Our firm represented a gentleman who sustained life-threatening injuries after being struck by an SUV while standing next to his incapacitated truck on the side of Interstate 95 in Broward County, Florida. (See blog photo.) The accident happened in broad daylight during rush hour traffic.
Following a tire blowout, our client had pulled his semi-tractor trailer rig into the highway gore, a paved section of roadway which separated northbound I-95 thru-lanes from two exit lanes, to await the arrival of roadside assistance summoned by his employer to replace the tire. The roadside assistance vehicle that arrived on the scene was owned and operated by an independent contractor. Essentially, it was a beat up old jalopy — see photo — that was not equipped with any warning lights of the type highway drivers have come to expect, and its small factory hazard lights were partly obscured by a rear metal door lowered to access the truck bed. It pulled up directly behind the trailer, blocking the trailer’s warning lights and hazard strips.
As our client was standing next to the service technician, who was in the process of changing the tire on the left side of the trailer, both he and the technician were struck by a northbound vehicle whose driver had failed to timely recognize that the vehicles were stopped rather than moving with the regular flow of traffic. At the last split second this driver recognized the situation and swerved sharply to avoid striking the service vehicle. His vehicle clipped the left rear of the vehicle before striking the two gentlemen. His vehicle was totaled and each of the three individuals were transported to the hospital with severe injuries.
We sued the driver and the roadside assistance company. Our allegations against the company included the failure to employ adequate safety warning devices on its vehicle. Through research in this and other cases, we knew that daylight crashes involving disabled vehicles are commonplace. Among the explanations for the phenomenon are the theories known as “follow-the-leader” and “looming distance.” They rely on human perception and reaction to various roadway situations. (In 2013, we were involved in obtaining a $2.7 million jury verdict, in Orlando, Florida, in reliance on the “looming distance” theory. In broad daylight under clear weather conditions, our client drove a Disney bus into the back of a large motor coach stopped on the highway for mechanical reasons. The motor coach’s hazard lights were on and it had been stopped long enough for the operator to exit and inspect the vehicle, then walk to the side of the road to make a phone call. Our client, who was not distracted and did not have any visual impairments, had a 1/4 mile unobstructed view as he approached on a straightaway. Because of “looming distance” factors, he was not able to realize until the accident was unavoidable that the motor coach was stopped rather than moving.)
By the time our firm was hired months after the subject crash, the driver of the vehicle had already passed away. He was elderly and we do not know if the accident contributed to his death in any way. His passing prevented us from obtaining his account of the events leading up to the crash. However, we did learn during formal discovery that a blood test performed at the hospital following the crash reported his blood alcohol level as being 296 milligrams per deciliter, more than three times the legal limit in Florida of 0.8.
In a legal proceeding known as Summary Judgment, the defendant roadside assistance company tried to use this information to get itself removed from the case. It argued that the alcohol screening result demonstrated that its own negligence, if any, was not the proximate cause of the accident. This is known as the “intervening cause” defense. In other words, it was all the driver’s fault. Defendant’s Motion for Summary Judgment (see FRCP 1.510) was denied.
We opposed defendant’s MSJ by arguing, among other things, that the blood test performed in the hospital was not credible evidence the driver was under the influence of alcohol at the time of the accident. In support of this position, we submitted the affidavit of a medical doctor licensed to practice medicine in Florida with training in General Psychiatry, Clinical Pathology and Forensic Toxicology, and board certification by the National Board of Medical Examiners and American Board of Forensic Examiners. Here’s the redacted affidavit:
BEFORE ME, the undersigned authority, on this day personally appeared Stefan Rose, M.D., who, after being first duly sworn, under oath, deposes and says:
I. I have personal knowledge of the facts stated herein.
2. I am a medical doctor licensed to practice medicine in Florida with training in General Psychiatry, Clinical Pathology and Forensic Toxicology, and am board certified by the National Board of Medical Examiners and American Board of Forensic Examiners. A copy of my curriculum vitae and blood alcohol testing qualifications are attached as exhibits to this affidavit.
3. I have reviewed the following items relating to this action:
a. Broward Health North (North Broward Medical Center) chart for xxxxxx;
c. City of Oakland Park Fire Rescue report for xxxxxx;
d. Deposition transcript of xxxxxx;
e. Deposition transcript of xxxxxx; and
f. Deposition transcript of xxxxxx.
4. A review of these documents fails to reveal any reliable evidence to establish that xxxxxx was impaired, intoxicated or otherwise under the influence of alcohol or drugs at the time of the accident of xxxxxx.
5. For example, the traffic accident report completed by the Florida Highway Patrol specifically indicates that xxxxxx was not suspected of drinking alcohol or using drugs. Neither Oakland Park Fire Rescue nor North Broward Medical Center personnel were asked by the Florida Highway Patrol to draw blood for, or to perform, forensic toxicology testing.
6. In addition, the fire rescue report reflects that Oakland Park Fire Rescue personnel arrived at the scene and were attending to xxxxxx by 10:08 a.m. The fire rescue personnel observed that xxxxxx had suffered closed head trauma with a laceration to the right side of his head. xxxxxx could not remember the accident and his mental status was reported as confused, an expected sequela from head trauma. While the report reflects xxxxxx reported having consumed 3 beers that morning, there is nothing to indicate when or over what period of time beers were consumed. xxxxxx, EMT-P, who authored the report, testified in her deposition she could not say whether xxxxxx consumed any beers that morning or, if beers were consumed, whether they were consumed 9 hours earlier at 1 :00 am or more recently. Due to the lack of information regarding time of drinking, it is not possible to determine the BAC at the time of the accident.
7. The fire rescue report does not reflect that Oakland Park Fire Rescue personnel observed any signs or behavior indicating xxxxxx had been drinking alcohol and there is no mention that alcohol could be smelled. It is my professional experience that fire rescue personnel routinely record observations that suggest the consumption of alcohol if there is evidence of consumption. Ms. xxxxxx confirmed that her practice is consistent with my experience and testified she would have noted in her report if there had been an odor of alcohol or if xxxxxx exhibited signs of being intoxicated such as the slurring of words.
8. Ms. xxxxxx further testified that blood is not typically drawn from a patient unless the police request the blood draw and that in this case the Florida Highway Patrol did not request that blood be drawn from xxxxxx.
9. After his arrival at North Broward Medical Center, hospital personnel did draw blood and urine from xxxxxx for laboratory analysis in order to perform routine medical evaluation and treatment. The toxicology laboratory report contains the following disclaimer of reliability to anyone that might consider using the results:
This is a screening test result, and should be used only for medical (e.g. treatment) purposes. Unconfirmed screening results must not be used for non-medical purposes ( e.g. employment testing or legal testing). If indicated, a confirmatory alcohol (ethanol) level should be obtained by an approved methodology to provide a definitive answer.
No evidence of a confirmation test by the current forensic standard test, gas chromatography FID, was found in the orders, results, or any other section of the medical records, or any other record in this case.
10. Hospitals often provide such warnings and it is well established that there are numerous potential errors in the hospital screening that will lead to inaccurate and unreliable results that cannot be properly used for forensic analysis. Typical screening performed by hospital laboratories is performed by Enzyme Assay Ethanol Test which does not measure ethanol. Rather, the test procedure performs an indirect test, measuring a proxy of ethanol, called NADH. (nicotinamide adenine dinucleotide) The test methodology, and the test procedure routinely results in the following qualitative and quantitative errors:
i. Chain of Custody (COC): The COC is not complete, or intact in this case. There is not an unambiguous document trail from start to finish regarding the people involved, the manner of sample collection, the procedure used to collect the sample, the secure transport and storage of the sample, and the sample was not preserved for independent testing to confirm, or not, the initial screening results as reported in the medical record;
ii. the sample tested is not the required forensic whole blood sample as per Florida’s Implied Consent law, it is a serum sample. Serum is the liquid portion of the initial whole blood sample. Serum, in contrast to the whole blood sample, has the red blood cells removed, and the serum contains more water than the original whole blood sample. Ethanol dissolves preferentially into serum compared to whole blood because of the increased water content of the serum. Therefore, serum always has a higher BAC compared to the original whole blood sample. The amount is variable, but may be up to 50 % higher than the original whole blood sample;
iii. Ethanol in the sample is measured indirectly by measuring the proxy of an enzymatic reaction of ethanol with NAD, forming NADH. However, and especially in trauma cases, numerous other potential sources of NADH in blood samples occur that cause false positives and an erroneously elevated BAC result. Proxy (indirect) measurements are not the gold standard for testing, direct measurements are the gold standard;
iv. The proxy measurement of ethanol by measuring NADH is performed using UV-Absorption Spectrophotometry at 240 nm wavelength. The serum sample may contain NADH from sources other than ethanol and the serum sample may contain other substances that will cause absorption at the same 240 nm wavelength as NADH and thus lead to false positives and an erroneously elevated BAC;
v. Increased lactate and the muscle enzyme lactate dehydrogenase (LDH) in the blood are one of the potential sources for absorption at the same wavelength as NADH. The presence of those two substances cause the formation of NADH, thus causing an elevated, false positive BAC result. They are both found in the serum following injury to the muscles caused by trauma such as that suffered by xxxxxx;
vi. The skin prep pad used for the blood draw may contain ethanol, and elevate the BAC result. No documentation exists listing the type skin prep pad used;
vii. The blood sample was not identified as arterial or venous blood. Arterial blood may have up to 40% increase in ethanol content, compared to venous blood causing an unreliable BAC result;
viii. Forensic testing requires that an internal standard method of testing be used. No internal standard was found in this case, thus the test results do not meet the forensic standard for testing;
ix. Forensic testing requires that positive and negative controls be run with every test sample. No positive and negative controls were found in this case, thus the test results do not meet the forensic standard for testing;
x. Clinical chemistry analyzers are subject to malfunctions that contribute to qualitative and quantitative errors as reported to the Food and Drug Administration (FDA) and there are no quality control reports to show that no such errors occurred in this case;
11. None of the potential errors listed above were eliminated by testing and thus each of these errors could have had a dramatic effect on the measurement obtained by the laboratory at Broward Health North.
12. In addition, the Abbott analyzer used by the laboratory at Broward Health North uses an analysis that measures two reactions, in other words, an indirect testing of the indirect testing, which further compounds the potential for errors in the measurement of blood alcohol levels.
13. While the Broward Health North toxicology report for xxxxxx reflects that ethanol was measured at 296 milligrams per deciliter (mg/dl), due to the potential errors outlined above and other potential errors, this measurement is not forensically reliable. In fact, due to the lack of complete chain of custody, there is no forensic proof that the serum ethanol test results are from the blood sample collected from xxxxxx, thus the entire result may be incorrect.
14. Even if xxxxxx had a blood alcohol level above the legal limit at the time of the subject accident, a conclusion that cannot be made here, it is possible that xxxxxx was not impaired and that his blood alcohol level did not affect his driving or cause the subject accident. In my experience, alcohol dependent people develop a tolerance to alcohol and I am aware of cases where individuals had a blood alcohol level above the legal limit, even greater than the level reported in the Broward Health North report, and function without observable impairment despite the elevated level of alcohol.
15. The evidence in this case as reported by those individuals at the scene does not suggest xxxxxx was exhibiting signs of impairment immediately following the collision.
FURTHER AFFIANT SAYETH NAUGHT.
SWORN TO AND SUBSCRIBED that the foregoing instrument was acknowledged before me this xxxx day of xxxx by Stefan Rose, M.D. who is personally known ___ or who has produced identification ___ .
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Jeffrey P. Gale, P.A. is a South Florida based law firm committed to the judicial system and to representing and obtaining justice for individuals – the poor, the injured, the forgotten, the voiceless, the defenseless and the damned, and to protecting the rights of such people from corporate and government oppression. We do not represent government, corporations or large business interests.
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