This installment deals simply with the reason that the quantity of tipovers is so high. Because these types of incidents are never reported to any entity that tabulates them (like the Department of Health & Human Services, which pays state or local healthcare agencies to provide the trips – and who then hire brokers to, in turn, hire the private companies that actually provide the service), and local law enforcement personnel rarely investigate them (because they are not collisions), and as drivers do not often report them even to the facilities at which they are scheduled to drop them off, there are no records. So unlike my testimony – where I would NEVER guess – I am only using figures as analogies to illustrate why the alarming rate of these incidents – I would sloppily guess several thousand a day – never shows up. But a good barometer of this quantity is evident from expert witnesses in public transportation, as I am, who do a lot of cases involving disabled individuals: Of the roughly 700 cases I’ve done, at least 150 involved wheelchair tipovers.
NOW: Why do I think there are so many?
- Everyone whose wheelchair tips over does not get hurt – or hurt badly enough to find an attorney to handle his or her case.
- Of those who do get hurt badly, most attorneys will not take their cases for a variety of (usually foolish) reasons, including their not thinking the injury is worth that much, or because the case is too complex.
- A lot of these plaintiffs cannot find an attorney willing to take their case.
- Some attorneys do not take these cases even when the injuries are serious, because the number of codefendants seems to grow and grow: As noted above, the Department of Health and Human Services provides the funds to a state or local healthcare agency; that agency hires a broker; and the broker hires the service providers (always too many than are needed) to provide the actual service – and every entity indemnifies the entity above it in the hierarchy.
- Most of the attorneys who actually do take these cases either do a poor job, do little work, and settle out for peanuts (and lie to their clients about why they should accept such small settlements), wait until the last minute (when discovery has closed), engage an expert who doesn’t know what he or she is doing, or don’t let the expert examine the vehicle. (The last of these errors is inexcusable: A wheelchair tipover case is impossible for a plaintiff to lose even if it is done even marginally; so an attorney really never has to pay the expert anything; the attorney is simply loaning the expert money until the case settles, or the plaintiff’s team wins in court – and the attorney is reimbursed for the expert’s fees from the two-thirds of the verdict or settlement awarded or given to the plaintiff (or his or her heirs).
- Many drivers do not even report the tipovers to their dispatchers, much less to their supervisors. They pick up the wheelchair, secure the wheelchair (if possible), pick up the passenger (a violation of a major tenet in the Cub Scout Handbook), plop him or her back into the wheelchair, and deliver him to the destination as though nothing happened. In some cases, those receiving the individual does not, or cannot, know this. (At the time of this writing, I actually have two cases where a driver dropped off a dead body in his or her wheelchair.)
- Some cases that do not settle go to trial, and for many reasons – usually the attorney does not listen to his or her expert – the plaintiff loses at trial.
If most of these things happened 9 out of 10 times, it is easy to see how there might be one victory (usually a settlement) for every 10,000 tipovers. Also, with cases done correctly, where even a moderate amount of money is won at trial, public knowledge, and often a bit of press coverage – spreads the story out far beyond the courtroom. More interesting, when a case like this goes to court, and the defendant loses a few million dollars, “word gets around,” and other defendants become a bit more diligent. This is particularly true if a major error was a policy matter – like having a policy to not secure the chair at all (which the ADA actually allows [see 49 C.F.R. § 165]).
As an important footnote, the last time I went to trial on a wheelchair securement case was in 2002 – more than 100 tipover cases ago. We won $2.1M for a quadriplegic who didn’t appear to be “any worse for wear.” But word “got around.” The interesting point is that, occasionally, a lower court ruling can have a dramatic effect on the behavior of others. After this particular case, almost every transit agency in the country changed its policy to require wheelchair securement, consistent with 49 C.F.R. § 38.23(d). The lesson is that an attorney need not appeal a case to create a global change. This is particularly true in public transportation – the real “Dead State” – where a knowledgeable expert can (and will) explain in open court what a particular service provider is doing, and how it operates. This is particularly true with cases involving NEMT service, where brokers (often crooked brokers, but certainly ignorant ones) were involved in the chain-of-command noted above.
There is no entity to keep track of wheelchair tipovers. And the odds of obtaining relief from our legal system is hampered by one set of odds after another – ranging from the plaintiff not getting hurt badly to his or her attorney doing a poor job on the case. Because of all these things, it is not an exaggeration to think that only one out of every several hundred wheelchair cases ends up with a victory for the plaintiff (or his or her estate), and why there could easily be 10,000 tipovers a day.
#wheelchairtipover #wheelchairandpassengersecurement #wheelchairtransportation #transalt #wheelchairsecurement