Injuries involving elderly, disabled, or infirm passengers, suffered while riding in wheelchair accessible vehicles are so common that, any given time, there are 100s of active lawsuits in our country involving this dynamic. A major case hurdle is the fact that rarely do the attorneys (on either side) fully understand the actual responsibilities of the company operating the vehicle, nor does the plaintiff understand what level of service they were to receive. In fact, many, many plaintiffs are often left in disbelief when discovering, to their dismay, that what they thought were the responsibilities of the driver and his employer were actually the responsibilities of the rider and the rider’s advocates. Last year, one of my cases involved a plaintiff turning down a large six-figure settlement, going to trial and getting nothing. Zero. Nada. I’ll say they were dismayed. And plaintiff’s attorney was flabbergasted.
I have worked over 40 years in the ground-passenger transportation industry, 28 as an executive and 15 as a consultant and expert witness, and I’ve worked on many cases that featured the same exact traffic and injury events, yet totally different legal outcomes. Prevailing in those types of cases involves:
1) understanding the difference between paratransit and non-emergency medical transportation, as well as
2) understanding the roles of passenger advocates, transit agencies, insurance companies, and especially, understanding the role of non-emergency medical transportation brokers.
The world of non-emergency medical transportation (NEMT) is so complex that many people don’t even understand the use of the adjective “medical.” Some automatically assume it applies to the level of transport service being provided to the passenger, as well as to the qualifications of the driver. It actually means neither. In fact, the word “medical” refers to the trip destination of the passenger. In other words, “non-emergency medical transportation” simply means the passenger is going to a medical appointment, but not in an ambulance. In some regions of the country, it is simply called “non-medical” transportation to help clear up the confusion and differentiate it from services provided by EMT’s, paramedics, and/or ambulance drivers.
And there is plenty of confusion, on the sides of both the injured passenger and the provider company. I have worked on many cases where the transportation company assumed they were at fault, and yet I opined they were not. I have had many others where the company felt it did absolutely nothing wrong but I opined it did. My opinions varied based on the details involved in the cases, some which were right there in the case materials, but meant nothing to either law firm due to not understanding the particular industry nuance involved in the case. Many times, a seemingly innocuous remark made by a witness during a deposition turns out to be a major key toward discovering important facts and ultimately prevailing in the case.
While paratransit services and NEMT are provided to similar passengers in similar vehicles, the similarities often end there. Paratransit is a service for the disabled. It is part of the local transit system and is regulated via municipal contracts. NEMT is generally paid for by a health insurance provider, whether a private health insurer or Workmen’s Comp. insurance (although it is most likely provided through your state’s Medicaid program). A key to winning your case is discovering how that particular passenger wound up in that particular vehicle. Very rarely is the plaintiff a fee-for-service customer paying out of his or her own pocket. There are always other bureaucratic entities involved. Discovering who those entities are, and learning the contractual requirements a third-party payer imposes upon the plaintiff and the defendant is often the key to winning the case.
Here is an example: I served as an expert witness in a case involving an injury to an elderly, disabled woman who was a resident of a nursing home. The woman had suffered her injury while she was a passenger in a wheelchair-lift van. It seems that she had reached her destination and was sitting in her wheelchair ready to exit the vehicle while the driver had gone outside the van to raise the lift. On the patient’s lap sat her sweater, which began to slip down over her knees. She reached forward to grab the sweater as it began to slip even faster. As she leaned over to better reach the falling sweater, she leaned too far, and she toppled forward out of her wheelchair, hitting her head on a metal rivet on the van floor.
This occurred at the entrance of a hospital, and hospital staff quickly came to her aid, so in just a few moments she was being cared for in the emergency room. The passenger was treated and released, and was sent home. Her conditioned worsened and many ailments related to the injury followed. Her family decided that this situation had occurred due to driver negligence. A lawsuit against the driver and the transportation company was filed and I was hired by the defendant to provide an expert opinion regarding the case. So, ask yourself: what could or should the driver have done differently? Did the driver behave properly and follow all safety procedures? Did the woman require a companion when being transported? Should the woman’s family or the nursing home staff have been more vocal about her needs when she was riding as a passenger on such a trip? Was this simply an unavoidable accident? You probably have additional questions in your own mind. The answers are in the details of the case materials, understanding the difference between paratransit and NEMT, and discovering if there are other layers of responsibility. Things may not be as they first seem.