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in the Chemical laboratory
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Edited by NORMAN V. STEERE, 140 Melbourne Ave., S:E. Minneapolis, Minn. 5541 4
CVIII. Preservation of Evidence After a Laboratory Incident Causing Injuries James R. Gass, Attorney, Kivett and Kasdorf, 2051 West Wisconsin Ave., Milwaukee, Wis. 53233
The most frustrating part of defending a laboratory instructor in a lawsuit brought by an injured student is coming into the case after the physical evidence has been lost or disposed of, and memories have dimmed. Insurance company investigators, usually not an the scene until days or weeks later, do not always appreciate what must be preserved correctly to defend a teacher in a lawsuit. Every instructor in a laboratory course has a high liability exposure because of the number of laboratory incidents and the seriousness of individual injuries. A lawsuit is almast inevitable in any serious injury situation, no matter how good a teacher's relationship with students. To think otherwise is overly optimistic. The reputation af the medical profession no longer protects physicians against malpractice suits, since laymen see physicians as earning large salaries and being able to afford not only Cadillacs and apartment buildings but also large judgments. Similarly, the reputation of the educational profession cannot forestall negligence suits against teachers while parent-taxpayers reluctantly pay more and more for education and educators become mare transient, militant, and adequately compensated. No matter how well protected you are by liability insurance, nothing can prevent the personal trauma you will feel when sued for negligence in your professional role as an educator. My purpose is not to lecture on how to prevent laboratory incidents, hut to tell you what t o do after there has been a n incident. As a professional educator you have presumably been taught safety and first aid procedures. However, you have probably never been taught what to do after an injury in your class to preserve the necessary evidence to defend yourself when (not if) you are sued. I want to emphasize what you can do to preserve evidence that trial lawyers will need to present your defense adequately. Your distaste as a professional educator and scientist for the almost grubby job of preserving evidenee to protect yourself from a liability judgment must be put aside. Your professional pride will be more completely shattered if you are found negligent because there was no evidence to support you, than it will be if you tediously collect, photograph and document evidence as suggested in this article. You, like the doctor, can be sued for malpractice. The medical profession counts its
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sponges and instruments as a precautianary measure. As an instructor you can be no less careful if you expect to walk out of the courtroom unscathed.
Gathering and Preserving Evidence What evidence should you preserve and how should you preserve it? First, you must understand your role in gathering evidence after a n incident. You are not there as an advocate-a Perry Mason. You are not there to shape evidence to make your case look better. If there is even the slightest hint of a shaping of the evidence, it will be useless to your defense counsel. Because you are a professional as well as a participant, you can best collect and preserve the evidence. Once the evidence bas been gathered it should be placed in safe-keeping where a neutral observer can be present a t any inspection, and where a log can be kept recording the identity and purpose of everyone who inspects it. Safekeeping requires a closet, room, locker or compartment which can be locked, with all keys in the possession of the neutral party.' A school administrator does not meet the requirements of neutrality. Since the school has an insurance company that will try to pass the responsibility for the incident to you and your insurance company, the school administration should be treated no differently in the inspection of the evidence than anyone else. To avoid the hint of tainted evidence, the investigator for your insurance company must also be given no special privileges. Finally, do not make any announcement (except to your own insurance company) of your preservation of the evidence. Cooperate with investigators but do not volunteer information concerning the evidence.
Terminology Terminology is important. What has just happened is not an "accident." The word accident implies fault, and who is a t fault will be determined later. What bappened was an INCIDENT. Incident is an objective clinical word suited for science. Accident is connotative and sympathy evoking. Your job is to preserve evidence so it can be analyzed objectively later on 'A disinterested person such as a banker or minister.
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James R. Gass is a 1965 graduate of Wisconsin State UniversityStevens Point, majoring in chemistry with minors in mathematics and education. While securing his undergraduate degree Mr. Gass worked as a chemistry lab assistant. After graduation he taught mathematics for two years a t St. John's Military Academy, Delafield, Wisconsin. While attending Marquette University Law School, where be graduated cum laude in June 1970, he worked as a law clerk with the law firm of Kivett and Kasdorf, Milwaukee, Wisconsin, a law firm specializing in litigation. Following graduation be stayed with the firm, beeaming a partner in January 1973. He presently engages in all areas of civil litigation but is Wisconsin trial counsel for the Horace Mann Insurance Company, a nationwide insurance company specializing in insuring educators. Mr. Gass would welcome reader comments directed t o him a t 2051 West Wisconsin Avenue, Milwaukee, Wisconsin 53233. without sympathy and emotion. Similarly, the reports to be written are "incident reports." They are not: accident reports, liability reports, or claim reports. You will note they are reports, not statements. Criminals give statements to the police, and politicians give statements to the press. You as a scientist are giving a report, i.e., an objective rendition of facts. This may seem like semantics to you, but when your case is argued to a jury there is no other way t o argue it but with words, and you had better use the right wards from the start.
Evidence You should preserve four types of evidence: testimonial, visual/photographie, objective, and documentary. Which you preserve first is determined solely by the timing of the incident. If the incident has occurred a t a time when the remaining class members will be in the classroom far a t least ten minutes, start with testimonial evidenee.
Testimonial Evidence Testimonial evidence, the verbalization of sensory perceptions, is gathered solely by having the students fill out the INCIDENT REPORT, a sample of which is shown with this article. You should start with Incident Reports because a student's observations can be colored quickly by
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Safety
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discussions with others. If the student does not set down what he has seen and heard while a t the scene, his observations will be distorted, consciously and subconsciously, by conversations with other classmate witnesses, friends, parents, and even with the injured student. If it is not possible to gather reports immediately or an the same day, having the students fill out a report the next day is far better than weeks, months, or years later. Having incident reports completed within a day or two is far better than expecting a student t o testify accurately an the witness stand a t trial without the benefit of refreshing his recollection with a written report that was prepared soon after the incident. You must remember to stress objectivity and recording only observations. Explain the difference between assumptions and inferences, and facts and observations. Most people only observe a n incident after something (a loud noise, a flash of light) attracts their attention. It is as important to determine who were the non-observers as it is to record what was actually ohserved. It is human nature t o want to tell others "what happened," and nan-observerr too often become "witnesses" after talking to observers. You can make this gathering of testimonial evidence a science learning process for your students. They are recording their observations of an incident just as they would record observations of their experi-
ments. The report must be factual and scientific, with no emotion or assumptions. To make this report writing work, you must fill out a report a t the same time as the students. (At a later time on the day of the incident, prepare for yourself and your lawyer another report with every detail of the incident you can rememher, along with all your thoughts, emotions, and feelings.) If by chance a janitor or other non-class member was a witness (even if only to part of the incident), get him or her t o fill out a report also. If that is not passible, a t least record his or her name.
Visual/Photographic and Objective Evidence Once you have the testimonial evidence preserved, turn your attention to the ohjective evidence. You should warn the students not to disturb the equipment involved in an incident, as part of your basic instruction and again after any incident. Preservation of the objective evidence should begin after students have left the laboratory so that they do not misinterpret your actions as apprehension of being found a t fault. Scientific analysis requires accurate and complete evidence. Your laboratory department should have a camera which you or an available person knows how to use. Slide film is preferable because it allows your counsel to use either slides or prints, whichever will make the most effective presentation a t trial. Do not spare the film-repetitious pictures are better than not enough. Shoot
eight basic shots first: one from each carner of the room diagonally t o the oppmite corner, and one from the center of each wall t o the center of the opposite wall. Then shoot photos of the experiment area from all angles-and above-and from two or three distances on each angle. Then shoot closeups of each piece of equipment. Finally, if you have written instructions on the blackboard or if you have any safety bulletin boards or posters, photograph them also. You should begin the collection of objective evidence with photographs hecause after the physical evidence is handled-no matter how carefully-it's no longer exactly the same. Now, however, you have ta preserve what is left of the experiment with a separate sealed plastic bag or glass jar for each item-labeled with date, time, and description. Preserve not only equipment hut also unreacted reagents and reacted substances. Solid residues on table tops must he scraped into a bag, and liquid residues must he preserved in glass containers. The incident might have heen the result of an impure reagent or a student's attempted innovation, and nothing is stronger proof than the reagent or reacted substances themselves. Any equipment too large for a bag should be wrapped tightly in plastic (such as Handi-Wrap) and all evidence should be put in a strong cardboard box or boxes. Since defects in glassware can he detected by examination of fracture sites, glass fragments should be preserved separately so they do not rub together or break. Duplicate equipment and samples of reagents involved in the incident should be obtained, set up as in the experiment and photographed, and then saved if possible. Your counsel will be able to understand the situation much better with duplicates t o see and touch. If a contaminated reagent is involved, preserve non-involved samples for testing. In most cases objective and visual/photographic evidence are collected a t the same time. After this evidence is preserved, begin to collect the documentary evidence.
Documentary Evidence Documentary evidence can he any written material that might be relevant. Most pertinent will be any materials relating to the involved experiment: lab manuals, handouts, text materials, safety instructions and similar material. You may have written instructions on the blackboard. Even though these should already have been photographed, copy them down. Your students' notebooks might contain notes on the experiment or safety instructions you have given. Collect the notebooks and review and photocopy what the students have noted. Put together copies of your lesson plans for the experiment in which the incident occurred, and any lesson plans concerning safety instruction. Your lawyer will be looking for safety instruction, both as a unit and incorporated in every experiment. This is "defensive teaching,'' and your safety consciousness and teaching should be documented in your lesson plans and experiment instructions. Copy your class grade and attendance book, which should include three things. A498
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First, it should show the prior attendance of the injured student. Too many times the injured student claims, truthfully or not, that he missed class the day the experiment instructions were given. If your grade hook shows that the student was not absent, it is no longer just your word against his. If the student was absent, you should have some other way of showing he received appropriate instructions. Did you hand out instruction sheets with safety reminders included, that the student was instructed t o keep in his lab manual? (If not. you should.) Second, your grade hook should show the students' grades. This will allow your lawyer to get a feel for each student and what to expect of him in testimony. Third, it should reflect the students' intelligence and ability t o comprehend and follow directions, thus giving your lawyer extra background material to work with. You should also preserve any labels, warnings, and instruetions that came with the equipment or reagents used in the experiment. These are important not only to show that you acted in accord with their instructions but also to preserve evidence that might show the supplier has given inadequate information. Beside preserving anything else of a written nature that might be relevant, you should have a notebook outlining each experiment in your course with an analysis of the experiment from both learning and safety viewpoints. It should show that you analyzed the experiment ahead of time for safety, recognized the dangers, and incorporated adequate safeguards and warnings far the students. This notebook should contain not only your analysis but also your work product, i.e., the handouts the students ultimately received, along with all the background articles, photocopies and other material you have on the experiment, its dangers, and necessary safety measures.
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Lastly, start to collect all the material you know of relating to this type of experiment. Your attorney will need t o be given a thorough background. The more articles, hooks, manuals, and other information you can give him, the better job he can do for you.
Conclusion Hopefully you are never going to be in court defending yourself because of a laboratory incident. However, you are a target defendant just as is a doctor or a corporation. In all probability some time in your teaching career there will he an injury incident in your laboratory class. If you follow the suggestions in this article, when your attorney says: "Ready for the defense, Your Honor," he will he ready because you have preserved the evidence in the aftermath of the incident.
Check List for Preservation of Evidence Incident Reparts-by students, instructor, other observers Names of Witnesses (who did not fill out incident reports) Photographs-room from all angles, equipment, incident area, blackboard Equipment-in sealed plastic bags (handled as little as possible) Reagents and residues-samples of all Glassware fragments-preserved to prevent breakage or rubbing together Course textbooks and lab manuals Handouts and other instructional material used by students Equipment description Lesson plans Grade and attendance book-copy of date of incident Copies of all student lab notebooks Other reference material
INCIDENT REPORT Time Date ...I'(
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I Date and time of incidentPlace of incident Class
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Activity: Your position in room What were you doing a t time of incident: What was the first indication you had of the incident: What did you observe: What did you do: Did the incident involve vou: Ho.
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What inst Anything else you saw or heard that you tnmK is lmporcant Signed:
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