Can a Third-Party Texter Be Held Liable for the Recipient’s Distracted Driving?

A Florida law forbidding text messaging and some other uses of electronic devices while driving went into effect on October 1, 2013. Responsible drivers know they should not send text messages while behind the wheel. But what about sending text messages when the recipient may be driving?

If you know the person you want to text (or call, for that matter) is on the road, it is best simply to wait. But in the end, it is solely the responsibility of the driver to avoid distraction. Or is it?

A recent case in New Jersey may have punched a hole in that theory. Just before an 18-year-old man there veered out of his lane and struck a husband and wife on a motorcycle, he had received a text message from a friend. The trial court dismissed a claim that the friend might be liable in the accident. The appeals court ruled that there was not enough evidence against the friend for the claim, but they left the door open for such arguments in the future, saying that third-party texters could be held liable if they know the recipient of the text message is driving a car.

It remains to be seen whether the legal standard will be upheld or applied in other states. While the actual legal risk one faces in sending texts to drivers is remote, the personal responsibility is clear: if the recipient is behind the wheel, the message can wait.

Use of High-Tech Pain Management Alternatives Increasing in Wake of Florida Pill Mill Crackdown

In the two years since the beginning of Florida’s pill mill crackdown, doctors, drug dealers, and drug abusers who are only interested in exploiting the system have been driven out of the state in large numbers. But even legitimate doctors with patients who face real pain are taking more time to discuss and explore alternatives to drugs for pain management. One alternative is a class of high-tech devices with none of the potential addictive effects or complications of opioid painkillers.

Patients with chronic pain now have available to them devices that send electrical signals to the brain in order to block the sensation of pain. They have the support of Medicare, the insurance industry, and the FDA. This is critical to ensure patient access.

One such device, a spinal cord stimulator, is implanted in fatty tissue in the lower back near the spine. The system sends electrical signals to the spinal cord that override the brain’s sensation of pain. The patient operates the unit, turning it on or off and controlling the signal frequency with a small remote control.

A report from the SunSentinel covered a patient who was in near-constant agony following surgery on her broken foot. She was scarcely able to walk or drive and depended on her husband for nearly everything. The spinal cord stimulator let her be without pain and regain her mobility almost immediately. The $23,000 procedure was covered entirely by her health insurance. These high-tech therapies are more costly up-front to insurers when compared with medication, but insurers are on board because of the potential for long-term cost savings.

Concussions in Professional and School Athletes Attract Legal, Scientific Attention

The issue of concussions and other brain injuries in contact sports, from the professional to the primary school level, has received widespread and sustained attention for some time now. In the wake of the settlement of a spate of lawsuits against the National Football League (NFL), media coverage and injury prevention efforts are turning more to minor children.

More than 4,500 former professional football players had entered into lawsuits against the NFL when a $765 million settlement was reached recently. Following a months-long period of court-ordered mediation, U.S. District Judge Anita Brody announced the settlement, which she must yet approve in order for it to go into effect. The plaintiffs claimed a wide variety of concussion-related symptoms, including memory loss, impaired speech and motor control, depression, and mood swings. At least two former NFL players committed suicide by self-inflicted gunshot wounds to the chest and left notes asking that their brains be donated for scientific research.

The NFL also implemented safety-oriented rule changes for the 2012 season, including prohibiting “head shots” and making them fineable, and requiring heavier protective padding. That season, 160 players were diagnosed with concussion-like symptoms, a steep decline from the previous season’s 270 such diagnoses.

Far more pressing is the issue of how to protect children who play contact sports. Over a quarter-million concussions are reported among high school athletes each year. In July, 2012, a Florida law went into effect that requires young athletes suspected of sustaining a head injury or concussion to be immediately removed from practice and competition. After completing a gradual, four-course return to play, consisting of light activity, then moderate aerobic activity, followed by drills specific to their sport, and finally full-contact practice, athletes are allowed to return to competition with a doctor’s written medical clearance.

Concussion is difficult to diagnose, but a commercial software program called ImPACT, already in use by the NFL, has recently been adopted by a number of Tampa Bay-area high schools. The program requires fully healthy athletes to complete a series of computerized cognitive tests before the season begins. Following a head injury, players must post a score as high as or higher than their baseline score before they can return to play. While the program shows promise, it is easily manipulated by players who deliberately score lower than they are able on initial tests in order to get back in the game as soon as possible in the event they are injured.

On the federal level, the Youth Sports Concussion Act was recently introduced by Senators Jay Rockefeller and Tom Udall. If passed, the bill would instruct the Consumer Product Safety Commission to review a forthcoming report from the National Academy of Sciences on sports-related concussions in young athletes. After the review, the CPSC would be authorized to issue recommendations or rule changes for manufacturers of sporting equipment.