By David Ball
Note from Papa Don: It’s time to hear from our good friend David Ball. Read it, and then read it again. It’s a big one.
Behind almost every systems failure is a macro systems failure, too often ignored. The macro failure reveals the most important safety duty anyone ever has. Violating that duty is one of the most needless and dangerous things anyone can do. Meeting that duty is the most effective safety measure ever invented.
Focus group this one and you’ll be astonished.
To start, let me reword that first sentence a bit better:
Behind almost every systems violation failure is a macro systems violation failure too often ignored.
As we well know, jurors forgive failure – because failure implies inadvertence. The Reptile© ignores inadvertence because no one can keep people from doing inadvertent things because there’s no volition involved. That’s what inadvertent means. To err, after all, is human.
On the other hand, violation is volitional, and that grabs the Reptile’s undivided attention.
Now let’s look at the bigger systems violation – the Macro violation – that lies behind the violations we usually look at.
We’ve ignored the Macro too long, even though it’s where the Reptile© really goes to town – rides into town – armed to the teeth, and if you haven’t seen the Reptile© armed to the teeth, you ain’t seen nothin’.
When you find the Macro systems violation, it gets the Reptile© going, even when the violation that hurt your client seems inadvertent. The Macro can even turn an act of God into a systems violation. An earthquake is an act of God. But buildings in earthquake zones must be earthquake-resistant, because long ago engineers studied exactly how buildings fall down in earthquakes and developed methods to prevent it. Bingo! An act of God is now preventable negligence. The same rings true in every single field. The most egregious danger is one that should have been investigated and fixed once it injured someone the first (second, third, fourth …nth) time. It’s the mother of all systems violations. This is the Macro.
Previous events supply more than mere notice. The analysis/investigation duty a previous event creates can be the defendant’s most outrageous violation in the case.
Whether the specific incident that injured your client was a violation or something inadvertent, (or an act of God, or voodoo from the sky, or just plain bad luck) if it ever happened before (anywhere, anytime, anyplace), then it created a duty for the company to investigate it and as far as possible fix it. The earlier event creates absolute safety requirements. The company must:
1) Investigate to determine why something went wrong, and
2) On that basis, take the steps necessary to prevent it in the future.
RULE: When a company [or hospital, public facility, manufacturing company, etc.] has something go wrong that injures, the company must investigate why it happened – and then take the necessary steps to keep the same thing from injuring people in the future.
RULE: When a company [or hospital, public facility, manufacturing company, etc.] knows that something has gone wrong at a different company in its field, the company must investigate why it happened and take the necessary steps to prevent the same thing from injuring people in the future.
Even if your defendant’s system has not failed this way before, they should have followed lessons learned by failures in other similar systems. In other words, if Chrysler knows that Ford did something that injured someone, Chrysler must investigate it so they can keep from doing it themselves in the future.
These are the “Stop-It-Next-Time” rules. (As you’ll read in an upcoming blog, you should label your rules.) Every safety expert, not to mention everyone’s common sense, will support and insist on the Stop-It-Next-Time rule. There’s no defense to violating it.
As Papa Don points out, safety rules are founded in blood (injuries, death, etc.). That blood must trigger investigation and remedy. Otherwise the defendant is liable to the next person it injures.
The human brain is hard-wired to follow the Stop-It-Next-Time rule. It is among the most important survival traits we have. We could not have survived as a species without it.
BRIDGES
You can talk about the following in trial: The 19th and first half of the 20th centuries were the time of bridge-building throughout America. Vast spans went up all over the place. Most stayed up. Some fell down.
Ironically, the reason most bridges are now safe (except for poor maintenance) is that so many collapsed back in the day. This is because whenever a bridge collapsed anywhere, bridge engineers flocked to the site to learn why. Once they found out, they made sure no one ever allowed that particular problem to arise again. They followed the Stop-It-Next-Time rule.
For example, we had only one “Galloping Nelly”: The Tacoma Narrows Bridge, which fell down months after it opened in 1940. Investigation showed it had been designed without taking “simple harmonic motion” into account. Once the engineers discovered this cause, simple harmonic motion became a primary topic in every freshman engineering class. From then on, no more bridges (and hardly anything else) ever fell down due to a simple harmonic motion problem – unless the design engineer had cut class during that topic.
If engineers had not studied Galloping Nelly to find out why it fell, many – maybe all – bridges built since then would sooner or later collapse for the same reason. And because of this, the hospital/construction company/car manufacturer/whoever’s error that injured/killed your client should have been prevented years earlier – after it happened the first time, and certainly after it happened numerous times.
When you don’t fix something it stays broken.
Let’s say a trucking company learns that one of its drivers had a bad driving record the company did not know about. And that bad driver wrecked and killed someone. The company cannot hide behind saying, “Oh, he kept his bad record a secret from us.” The company has already learned from its own experience – and the experience of other trucking companies – that job applicants sometimes hide their bad driving records. That makes it foreseeable. So the company is obligated to do an exhaustive search on every applicant. Again: the Stop-It-Next-Time rule. When a company [hospital, public facility, manufacturing company, etc.] has something go wrong and injure someone, the company must investigate why – and then take the necessary steps to keep the same thing from going wrong and injuring someone again.
In this way, go beyond using previous events as notice. Show how they lead to a specific rule violation in your case, and how it is the most serious possible safety violation. It’s an outrageous violation and it makes your Tentacles of Danger as menacing as Tentacles can be, because the Stop-It-Next-Time rule is relevant to almost every way in which people can be injured.
And this Macro gives you intentional negligence every time, even when (on the surface) it looks like simple negligence or an accident or an act of God. So when lightning strikes your golf-playing client, the golf course owners who knew this had happened before (on their own course or others) had to follow the Stop-It-Next-Time rule. Not by chastising God but by monitoring weather and then sounding alarms whenever lightning is a possibility.
In hospitals, accidental overdosing due to a label-reading error seems terribly accidental and thus barely culpable. But hospitals know that label errors occur and how serious the consequences have already been. So they must follow the Stop-It-Next-Time rule. For example, the hospital finds out a particular medicine used in emergencies is often given in the wrong and thus lethal dose. So the hospital must figure out how to make sure that error stops happening. If they follow the Stop-It-Next-Time rule, they might, for example, now require double-checking of labels at every stage, from hospital pharmacy through picking up the bottle through injection: two sets of eyes must see and approve. Or, different doses must be in different shapes and colors of bottles that cannot be mistaken for each other. Or whatever other measures that can Stop-It-Next-Time.
These measures can be set up when there’s plenty of time to think about and implement it, rather than during the instant of the emergency situation. So failure to do it is far more blameworthy. Violation of the Don’t-Do-It-Again rule is intentional – one must choose to ignore a known danger – and will strike jurors as a thousand times more outrageous than a nurse’s simple and inadvertent label-reading error in an emergency.
THE FAA EFFECT. When an airplane crashes, the FAA spends months, even years, investigating until they find the cause. Based on what learn, they mandate the fix(es). This has made flying go from our most dangerous form of transportation into the safest. If the FAA had not been routinely following the Stop-It-Next-Time rule for decades, then flying to a Reptile© College would be ridiculously dangerous instead of one of the safest ways to travel.
Failure analysis and correction constitute our single greatest tool against injury. Companies who ignore it are the biggest possible menace to the community. You multiply the Tentacles of Danger exponentially by asking the offending company, “Was your level of investigation the last time this happened greater, less, or the same as it has been with other problems you’ve had that injured people?” Think it through and you’ll see that all three possible answers hurt them. And the two answers they can use – greater or the same – shows that they routinely act without regard for human safety.
And here’s the beauty of it: Every single time the same thing happened in the past without the company having followed the Stop-It-Next-Time rule is a separate act of negligence that directly led to hurting your client. They violated the rule the first time – and then again, and again and again, and again . . . all the way to your client. The initial violation and each one following are separate proximate causes of your client’s injury. These are big-time dominoes.
In most situations, this means an act that injured your client, which might not in itself have been at punitive levels now is – because violating the Stop-It-Next-Time violation is always conscious, willful, gross, reckless, and even malicious.
It’s also a Reptilian outrage.
And where a judge won’t let you argue community safety, the tentacles when someone violates the Stop-It-Next-Time rule argues it for you.
The greatest offender is the medical profession. They don’t merely ignore the cause of injuries; they aggressively hide them. One reason many people sue is just to find out what the hell really killed Uncle Jerry. The second reason is that they want a successful lawsuit to do what following the Stop-It-Next-Time rule should have done the first time(s) it happened.
With the exception of the commercial airline industry, virtually every other kind of company is almost as bad. Pharmaceuticals. Construction. Manufacturing. Trucking, and other kinds of land transportation. Premises owners. They keep hurting us in the same way over and over. That would be impossible if they met their Stop-It-Next-Time duty.
To a safety engineer, every kind of safety “failure” is the best possible learning experience. There is no better foundation on which to make things safer. There is nothing worse to ignore.
This Macro systems violation, the mother of all systems violations, should become a major part of your work. Never do another case without thoroughly searching for and dealing with it. It even magnifies emotional damages, because your client feels a hundred times worse when he learns his injury should have been prevented by measures the company was required to take years before he got hurt.
Want to read more? See To Engineer is Human (Petroski) and Black Box Thinking (Syed).