Do We Tolerate Too Many Traffic Deaths?

That’s the title of an excellent online symposium running in The New York Times’ Room For Debate page.
And the answer of all the esteemed thinkers assembled by The Times is: yes, the carnage on America’s roadways – the 37,000 fatalities a year caused by car accidents – is excessive and reducible.
The different writers’ explanations for why we have so many traffic deaths are fascinating. Tom Vanderbilt, the author of “Traffic: Why We Drive The Way We Do (And What It Says About Us),” points to Canada and a 50 percent decline that it experienced in car accident fatalities between 1979 and 2004. During the same period, the number of American traffic deaths declined by a much smaller percentage. If Canada can do it, why can’t we? Vanderbilt urges us to take an epidemiological approach to car accidents. Rather than seeing them as isolated tragedies, we need to address them as a public health crisis, emphasizing the “three Es” – education, enforcement and engineering.
Adrian K. Lund, from the Insurance Institute of Highway Safety, thinks the answer lies in only one of the “Es” – enforcement. He believes the problem is speeding and we’ll have fewer car crashes only when we begin to meaningfully enforce our speeding laws.
Dan Burden, from the Walkable and Livable Communities Institute, thinks the problem is too many driver-miles. We’d have fewer car accidents, he says, if we redesigned our communities to make them more pedestrian and mass transit-friendly.
When the US leads the Western world in the number of people killed each year in car crashes, and car accidents are the leading cause of deaths for Americans aged 1-34 years old, something needs to be done. And we need to take a look at all the different tacks available to us.

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Study Says Newer Airbags May Be Inferior To Older Model

A new study by the Insurance Institute For Highway Safety, to be published this year in the peer-reviewed journal The Annals of Epidemiology, suggests that the latest model of airbags, available in some cars since 2004 and mandated since 2008, may be reducing crash survivability for belted drivers.
The researchers found that belted drivers had a twenty-one percent greater chance of dying in cars equipped with the newer airbags, compared to belted drivers in cars equipped with the older model airbag. The auto accident fatality statistics were unchanged for drivers who weren’t wearing seat belts.
The researchers did not offer a definitive explanation for their findings. Instead, they conclude that there could be a multitude of explanations for their results, including the possibility that the newer airbag systems, which take into account a number of factors before determining whether to deploy, may not be responding as anticipated in real-life car crashes.
While researchers sort out whether the new airbag design is suboptimal in terms of saving lives, drivers should continue to wear seatbelts and should not deactivate their airbags. These tentative findings suggest only that the newer airbag design may be inferior to the older one, not that drivers and passengers should go unbelted or without airbags. The perennial wisdom that airbags and seat belts save lives in accidents continues to hold true.

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Massachusetts Lags While Movement To Curb Texting While Driving Gains Steam

Today, as you probably know, was “No Phone Zone” pledge day, a day when Oprah Winfrey dedicated her show to the dangers of using a cell phone while driving and urged Americans to pledge not to use their cell phones in their cars.
The day prior to Oprah’s “No Phone Zone” day, Michigan became the twenty-fourth state to ban texting while driving.
In 2008, nearly 6,000 Americans died as a result of distracted driving and more than 500,000 were injured in accidents caused by distracted driving. Studies show that using a cell phone while driving impairs your driving as much as having a few drinks and increases your risk of causing a car accident by more than 500 percent.
Will more than half the states adopting texting bans before Massachusetts gets around to it?
For a vivid illustration of how texting while driving can cause an accident, watch this illuminating (slight profanely) video of Meredith Viera from the Today Show in a driving simulator:

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Back Surgeries Overprescribed?

For once, the tort reform blog Overlawyered.com admits that the costs of healthcare might be driven by doctors’ incentives, rather than greedy medical malpractice lawyers, but, even in this moment of rare insight, Overlawyered can’t resist a slap at the plaintiff’s bar.
In this post, Walter Olson entertains the idea that some orthopedic surgeons might recommend spinal fusion surgeries whose cost approaches $100,000 because the procedures are so lucrative. However, Olson also claims that personal injury lawyers are in collusion with this phenomenon, by referring their clients to surgery-happy doctors.
I, for one, always let the real medical professionals recommend specialists like orthopedic surgeons. And most lawyers are no different.
Scoring this one is difficult. I’d award Olson a point for taking off the ideological blinders and acknowledging, even indirectly, that doctors are not always blameless. However, I have to deduct half a point for the ending of the blog post, with Olson’s attribution of sinister motives to personal injury lawyers.
That means Olson finishes with half a point. The Manhattan Institute is coming up!
PS – Can anyone send me the Journal of the American Medical Association article that Olson references? I was unable to find it.

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On Uncontrolled Acceleration And Black Boxes

Last week, big business shill Theodore H. Frank wrote an op-ed drawing on data from a Los Angeles Times article reviewing the fifty-six fatalities attributed to sudden uncontrolled acceleration problems with Toyotas. Frank noted that, in about half of the car crashes, the driver’s age could be ascertained from the LAT‘s compilation and the ages of the drivers skewed to the elderly.
The next day, blogger Megan McArdle tracked down the ages of “all but a couple” of the drivers involved in the Toyota crashes and revealed that the “overwhelming majority” were over fifty-five years old.
A lot of people have hypothesized that the sudden uncontrolled acceleration accidents involving Toyota might be caused by a computer or electronic bug in the cars’ throttle. Since there’s no reason to believe that Toyotas with a computer bugs would discriminate against older drivers, Frank and a host of other bloggers* trumpeted the results as proof that there is no electronic problem with Toyota’s computerized engines and that, in fact, the blame lay with older drivers’ driving skills (or lack thereof). (Question(s): McArdle used a cutoff age of 55 and up. Are 55 year olds, in today’s world, frail or senescent? Most research does not show a significant decline in driving ability until a couple of decades after 55 and I know many people in their sixties who are in far better physical shape than I am. What would her findings have been if she included only drivers 70 and up?).
Ted Frank and a bunch of his colleagues from the (shallow end of the) think tank business used the findings to question the honesty of drivers who reported uncontrolled acceleration problems, likening them to frauds like “balloon boy.”
So what should we conclude? Should we conclude that the whole “Toyota panic” is merely a media-driven phenomenon about routine errors committed by all elderly drivers?
I don’t think so. As I blogged over a month ago, in 2009 forty-one percent of complaints of sudden uncontrolled acceleration involved Toyotas, while Toyota only held sixteen percent market share – a fact that was lost on a lot of people. Since the time I posted that blog, NPR’s Robert Benincasa did something that the government does not do – track reports of sudden uncontrolled acceleration by make and model – and found that, since 2002, Toyota has seen a troubling rise in complaints of sudden uncontrolled acceleration. The problem doesn’t seem to be old people and driving; the problem seems, if anything, to be old people and Toyotas specifically.
In addition, the “older driving theory” doesn’t account for the most spectacular Toyota crash of all – the (physically fit) California state trooper whose recorded conversation with a 911 operator details his efforts to get his Lexus to brake.
Ultimately, I think we – whether as consumers or jurors or simply concerned citizens – need to come to grips with the fact that there may be a problem with Toyotas that we may never directly explain. A lot of people have theorized that Toyota’s problems may lie with a computer bug inside its engines. (Competing explanations – floor mats, driver error, etc. – don’t seem to account for the disproportionate number of Toyotas involved in these crashes). If it’s the case that there’s a computer bug that plagues Toyotas, we may never find out precisely what it is and why, in some cases, it caused crashes. Toyota’s engines may forever remain to us a bit of a “black box” – a computerized system that we can’t see inside or fully understand.
People tend to assume that, if there’s a computer programming error, we can simply pore over the code and figure out if there’s an error. After all, computer programming is just logic and logic is supposed to be completely transparent. But, as science fiction writers like Isaac Asimov have shown us, you can start with a few logical principles that dictate the behavior of computers or robots and wind up with some completely unintended consequences.
We are all familiar with real life examples of this. One dramatic, and fairly recent example, was the Great Northeast Blackout of 2003 (which was caused in part by computers behaving in unexpected ways). Giant companies like Microsoft come out with products like Windows Vista that are so ridden with programming problems that they become unsalable.
Sometimes the bugs are never figured out. When a program that you’re running crashes, often the product’s designer has no reason why it crashed – that’s why, after the program returns to life, it asks you for permission to send a report to the manufacturer for analysis. My friends in computer programming tell me that, very often, software engineers are unable to untangle the reasons for these errors.
We may never get to the bottom of Toyota’s uncontrolled acceleration car crashes. But that does not mean the problem is not real. Or that Toyota should not be held accountable for its failure to investigate and address these issues.

NHTSA Investigators To Probe Massachusetts Toyota Crash

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The Boston Globe reports today that experts from the National Highway Traffic Safety Administration will soon descend upon Cape Code to investigate a car accident where a Harwich woman’s 2010 RAV4 drove through the wall of a doctor’s office in Yarmouth.
The woman reported that her car accelerated after she depressed the brake. The woman said that, after driving through the wall, she looked down and her foot was on the brake.
The 2010 RAV-4 is one of the models recalled by Toyota in January.
It will be interesting to see what the NHTSA investigators determine.

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Just Be Glad You Live In Massachusetts

OK, so unless you’ve been living under a rock, you’ve heard countless stories about the massive global Toyota recall for problems with sudden uncontrolled acceleration. Millions of cars have been recalled in the US and Europe.
Now guess how many Toyota cars have been recalled in the company’s home country of Japan. Just try and guess.
If you guessed zero, it’s too bad there’s no prize for the right answer. Because you’d be spot on.
Why haven’t any Toyotas been recalled in Japan? Is it because Japanese Toyotas are somehow immune to the accelerator problems that have led to horrific car crashes elsewhere?
Nope, it’s because Japanese consumer protection and products liability laws are astoundingly weak. (The country only has one full-time auto recall investigator, who is augmented by about a dozen temp workers).
In the 1970s, Fumio Matsudo, sometimes referred to as the “Ralph Nader of Japan,” tried to blow the whistle on some unsafe Nissans. He was rewarded for his actions with his arrest and criminal blackmail charges.
Maybe the tort reform crowd from think tanks like the Manhattan Institute can move to Japan. It sounds sort of like their version of utopia. The rest of us can be glad that we live in Massachusetts, in the good old United States, where our legal system at least makes some effort to protect us from unsafe products.

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Massachusetts Senate Approves Texting Ban, Restrictions On Elderly Drivers

The passage yesterday in the Senate of a bill banning text messaging while driving and imposing visual and other medical tests on drivers over 75 years old is good news inasmuch as it presages a ban on hand-held texts, but the potential ban on hands-free devices and the medical review of seniors raise a lot of questions.
There really is no research data showing that hands-free wireless devices are anymore distracting than your car radio or carrying on a conversation with a passenger in your car.
The idea of having seniors’ doctors pull their license also makes me uncomfortable. A doctor’s duty is primarily to his or her patient, just as a lawyer’s duty is to his or her client. I wouldn’t like the idea of having to rat my clients’ driving out to the RMV (such a law would represent an unprecedented abrogation of attorney-client privilege) and I don’t think doctors should have to do it either. If the evaluating doctor is the driver’s personal physician, it really represents an intrusion into the doctor-patient relationship.
It appears that there are a lot of details to be ironed out about the medical evaluations of senior drivers. What happens if one doctor declares a patient unfit to drive and the driver gets a second opinion pronouncing him capable of driving? Why is the first doctor’s opinion sacrosanct and inviolable? If this is going to work at all, there need to be objective criteria that are employed, rather than doctors’ loosey-goosey opinions. Otherwise, there may be Due Process issues with the proposed law.
If Massachusetts passes the Senate version of the bill, we will be going further, perhaps, than any other state in regulating driving by seniors. According to this chart by the Insurance Institute of Highway Safety, the only jurisdictions that require anything more of seniors than eye tests or special renewal procedures are New Hampshire and Washington, D.C. and the Massachusetts bill would seem to be going even further than those jurisdictions.
This is something all drivers in Massachusetts will be keeping an eye on.

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The Tort Reform Crowd Thinks This Was A Frivolous Lawsuit

Reading the tort reform blog Pointoflaw.com, I came across a link captioned: “‘Ford failed to warn seating unsafe for obese persons’ suit fails.” Sounds pretty frivolous, right?
I followed the link to Abnormal Use, a corporate defense blog, which has the virtue of being intellectually honest, unlike Pointoflaw. There I got the whole story.
It wasn’t just some overweight person who was suing Ford for failure to warn a chair might collapse under her weight.
The plaintiff in the case was a 300 pound woman driving a Ford Explorer that was rear-ended by another SUV at the (relatively low) speed of 30 mph. The impact of the accident caused her seat to collapse backwards. The accident also left her a paraplegic.
Ford hadn’t tested or designed the seats for anyone above 220 pounds. Now here’s a little graph that I just found through a simple google search that shows about 5-10 percent of men are in the 220 pound range. Yet Ford didn’t bother testing above 220 pounds.
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And this poor woman wound up a paraplegic in a 30 mph accident. Sound frivolous now?
Yet, according to the blog post, the trial court entered a directed verdict against her on her failure-to-warn claim and didn’t even let that claim get to the jury.
I assumed that this woman’s failure-to-warn claim was not her only claim and that she also brought breach of warranty claims against Ford. I was hoping that she managed to prevail on one of those other claims. I went to the (unreported) decision on Westlaw. It appears the other claim did make it to jury and that the jury found against her.
I have a great respect for juries and jury verdicts so I’ll leave alone the fact that the jury found against her on a strict liability standard that should’ve been unfavorable to Ford.
But the online reporting about this case illustrates how the media stir up worries about frivolous lawsuits.
This wasn’t an overweight person who sued Ford because the seat collapsed under her weight and she fell on her butt. This was a woman who was rendered a paraplegic, in part, because Ford didn’t test its seats above a weight range within which some ten percent of the adult male population falls. And she wasn’t suing Ford for failing to include a warning label on the chair saying, “If you’re too heavy, this seat may cause injuries.” Her failure-to-warn claim was just one of the legal theories she pursued (her claim for breach of the warranty of merchantability was much stronger).
From a societal perspective, cases like these should really boil down to: Who should bear the cost? As a paraplegic, this woman will require millions of dollars in medical care for the rest of her life. Who should bear the cost of that? We, the taxpayers, or Ford, a company that profits from a car seat that it never bothered to test at 30 mph with a dummy weighing more than 220 pounds? If Ford has to bear the cost do you think that maybe next time they might design a better seat?