Wheelchair Tipovers – A Tort Lawyer’s Paradise

IAs an expert witness (see transalt.com), I have found it surprising that the vast majority of incidents and accidents occur when the vehicle is not even moving. One fourth of the more than 600 cases I’ve done involved simply getting on and off the vehicle. Clearly, the greatest degree of difficulty if driving it. Yet I have been involved in few cases involving collisions. The exception has been catastrophic motorcoach accidents – mostly when the drivers fell asleep at the wheel, and when so, largely because their assignment to their shifts did not mirror their sleep/wakefulness cycles, or required them to alter their hours of sleep and wakefulness before their bodies could adjust to these changes. My term for the consequences is “bus lag.” The legal payoffs in such a case can be eye-opening: Often parties not remotely responsible settle for tens of millions rather than engage a qualified expert to help defend them.

Another incident which occurs at great frequency happens when the vehicle is moving – but because of errors or omissions (often deliberate) that were committed before it began moving. The far-most-common of these incidents are wheelchair tipovers. Were a driver suddenly subjected to a random vehicle with whose equipment he or she was unfamiliar, and if that equipment were either oddly exotic or it components damaged or otherwise compromised, these errors and omissions would be understandable – not excusable, but at least understandable. Safety compromises in wheelchair and passenger securement incorporate a vast range of phenomena: Pieces of the securement system are broken, missing, mismatched or inoperable. Precious few wheelchairs are secured on many modes of public transportation: 71% of those transported on fixed route buses are not secured or not properly secured. This percentage is far greater on most non-emergency services – like non-emergency medical transportation (NEMT) service – where service providers are paid only for the time that the vehicle is moving with at least one passenger on board, The dexterity required to manipulate the somewhat quirky parts of most securement devices is rarely practiced. When it is not, drivers who occasionally try to secure a wheelchair or a passenger into one have great difficulty.

As noted, the worst offenders are non-emergency medical transportation (NEMT) services – often referred to as “ambulette” services – and related non-emergency services such as those providing trips to Medicaid clients or veterans (paid for by Veterans Administration funds). As is common, the tired, the poor and the huddled masses suffer the most. It is, of course, unfortunate that so many of the victims are former military personnel or their families – as many of our warriors are injured and end up in wheelchairs for the balance of their remaining lifetimes (young soldiers, sailors, marines and pilots do most of the heavy lifting). But this too is not surprising: Some studies of large homeless populations have found more than half of them to comprise ex-military personnel and/or their families.
Worst of all about these types of services is the hierarchy involved in their funding. If I were to suggest that the New York Giants should be put in charge of the ballet performed at the Lincoln Center (or the Los Angeles Lakers, graceful as they can be, placed in charge of the ballet at the Dorothy Chandler Pavilion), one would laugh. Yet funds for NEMT service and other non-emergency transportation services for disabled and elderly individuals originate with the Department of Health and Human Services (HHS), not even the U.S. Department of Transportation. From there, the funds usually flow to healthcare agencies at the State, regional, county or municipal levels. Years ago, in New Jersey, Medicare and Medicaid funds flowed to the New Jersey Department of the Treasury – not even a healthcare agency.

More recently (since the 21st Century unfolded), these lazy agencies with no understanding of transportation operations began pawning off their responsibility for engaging and monitoring service providers onto “brokers.” However, they pay these brokers like our medical system pays its brokers: On a per-capita basis. In other words, a fixed amount per person, irrespective of how often or how far they travel. Since precious few companies have any clue about how often people with most disabilities travel (there are some exceptions: Dialysis patients make three round trips a week – although they don’t necessarily receive treatment at the nearest dialysis centers, particularly in urban areas where there are countless choices), very few can bid on these services effectively. For exotic reasons, only two companies in the country – LogistiCare and MTM Enterprises – know enough about how often people with various illnesses and disabilities travel to bid low enough to actually win the bids. (LogistiCare got its start as a software developer, and learned about these trip patterns from that experience.) Few other companies (without this knowledge or experience) can take these risks So these two companies have developed into gigantic oligopolies, and their combined revenue streams exceed hundreds of billions of dollars a year.

Compounding this problem, apart from the truckloads of paperwork they must process, these brokers get to retain every dollar they receive which they do not pay to the companies which actually provide the transportation for which the brokers are responsible. Plus, they are encouraged by their “lead” (or funding) agencies to use those service providers who cost the least (and who presumably comply with a handful of simple standards, many of which few actually do). As a consequence, most of the funds are effectively skimmed off by the brokers, and little of it is spent on actual transportation.

Further compounding this dynamic, the service providers themselves are paid like a taxicab without a meter: X dollars per trip, and Y dollars per mile (At least a metered taxi charges its passengers when the vehicle is not moving; the meter just runs more slowly than when the vehicle is moving). This single characteristic helps to explain why so few wheelchairs are secured: Unless there are multiple personnel on board (rare, since most of these vehicles transport only one wheelchair at a time), only the driver is available to do this. But since the driver cannot both secure a wheelchair and drive at the same time, these chairs must be secured when the vehicle is not moving – and thus, when the driver’s employer is not being paid for the time or the effort.

The lead agencies (or funding agencies) also require their brokers to negotiate with service providers to lower their costs. This is often not even done: Brokers simply engage all or most of the providers included on a list of “qualified providers” given to them by their lead agencies. But when brokers do negotiate with them – almost always based simply on cost -- they often end up with the worst of these providers. Regardless, to compete in this process, the winning providers are those who pay their drivers the least. This compounds the reality that their employers are not paid for doing anything unless the vehicle is moving with at least one passenger on board.

Other deficiencies of this arrangement, and particularly the few brokers who dominate the non-emergency landscape, is that they don’t bother to select the most-efficient service providers. Few service providers know how to schedule trips efficiently. The brokers do not, and would not teach their providers how to do so if they could. Oblivious to this, brokers assign trips to their providers irrespective of the efficiencies they could achieve if there were some rationale to this trip assignment effort. The result is that too many service providers are usually involved, they don’t usually have a thick enough density of trips to provide them efficiently, and would not know how to do this if they were assigned an optimum number of trips, much less based on geographic considerations involving the position of each service provider’s fleet, and the origins and destinations of most clients’ trips. Many service providers remain in place, year after year, decade after decade, because of their political connections, and the shitstorm that would ensure if they them were not included.  

Back in the day – I’m talking only about the 1990s – most of the funds for these services were send on fraudulent trips not even taken, and/or on routes with  their costs padded by “spaghetti routing” -- where the passengers were driven around in circles for hours to crank up the costs.  Brokers were presumably hired to stop the these practices. But they often ignore the process of screening out phantom trips. And they rarely bother to investigate padded trips (and costs) from circular routing. Frankly, they are making so much money just processing paperwork that it is not in their economic interests to monitor or investigate anything. In one lawsuit I did in 2008, roughly $3M a month in fraudulent trips were ignored – even thought catching them would have put that $3M per month into the pockets of the broker.

As Congress is arguing over spending a couple trillion dollars on aid to Pandemic victims, hundreds of billions of dollars are being squandered by fraud and waste in a tiny sector of public transportation that most people have never heard of.

Because drivers must operate in close-proximity to wheelchair users whose chairs they secure, and whom they secure into these chairs, COVID-19 provided service providers with new opportunities to not secure wheelchairs. In fact, one member of the Access Committee of the American Public Transportation Association actually suggested that driver abandon and disregard wheelchair securement during the Pandemic. In a heated response, I blasted this 300-member lobbying group for even entertaining such an idea. I have no idea if this response had any impact. And as I had never seen any figures about the percentage of wheelchairs not secured on NEMT, Medicaid or other paratransit services prior to the Pandemic – with decades of experience to draw upon – I strongly doubt that any figures of a further decrease in this activity have been released, since I doubt anyone has bothered to examine this dynamic.

I have also found a clear connection between broken, missing, mismatched or inoperable components of wheelchair and passenger securement systems and the funding approach NEMT and Medicaid (and many VA) service providers receive: Since the reimbursement formula effectively penalizes service providers from securing wheelchairs or their occupants, it is in the interest of the owners of such companies to not repair or replace defective or otherwise unusable equipment. So strangely when a wheelchair tipover occurs, or a passenger flies or falls forward out of his or her wheelchair, it is not the driver’s fault. Drivers did not create inertial or centrifugal forces; physicists simply discovered them a few centuries ago. Instead, the drivers often don’t have a chance: The devices they need (or parts of them) are simply missing, broken, mismatched or inoperable. So rarely are these devices used that, on many vehicle inspections, I find the secure devices rusted in place in their floor receptacles. (Removing the devices after every wheelchair user has been alighted is the principal means of keeping them clean and operable.)

In the crudest terms – there is no possible way for me or anyone else to measure this – I suspect that only one out of every 10,000 wheelchair tipovers translates into a meaningful lawsuit:

• Only one out of every 10 tipovers results in an injury large enough to seek an attorney.

• Only one out of every 10 of these attorneys-client interviews results in a lawsuit: Attorneys often do not take cases for potential clients who are inarticulate or stupid (and who will be picked apart by opposing counsel when these clients are deposed).

• Of the cases which begin, the vast majority of attorneys are far too lazy and too cheap to even file against the parties most responsible for the incidents: Primarily the brokers, the healthcare agencies who engaged them (or which engaged the service providers where no brokers were hired as intermediaries) or the vehicle converters (when I find that the securement equipment installed is not compliant with ADA requirements). Filing against such parties makes the case far more complex, creates far more work, and requires a real expert in wheelchair securement. Instead, these attorneys simply file against the service provider – effectively the “pawn” in the hierarchy of agencies, and the one party without any “deep pockets.” Occasionally these attorneys file against the nursing homes or adult day care centers where the victims lived – whose nurses or caregivers have no remote responsibility for securing a wheelchair or passenger on someone else’s vehicle. (I am defending two such facilities at the moment).

• Particularly given the work involved to prosecute such a lawsuit effectively, most of these attorneys settle for a handful of magic beans – and this is mostly against the single party with few resources, and which is almost never self-insured.

One tenth times one tenth times one tenth times one tenth equals one out of 10,000.  So this colossal failure at the litigation level dissipates what little accountability any agency or company in this hierarchy of perpetrators might otherwise have. Service providers rarely conduct any monitoring of their drivers’ securement practices. (Why should they, since actual securement would lose them money.) Brokers are allergic to monitoring, and would not know how to conduct it if they were not. And they are immune from any repercussions for this failure – despite contracts with their funding agencies which require them to undertake this function – because the funding agencies do not know how to monitor their brokers, and do not care, since the brokers effectively indemnify them, and the brokers themselves are rarely sued.  So this pattern goes on and on and on, and thousands of wheelchair tipovers occur constantly with no consequences for any of the companies and agencies in the pyramid responsible for them.

An attorney willing to actually do some work, and find and invest in a qualified expert to assist him or her, can often make a small killing in a wheelchair tipover case. (Under the ADA, a secured wheelchair merely needs to move more than two inches in any direction during “normal operating conditions” to violated the wheelchair user’s civil rights). But the  case also has to be undertaken coherently: The expert cannot be engaged after a string of useless depositions have been wasted, discovery is closed, if the vehicle is no longer available for the expert to examine, or if the attorney’s firm is unwilling to pay anyone but a “local yokel” to examine it, since his or her travel costs will be minimal.

I have little faith that any of this will change. But truth is important. I myself will continue working on those few wheelchair and passenger securement cases which come my way, and work hard on those in which the attorney is willing to undertake properly and pay me for. The few cases done properly almost always end in huge settlements. Doing them half-heartedly even has its merits: I last went to trial on a wheelchair case 18 years ago. Since then, I have served as an expert on more than 100.

Ned Einstein is the President of Transportation Alternatives, a passenger transportation and automotive consortium engaged in consulting and forensic accident investigation and analysis (more than 600 cases). Specializes in elderly, disabled, schoolchildren. Mr. Einstein has been qualified as an Expert Witness in accident analysis, testimony and mediation in vehicle and pedestrian accidents involving transit, paratransit, schoolbus, motorcoach, special education, non-emergency medical transportation, taxi, shuttle, child transport systems and services...

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