5 occupants.

Although research has consistently shown that improperly inflated tires drastically change the vehicle’s handling and significantly increase the prospect of a rollover, a recent NHTSA research reports that 74% of all 15-passenger vans had incorrectly inflated tires.

For the 3rd time in the past 5 years, NHTSA has issued a “15-passenger van consumer advisory” recommending that only trained and experienced drivers operate the vans, weekly check tire inflation levels against manufacturer's recommended pressure levels, and place no loads on the vehicle’s roof.

Bus Accidents

As public transportation’s use increases, so does the number of bus accident injuries and deaths.

According to the National Highway Transportation Safety Administration, in 2002 19,000 people were injured in bus accidents principally caused by driver negligence, defective equipment, dangerous roadways and improper maintenance.

In addition to city buses, each weekday 25 million children ride yellow school buses to school related activities as well as religious, athletic and youth events.

Approximately 450,000 school buses are in service travelling 2 million miles per day resulting in 16,000 annual collisions causing 12,000 injuries and 130 deaths per year.

Most full-size school buses lack seat belts exposing children to a greater risk of harm and budgetary pressures cause schools to stretch maintenance schedules, keep vehicles in service for prolonged periods and use lower paid, less experienced drivers.

Bus-related accidents cause brain and spinal cord injuries, sprains, fractures, abrasions, internal and soft tissue injuries, burns and death.

Bus companies’ legal responsibility to their passengers is that of a "common carrier", i.e., an individual, company or a public utility in business of transporting people and/or freight owing a greater duty of safety and protection than an ordinary car.

Despite this higher responsibility to drive with the utmost care and protect passengers and other vehicles sharing the road, buses are often owned or operated by city, county or regional transportation departments which vigorously defend bus accidents.

As a result, immediately investigating a bus accident while the physical evidence is still fresh and inspecting the driver's training history and driving record is crucial.

2011 Amherst Bowl

Years ago I put together a father son Thanksgiving football game hoping to fill those empty morning hours and hang out with my son.

I succeeded beyond my wildest dreams.

Celebrating its 8th year, the tournament, christened "The Amherst Bowl", has swollen to 127 players spanning 6 football fields and 12 teams playing 5 continuous football games in authentic AFC or NFC team jerseys.

The trash talk begins on Labor Day and echoes through our Township’s lunchrooms and playing fields with kids wearing prior years’ jerseys like badges of glory.

During Thanksgiving’s wet early morning hours, we map out and line the fields and set up tables overflowing cakes, hot chocolate and coffee.

The horde shows up at around 8:00 a.m. eager to learn the team to which to they’ve been assigned, whom their teammates will be, and how gloriously muddy the fields are.

Shirts are distributed, rules are explained, and at 9:00 a.m. the carnage begins.

During the ensuing rigidly timed five games, fathers put their middle-aged bodies at risk, re-live their youth and play football with their sons.

Throughout the morning used soccer gear is collected by "Heads Up Soccer" which transports and distributes it to impoverished third world youth.

Additionally, monies raised are donated to "Katie at the Bat" http://www.katieatthebatteam.org/ (improving inner-city youths’ lives through athletics, literacy, nutrition and health, and the arts), "Adam Spandorfer Memorial Fund" http://www.adamsfield.org/ (raising monies for Variety Club Camp at which children with disabilities can play baseball), and Hope with Heart http://hopewithheart.com/ (providing a summer camp and building a community for children with moderate to severe heart problems).

Although, at the Tournament’s end, some need help getting off of the field, that evening’s Thanksgiving tables are abuzz with boasts of heroic plays, grudges revisited, and glorious victories.

Until next year, when we do it bigger and better.

Unsafe Drug Alert: TOPAMAX

On March 4, 2011, the Food and Drug Administration (“FDA”) issued a warning that Topiramate, a seizure, epilepsy and migraine medication marketed as Topamax, increases the risk of oral birth defects including cleft lip and/or cleft palate.

The FDA approved Topiramate to prevent migraine headaches (but not to relieve migraine headache pain) and it has been used “off-label” to treat other conditions.

Topamax has been on the market since 1996 and was the 13th best selling prescription drug in 2008 with $2.4 billion pm annual U.S. sales.

Although previously classified as a “Pregnancy Category C” drug (meaning that animal studies data suggested potential fetal risks) because new human data shows an increased oral cleft risk, Topiramate was placed in “Pregnancy Category D” signifying human fetal risk.

Specifically, data indicates that if Topiramate is taken during pregnancy there is a higher risk that the baby will develop a cleft lip and/or cleft palate.

Cleft lip and cleft palate range from a small notch in the lip to a groove running into the roof of the mouth and nose, possibly leading to eating, talking and ear infection problems.

Oral clefts happen early in pregnancy, before many women even know they are pregnant, and surgery is used to close the lip and palate.

Topiramate’s benefits and risks should be carefully weighed when prescribing to women of childbearing age, particularly for conditions not usually associated with permanent injury or death.

Further, because suddenly stopping Topiramate can cause serious problems, Topiramate should not be stopped before talking to a healthcare professional, even in pregnant women.

Consumer Product Safety Database

Starting in March 2011, consumers will be able to submit reports of harm caused by consumer products to a public database created by the Consumer Product Safety Commission ("CPSC").

The CPSC regulates consumer products sold in the United States including toys, furniture, clothing and accessories, electronics, sports and recreation items, containers, kitchen items, household chemicals and fuel.

The database, www.saferproducts.gov, will allow the public to post, search for, and review consumer product reports (previously available only through a Freedom of Information Act request) and manufacturers’ response to those reports.

The database was created to provide timely injury-causing-dangers information without waiting for a product recall by allowing consumers and others to submit consumer product safety reports directly to the CPSC.

Here is how it works.

Consumers log onto www.saferproducts.gov and submit a description of the product, the manufacturer’s identity, and a description of the harm caused by the product’s use.

If it meets the minimum criteria for publication, the CPSC will post the report on the database 15 business days after submission and forward a copy to the manufacturer for comment.

The manufacturer then has 10 business days to comment if it wishes to have its comments published simultaneously with the report’s posting.

Although the new CPSC database will both promote transparency and provide consumers with necessary product safety information, because anyone may submit a report, including competitors and lawyers representing claimants against the manufacturer, concerns exist that the database might unfairly damage reputations or lead to baseless litigation.