The Role of Law in Reducing Injury

Committee on Trauma Research, Injury in America: A Continuing Public Health Problem, Washington, D.C., National Academy Press, 1985, p. 1. Also see Baker S.P. O'Neill B. Karpf R.S. , The Injury Fact Book. Lexington, MA: Lexington Books, 1984, especially Chapter 2: “Injuries in Relation to Other Health Problems.” Baker O'Neill and Karpf state (p. 1) that: “Injuries are the most serious public health problem facing developed societies. In the United States, they account for the majority of deaths among children and young adults…. About eight million people alive today in the United States can be expected to die from injuries.”

Hartunian N.S. Smart C.N. Thompson M.S. : “The Incidence and Economic Costs of Cancer, Motor Vehicle Injuries, Coronary Heart Disease, and Stroke: A Comparative Analysis. ”American Journal of Public Health 1980; 70:1249–1260 and Hartunian N.S. Smart C.N. Thompson M.S. , The Incidence and Economic Costs of Major Health Impairments: A Comparative Analysis of Cancer, Motor Vehicle Injuries, Coronary Heart Disease and Stroke. Lexington, MA: Lexington Books, 1981.

Waller J. , Injury Control: A Guide to the Causes and Prevention of Trauma, Lexington, MA: Lexington Books, 1985, p. 3. Also see Baker O'Neill Karpf , supra, note 1.

Injury in America, supra, note 1, at pp. 1 and 4. The subject of injuries was long dominated by the terms “accident” (as in accident prevention and accidental death; chance, unavoidable events) and carelessness (as in careless driver or “nut behind the wheel”). On a more sophisticated level, Linder argues that there are basically four conceptual views of injury: the medical, public health, legal, and economic views. Linder S.H. : “On Cogency, Professional Bias, and Public Policy: An Assessment of Four Views of the Injury Problem.” Milbank Quarterly 1987; 65:276–301.

Report of the National Conference on Injury Control, Centers for Disease Control, May 1981.

Injury in America, supra, note 1, p. v. In his Preface to Injury in America, Chairman Foege explains that: “In 1983, Congress enacted a law authorizing the secretary of the Department of Transportation to request a study on trauma (injury) by the National Academy of Sciences, to determine what is known about injury, what research should be done to learn more, and what arrangements the federal government could use to increase and improve the knowledge of injury. In response to that authorization, the Committee on Trauma Research, in the National Research Council's Commission on Life Sciences, was established in collaboration with the Institute of Medicine.” Supra, note 1, p. v. For a comprehensive treatment of injury prevention, also see Waller, supra note 3, and Robertson L.S. , Injuries: Causes, Control Strategies, and Public Policy, Lexington, MA: Lexington books, 1983.

Baker O'Neill Karpf , supra note 1, p. 7.

Injury in America, supra note 1, p. 18.

Injury in America, supra note 1, p. 15. Baker, O'Neill, and Karpf note that: “Even when injury deaths from homicide and suicide are not included, the remaining unintentional injury deaths result in almost 3 million potential years of life lost prematurely, a greater loss than for any single disease.” Supra note 1, p. 15.

Baker O'Neill Karpf , supra note 1, pp. 12–13.

Waller J.A. , “Injury: Conceptual Shifts and Preventive Implications.” American Review of Public Health 1987; 8:21–49 at 25.

Waller, supra note 3, pp. 11–38; Haddon W. Jr : “On the Escape of Tigers: An Ecologic Note.” Technology Review 1970; 72:44–53; Haddon W. Jr Baker S.P. : “Injury control.” In: Clark D. MacMahon B. (eds.), Preventive Medicine, 2nd edition, Boston: Little, Brown, 1981, 109–140. Waller defines an unintentional injury event as an event in which “(1) injury occurs over a relatively short period of time–-at most, seconds or minutes, (2) the harmful outcome was not sought, and (3) the injury resulted either from one of the forms of physical energy in the environment (kinetic, chemical, thermal, electrical, or ionizing radiation) or because normal body mechanisms for using such energy were blocked by external means (such as by drowning).” Waller , supra note 3, p. 8.

Baker O'Neill Karpf , supra note 1, p. 17.

Injury in America, supra note 1, p. 37.

See Haddon W. Jr : “Energy Damage and the Ten Countermeasure Strategies.” Journal of Trauma 1973; 13:321–31.

See Christoffel T. , Health and the Law: A Handbook for Health Professionals, New York: Free Press, 1982, pp. 60–76; Wing K.R. , The Law and the Public's Health, 2nd edition, Ann Arbor: Health Administration Press, 1985, pp. 17–39; Grad F.P. : “Communicable Disease and Mental Health: Restrictions of the Person.” American Journal of Law & Medicine 1986; 12:381–403; Burris S. : “Fear itself: AIDS, Herpes and Public Health Decisions.” Yale Law & Policy Review, 1985; 3:479–518; Gostin L.O. : “The Future of Public Health Law.” American Journal of Law & Medicine 1986; 12:461–490.

Injury in America, supra note 1, p. 39. Also see Adler R.S. Pittle R.D. : “Cajolery or Command: Are Education Campaigns an Adequate Substitute for Regulation?” Yale Journal on Regulation 1984; 1:159–93.

Waller , supra note 3, pp. 470–471.

Ross H.L. , Deterring the Drinking Driver: Legal Policy and Social Control, Lexington, MA: Lexington Books, 1982.

Robertson , note 6, p. 133.

Gusfield J.R. , The Culture of Public Problems: Drinking-Driving and the Symbolic Order, Chicago: University of Chicago Press, 1981.

Injury in America, supra note 1, p. 40, citing Baker S.P. Dietz P.E. : “Injury Prevention.” In: Healthy People: The Surgeon General's Report on Health Promotion and Disease Prevention. Background Papers, Washington, D.C.: U.S. Department of Health, Education, and Welfare, DHEW Publication No. (PHS) 79–55071A, 1979, pp. 53–80.

Robertson, supra note 6, p. 157.

Injury in America, supra, note 1, p. 40.

National Traffic and Motor Vehicle Safety Act of 1966, 15 U.S.C. Secs. 1381 et seq. (1976 and Supp. IV 1980).

Robertson L.S. : “Automobile Safty Regulation in the United States.” American Journal of Public Health 1981; 71:818–822; Orr L.D. : “The Effectiveness of Automobile Safety Regulation: Evidence from the FARS Data.” American Journal of Public Health 1984; 14:1384–89; Robertson L.S. : “Automobile Safety Regulation: Rebuttal and New Data.” American Journal of Public Health 1984; 74:1390–1394.

Mandatory safety standards, 15 U.S.C.A. Sec. 2056; ban hazardous products, 15 U.S.C.A. 2057; initiate recalls for products that pose substantial hazards, 15 U.S.C.A. 2061; require informative labeling of consumer products, 15 U.S.C.A. 2063.

Waller , supra note 11, p. 40.

“Toughest belt use law proves to be the most effective.” IHHS Status Report 1986; 21:5–6; Calvin R.M. , Seat-Belt Usage in Countries with Belt Laws: A Status Report, Washington, D.C.: Highway Users Federation, 1984; A Preliminary Evaluation of New York and New Jersey Insurance Claim Results Before and After Enactment of Mandatory Seat Belt Legislation, 1983–85 Models, Washington, D.C.: Highway Loss Data Institute, HLDI A-27, 1986; National Highway Traffic Safety Administration, Effectiveness of Safety Belt Use Laws: A Multinational Examination, DOT HS 807 018, 1986.

Agran P.F. Dunkle D.E. Winn D.G. : “Effects of Legislation on Motor Vehicle Injuries to Children.” American Journal of Disabilities in Children 1987; 141:959–964, at p. 959.

Baker O'Neill Karpf , supra note 1, p. 260.

Robertson , supra note 6, p. 157. Although some of these measures, such as smoke-detector requirements, have been demonstrated to have had a significant impact on injury rates, the unfortunate fact is that the impact of most such laws has not been evaluated.

346 F. Supp. 277 (D. Mass. 1972).

Baker S.P. : “On Lobbies, Liberty, and the Public Good.” American Journal of Public Health 1980; 70:573–75, at 574.

Beauchamp D.E. : “Injury, Community and the Republic.” Law Medicine Health Care 1989; 17:1; Beauchamp D.E. : “Community: The Neglected Tradition of Public Health.” Hastings Center Report 1985; 15:28–36; Beauchamp D.E. : “Public Health and Individual Liberty.” Annual Review of Public Health 1980; 1:121–36.

Baram M.S. : “Cost-Benefit Analysis: An Inadequate Basis for Health, Safety, and Environmental Regulatory Decisionmaking.” Ecology Law Quarterly 1980; 8:473–531. Also see Swartzman D. : “Cost-Benefit Analysis in Environmental Regulation: Sources of the Controversy.” In: Swartzman , Cost-Benefit Analysis and Environmental Regulations: Politics, Ethics, and Methods, Washington, D.C.: The Conservation Foundation, 1982, pp. 53–85; Tribe L.H. : “Ways Not to Think about Plastic Trees: New Foundations for Environmental Law.” Yale Law Journal 1974; 83:1315.

See, generally, Bollier D. Claybrook J. , Freedom from Harm: The Civilizing Influence of Health, Safety and Environmental Regulation, Washington, DC: Public Citizen & Democracy Project, 1986.

Navarro V. : “Where is the Popular Mandate?” New England Journal of Medicine 1982; 307:1576–81; Navarro V. : “A Reply to Conventional Wisdom.” International Journal of Health Services 1983; 13:169–76.

For example, the budget of the Consumer Product Safety Commission is approximately $30 million annually. Bollier and Claybrook, supra note 31, p. 210, state that: “Congress allocated less than $2 billion for the lifesaving missions of the EPA, OSHA, FDA, NHTSA, CPSC, and food safety programs of the USDA in 1984. Compare this with the Department of Defense with its $305 billion annual budget (1985), which in just three days spends more than the major health and safety agencies in one year.”

The worst example of the failure of “market forces” is the continued promotion and sale of tobacco products, products which cause over 350,000 deaths per year when used as intended. Other examples of products sold despite their destructive impacts and lack of legitimate function are radar detectors and cheap handguns. See Christoffel T. : “Putting the Brakes on Lawbreaking: State Bans on Radar Detectors.” American Journal of Public Health 1987; 77:507–511 Kelley v. R. G. Industries, Inc. 304 Md. 124 (1985). The failure of the marketplace to achieve social good is shown most vividly in the case of the Ford Pinto, where a major U.S. corporation consciously chose a predicted 180 deaths, 180 serious injuries, and estimated liability claim of $49.5 million over the $137 million cost of redesigning a flawed gas tank.

Teret S.P. , “Injury Control and Product Liability.” Journal of Public Health Policy 1981; 2:49; Teret S.P. , “Litigating for the Public's Health.” American Journal of Public Health 1986; 76:1027.

Eads G. Reuter P. , Designing Safe Products: Corporate Responses to Product Liability Law and Regulation. Santa Monica, CA: Rand Corporation, Institute for Civil Justice, 1983, p. 122, as cited in Teret S.P. : “The Value of Litigation to Childhood Health.” In Robertson W.O. Teret S.P. (eds), Medical-Legal Issues in Pediatrics, Report of the Eighteenth Ross Roundtable on Critical Approaches to Common Pediatric Problems. Columbus, OH: Ross Laboratories, 1987, pp. 43–47.

Teret S.P. Jacobs M. , “Prevention and torts: The Role of Litigation in Injury Control.” Law Medicine & Health Care 1989; 17:1.

Kitzes W.F. : “ATVs–-The hidden danger.” Law Medicine & Health Care 1989; 17:1.

Injury in America, supra note 1, p. 46.

Robertson , supra note 6, p. 126.

Injury in America, supra note 1, p. 40.

Graitcer P.L. : “The Development of State and Local Injury Surveillance Systems.” Journal of Safety Research 1987; 18:191–198. Also see Standfast S.J. : “Injury Prevention as a Public Health Responsibility: The New York State Department of Health Injury Control Program.” Law Medicine & Care 1989; 17:1, and Harrington C. , Injury Prevention Programs in State Health Departments: A National Survey. Boston: Childhood Injury Prevention Resource Center, Harvard School of Public Health, 1988, especially pp. 28–30.

Injury in America, supra note 1, p. 37.

Injury in America, supra note 1, p. 37.

“Who benefits?,” Philadelphia Public Ledger, August 28, 30, 1852; reprinted in the New York Times, March 24, 1981, p. 19.