Tag Archives: personal injury

Burn injuries, Catastrophic Injury, Experts

Defending the Pediatric Burn Case: How Knowing the Medical Literature and New Treatment Modalities Can Help Control Damages

Surgeons discussing computed tomography (CT) scans in operating theatre

Introduction

Most seasoned defense attorneys are well aware of the three subjects that often tend to cause far higher-than-expected verdicts: burns, kids, and cancer.  In this article we will address the danger of situations where there is not only a child, but the child is severely burned.

In prior posts we addressed burn classification, conventional treatment modalities, and aspects of expected outcomes.  We will not repeat that information here but instead address some general mortality statistics and where children, specifically those age six and younger, fit in.  We will also address experimental and new therapies for children, as described in the recent literature, including the use of virtual reality, albuterol inhalants, and aerosolized Heparin/Acetylcystine therapies.  All of these therapies have been shown to lower mortality rates in children.

Regardless of the burn mechanism, defending a pediatric burn case, especially if it was fatal, can be extremely difficult.  Juries tend to be very sensitive to burn injuries, especially in cases involving children.  Therefore, the product liability or aviation defense lawyer must have an in-depth understanding of the mechanics of burn injuries and available treatment options, particularly in those cases where inhalation injury is a component.  Both an aircraft cabin and a home are confined spaces that can be filled with fatal levels of smoke, sometimes within seconds.  Given these considerations, it is essential that the defense attorney be thoroughly prepared, armed with both knowledge and empathy.

Statistical Overview of Burn Injuries

According to the National Burn Repository,[1] which gathers and analyzes statistical data from burn centers throughout the United States and Canada, there were 126,000 hospital admissions for burns from 1995 – 2005.  The mean burn size was 13.4 percent total body surface area (TBSA) with sixty-two percent of the full thickness burns covering less than ten percent TBSA.  Sixty-one percent of patients were transferred to another hospital for a higher level of care.  Six and one-half percent of admissions had inhalation injuries.  The data also show that the patients were seventy percent male with a mean age of 33 years.  Flame and scald burns accounted for seventy-eight percent of all burn injuries.

The prognostic burn index, a sum of the patient’s age and percentage of TBSA burn, was used as a gauge for patient mortality for many years.  This index suggested that by taking into consideration the patient’s age and the size of their full thickness TBSA burn, and adding twenty percent for inhalation, the patient’s mortality probability could be predicted.[2]  Advances in early excision of burn eschar,[3] skin grafting, early enteral feeding,[4] and wound closure with advanced techniques (skin substitutes) have altered the simple mathematical calculation.[5]  Patients with a prognostic burn index of 90 – 100 now have a mortality rate in the 50 – 70% range with poorer outcomes at both extremes of age.[6]

The Importance of Pediatric Treatment in Cases Involving Inhalation Burns 

As noted above, mortality rates are higher in pediatric patients.  Smoke inhalation injury continues to be implicated as the leading cause of death in persons with burn injuries.  Smoke inhalation injury has a reported mortality of 20 – 80%.[7]  This is also supported by the addition of 20% traditionally added to the prognostic burn index.

In smoke inhalation injury, there is a destruction of the ciliated epithelium[8] that lines the tracheobronchial tree.  Casts[9] from these cells cause upper-airway destruction, and this leads to obstruction, causing pulmonary failure.  In one recent study, the reduction in mortality in pediatric patients with inhalation injuries placed on a regimen of aerosolized heparin[10] and acetylcystine[11] was tested.[12]  Forty-seven children, acting against forty-three controls, received 5000 units of heparin and 3 ml of a 20% solution of acetylcystine aerosolized every four hours for the first seven days of injury.  All patients were extubated when they were able to maintain spontaneous oxygen levels.  The number of patients requiring re-intubation for successive pulmonary failure was recorded, as was mortality.

The results indicate a significant decrease in re-intubation rates, incidence of atelectasis,[13] and mortality for patients treated with the regimen of heparin and acetylcystine when compared with the controls.  Heparin/acetylcystine nebulization in children with massive burn and smoke inhalation injuries results in a significant decrease in incidence of re-intubation for progressive pulmonary failure and a reduction in mortality.

The Use of Virtual Reality For Acute Pain Management in Pediatric Burn Patients

In one experimental case, virtual reality was tested for pain management.[14]  Managing high pain levels associated with pediatric burns can result in a decreased reliance on opioid medications and can potentially minimize future risk of developing psychiatric problems.  During the study, hospitalized patients over the age of six and without facial burns were selected.  A lightweight helmet with binocular display provided patients with a Virtual Reality (VR) experience during acute pain procedures such as wound care or therapy.  Pain levels were assessed using the Faces Pain Scale (FPS).[15] Constitutional signs and symptoms, opioid medication usage, as well as nursing and family member assessments of pain were also recorded.  VR provided a three-dimensional computer-simulated environment where patients could see, hear, and interact with objects displayed in the virtual world.

Preliminary results suggested at least a 20% decrease on FPS during VR intervention.  Pediatric patients report an increased tolerance to exposed dressing sites during VR.  It remains unknown which patient factors (age, sex, characteristics of the burn, background pain level, etc.) are predictive of effective pain management with VR.

Conclusion

Olson Brooksby has defended many product liability and aviation cases where the resulting injury was a serious, sometimes fatal, burn.  From a defense perspective, such cases pose difficulties if defense counsel is not prepared to skillfully handle the cross examination of the treating burn physician.  The best way to do so is to be familiar with the prevailing treatment methods and the relevant literature.  Conversance with the literature will provide a working understanding of the techniques that were available to the treatment team to minimize the pediatric burn patient’s pain and increase the likelihood of survival.

 

[1] Miller, S.F.M., et al., National Burn Repository, 2005, American Burn Association: Chicago, IL. P. 1-51.

[2] Grunwald, T.B. and Garner, W.L. Acute Burns. University of Southern California; Los Angeles County + USC Burn Center, Los Angeles, California.

[3] Dead matter cast off the surface of the skin after a burn.

[4] Tubal feeding through the intestine.

[5] Rose, D.D. and E.B. Jordan, Perioperative management of burn patients.  Aorn J, 1999. 69(6): p. 1211-22; quiz 1223-30.

[6] N., K. Aoki, and M. Yamazaki, Recent advances in the management of severely burned patients.  Nippon Geka Gakkai Zasshi, 1999. 100(7): p. 424-9.

[7] Thompson PB, Herndon DN, Taber DL, et al.  Effects of mortality of inhalation injury. J. Trauma 1986; 26:163-5.

[8] Threadlike projections from the free surface of epithelial cells such as those lining the trachea, or bronchi.  The propel or sweep materials, such as mucus or dust across a surface such as the respiratory tract.  Taber’s Cyclopedic Medical Dictionary, 19th Ed.. 2001. Venes. D., Ed., F.A. Davis Co., Philadelphia.

[9] Pliable or fibrous material shed in various  pathological conditions, the product of effusion.  It is molded to the shape of the part in which it has been accumulated, i.e., bronchial or tracheal casts.  Taber’s Cyclopedic Medical Dictionary, 19th Ed.. 2001. Venes. D., Ed., F.A. Davis Co., Philadelphia.

[10] Heparin is an aparenteral anticoagulant drug with a faster effect than warfarin or its derivatives.  It is composed of polysaccharides that inhibit coagulation by forming an antithrombin. An antithrombin is anything that prevents action on the thrombin.  The Thrombin is an enzyme formed in coagulating blood which reacts with soluble fibrinogen to form a blood clot.  Taber’s Cyclopedic Medical Dictionary, 19th Ed.. 2001. Venes. D., Ed., F.A. Davis Co., Philadelphia.

[11] Acetylcystine is a chemical substance that, when nebulized and inhaled, liquefies mucus and pus.  Taber’s Cyclopedic Medical Dictionary, 19th Ed.. 2001. Venes. D., Ed., F.A. Davis Co., Philadelphia.

[12] M.H. Desai, MD, R. Micak, RRT, RCP, J. Richardson, RCP, RRT, R. Nichols, MD, and D.N. Herndon, MD.  Reduction in Mortality in Pediatric Patients with Inhalation Injury with Aerosolized Heparin/Acetylcystiine Therapy.  University of Texas Medical Branch and Shriners Burns Institute, Galveston.  American Burn Association, 1998.

[13] Collapse of part (or, less commonly, all) of a lung.

[14] Minassian, A PhD; Kotay, A MS; Perry, W PhD; Tenenhaus, M MD, FACS; Potenza, B M. MD, FACS.  The Use of Virtual Reality for Acute Pain Management in Pediatric Burn Patients.  University of California San Diego, The American Burn Association, 2006.

[15] The Faces Pain Scale, also known as the Wong-Baker FACES Pain Rating Scale, is intended for children over three years of age.  It provides a series of six drawn facial expressions with an associated numerical value from zero through 5 representing the associated pain.  Hockenberry MJ, Wilson D:  Wong’s Essentials of Pediatric Nursing, 8th Edition. St. Louis:  2009: Mosby.

 

Aviation, aviation attorney, aviation attorney, aviation, aviation law, aviation lawyer, aviation law, aviation lawyer, Manufacturing, Metals, Personal Injury

Turbine Engine Hot Section Manufacturing: Complex Metallurgy and Dangerous Work Environments

Turbine engine hot section manufacturing is a complex industry that involves risk of serious injury and an adherence to safety rules and best practices.

There is a common maxim that two technologies liberated the modern world: the automatic washing machine and the jet engine.  When RAF Lieutenant Frank Whittle received an English patent on the basic design for the modern jet engine in 1930 (the first flight was not until 1941), he probably could not have imagined the changes that would occur, in materials, complexity, and performance capability.

Today’s commercial jet engines have as many as 25,000 parts.  They are up to eleven feet in diameter and twelve feet long.  The engines can weigh more than 10,000 pounds and produce 100,000 pounds of thrust.  Even the engine on a fully tested and approved design may take two years to assemble.  A super-jumbo jet can carry 500-800 passengers, depending on configuration, and have a take-off weight of 1.2 million pounds.

Section I will provide a basic overview of the production and metallurgical complexities associated with the manufacture of some hot section components.  Section II will address a unique aspect of jet hot section manufacturing.  Specifically, the complex and exacting standards required to avoid catastrophic in-flight aviation accidents also require the most disciplined adherence to best practices for safety to avoid catastrophic occupational injury, particularly burns, in high temperature work environments.  Section III will briefly discuss the catastrophic burn injuries that result from failure to follow exacting safety precautions.

Section I:  The Hot Section

At the front of the engine, a fan drives air into the engine’s first compartment, the compressor, a space approximately 20 times smaller than the first stage of the compressor.   As the air leaves the high-pressure compressor and enters the combustor, it mixes with fuel and is burned.  As the gas is combusted and expands, some gas passes through the exhaust and some is rerouted to the engine’s turbine (a set of fans that rotate compressor blades).  The turbine extracts energy from the ultra-hot gases to power the compressor shaft and generate power.

Because the turbine is subject to such incredible heat, labyrinthine airways in the turbine blades allow cool air to pass through them to cool the turbine.  With the cooling mechanism of the airstream, the turbine can function in gas streams where the temperature is higher than the melting point of the alloy from which the turbine is made.

Titanium, purified to aviation specifications in the 1950s, is used for the most critical components of the “hot section” such as the combustion chamber and turbine.  The hardness of titanium is difficult to work with, but it is resistant to extreme heat.  It is often alloyed with other metals such as nickel and aluminum for high strength/weight ratios.

Hot Section Component Manufacturing

The intake fan.  The fan must be strong so it does not fracture if large birds or debris are sucked in.  It is made of a titanium alloy.  Each fan blade consists of two skins produced by shaping molten titanium in a hot press.  Each blade skin is welded to a mate, with a hollow cavity in the center being filled with titanium honeycomb.

The compressor disc. This is a solid core, resembling a notched wheel, to which the compressor blades are attached.  It must be free of even minute imperfections, since these could cause creeping or develop into fractures under the tremendous stress of engine operation.  Historically machined, compressor discs are now manufactured through a process called powder metallurgy, which consists of pouring molten metal onto a rapidly rotating turntable that breaks the molten metal into millions of microscopic droplets that are flung back up almost immediately, due to the table’s spinning.  As they leave the turntable, the droplets’ temperature plummets by 2120 degrees Fahrenheit (1000 degrees Celsius) in half a second, causing them to solidify and form a very fine metal powder, which solidifies too quickly to absorb impurities.  The powder is packed into a forming case and vibrated in a vacuum to remove air.  The case is then sealed and heated, under 25,000 pounds of pressure per square, inch into a disc.

Compressor blades.  These blades are still formed by traditional methods of casting.  Alloy is poured into a ceramic mold, heated in a furnace, and cooled.  The mold is broken and blades are machined to final shape, often to exacting tolerances on the order of 7 microns.

Combustion chambers.  Combustion chambers blend air and fuel in small spaces for long periods of time at incredible temperatures.  Titanium is alloyed (to increase ductility) and then heated to liquid before being poured into several complex segment molds.  The segments are welded together after cooling and removal.

The turbine disc and blades.  The turbine disc is formed by the same powder metallurgy used to create the compressor disc.  However, turbine blades are subjected to even greater stress due to the intense heat of the combustor.  Copies of the blades are formed by pouring wax into metal molds.  Once set, the wax shape is removed and immersed in a ceramic slurry bath, forming a ceramic coating.  Each cluster of shapes is heated to harden the ceramic and melt the wax.  Molten metal is then poured into the hollow left by the melted wax.

The metal grains of the blades are then aligned parallel to the blade by directional solidifying, which is important due to the blade stresses.  If the grains are aligned correctly, the blade is much less likely to fracture.  The solidifying process takes place in computer-controlled ovens to precise specifications.  Parallel lines of tiny holes are formed to supplement internal cooling passageways, either by a small laser beam or by spark erosion, where sparks are carefully allowed to eat holes in the blade.

Turbine blades are subject to temperatures of around 2,500 degrees Fahrenheit (1,370 Celsius.  At such temperatures, creep, corrosion, and fatigue failures are all possible.  Thermal barrier coatings, such as aluminide coatings developed during the 1970s, facilitated cooling.  Ceramic coatings developed during the 1980s improved blade capability by about 200 degrees F. and nearly doubled blade life.

Modern turbine blades often use nickel-based superalloys that incorporate chromium, cobalt, and rhenium.  Some superalloys incorporate crystal technology.  Nimonic is another super low-creep superalloy used in turbine blades.  Titanium aluminide, a chemical compound with excellent mechanical properties at elevated temperatures, may replace Ni based superalloys in turbine blades.  GE uses titanium aluminide on low pressure turbine blades on the GEnx engine powering Boeing 787s.  The blades are cast by Precision Castparts Corp.

Exhaust system.  The inner duct and afterburners are molded from titanium, while the outer duct and nacelle are formed from Kevlar, with all components welded into a subassembly.

Section II.  Defects in Both Hot Section Components and Safety Procedures Can Result in Catastrophic Injuries

An imperfection in the hot section, which results, for example, in a blade fracture during flight, or excessive creep, may result in an uncontrolled engine failure, among other catastrophic inflight mishaps, putting lives at risk.  In an interesting corollary, unique to very few manufacturing settings, adherence to the safest manufacturing processes will minimize both product defects and worker injuries, primarily serious burns.

Few Things Drive Higher Verdicts, Workers Compensation Costs, or Settlements, Than Burns

In those industries where “serious large burns” can arbitrarily be defined as full-thickness burns over 20% or more of the total body surface area (TBSA), the location of the burns and the relative availability of certain types of grafts can be outcome determinative and correlate directly with litigation risk, settlements, and verdicts. Most problematic are 4th degree burns to the hands or face, which can never, ever, be fully repaired with current surgical technology or therapeutic treatments.

Skin Graft Classification

There are two common types of skin grafts.  A split-thickness graft (STSG), or mesh graft, includes the epidermis and part of the dermis.  A mesher makes apertures in the graft, allowing it to expand approximately 9 times its original size.

Alternatively, a full thickness skin graft, or sheet graft, which involves pitching and cutting away skin from the donor section, is more risky in terms of rejection.  Yet counter-intuitively, this method leaves a scar only on the donor section, heals more quickly, and is less painful than split-thickness grafting.  This type of grafting, sheet grafting, must be used for hands and faces/heads where graft contraction must be minimized, and it is therefore extremely difficult to achieve in large TBSA burns.

Remedies

Although workers compensation laws will generally bar litigation by workers against their employers, in cases where the exclusive remedy provision of workers compensation does not apply, it is not uncommon in the United States to see burn verdicts or settlements in the millions or even tens of millions of dollars.  Mandatory PPE and best safety practices for dealing with ultra-high temperature work environments can minimize injuries, although the practical reality is that elimination of such injuries remains an aspirational goal.

Manufacturing, Steel

Steelmaking In The 21st Century: An Ancient Art, A Complex Modern Science, A Danger At Every Stage

Metal briefcase

Product liability lawyers should be familiar with both the dangers and the science of steel manufacturing.  Steel is one of the most indispensable products in the modern world.  Its uses, forms, and composition are limitless.  Like any other product, steel in its final form and use is a “product” subject to the same consumer expectation test in Oregon that applies to household appliances.  However, unlike most other product manufacturing, steel production, which creates the base material for pipe, rails, aviation, and innumerable transportation, mining, oil and gas, and other products, is incredibly dangerous.  Although serious burns might be the most obvious risk, there are also crush, amputation, and a host of other potential injuries which justify the most careful training, exacting safety processes, and best PPE.  This is especially true given the danger posed by the typical 24-hour-a-day production schedules and the undisputed fact that nighttime workers are in more danger than day workers.

Steelmaking Is An Ancient Art

In the ancient world, steelmaking was considered an art, and as the centuries passed, the process became more and more complex.  Steel was known in antiquity and may have been produced by managing bloomeries, or iron-smelting facilities, in which the bloom contained carbon.  Blooms are steel formed into large blocks to which further tempering or chemical procedures can be applied.  The use of blooms persists into the steelmaking of today.

The earliest known example of steel production, thought to be about 4000 years old, is a piece of ironware excavated from an archaeological site in Anatolia (the Asian part of Turkey).  “Ironware piece unearthed from Turkey found to be oldest steel.”  The Hindu (Chennai, India).  The Haya people of East Africa invented a type of furnace that they used to make carbon steel at 3,276 degrees Fahrenheit nearly 2000 years ago.  Africa’s Ancient Steelmakers (http://www.time.com/time/magazine/article/0,9171,912179,00.html?promoid=googlep).  Time Magazine September 25, 1978.

What Is Steel?

Steel is an alloy of iron and carbon.  Steelmaking is the process of producing steel from iron and ferrous scrap.  In steelmaking today, impurities such as silicon, phosphorus, and excess carbon are removed from the raw iron, and alloying elements such as manganese, nickel, chromium, and vanadium are added to produce different grades of steel.  Limiting dissolved gasses such as nitrogen and oxygen, and entrained impurities or “inclusions,” in the steel is also important to ensure the quality of the products cast from the liquid steel.  B. Deo and R. Boom, Fundamentals of Steelmaking Metallurgy, Prentice and Hall (1993).

Carbon is the primary alloying element, and its content in steel is between 0.002% and 2.1% by weight.  Additional elements are also present in steel, including manganese, phosphorous, sulfur, silicon, and traces of oxygen, nitrogen, and aluminum.  Carbon and other elements act as hardening agents, preventing dislocations in the iron atom crystal lattice from sliding past one another.

Varying the amount of alloying elements and the form of their presence in the steel (solute elements precipitated phase) controls qualities such as the hardness, ductility, and tensile strength of the resulting steel.  Steel with increased carbon content can be made harder and stronger than iron, but such steel is also less ductile than iron.  Ashby, Michael F. and Jones, David R.H.  Engineering Materials 2 (with corrections ed.) Oxford:  Pergamom Press.  ISBN 0-08-032532-7 (1992 [1986]).

Alloys with a higher than 2.1% carbon content are categorized as cast iron.  Because cast iron is not malleable even when hot, it can be worked only by casting, where it has a lower melting point.  Steel is also distinguishable from wrought iron, which may contain a small amount of carbon.

Even in the narrow range of concentrations that make up steel, mixtures of carbon and iron can form a number of different structures with very different properties.  One of the most important polymorphic forms of steel is martensite, a metastable phase that is significantly stronger than other steel phases.  When the steel is in an austenitic phase and then quenched rapidly, it forms into martensite, as the atoms “freeze” in place when the cell structure changes from FCC to BCC.  Depending on the carbon content, the martensitic phase takes different forms.  Below approximately 2% carbon, it takes a ferrite BCC crystal form, but at a higher carbon content, it takes a body-centered tetragonal (BCT) structure.  There is no thermal activation energy for the transformation from austenite to martensite.  Moreover, there is no compositional change to the atoms, which generally retain their same neighbors.  Smith, William F., Hashemi, Jared, Foundations of Materials Science and Engineering (4th ed 2006) McGraw Hill ISBN 0-07-295358-6.

Special Modern High Performance Alloys

There are a number of extremely complex super-alloys and other metals available today for high performance aviation and other uses, including Transformation Induced Plasticity (TRIP) steel and Twinning Induced Plasticity (TWIP) steel.  A complete discussion of these super-alloys merits a separate article, and one will be forthcoming shortly.

Introduction To The Modern Process

In the modern era, there are two major processes for making steel.  The first is basic oxygen steelmaking, which uses liquid pig iron from the blast furnace and scrap steel for the main feed materials.  Alternatively, iron ore is reduced or smelted with coke and limestone in the blast furnace, producing molten iron that is either cast into pic iron or carried to the next stage as molten iron.  In the second stage, impurities such as sulfur, phosphorus, and excess carbon are removed, and the alloying elements such as manganese, nickel, chromium, and vanadium are added to produce the steel required.  The vast majority of steel in the world is produced using the basic oxygen furnace.  In 2011, approximately 70% of the world’s steel was produced in this way.  R. Fruehan, The Making, Shaping and Treating of Steel (11th ed. AIST 1999).

The second major modern process is electric arc furnace (EAF) steelmaking, which either uses scrap steel or direct reduced iron (DRI) as the main feed material.  Oxygen steelmaking is fuelled predominantly by the exothermic nature of the reactions inside the vessel, whereas in EAF steelmaking, electrical energy is used to melt the solid scrap and/or DRI materials.

In recent times, EAF steelmaking technology has moved closer to Oxygen steelmaking as more chemical energy is introduced into the process.  E.T. Turkdogan, Fundamentals of Steelmaking, IOM (1996).  EAF steelmaking is predominantly used for producing steel from scrap and involves melting scrap, and combining it with iron ore.

Alternatively, the oxygen method can involve melting DRI using electric arcs (either AC or DC).  It is common to start the melt with a “hot heel” (molten steel from a previous heat) and use gas burners to assist with the meltdown of the pile of scrap.  EAF furnaces typically have capacities of around 100 tons every 40 to 50 minutes.

Regardless of the process used, through casting, hot rolling and cold rolling, the steel mill then turns the molten steel into blooms, ingots, slabs, and sheet.

At the typical steel mill, the raw materials are batched into a blast furnace where the iron compounds in the ore give up excess oxygen and become liquid iron.  At intervals of a few hours, the accumulated liquid iron is tapped from the blast furnace and either cast into pig iron or directed to other vessels for further steelmaking operations.  During the casting process, various methods are used, such as the addition of aluminum so that impurities in the steel float to the surface where they can be cut off the finished bloom.

Conclusion

The steelmaking process involves exposure to hundreds of tons of molten metals, often poured manually into ceramic, wax, or other casting forms or hot rolled into shapes.  The potential for catastrophic injury or death is everywhere in the steelmaking process, and it is essential that workers be trained and supervised to avoid lapses in safety that could result in such unfortunate occurrences.  Although automation continuously decreases the exposure of workers to significant injury or death as a result of virtually every phase of the process, the utmost care should still be exercised by all who enter a steel mill.

Manufacturing, Oregon Law, Personal Injury, Product Liability, Uncategorized

Component Part Manufacturer Liability in Oregon

Oregon Did Not Adopt Caveat (3) In Its Adoption of The Restatement (Second) of Torts, § 402A (1965)

Component part liability is important in products liability cases and especially in aviation cases, where the aircraft may have a long air-frame life but require service or replacements of hundreds of parts over its years of service.  Although Oregon adopted the Restatement (Second) of Torts, § 402A contains a caveat (Caveat 3 (1965)) regarding whether strict liability should be extended to component part manufacturers.  The Oregon Legislature, however, did not adopt this caveat as an interpretive guide for the courts.  Therefore, both pre-codification and post-codification Oregon Supreme Court rulings hold that strict liability can extend to component part manufacturers for the sale of defective components.  See State ex rel Hydraulic Servocontrols v. Dale, 294 Or 381 (1982); Smith v. J.C. Penney Co., 269 Or 643 (1974) (fabric manufacturer held liable because of flammable character of fabric, even though fabric was sold to the coat manufacturer before reaching consumer).  If the component part is dangerously defective and it causes injury, the component part manufacturer (or seller or distributor) is subject to liability.

Oregon law also follows the Restatement (Third) of Torts: Products Liability, which takes the position that if the component part is defective and causes injury, the component part manufacturer (or seller or distributor) is subject to liability.  Additionally, if the component part manufacturer “substantially participates in the integration of the component into the design of the product,” the component manufacturer is subject to liability. Restatement (Third) Of Torts: Products Liability § 5 (1998).

Oregon Law Involving Alleged Misapplication of a Raw Material:  Misapplication of a Raw Material Does Not Give Rise To Liability As To the Supplier

The manufacturer of a component part, however, is not subject to strict liability if the component was misapplied rather than defectively designed.  In Hoyt v. Vitek, Inc., 134 Or App 271 (1995), after experiencing problems with her temporomandibular joint (TMJ), the joint that connects the jaw bone to the skull, the plaintiff, Hoyt, had a prosthetic device implanted in her jaw.  The device gradually fragmented and released particles of Teflon, which caused a serious adverse reaction.  Du Pont Company manufactured Teflon and sold it to Vitek, Inc., which used the Teflon as a component part in its TMJ device.

Vitek designed, manufactured and marketed the device.  In 1977 DuPont informed Vitek that it manufactured Teflon for industrial purposes only and had sought no FDA rulings on the safety or effectiveness of surgical uses, and that Vitek would have to rely on its own medical and legal judgment.  Du Pont was aware of studies that warned of abrasion and fragmentation with medical Teflon implants and passed along this information to Vitek.  In 1983, Vitek received permission from the FDA to market the device pending “specific performance standards.”  Hoyt, supra, 134 Or App at 277.

Hoyt sued Du Pont, contending that Teflon was unreasonably dangerous because it was defectively designed and because of Du Pont’s failure to warn the medical community.  The court of appeals found that the component part was not defective.  The court of appeals also relied on the “raw material supplier” doctrine in deciding not to apply strict liability.  When a multiuse raw material is not unreasonably dangerous in itself, but becomes unreasonably dangerous when incorporated into certain uses, the supplier cannot be sued based on strict liability.  Hoyt, supra, 134 Or App at 284-286.  See Crossfield v. Quality Control Equip. Co., 1 F3d 701 (8th Cir 1993); Childress v. Gresen Mfg. Co., 888 F2d 45 (6th Cir 1989).

Cases in Which Component Parts Are the Allegedly Defective Product

Plaintiffs did allege that defective replacement parts were supplied after the first sale of a helicopter in Evans v. Bell Helicopter Textron, 1998 WL 1297138 (D Or 1998), but the service bulletins proffered by plaintiffs were insufficient to establish that the defective component parts were installed in the engine after the first sale.  The helicopter was manufactured in 1979, and crashed seventeen years later.  Defendants’ motion for summary judgment was granted on the basis of ORS 30.905 because plaintiffs could not support their allegation that an affirmative misrepresentation occurred after the first sale of the helicopter by defendants.

In Allstate Indem. Co. v. Go Appliances LLC, 2006 WL 2045860 (D Or 2006), plaintiff alleged that a defective compressor installed on a used refrigerator caused a fire in its subrogor’s house.  The opinion does not state when the refrigerator was originally first sold and does not discuss product liability time limitations.  However, the court held that plaintiff could assert a products liability action against the defendant, who sold the used appliance and installed the allegedly defective new compressor.

The statute of ultimate repose in both strict product liability cases and negligence cases is beyond the scope of this article.  However, one of the controlling Oregon cases relevant to a replacement component part is Erickson Air-Crane Co. v. United Technologies Corp., 303 Or 281 (1987), mod. on recons. 303 Or 452.  Although Erickson discussed the application of the products liability statute of ultimate repose in the context of post-sale negligent misrepresentation, the case is relevant to a discussion regarding application of the statute of ultimate repose to a post- sale installation of a defective component part.

In Erickson, plaintiff purchased a helicopter in 1971.  Defendant allegedly made misrepresentations regarding the useful safe life of a compressor disc in 1977.  After the helicopter crashed in 1981 due to exhaustion of the compressor disc, plaintiff filed suit in 1983.  The plaintiff’s complaint alleged that defendant was negligent in providing erroneous information, failing to warn plaintiff as to the erroneous information, and failing to warn that the helicopter was dangerous after expiration of the true safe life of the compressor disc.  Erickson, 303 Or at 284-85.

The Oregon Court of Appeals found that plaintiff’s action against the manufacturer was a product liability action, and that because the action was commenced more than eight years after the first purchase of the helicopter, the statute of ultimate repose barred the action.  Id. at 285-86.  The Supreme Court reversed, holding that:  “ORS 30.905 applies only to acts, omissions or conditions existing or occurring before or at the ‘date on which the product was first purchased for use or consumption.’  Acts or omissions occurring after that date are governed by the statute of ultimate repose contained in ORS 12.115.”[1]  Id. at 286.  Because the defendant relayed the false information about the useful safe life of the compressor after the helicopter was first purchased, ORS 30.905 did not apply.  Id. at 289. (“The difference between the present case and the type of case that the legislature meant to cover under ORS 30.905(1) is that, in this negligence case, the reasonableness of certain of defendant’s actions after plaintiff’s purchase are in question while, in a product liability case governed by ORS 30.905, it is the condition of the article at the date of purchase that is in question.”) (emphasis in original).

The Erickson holding, when viewed in the context of installations of new components, supports the argument that such alterations cannot “restart” the statute of ultimate repose on the original product.  Erickson holds that ORS 30.905 only applies to “acts, omissions or conditions existing or occurring before or at the ‘date on which the product was first purchased for use or consumption,’” and a post-sale negligent misrepresentation leading to the installation of a new product necessarily occurs after the date the product was first purchased.  A manufacturer can argue that under Erickson, the statute of ultimate repose should run on the original product from the date it entered the stream of commerce, regardless of whether component parts were installed post sale.

 

 

[1] ORS 12.115 is the generic statute of ultimate repose for negligence actions, and provides that “any action for negligent injury to person or property of another” must be commenced within “10 years from the date of the act or omission complained of.”

Aviation, aviation attorney, aviation attorney, aviation, aviation law, aviation lawyer, aviation law, aviation lawyer, Evidence, Experts, PTSD, Trials

Effective Cross-Examination of Plaintiff’s Psychological Expert Can Reduce or Eliminate Damages for Misdiagnosed Claims of PTSD

Jurors in the jury box

Post-Traumatic Stress Disorder (“PTSD”) is a mental disorder within the trauma and stressor-related disorders included in The American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders, or DSM-5.  It was previously categorized in the anxiety classification of disorders in the “DSM-IV”.

Personal injury, product liability, and aviation defense lawyers should be well prepared to cross-examine forensic psychologists who testify on behalf of plaintiffs that they suffer from PTSD.  Reasons for thorough preparation include the frequent lack of critical information regarding a plaintiff’s background, inadequate psychological testing, improper reading of validity scales, or an absence of reliance on any other data or criteria by the forensic psychologist testifying on behalf of plaintiff.  If defense counsel is thoroughly familiar with the DSM-5 (and its criteria and commentary on PTSD) and is prepared for an effective cross-examination of plaintiff’s treating or forensic psychologist, damages for emotional distress in PTSD claims can be significantly reduced or eliminated.

Olson Brooksby primarily defends product liability, higher exposure personal injury, and aviation cases.  Over the past few years, we have seen a trend developing whereby almost every plaintiff filing a personal injury lawsuit in such cases claims they suffer from PTSD as a consequence of the alleged injury, without regard for any other potential causes or their own overall life experience.  As a result, most plaintiffs seek emotional distress damages for PTSD as an element of damages in their personal injury lawsuits.

This being the case, there is no substitute for thorough preparation, in-depth knowledge of the material, and the ability to translate “psycho-speak” into plain language in order to mount an effective cross examination.  This preparation should start with a rigorous study of the DSM-5.

Effectively Challenging Plaintiff’s Allegation of PTSD Can Significantly Reduce or Eliminate Plaintiff’s Claim For Emotional Distress Damages

Most plaintiff and defense attorneys would likely admit that handling PTSD claims on behalf of their respective clients, and in particular, dealing effectively with forensic psychological experts, is difficult.  In defending a personal injury action where PTSD is claimed, it is essential that defense counsel have a thorough understanding of the interaction between the DSM-5, standardized testing, how the testing was scored, whether the tests administered had validity scales, and what other personal historical factors and information the plaintiff’s examining physician had available to him or her.

It is also important to determine whether the plaintiff’s experts considered any other mental disease or defect, and, if so, how they reached their differential diagnosis of PTSD.  All of this is necessary for thoroughly cross-examining plaintiff’s experts and challenging misdiagnosed claims of PTSD.

There is no single test that will clinically establish the presence of PTSD.  Typically, tests such as the MMPI, the TSI, or other standardized tests are administered.  Defense counsel should know whether there are validity scales and what they show, and they should be prepared to cross-examine plaintiff’s expert on these issues.  Defense counsel should cross-examine plaintiff’s expert on his or her knowledge of recent longitudinal studies done on PTSD, many of which are authored or co-authored by members of the DSM-IV or DSM-IV-TR PTSD Work Group or other Task Force or advisors.

Other fertile strategies for cross-examination include probing the extent of the expert’s clinical experience, how they applied clinical judgment to reach the diagnosis, how they accounted for malingering, and extensive questioning regarding key diagnostic criteria such as “life-threatening” and “persistence.”

Essential Diagnostic Features of Post-Traumatic Stress Disorder (“PTSD”) 

“The essential feature of post-traumatic stress disorder (PTSD) is the development of characteristic symptoms following exposure to one or more traumatic events.  Emotional reactions to the traumatic event (e.g., fear, helplessness, horror) are no longer a part of Criterion A.  The clinical presentation of PTSD varies.  In some individuals, fear-based re-experiencing, emotional, and behavioral symptoms may predominate.  In others, anhedonic or dysphoric mood states and negative cognitions may be most distressing.  In other individuals, arousal and reactive-externalizing symptoms are prominent, while in others, dissociative symptoms predominate.  Finally, some individuals exhibit combinations of these symptom patterns.”  DSM-5 at p. 274.

The directly experienced traumatic events in Criterion A include, but are not limited to, exposure to war as a combatant or civilian, threatened or actual physical assault (e.g., physical attack, robbery, mugging, childhood physical abuse), threatened or actual sexual violence (e.g., forced sexual penetration, alcohol/drug-facilitated sexual penetration, abusive sexual contact, noncontact sexual abuse, sexual trafficking), being kidnapped, taken hostage, terrorist attack, torture, incarceration as a prisoner of war, natural or human-made disasters, and severe motor vehicle accidents.

For children, sexually violent events may include developmentally inappropriate sexual experiences without violence or injury.  A life-threatening illness or debilitating medical condition is not necessarily considered a traumatic event.  Medical incidents that qualify as traumatic events involve sudden, catastrophic events (e.g., waking during surgery, anaphylactic shock).  Witnessed events include, but are not limited to, observing threatened or serious injury, unnatural death, physical or sexual abuse of another person due to violent assault, domestic violence, accident, war or disaster, or a medical catastrophe in one’s child (e.g., a life-threatening hemorrhage).  Indirect exposure through learning about an event is limited to experiences affecting close relatives or friends and experiences that are violent or accidental (e.g., death due to natural causes does not qualify).  Such events include violent personal assault, suicide, serious accident, and serious injury.  The disorder may be especially severe or long-lasting when the stressor is interpersonal and intentional (e.g., torture, sexual violence).

The response to the event must involve intense fear, helplessness, or horror.  In children, the response must involve disorganized or agitated behavior.  Characteristic symptoms include persistent re-experiencing of the traumatic event, persistence of stimuli associated with the trauma and numbing of general responsiveness and persistent symptoms of increased arousal.  The full symptom picture must be present for more than one month and the disturbance must cause clinically significant distress or impairment in social, occupational, or other important areas of functioning.

An individual will have persistent symptoms of anxiety or increased arousal not present before the trauma.  These symptoms can include difficulty falling or staying asleep that may be due to recurrent nightmares during which the traumatic event is relived.  Other symptoms can include hyper-vigilance and exaggerated startle response.  Some individuals report irritability, outbursts of anger, or difficulty concentrating or completing tasks.

Associated Descriptive Features and Mental Disorders 

Developmental regression, such as loss of language in young children, may occur.  Auditory pseudo-hallucinations, such as having the sensory experience of hearing one’s thoughts spoken in one or more different voices, as well as paranoid ideation, can be present.  Following prolonged repeated and severe traumatic events (e.g., childhood abuse or torture), the individual may additionally experience dissociative symptoms, difficulties in regulating emotions, and/or difficulties maintaining stable relationships.

When the traumatic event produces violent death, symptoms of both problematic bereavement and PTSD may be present.  Part of the difficulty in accurately diagnosing PTSD is that it is associated with many other anxiety and mental disorders.  For example, PTSD is also associated with increased rates of Major Depressive Disorder, Substance-Related Disorders, Panic disorder, Agoraphobia, Obsessive-Compulsive Disorder, Generalized Anxiety Disorder, Social Phobia, Specific Phobia, and Bipolar Disorder.  These disorders can precede, follow, or emerge concurrently with the onset of PTSD.

PTSD Prevalence Rates

In the United States, projected lifetime risk for PTSD using DSM-IV criteria at age 75 years is 8.7%.  Twelve-month prevalence among U.S. adults is about 3.5%.  Lower estimates of 0.5%-1.0% are seen in Europe, Africa, and Latin America.  The DSM-IV discusses community-based studies that reveal a lifetime prevalence for PTSD of approximately 8% of the adult population in the United States.  Information about general prevalence rates in other countries is not available.   Studies of at-risk individuals yield variable findings, with the highest rates (ranging between one-third and more than half of those exposed) found among survivors of rape, military combat and captivity, and ethnically or politically motivated internment and genocide.

Differential Diagnosis

PTSD can occur at any age, beginning after the first year of life.  Symptoms usually begin within the first three months following the trauma, although there may be a delay of months, or even years, before criteria for the diagnosis are met.  There is abundant evidence for what DSM-IV called “delayed onset” but is now called “delayed expression,” with the recognition that some symptoms typically appear immediately and that the delay is in meeting the full criteria.

The DSM-5 emphasizes that with PTSD, the stressor must be of an extreme, (i.e., “life-threatening) nature.  In contrast, other mental disorders often mistakenly diagnosed as PTSD include Adjustment Disorder, where the stressor can be of any severity.  The test also points out that not all psychopathology that occurs in individuals exposed to an extreme stressor should necessarily be attributed to PTSD and may be the result of many other mental disorders.  Mentioned are Acute Stress Disorder, Obsessive Compulsive Disorder, Schizophrenia, and other psychotic disorders or mood disorders with psychotic features.  Although a discussion of all diagnostic criteria is beyond the scope of this article, virtually each of the diagnostic criteria for PTSD emphasize that persistence of the symptoms, the re-experiencing of the event, and the avoidance of associated stimuli is essential.

Conclusion

Scott Brooksby recently cross examined a plaintiff’s forensic psychologist in a high-exposure personal injury case he was defending.  Plaintiff’s expert typically diagnosed more than half of those he evaluated with PTSD.  On cross-examination, this expert was not familiar with the prevalence rates, the specific criteria, or the comorbidity issues associated with PTSD and published in the DSM.  Most significantly, he could not describe the single most important feature for a diagnosis of PTSD: a “characteristic set of symptoms following exposure to one or more traumatic events.”  Instead, the expert merely opined that, in so many words, plaintiff was unhappy, withdrawn, and appeared to be troubled by a series of events.  The expert could not describe the relative significance of the plaintiff’s life events or link them to the specific criteria needed to achieve an accurate PTSD diagnosis.

It is important that the cross-examination specifically pin down the basis for the expert’s diagnosis, especially now with the much more detailed DSM-5, and the breaking up of many of the negative cognition clusters and a much more specific list of negative experience categories.

Even a comprehensive summary of the methodology for most effectively questioning or challenging a plaintiff’s claim of PTSD is beyond the scope of this blog post.  However, when cross-examining plaintiff’s expert witness regarding a PTSD diagnosis, defense counsel should always keep in mind that the plain text of the DSM-5, and examples of the trauma and criteria typically associated with PTSD, can often be easily contrasted with the data to disprove or cast doubt on the PTSD diagnosis.

Aviation, DSM-5, Evidence, Personal Injury, Product Liability, Trials, Uncategorized

Key Changes to the DSM-5 for the Product Liability, Personal Injury, and Aviation Defense Lawyer

DSM-5 book

The creation of the fifth edition of Diagnostic and Statistical Manual of Mental Disorders (DSM-5) was a massive undertaking that involved hundreds of psychiatrists, psychologists, physicians, and other medical professionals working together over a 12-year period.  The DSM-5, which replaced the 2000 DSM-IV (TR), is the foundation for reliable diagnosis and treatment of psychological and mental disorders.  As with prior DSM publications, which now date back decades, it is not intended to be a substitute for sound, objective clinical judgment, training, and skill.

Reflecting and prompted by the many new longitudinal studies, research papers, and experimental treatment modalities that have appeared since 2000, this new DSM edition contains significant changes in the classification of some disorders, and the removal or addition of other disorders.  This discussion will provide a brief overview of some of the key changes to the DSM-V and will touch on issues of interest to legal professionals working in the areas of product liability, personal injury, and aviation defense.

In a trial setting, familiarity with the DSM-5 and the underlying literature will be critical to an effective cross-examination of plaintiff’s expert.  Often, with forensic psychologists, the defense can make significant inroads on the basis that plaintiff’s expert is not sufficiently familiar with the DSM or associated literature.  For example, a significant new body of literature related to “resiliency and benefit realization” after a traumatic experience is largely unknown to most plaintiffs’ forensic psychologists.

A substantial percentage of high exposure cases in those categories involve a diagnosis of PTSD by plaintiff’s expert and a Global Assessment of Functioning (GAF) score based on the five-level multiaxial system, with Axis 5 providing the GAF score.  This brief post will focus on the changes to ­– or more accurately, the elimination of – the multiaxial system, as well as the changes to the criteria, symptoms, and diagnosis of PTSD.

A subsequent post will deal specifically with the criteria for PTSD and will include suggestions for cross-examination of plaintiff’s diagnosing mental health professional.

Changes to the Multiaxial System in DSM-5

Despite its widespread use, particularly among some insurance agencies and the government, the multiaxial system in DSM-IV was not required to make a mental disorder diagnosis.  DSM-5 has moved to a nonaxial diagnostic model (formerly AXES I, II, and III), with separate notations for important psychosocial and contextual factors (formerly Axis IV) and disability (formerly Axis V).  The approach of distinguishing diagnosis from psychosocial and contextual factors is also consistent with established WHO and ICD guidelines, which consider the individual’s functional status separately from his or her diagnosis or symptom status.

DSM-IV Axis V consisted of the Global Assessment of Functioning (GAF) scale, representing the clinician’s judgment of the individual’s overall level of “functioning on a hypothetical continuum of mental health-illness.”  It was recommended that the GAF be dropped from DSM-5 for a number of reasons, including its conceptual lack of clarity (e.g., including symptoms, suicide risk, and disabilities in the descriptors) and questionable psychometrics in routine practice.  In order to provide a global measure of disability, the WHO Disability Assessment Schedule (WHODAS) is included in DSM-5 for further study.

Changes to PTSD in DSM-5

Post-Traumatic Stress Disorder (“PTSD”) is a Trauma- and Stressor-Related Disorder.  DSM-5 criteria for PTSD differ significantly from the DSM-IV.  The stressor criterion (Criterion A) is more explicit with regard to events that qualify as “traumatic” experiences.  Also, DSM-IV Criterion A2 (subjective reaction) has been eliminated.

Whereas there were three major symptom clusters in DSM-IV – re-experiencing, avoidance/numbing, and arousal – there are now four symptom clusters in DSM-5 because the avoidance/numbing cluster is divided into two distinct clusters: avoidance and persistent negative alterations in cognitions and mood.  The latter category, which retains most of the DSM-IV numbing symptoms, also includes new or re-conceptualized symptoms such as persistent negative emotional states.  The final cluster – alterations in arousal and reactivity – retains most of the DSM-IV arousal symptoms.  It also includes angry outbursts and reckless or self-destructive behavior.

PTSD is now developmentally sensitive in that diagnostic thresholds have been lowered for children and adolescents.  Furthermore, separate criteria have been added for children age 6 years or younger with this disorder.

The DSM-IV childhood diagnosis of reactive attachment disorder had two subtypes: emotionally withdrawn/inhibited and indiscriminately social/disinhibited.  In DSM-5, these subtypes are defined as distinct disorders: “reactive attachment disorder” and “disinhibited social engagement disorder.”

Olson Brooksby is a product liability, personal injury, and aviation defense firm.

Aviation, aviation attorney, aviation attorney, aviation, aviation law, aviation lawyer, aviation law, aviation lawyer, Helicopters, Personal Injury

To curb medical helicopter crashes, focus on pilot haste, experience

Modern healthcare capture
Helicopter Emergency Medical Services crashes

Here’s an opinion piece by shareholder Scott Brooksby,  published in the June 10 issue of Modern Healthcare:

To curb medical helicopter crashes, focus on pilot haste, experience

A dramatic national conversation erupted recently following a U.S. National Transportation Safety Board finding that smart phone texting was a contributing factor in the crash of a fatal medical-helicopter flight in 2011.

The discussion has concentrated on everything from connecting the event to the dangers of texting while driving to calls for a ban on texting by pilots in air medical operations.

Absent from the discussion, however, is a larger issue that’s well recognized by helicopter industry safety organizations, and what should be of great concern for hospital administration and other organizations that contract emergency helicopter services.  The issue has to do with the egregiously high incidence of fatal and critical Helicopter Emergency Medical Services (HEMS) crashes, and resulting personal injuries.

In comparison to virtually every other type of commercial aviation, there is an inordinate rate of accidents within medical helicopter aviation, with the 2010 NTSB data proof in point.

Essentially, NTSB segregates aviation operations into hundreds of categories, the largest being all U.S. major domestic air carrier flights.  In 2010, NTSB reported only 14 accidents among major air carrier aviation, none of which were fatal.  By contrast, in 2010 there were 13 HEMS accidents, including seven fatal crashes.

Medical helicopter pilots are heroic and driven individuals who are among the best-trained and highest-skilled pilots in the world and fly what arguably are the most dangerous missions outside of military aviation.  HEMS pilots possess the grit and courage to go forth in dangerous conditions any time of night or day, in icy conditions or great heat, in storms, in densely trafficked urban controlled airspace, and remote uncontrolled airspace.

The most dangerous occupation

Operating without the benefit of formal flight plans with takeoffs and landings in uncontrolled locations ranging from roads to ball fields to the tops of buildings, the challenge is incredible.  Speed is critical.  But it comes with great risk.  In fact, according to a University of Chicago report, crewing a medical helicopter is the most dangerous profession in America.

Clearly it takes a special individual to accept the challenge.  But according to the International Helicopter Safety Team, the same attributes of risk tolerance, confidence and dogged determinism required of a HEMS pilot commonly are the very factors that, when excessive, lead to helicopter pilot error.

But what complicates the issue of haste to meet critical needs is the fact that the majority of HEMS accidents occur not when pilots are ferrying a patient to emergency treatment, but instead take place when pilots are rushing to the scene to pick up a patient, or the transportation of organs.

NTSB data shows that fully 58 percent of the 31 medical flight accidents occurring from 2007 to 2009 took place when the HEMS aircraft were en route to pick up an injured patient, or involved organ transport organs. Only 42 percent of HEMS accidents occurred with patients on board.

Haste and pilot error under harrowing conditions is exacerbated in the case of less experienced HEMS pilots.  Although on the whole HEMS pilots rank among the most experienced and capable pilots in the world, NTSB records indicate that flight hours of HEMS pilots not involved in accidents have logged 19 times as much air time in a particular aircraft as those involved in accidents.

Managing contract helicopter risk

Since 2005, there has been an increasing call for greater safety requirements in HEMS aviation, focusing largely on navigation equipment and flight dispatch and monitoring systems.  We expect to see continued progress in that area.

In the meantime, to reduce the incidence of HEMS crashes as well as to exercise prudent risk management, here are some steps for hospital administrators to consider:

–        Review your HEMS contractor pilot training program, with a preference for programs that not only meet, but exceed, FAA compliance levels;

–        Request documentation of contractor aviation risk assessment programs, and review the specific crew checklist parameters to assess risk level of each flight;

–        Stipulate that pilots have a minimal level of flying hours on the specific type of aircraft to be used in life flight operations;

–        Stipulate that pilots have a certain level of military flying service, or equivalent civilian training;

–        Review pilot histories and encourage condition-specific training that corresponds to local conditions; and

–        To limit claims against your hospital or organization, ensure that your HEMS contracts contain solid indemnity provisions.

Although the tragic human consequences of a fatal medical helicopter crash are clear, there’s less recognition of the massive risk of litigation, which while principally focused on the flight service company easily can become a deep, years-long issue for the contracting hospital organization.

HEMS operators are the first line of defense in one of the greatest challenges of emergency care, operating under diligent training execution and best principles of safe flight as established by the FAA and contractor safety policies.  However, perfection is an aspiration, and recognizing the record of accidents, hospital organizations should look beyond smart phone bans to limit the occurrence and risk of medical helicopter accidents.

 

 

Aviation, aviation attorney, aviation attorney, aviation, aviation law, aviation lawyer, aviation law, aviation lawyer, Catastrophic Injury, Helicopters, NTSB, Personal Injury, Uncategorized

NTSB Hearing on Medical Helicopter Crash Considers Pilot Texting Ban

Close up of judge raising gavel in courtroom

The NTSB held a hearing on a fatal medical helicopter crash that took place in 2011.  After finding that smart phone texting was a contributing factor in the fatal crash, the NTSB recently considered a ban on pilot texting.  It is surprising that such a regulation is not already in place or under more serious consideration.  Because there was evidence that the pilot had not been texting during the 19 minutes before the crash, however, the NTSB did not take any formal action on such a ban.

This is part of a larger issue that demands attention — the egregiously high incidence of fatal and critical Helicopter Emergency Medical Services (HEMS) crashes, and resulting personal injuries.

Olson Brooksby practices a wide variety of aviation law.  We have experience representing airlines, aviation insurers, aviation product manufacturers, and airplane owners.  Our attorneys have handled a broad variety of aviation law matters, including personal injury defense; product liability defense litigation; contract and lease drafting; contract negotiation and disputes; and general aviation commercial litigation.

Much of the firm’s practice is devoted to aviation law, and we are one of the few firms in Oregon with aviation trial experience.  Scott Brooksby leads our aviation practice, devoting a substantial amount of his time and practice to aviation-related matters.  Scott served as local counsel for one of the largest aviation manufacturers in the world in a nine-week trial in Oregon state court.  The trial involved product liability issues and concerned a helicopter crash that resulted in burns, permanent injuries, and multiple deaths.  Mr. Brooksby is on the aviation subcommittee of the American Bar Association’s Mass Torts section.  Mr. Brooksby has also been featured as a speaker and a moderator at the American Bar Association’s Aviation Litigation National Institute in New York, New York.

Catastrophic Injury, Head Injuries, Heavy Equipment Manufacturing, Heavy Machinery, OSHA, Personal Injury, Quality control testing, Steel, Temporary Workers, Workplace Injuries

Assess Steel Quality Control Testing For Potential of Personal Injury

Despite the recent domestic economic downturn, global demand for steel, other metals and heavy equipment continues to increase in emerging markets and elsewhere.  With the increasing demand for production, a potential source of personal injury that is often overlooked is quality control testing.  Manufacturers face pressures to produce, poor communication with and between workers, and what can sometimes be decades-old equipment.  This equipment has usually been continuously retrofitted and appears to function perfectly well, but that is not always the case and serious injury can occur during secondary procedures.

For example, Scott Brooksby defended a steel mill against the claim of a temporary worker who was subject to injury when he was struck in the head by a tail sample cut during sample burning operations.  During steel production, tail samples are typically cut from sheet steel.  At temperatures approaching 1300 degrees, the tails, which vary in size, are routed on a conveyor system into a sample burning room so that samples can be taken for routing to the laboratory to conduct tensile, radiographic and other quality control tests.  The conveyor system is a series of metal rollers controlled by a series of steel gates that regulate the tail samples so that they do not collide and cartwheel into the air or fall from the conveyor, posing a danger to workers.

In Scott Brooksby’s case, a steel tail approximately 8 feet long and 1.5 inches thick was cut from a sheet in the main production roller room.  At approximately 1350 degrees Fahrenheit, the sample, which approached 500 pounds, was routed into the sample burner room.  Sample burning and many other quality control processes may take place in smaller rooms adjacent to the main production halls.  The sample tail is diverted from the main hall after being cut from sheet steel via a steel roller conveyor system where it would pass through a series of gates controlled either electronically or by a set of foot or hand pedals.  By the time the eight foot sample reaches the penultimate steel gate it has cooled to approximately 1,000 degrees.  Theoretically, after passage through the final gate, the section is cut into smaller lengths, approximately 18-21 inches long, which can be used to stretch and test tensile strength or other quality control issues.

On this particular day, the final gate, at the sample burner itself (which is a laser torch used to cut the 18-21 inch tails), jammed shut just as the penultimate gate opened, allowing the eight-foot section to roll down the conveyor.  The section collided with the sample still clutched by the final sample burner gate and cartwheeled into the air, striking one of the two operators in the head and causing injury before falling and smashing the electronic control system.  The injured worker’s co-worker was able to deactivate further sample conveyance through use of a retrofitted electronic emergency estop.  The steel mill processed approximately 30,000 samples per year and the age of the conveyor system was unknown, but believed to be in excess of 40 years old.

Such cases can be important reminders that the original testing equipment may function perfectly well, but may be retrofitted with any number of safety devices.  It is critical that the documentation, if available on older machinery, be preserved and that any maintenance records, including the addition of such safety features as light curtains (which did not exist at the time older, but still functional equipment was manufactured).  If a steel or metal mill, foundry, or component manufacturer is operating older equipment, it may be prudent to do a safety engineering study on machinery such as sample burners that exist in virtually every steel mill to determine whether retrofitting available safety devices is an option.  For example, with the conventional sample burning conveyor system, it may be that the equipment is custom designed and custom safety add-ons such as horizontal spacers can be welded or bolted across the top of the conveyor at sufficient intervals so that the potential for a sample tail to cart wheel off the conveyor becomes impossible because any vertical force is arrested inches above the conveyor rollers.

If manufacturers have questions about the adequacy of the retrofitting of safety devices on older equipment, they should consider contacting the workplace safety regulatory agency in their state.  In some states, OSHA will work with companies and may even provide free safety audits during which the party requesting the audit is granted a period of immunity to correct safety violations that are discovered.  Manufacturers should check with their state safety agencies to determine whether such programs are available and should be sure to determine whether immunity from citation is provided in exchange for the voluntary request for inspection.

The additional safety precautions are particularly important in quality control test facilities such as the sample burning room where often less-experienced workers, or temporary workers who may not be sufficiently trained or conscious of the dangers, begin work.

Recall also that any such serious injury must generally be reported to OSHA immediately and certainly within 24 hours.  In such cases OSHA investigators may also appear at the premises unannounced and, in most states, there is no right to have counsel present when OSHA is conducting its initial interviews with employees, so management should consider a plan for unplanned requests for interviews from safety investigators and ensure that employees are instructed in advance to focus on only what they actually saw, heard, or said during such interviews.

Caps, Damages, Oregon Constitution, Oregon Tort Claims Act, OTCA, Remedy Clause, section 10

Oregon Supreme Court Upholds Personal Injury Claims Cap

A helicopter releases fire-suppressant chemicals on a forest fire.

In Howell v. Boyle (March 14, 2013), the Oregon Supreme Court found that the Oregon Tort Claims Act (OTCA) limited plaintiff’s approximately $1 million in damages to $200,000 (the OTCA cap) and that the cap was not unconstitutional under article I, section 10 of the Oregon Constitution.

This case is significant because if the remedy clause of the Oregon Constitution, Article I, section 10, is at issue, personal injury defense attorneys can now argue that, under Howell, caps are constitutional and should be upheld as long as the plaintiff’s recovery is “substantial.”

In Howell, a city police officer struck the plaintiff with his vehicle at night in an unmarked crosswalk.  (Id. at 2.)  The jury awarded the plaintiff approximately $1 million, finding the plaintiff and the defendant each 50% at fault.  (Id. at 3.)  Accordingly, the court reduced the plaintiff’s damages by half. The defendants argued that the plaintiff’s award should be reduced further to comply with the OTCA cap of $200,000.  (Id. at 1.)  The trial court denied the defendants’ motion and held that the cap violated the remedy clause of Article I, section 10, of the Oregon Constitution.  (Id.)  Ultimately, however, the Oregon Supreme Court overturned the trial court’s ruling and upheld the cap.  (Id. at 2.)  The court reasoned that, even assuming that the plaintiff’s negligence claim was “constitutionally protected by Article I, section 10, the $200,000 limitation on her recovery is constitutionally permissible.”  (Id.)

Under Smothers v. Gresham Transfer, Inc., 332 Or 83, 124 (2001), the Oregon Supreme Court established a two-part formula for analyzing claims brought under the remedy clause: (1) Did the plaintiff allege an injury to one of the absolute rights protected by Article I, section 10?  In other words, when the constitution was drafted in 1857, could one file a claim for the alleged injury under Oregon common law?  If the answer is no, then the remedy clause is not at issue and the analysis is concluded.  Howell at 13.  However, if the answer is yes, “and if the legislature has abolished the common-law cause of action for injury to rights that are protected by the remedy clause,” then we move on to the second question.  Smothers, 332 Or at 124.  (2) Did the legislature provide a “constitutionally adequate substitute remedy for the common-law cause of action for that injury”?  (Id.)

In Smothers, for example, the court found that, because the plaintiff’s claim for employer negligence could have been brought under common law in 1857 and because the workers’ compensation statutes’ exclusive remedy provision completely eliminated such a claim, the statute was unconstitutional.  Id. at 136.

Determining whether a substitute remedy is constitutionally adequate is difficult.  However, under Smothers, the remedy cannot be “emasculated.”  Id. at 119.  Rather, it must be capable “of restoring the right that has been injured.”  Id.  In other words, the remedy must be “‘substantial.'”  Howell at 13 (quoting Smothers, 332 Or at 120 n 19).  Whether an award is “‘substantial’ requires ‘flexibility and a consideration of the facts and circumstances that each case presents.'”  Howell at 18 (quoting Hamlin v. Hampton Lumber Mills, Inc., 349 Or 526 (2011)).

The Oregon Supreme Court has concluded that damages limitations “are constitutionally inadequate in only two cases,” Neher v. Chartier, 319 Or 417 (1994) and Clarke v. OHSU, 343 Or 581 (2007).  Howell at 19.  In Neher, the court held that the remedy was inadequate because the parents of the victim were completely deprived of any remedy, while the estate benefitted from $3,000 in burial costs under the workers’ compensation law.  Howell at 19.  In Clarke, the court held that the plaintiffs were deprived “of all but one percent of the more than $17 million in damages that they would have otherwise recovered[.]”  Howell at 19.

The court distinguished Howell from Neher and Clarke because, in Howell, the plaintiff was not devoid of a remedy and the remedy was “far more substantial” than that in Clarke.  Howell at 19.

The Howell court also recognized a quid pro quo at work in the OTCA cap because “the city remains liable for the torts of its employees committed within the scope of employment.”  Id. at 19-20.  And although there is a cap, the OTCA substitutes the “‘deep pocket'” of the city for the individual employees.  Id. at 20.  “Plaintiffs, in other words, have been conferred a substantial benefit in exchange for the damage limitation.”  Id.

The plaintiff argued that her right to be made whole was eliminated by the cap and that, under common law, the plaintiff had the right to obtain the full measure of damages.  Id. However, the court reiterated that, under Clarke, the legislature can “‘vary and modify both the form and the measure of recovery for an injury[.]'”  Howell at 21-22 (quoting Clarke, 343 Or at 606) (emphasis added in Howell).  The Howell court pointed out that there is no guarantee that plaintiff be given a “whole remedy,” rather that plaintiff not be left “‘wholly without remedy'”.  Id. at 22.

The dissent in Howell argued that a partial remedy, via the OTCA cap, was inadequate (i.e., emasculated) because, under the substitute remedy of the cap, the plaintiff was not wholly restored as required by the the text and context of the constitution.  Id. at 25.  However, the court’s majority pointed out that, under Smothers, “what must be ‘restored’ is an injury that would have been recognized as the basis for a cause of action in 1857.”   Howell at 26 (emphasis in original).  In 1857, negligence claims were subject to the contributory negligence doctrine, where any fault by the plaintiff would operate to completely bar the plaintiff’s claim.  Id.  The court found that, therefore, the $200,000 in damages that the plaintiff would receive under the cap was fully “‘restorative’ of her common-law negligence claim.”  Id. at 33.

Therefore, the court concluded, the cap does not “leave plaintiff with a constitutionally inadequate remedy under Article I, section 10, of the Oregon Constitution.”  Id. at 36.