Autonomous Vehicle Legislation Could Be Modeled After Vaccines

Every time we write an article about autonomous vehicles, our comments section is quickly populated with discourse over how litigation would be handled in the event of a crash. Who do you sue?

You can’t fault the driver, because a truly self-driving car takes them out of the equation. Suing the manufacturer doesn’t work because, assuming the system functions properly, they’re still saving lives and shouldering all of the risk would discourage companies from bothering to pursue the technology.

However, autonomous accidents will happen and someone is inevitably going to appear in a courtroom. The justice system has to decide how that will be handled, but Automotive News’ Katie Burke has an interesting solution. It relates to how the United States deals with legal actions involving vaccinations.

During the 1970s and 1980s, a small number of children suffered severe brain injuries after getting the DPT vaccine (which protects against diphtheria, lockjaw, and whooping cough). Despite the vaccinations saving countless lives, it was believed to cause brain damage in a handful of rare cases. The families of affected children began suing pharmaceutical companies for millions of dollars, and companies began retreating from the marketplace.

Worried that the best defense against potentially fatal diseases — some of which also cause brain damage — was going to be sued into oblivion, Congress passed the National Childhood Vaccine Injury Act in 1986. The legislation created a court within the U.S. Court of Federal Claims, called the Office of Special Masters, with the sole function of hearing vaccine injury claims. It has awarded claimants billions since its inception so that vaccine makers can continue to persist.

With the development of the Office of Special Masters, pharmaceutical companies were no longer liable for the vaccines they produced. After 1986, claims could be filed against the Department of Health and Human Services, and a panel of judges determined the case’s legitimacy. Other countries have followed suit with similarly modeled court systems.

Burke’s proposed solution for autonomous vehicle litigation would be to model something akin to the National Vaccine Injury Compensation Program. The state would provide oversight for the standards and practices of autonomous implementation and, so long as manufacturers meet those guidelines and save most of the 35,000 people every year they intend to, the government would assume the financial risk.

However, there are a few gaps in this solution that would need to be filled. In vaccine cases, more families have been compensated since the special courts took over, though the damages paid have been smaller overall. Still, it wasn’t just the families that benefited after 1986 — the pharmaceutical industry turned a corner.

“Once the courts gave them protection, pharmaceutical companies started making a lot of money,” explains David Ratcliff, an American Association for Justice researcher.

The vaccine court provides an important function to ensure dangerous illnesses remain checked, it also takes some of the burden off drug makers. Giving special protection to vehicular safety technology would need to be carefully regulated. Ratcliff believes that allowing automotive companies to a free pass would be a mistake.

“Take the Takata airbags, for example,” he said. “They’re meant to protect you but could turn you into Swiss cheese. If a safety innovation turns deadly, you want the manufacturer to be held accountable.”

There is also the matter of autonomous cars sharing the road with human drivers. Insurance companies might deem it to difficult to decide who is at fault and not bother insuring self-driving cars, especially if the government is already handling those claims. In which case, the state becomes suddenly responsible for the analysis of complicated accident investigations involving living, breathing, operators.

It’s not a perfect solution, nor does it settle all legal the matters surrounding autonomous vehicles, but it does provide a judicial precedent for how we might protect the existence of a potentially life-saving technology.

[Image: Tesla Motors]