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HEALTH AND SAFETY AT WORK LAWS, LEGAL OBLIGATIONS IN LAW OF WORKERS AND WORKPLACES

(Based on author’s site www.geocities.com/hlthsf)

The Health and Safety at Work Act and various directives and industrial health and safety regulations are increasingly charging employers and employees with duties at the workplace.

Employers’ legal duties regarding workers and others, and employees’ statutory duties to employers and fellow workers, make it essential to businesses and their workforce to have some appreciation of basics of the work safety requirements –and related decisions of the courts.

Factories Act 1961 applies where mechanical machinery is used by a business. It requires the workplace to be properly lit, properly ventilated, with sufficient toilet facilities. Under this Act moving machinery must have a fence surround; must be properly constructed and maintained, e.g., all hoists, lifts; must be kept unobstructed all floors, passages, and stairs; floors must not have slippery surfaces, and fire-escapes must be provided and maintained -due care must be exercised to avoid risks being taken or caused both to and by employees which may result in injury.

Offices, Shops and Railway Premises Act 1963 to a considerable extent is based on the working conditions in offices, although it covers also shops railways. It requires rooms not to be crowded, to allow some 3.5m.x3.5m., 12 square metres, floor space per person, the temperature to be not below 16 degrees centigrade, suitable natural or artificial lighting, suitable and sufficient and easily accessible sanitary facilities with running hot and cold water and towels.

Health and Safety at Work Act 1974 in section 2 now encompasses the common-law duties; it emphasises the duty to provide a workplace free from hazards, the maintenance and safety of machinery and equipment -with appropriate e.g. warning signs displayed, in liaison with the work-force, by consultation with trade union Safety Representatives, a health and safety officer on the premises who must have regularly updated health and safety training -including first aid, a Safety Committee and Written Safety Policy statements; it requires that the employees too must take reasonable care and co-operate in these respects.

Other Acts, and Regulations -six in 1993 upon EU Directives, have been adding to these: e.g., the Working Time Regulations 1998 prescribe e.g., rest periods.

There is a health and safety commission, and the Safety Executive is empowered to inspect, issue Improvement or Prohibition Notices, to prosecute -fine or imprisonment.

Contracts of Employment often allow disciplining for failure in due care.

Some Related Court Decisions

Hardaker -v- Huby, 1962, said that the system of work must be safe.

Hudson -v- Ridge MFC Co., 1957, decided it a duty to provide one’s employees with reasonably competent fellow employees.

Wilson & Clyde Coal -v- English ,1938, ruled that the duty of care may not be delegated n respect of ensuring by the use of safety equipment.

Paris -v- Stepney Borough Council, 1951: the duty is individually owed to employees ~blind in one eye should given goggles -usually not worn.

James -v- Hepworth & Grandage, 1968: there was liability for injury to an illiterate who was unable to read the signs that warned of danger.

Wicks -v- Charles A Smelhurst Ltd., 1973 ,found it unreasonable to expose an employee to risk of serious injury not contemplated at the time of issuing the contract.

Walker -v- Northumberland County Council, 1994, held liable for forced retirement on heath grounds of the claimant kept working at the same place, with the same work-load, after he had suffered a nervous breakdown.

Coulston -v- Felixtove Dock & Railway Co., 1975, said that long-term illness entitled to sympathetic consideration requiring enquiries from the employee and medically qualified advisors -including employee’s, as to whether to cease to employ for the sake of business was essential.

Wiles -v- Fores (Sussex) Ltd., 1976, thought that if absence was disrupting the workplace a reasonably warning might suffice.

Warner -v- Barbers Stores Ltd., 1978, held it failure in due respect to refuse time off to attend a domestic problem.

Spalding -v- Port of London Authority, 1977: if behaviour reasonably jeopardised safety, the employer could issue a disciplinary warning.

The health and safety laws charge governments to ensure compliance by workplaces and workers.

(This is an outline; laws change, always ascertain current law.)

The author has a website at: http://www.geocities.com/eoa_uk

As of today, H1N1 influenza is widespread in most of the United States. It is now present throughout the USA. Though there has been a slight decrease in some areas, it continues to increase in other areas and still remains a tough enemy. It’s unpredictable. We don’t know what will happen and we need to take the best steps we can to protect ourselves.

Vaccine efforts are starting. All states in the USA have ordered vaccine. Millions of Americans are being urged to get the H1N1 vaccine when it’s ready, including a large number of children. But, as Dr. Jon LaPook reports, parents are concerned about the safety of the vaccine. Unofficial surveys revealed that a third of nurses and up to half of doctors would decline to take a vaccine against swine flu, which casts a spotlight on the H1N1 vaccine safety issue. On October 6th in Atlanta, Dr. Thomas Frieden, the director of the U.S. Centers for Disease Control and Prevention, confirmed that the H1N1 flu vaccine is safe and effective at a news briefing. He said: “the H1N1 flu vaccine is made as flu vaccine is made each year by the same companies in the same production facilities and with the same procedures. We have had literally hundreds of millions of people vaccinated against flu with flu vaccine made in this way. That enables us to have a high degree of confidence in the safety of the vaccine. It has an excellent safety record.”

CDC expects that any side effects following vaccination with the 2009 H1N1 influenza vaccine would be rare. Mild problems may be experienced such as soreness, redness, or swelling where the shot was given. If these problems occur, they usually begin soon after the shot and last 1-2 days. Life-threatening allergic reactions to vaccines are very rare.

Will you place your complete trust on the safety of the H1N1 influenza vaccine?

 

 

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View from the Jury Box

By Michael Bauch

During jury selection for a medical malpractice case tried in New York State Supreme Court (Queens division), I asked a lot of questions—in hopes that this would disqualify me from consideration.

I had heard that lawyers usually don’t like potential jurors who ask “too many” questions. Questions might cause them to reveal something they would prefer not to or cause other jurors to start asking questions. To my surprise, I was chosen to be on the jury. As I would find out later, I was selected because I asked so many questions.

My two previous jury experiences had been on criminal cases, which, understandably, created a more serious, weighty atmosphere for jurors. However, the entire process in the Caputo civil case (jury selection, accessibility of the judge and attorneys, and, to a surprising extent, the trial itself) seemed to encourage a spirit of open, even friendly, inquiry into the important issues.

New York State residents are permitted to postpone reporting for jury service up to three times before the law requires them to report. I had already used all three of my postponements and was fairly certain that I would end up on a jury this time. Considering the reputation of medical malpractice cases as examples of “jackpot justice,” and my skeptical views about trial lawyers, I expected to see the civil justice system at its worst.

Trial lawyers are often associated with words like ambulance-chaser, shark, and predator—and those middle-of-the-night TV commercials that urge us to sue someone. In response, the American Trial Lawyers Association embarked on an ambitious image improvement campaign. In 2006, it changed its name to the American Association for Justice. And it dropped the term trial lawyer altogether, replacing it with civil practice attorney.

“Med-mal” is a prime example of how the reputation of civil practice lawyers has deteriorated. They are often blamed for causing juries to wrongly side against doctors on the question of medical negligence and to award more in damages than justice requires. But this reputation may be a bad rap.

“Doctors & Juries,” a 2007 article in the Michigan Law Review reported that “Although juries are widely believed to be biased against physicians, patients lose twice as many medical malpractice verdicts as they win.” The article compared studies of cases that resulted in jury verdicts and evaluations of the same facts by one or more physicians. The analytical methods of the studies differed, but the comparisons showed surprising similarities: plaintiffs won about 10 to 20 percent of the cases with weak evidence of negligence and 50 percent of the cases with strong evidence.

Marc J. Citrin is a prime example of why the reputation of trial lawyers may be undeserved. Citrin is a senior partner with the New York firm of Shaub, Ahmuty, Citrin & Spratt, which specializes in professional liability defense and hospital and health care law.

When my turn came to be interviewed for the Caputo v. Doctors Wallace and Stern and Long Island Jewish Medical Center jury, I was astonished that Citrin, the defense lawyer in this case, encouraged me to ask all the questions I could think of—and continued to talk with me after the jury interviews ended. I appreciated that he took my concerns seriously and answered to the best of his ability. When he didn’t have a good answer or didn’t know the answer, he said so.

In complex matters like medical malpractice, Citrin tries to find jurors who will be able to follow the arguments and decide the case with their heads rather than their hearts. In selecting this jury, Citrin looked for working people. “They know how to assume responsibility. I also want educated people because they ask a lot of questions,” he says.

Defending doctors accused of malpractice is one of Citrin’s specialties. “I like defending doctors. They try to do the right things for the right reasons,” he says. “I have a deep-seated belief in the position that I am advocating. “I try to be open and honest with juries and provide all of the information necessary for them to reach the conclusion that I want them to reach.”

Toni Ann Caputo sued her obstetrician, Dr. Frances Stern, a senior attending physician at Long Island Jewish Medical Center (LIJ), and the hospital’s labor and delivery staff, alleging that they had deviated from accepted medical practice in the management of her labor and delivery. (Dr. Wallace was separated from the case before trial because she had had minimal contact with Caputo.) The suit alleged negligence because Stern and LIJ staff did not perform an emergency Cesarean section delivery in response to what the plaintiffs said was severe fetal distress.

Her lawyer, John Langell, at the time with New York City medical malpractice firm Fitzgerald & Fitzgerald, argued that the baby was in severe distress due to repeated “variable decelerations” shown on the fetal heart monitor. Variable decelerations are temporary decreases in a baby’s heart rate caused when the baby presses on the umbilical cord. Langell said that the cord compression caused “hypoxia”—deprivation of oxygen to the brain—resulting in brain damage and permanent developmental delays. Caputo sought monetary compensation of $1 million on the baby’s behalf.

Nicholas, born with the umbilical cord wrapped twice around his neck, not breathing or moving, had turned pale blue. The Apgar scale, used by doctors to evaluate a newborn baby’s general condition, was 2 (out of a possible 10) at one minute after birth, and 3 at five minutes. Intervention by members of the hospital’s Neonatal Intensive Care Unit (NICU) brought steady improvement to Nicholas’s vital signs. They stabilized his Apgar at 8 (normal). Mother and baby were routinely discharged from the hospital two days later without further incident.

After the plaintiffs completed their case, Citrin began his defense of Stern and LIJ. He dealt first with whether Stern had deviated from accepted medical practice in managing Caputo’s labor and delivery. Citrin called other OB/GYN physicans, who testified that, based on the fetal heart monitor strip, Stern made a medically acceptable decision to permit Caputo’s labor to proceed and her to give birth naturally.

Citrin later addressed an issue that I had asked about during jury selection. In court, witnesses and Nicholas’s medical records confirmed my conjecture that at no time in the child’s life before age five (his age at the time of the trial), had he ever been given any kind of diagnostic tests that might have revealed brain damage sustained at birth or later. Although this is neither illegal nor abusive, this simple fact made Caputo seem neglectful of her son’s interests.

Caputo testified that, when Nicholas was about two years old, she began to notice that he might be delayed in achieving normal developmental milestones in a few areas. She was working and carried adequate health insurance for herself and Nicholas, but she never had him tested—no CAT scans, MRIs, or EEGs had ever been taken. The law firm representing the Caputos sent Nicholas for an EEG in preparation for this trial and ordered competency tests to show the extent of Nicholas’s developmental deficits. He now attends a special education program at a New York City public school.

Whatever these tests showed, there were no earlier baseline data to compare them against. For me, that was the deciding point, and Citrin had framed it very clearly for the jury. Once our deliberations began, we quickly agreed overall that the plaintiffs hadn’t convinced us, especially regarding negligence. We awarded no monetary co
mpensation.

We worried about the impact that our verdict might have on Nicholas, who came into court briefly during the trial. He was a physically healthy child with long, curly hair and a pleasant manner. He waved and smiled at the jury members. As a father of three, I could not help but feel compassion for Nicholas and his mother. All of the jurors felt the same way: we were concerned about what the future might hold for them.

However, we were told after the trial by the presiding judge, New York State Supreme Court Justice Roger N. Rosengarten, that to reach a mutually acceptable financial settlement, Citrin had offered Langell what is known as a “high/low agreement.” In a high/low agreement, the low figure sets a minimum amount that a plaintiff is assured of receiving. The high figure is the maximum amount the plaintiff stands to gain, regardless of what a jury decides. In effect, this agreement puts the financial outcome of a civil trial beyond the jury’s control. Why did Citrin believe it was necessary to offer the high/low?

“If we lost and had to pay compensation, all or most of Dr. Stern’s personal assets, including her house, could have been taken away from her. LIJ was not subject to the high/low, so she would have been the only one held financially liable. I wanted to protect Dr. Stern’s personal assets.”

It’s easy to understand why Langell accepted the offer: “We might have gone home empty-handed. I could not let that happen if there was an alternative,” Langell said after the close of the trial. Caputo, who had originally sought a million dollars, accepted $600,000 under the agreement. Neither she nor Langell agreed to be interviewed for this article despite repeated requests.

“Caputo was the type of case where the facts could have supported either side,” Justice Rosengarten says. A verdict had the potential for plaintiffs to go home with nothing or for defendants to pay a much larger amount in compensation than they expected. Mr. Citrin’s offer of the high-low served the interests of both sides. I’m glad that they were able to reach an agreement.”

Medical malpractice remains a politically sensitive issue. There are some indications that the Barack Obama presidency might create a very different arena for deciding medical malpractice cases. Obama coauthored an article in 2006 with Hillary Clinton for the New England Journal of Medicine, titled “Making Patient Safety the Centerpiece of Medical Liability Reform.” The article recommended an alternative dispute resolution mechanism, which could radically change or eliminate the current litigation-based civil tort system.

Obama and Clinton favored a nonbinding process by which physicians could confidentially accept responsibility for medical errors in exchange for an offer of “fair compensation” and the patient’s promise not to sue. However, if the result is nonbinding, the parties could still try their case in a civil court. Predictably, opinion is divided—some legal experts see the change as necessary because the current system has become too expensive and time-consuming. Civil practice lawyers and judges are generally against it: they believe that it would be anti-democratic to deny plaintiffs their day in court.

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