February 2006

The Fireman’s Rule in Georgia provides that a public safety officer may not recover for the negligence that caused the situation to which he responded. It is based on a public policy of the State of Georgia that a public safety employee cannot recover for injuries caused by the very negligence that initially required his presence in an official capacity and subjected the public safety employee to harm. That public policy precludes recovery against an individual whose negligence created a need for the presence of the public safety employee at the scene in his professional capacity. The first policy reasons behind this rule is the assumption of risk doctrine.

[I]t is the nature of the job undertaken for the employee to be subjected to risks of injury created by people he or she is called upon to serve. By accepting that job the employee assumes a general or primary risk of injury. . . . The justification for imposing this general or primary risk is that the employee is paid to encounter it and trained to cope with it.

Second, the courts have held that it would be too burdensome to charge all who negligently cause a need for emergency services with the injuries suffered by the first responders trained to come and deal with the effects of those inevitable, although negligently created, occurrences. Citizens should be encouraged and not in any way discouraged from relying on those public employees who have been specially trained and paid to deal with these hazards.
In Kapherr v. MFG Chemical Inc., Case # A06A0184, decided December 29, 2005, the Georgia Court of Appeals held that this “Fireman’s Rule” applies to emergency medical technicians.

Washington, DC, 2/9/06. The National Transportation Safety Board adopted a final report of a runaway truck accident in Pennsylvania that has shown the consequences of improper maintenance on automatic slack adjusters for air brake systems. The board issued 11 safety recommendations aimed at improving training for drivers and mechanics that work with air brakes.
These recommendations arose from a 2003 incident in Pennsylvania in which a dump truck going downhill was unable to stop, resulting in the death of both the truck driver and a child in a car as well as injuries to several pedestrians. The NTSB determined that the probable cause of the accident was the lack of oversight by the truck’s owner, which resulted in an untrained driver improperly operating an overloaded, air brake-equipped vehicle with inadequately maintained brakes. Contributing to the accident was the misdiagnosis of the truck’s underlying brake problems by mechanics involved with the truck’s maintenance, a lack of readily available and accurate information about automatic slack adjusters, and inadequate warnings about safety problems caused by manually adjusting them.
“We believe that more than 500,000 vehicles equipped with air brakes may be operated by drivers who, like the Glen Rock driver, have no air brake training and therefore may not be able to operate their vehicles safely,” said NTSB acting chairman Mark V. Rosenker. “This situation needs to change, and change quickly.”
The 21-year-old driver had been working for the trucking company for less than two weeks and had never driven an air brake-equipped. He has received no training on how to drive an air brake-equipped vehicle, which operate differently from hydraulic brakes on passenger cars. In addition, the rear brakes on the accident truck were out of adjustment.
Mechanics who worked on this truck and the driver who worked on a truck involved in a similar accident that occurred in California in 2003 did not look for underlying problems with the slack adjusters or other brake components. Therefore, they misdiagnosed the brake problems, probably because they were not properly educated on the function and care of automatic slack adjusters and how they relate to foundation brake systems. “The warnings in existing materials available to owners, drivers, mechanics and inspectors of air-braked vehicles equipped with automatic slack adjusters have not been successful in communicating the inherent dangers of manually adjusting automatic slack adjusters to correct out-of-adjustment brakes,” the board stated.

A team led by Dr. Geoffrey Raisman at the Institute of Neurology in London plans to begin within a year human clinical trials with patients’ own olfactory nerve stem cells to treat nerve and spinal cord injury. Use of the stem cells from the patient’s own nose avoids the ethical concerns about use of embryonic stem cells. Those of us who have spent years working with spinal cord injury victims have been holding on to hope for a long time. Pray that this approach turns out to be effective.

Columbia, SC, 2/8/06. A seven-vehicle pileup on I-26 Wednesday morning killed a husband and wife, sent 12 people to hospitals and shut down the eastbound lanes for more than five hours, authorities said. Steven Robert Gerth and Nancy Dianne Gerth, both 65, of St. Cloud, Minn., died at the scene. Their Toyota Camry was crushed by an 18-wheeler. The car was pinned under the cab and pushed along the highway. The wreck occurred at about 9 a.m. on an already-congested I-26 under the Shady Grove Road overpass.
One witness said she was trying to navigate the frequent stop/start traffic flow. “When we all started rolling again, you could hear the collision behind you.” She next saw the 18-wheeler fly past her on the right, but it happened so fast she didn’t realize it had a car pinned beneath it.
The Gerths were both wearing their seat belts. They were on their way to a vacation in Georgia.
The news stories thus far don’t provide information about the truck driver. However, we often see cases in which fatigued, sleep-deprived long-haul truckers plow right on through cars slowed or stopped ahead of them on interstate highways. A couple of weeks ago I had a deposition of a truck driver who confessed to me that he had been driving 20 of 24 hours before he rear-ended a slower moving vehicle on an interstate highway and all his logs were falsified. At this point we could do no more than speculate about fatigue factors affecting the trucker in the I-26 crash, whether he had violated hours of service regulations, and whether he was driving on cruise control when too tired to be attentive.

In a report published by the Cato Institute’s magazine Regulation, professors Katherine Baicker of Dartmouth College and Amitabh Chandra of the Kennedy School of Government at Harvard University studied the impact of medical malpractice payments on medical liability insurance premiums, size of the physician workforce, and the use of “defensive” medicine. In each category, the researchers found little or no relationship between the level of medical malpractice payments and the measures used by the insurance industry to promote limits on individual rights. The report found that:
– There is no significant relationship between increases in medical malpractice payments and medical liability insurance premiums. “We find that when the number or size of malpractice payments rises, there is very little accompanying increase in the malpractice premiums paid by physicians.”
– There is little evidence to suggest that malpractice payments lead to a loss of physicians. “… [T]here is little evidence of a mass exodus of physicians in response to increases in malpractice liability.”
– There is no clear pattern of increased health care spending in states with higher or more frequent malpractice payments. “� [W]e find little evidence that malpractice payments are driving the dramatic increase in overall health care expenditures.”
Since the passage of Senate Bill 3 one year ago, Georgia has experienced the same patterns as those outlined in the Baicker-Chandra report. Malpractice insurance premiums remain high, underserved areas are still underserved, and there has been no relief in the cost of health care for Georgia families.
Patient and physician backlash is causing lawmakers across the country to reconsider anti-patient laws like the one passed in Georgia and similar states. In fact, Georgia lawmakers are already considering an overhaul of the Emergency Room immunity provision of Senate Bill 3 that set up “accountability-free zones” in ERs across the state. Last July, the Wisconsin State Supreme Court ruled unconstitutional that state’s arbitrary, one-size-fits all cap of $350,000 – similar to a provision of Georgia’s new law.