The Deepwater Horizon Oil Disaster that continues to dump 20,000 to 40,000 barrels of oil everyday into the Gulf poses more questions than answers. We still do not know how it happened or whether BP will pay for its reported drive for profits over safety.

President Obama’s latest effort to insure BP’s financial liability has led him to press BP to set up a fund, of up to $20 billion, from which those harmed, might be reimbursed. This tactic emerged in the wake of fears that the Oil Pollution Act (OPA) of 1990 would cap BP’s liability at $75 million. If it can be shown that BP committed gross negligence or violated applicable safety standards, the cap, however, will be pierced.

A June 14th letter from the U.S. House of Representatives Committee on Energy and Commerce to BP CEO Tony Hayward outlines some of BP’s gross negligence:

• Using a well design that had few barriers to gas flow; BP had two options when installing the final section of steel tubing the day before the blowout. It could lower a string of “casing” from the top of the wellhead to the bottom of the well or hang a “liner” from the lower end and install a “tieback” on top of the liner. A BP plan prepared days before the blowout advised against the “casing” tactic, but BP chose to pursue that method because the liner-tieback option would cost $7-10 million more and delay drilling three days longer.
• Failing to use an adequate number of centralizers to prevent channeling during the cement process; BP knew that the well could have a SEVERE gas flow problem, if BP used only six centralizers instead of 21. Centralizers are attachments that fit around the casing to keep it in the center of the borehole while it is being lowered. One BP official noted, in an e-mail on April 16, that the 10 hours it would take to install the extra centralizers was too much time.
• Failing to run a cement bond log to determine the effectiveness of the cement job; BP’s mid-April plan predicted that the cement process would fail; however, BP did not take the time to run a cement bond log, a 9-12 hour procedure, which would have established whether the cement had bonded correctly with the casing. Nine to 12 hours, the $128,000 cost of the test, and remediation of any discovered problems were apparently too great of a sacrifice for BP to make. An independent expert hired by the Congressional Committee stated that not preforming the test when using a single casing method was “unheard of” and “horribly negligent.”
• Failing to fully circulate possible gas-bearing drilling muds out of the well; this procedure would have permitted workers to test for influxes of gas, allowed a controlled release of gas pockets, and guaranteed removal of well cuttings. Though this process is recommended by the American Petroleum Institute, BP only partially circulated the mud, saving 12 hours.
• Failing to install a casing hanger lockdown sleeve that would have stopped the seal from being blown out from below and secured the well.

All signs point to what many have believed; BP sacrificed safety, the environment, and the interests of the American people in an effort to turn a larger profit at a faster pace. The contents of the Committee’s letter to the BP CEO indicate that BP was grossly negligent and likely violated applicable safety standards. What is even more likely is that these actions only represent the “tip of the iceberg in this tragic story.

In legal cases, a term regularly shows up: “standard of care”. It is talked about, defined and ruled on by the court. In many state statutes, the term is defined as something similar to: “that level of care, skill, and treatment which, in light of all relevant surrounding circumstances, is recognized as acceptable and appropriate by reasonably prudent similar health care providers.”

What is the standard of care in its most basic terms?

If I am a pedestrian, do I have a “standard of care” as I walk along the street? Of course I do. I must watch the pavement as I am walking so as not to trip over obvious hazards. If I come upon a blocked area of the sidewalk, where work is being done for example, I have the duty to navigate carefully and as safely as I can around that hazard in continuing my walk. I have a duty to avoid running into other pedestrians using the sidewalk. If I must cross the street, I have a number of additional duties I must fulfill.

Why do we have “duties” and “standards” by which we must act? Without them, no one would know what was expected of them and we would not be able to anticipate how to expect others to conduct themselves in given situations.

A car is traveling down a dark, deserted country road, approaching an intersection with a stop sign. The car does not stop at the stop sign and, instead travels through it at highway speed. No other cars were approaching the intersection at the time. Was the driver negligent? Did the driver deviate from the reasonable standard of care? The driver was negligent, but, luckily, caused no damage to anyone. So, if a police officer was around, a ticket would be issued, but nothing further.  So, was it excusable, since no one was hurt? Absolutely not. The same example, but the approaching driver does not see an approaching motorcycle. The motorcyclist is struck and killed. A completely different set of circumstances results, but culminate from the exact same perceptions on the part of the driver in the car. In both situations, the driver “honestly” saw no harm by running the stop sign.

This is particularly true for professionals. The public absolutely must be able to depend on certain standards of performance from professionals. For an engineer who constructs a bridge, we expect that the bridge will carry the weight reasonably expected and will not collapse with that weight. We expect that the professional will act in a manner expected from other similar professionals.

When a doctor decides to treat people, she decides to work within a reasonable standard of care accepted by other physicians. Does that mean if a physician or other professional makes a mistake that they have deviated from the acceptable standard of care? Not necessarily. It means that the professional is obliged to act reasonably as judged by similar health care providers.

If a patient arrives at the hospital with symptoms consistent with 3 or 4 different potential illnesses, it is the job of any physician to determine those illnesses, which are life threatening and try to eliminate or include those first. If the condition could be life threatening, the professional is obligated to continue their investigation until they can determine what course of treatment is best for the patient.

Physicians, like any professional, have pressures extraneous to their profession. In the case, of an engineer, it may be cost overruns and their client may be pushing to cut corners somewhere to minimize those cost overruns. With physicians, it may be a hospital or insurance company. It is the job accepted by the any professional to comply with the reasonable standard of care. In the case of physicians, it is to determine those patients who require hospitalization in order to determine their illness and those who do not need hospital care.

Professionals are required to reach reasonable, well thought, courses of action within their profession. They typically go through additional schooling to prepare them for evaluating a reasonable course of action.  The subject of a professional’s decision may seem complex, but their standard of care is no less real than the driver or pedestrian.

The short answer in Florida is…No.

In Fields  v Kirton, 961 So. 2d 1127 (2007) the 4^th District Court of Appeals certified a question to the Florida Supreme Court of great public importance:

Whether a parent may bind a minor’s estate by the pre-injury execution of a release.

The Florida Supreme Court acknowledged the history of decisions, both in Florida and outside Florida that have upheld the pre-injury release of a minor’s rights against a negligent party in the event of injury.

The Court considered the two compelling interests suggested by the case. Parents have an interest in raising their own children and the state has a compelling interest in protecting children. In this decision, the Court reasoned a careful balance between the interests of parents and the state.

The Court discusses the defendant’s arguments related to FS 744.301(2), allowing a parent to settle claims on behalf of their minor children. The Court, however, points out that this statute applies to situations in which a minor has a cause of action against another party; not a situation in which the parent is, pre-injury, absolving a party of any negligence. Further, FS 744.301 typically comes into play in situations where the courts ultimately must approve any settlement in excess of $15,000.

The Court reasoned that although parents have a fundamental right to make parenting decisions “concerning the care, custody, upbringing, and control of their children, the question of whether a parent should be allowed to waive a minor child’s future tort claims implicates wider public policy concerns.”

The ultimate foundation for the Court’s decision can be found in the following:

“Therefore, when a parent decides to execute a pre-injury release on behalf of a minor child, the parent is not protecting the welfare of the child, but is instead protecting the interests of the activity provider. Moreover, a “parent’s decision in signing a pre-injury release impacts the minor’s estate and the property rights personal to the minor.” Fields, 961 So. 2d at 1129-30. For this reason, the state must assert its role under parens patriae to protect the interests of the minor children.”

In cases involving pre-injury releases executed by a parent on behalf of minors in commercial matters, the release is unenforceable and the tort action arising from the injuries and negligence is duly actionable.

In his June 11, 1963 civil rights address, President John F. Kennedy confronted head-on the unfair treatment of African Americans in our society under our then-existing system of laws. President Kennedy, in imploring Congress to pass fundamental civil rights legislation, stated:

“…the old code of equity law under which we live commands for every wrong a remedy, but in too many communities, in too many parts of the country, wrongs are inflicted on Negro citizens and there are no remedies at law.”

Unfortunately, President Kennedy’s reference to our system of justice having the ability to remedy every wrong states only an ideal, but, sadly, not reality. Sometimes the difference between principle and truth is the result of legislative inaction or by legislative activism. Perhaps the most glaring example of legislative activism stripping away the “guaranteed” rights of citizens to have both their day in court and a remedy for every wrong can be seen in the medical negligence arena.

Let us examine the following two hypothetical scenarios.

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Once upon a time there was an insurance crisis…a lawsuit crisis…a medical malpractice crisis…a series of crisis manufactured by industries who have a need for consumers to have someone other than them to blame. The insurance industry, the healthcare industry, Associated Industries — the business of business organizations; they all have very distinct business reasons for keeping consumers mad at trial lawyers. These businesses know that government does not have the time or resources to hold them accountable for negligence; sometimes intentional; and so, they keep throwing gasoline on the fire of the propaganda created disdain for trial lawyers.

When I have the opportunity to give speeches or hear them given in connection with tort reform and tort law in general, the conversation usually finds itself leading to a discussion of medical negligence, medical malpractice. From there, depending on the group, we talk about doctors “fleeing” states; excessive malpractice premiums; and, inevitably, the “McDonald’s coffee case”.

What does it take to file a medical negligence lawsuit in “good faith”? To truly understand that, you must understand the elements the plaintiff is required to prove in any lawsuit:

• Negligence – someone acted improperly—a deviation from the acceptable standard of care.
• Causation—the someone’s improper action caused damages (in whole or in part)
• Damages – the injury flowing from the act of negligence

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