Of Natasha Richardson, Head Injuries, Helmets and Evidence

The recent tragedy involving Natasha Richardson has brought to light the science of head injuries, particularly with respect to epidural hematomas and skull fractures. Fortunately, the vast majority of such injuries do not have such a terrible outcome. Nevertheless, her sad case should cause insurers to concede the seriousness of these accidents, even if the injured victim presents “normally” years later. The point is that someone with an epidural hematoma or subdural hematoma “may recover” but will have effects- known as sequela in the medical community- permanently.

The discussion is also focusing on the importance of wearing a helmet when skiing or engaging in other physical activity. Anything that promotes safety is a good thing. I suppose the argument may center on overprotection. Certainly, most of us come down on the side of safety; when riding a bike, we believe in wearing helmets and when riding in a car, we believe in using seatbelts.

The Commonwealth’s voters by referendum in 1994 and the Massachusetts State Legislature have addressed these safety features and have enacted laws to require seatbelt use as well as bicycle helmets for those under 16 years of age. Interestingly, the law is that the failure to use a seat belt or wear a bicycle helmet cannot be used as evidence of contributory negligence. Plaintiffs’ lawyers should never permit defense lawyers to introduce that failure in evidence, as is often attempted. This flies in the face of the applicable statewide referendum and explicit language of the statute. Consult Massachusetts General Laws, Acts of 1993, c. 387, s. 3 and Massachusetts General Laws c. 90, s. 13A (for seat belts) and Massachusetts General Laws c. 85, 11B½ as amended in 2004 (for helmets)