Respectfully, I think that I made it clear that the institution takes all reasonable precautions (and implied that it has stipulated that there would be things beyond its control and hazards as yet undiscovered). I also pointed out that the case can be pursued by the relatives on behalf of the victim before said victim reaches majority, by which time the statute of limitations may apply. I would reemphasize the notion that the absence of other risky behavior (pumping gasoline) might need to be documented by the plaintiff, and even if it were that the mother (despite all this warning) chose to take a laboratory when her unborn child was vulnerable rather than waiting until the child would be out of danger. Further, the institution should have documented that a physician (informed as to the materials to which the student might be exposed) was consulted by the student.
If all of this is not enough to shield the institution from liability, what more could they do (remembering that the law compels it to accede to the student’s choice)?
Referring to the post to which you have replied, I will ask again: have manufacturers of alcoholic beverages been held accountable by victims of fetal alcohol syndrome? I do not know what precedent this might set and have not seen bottles of such beverages recently enough to know if there are warning labels on them.
And my point is that in the real world, a written acknowledgement that they have been warned of hazards does not get you much of anywhere. Even if the written assumption of responsibility by the student is found to be valid (and, as noted by others, that is far from a certainty), it is NOT going to bind any offspring who claim to have been adversely impacted by resulting exposures. However, said offspring will probably have to wait to attain their majority before taking your institution to court. Wouldn’t it be better to remove as much as possible the actual circumstances (facts on the ground) that might lead there two decades later?
Peter Zavon, CIH
What I suggested was that the person (and everyone else deemed appropriate, all duly warned) sign a statement that the person acknowledges the warnings and takes full responsibility for the consequences of that person’s decision.
I am not a legal expert, but when someone
(1) voluntarily engages in potentially hazardous behavior
(2) despite clear warnings of those potential hazards (and that some hazards are beyond the control of the institution)
(3) and has the ability to engage in those behaviors when they would no longer be hazardous,
why should the institution
(4) legally obligated to abide by that person’s choice
(and assuming that the institution has taken all reasonable precautions) be held responsible? One might add, “as if the institution were the only source of exposure to mutagens or teratogens.” Do gas pumps post warnings to pregnant women against exposure to gasoline? I fail to see why the institution, that has endeavored (more than others) to responsibly counsel its students, be held accountable for the exposure (of many possible exposures) answerable for the child’s problem.
Are there cases of sufferers of fetal alcohol syndrome (or their representatives) successfully suing the manufacturers of the alcoholic beverages the mother consumed? (I don’t know.)
Clearly, the health and welfare of the student and child must be the primary concern of the school. All I am saying is that you can lead a horse to water, but after that your responsibilities must be considered limited.
Basically, you are suggesting that the student ( and guardians) be asked to sign a document indemnifying and holding the school harmless should the child take them to court for (for example) inadequate safety instruction some 25 years in the future. Hardly seems workable to me.
Peter Zavon, CIH
Not wishing to get into an argument on the subject of waivers, let me emphasize that I suggested that the mother-to-be (also) sign a statement assuming full responsibility/liability for the possible results of any exposure. Presumably, this would be co-signed by a parent or guardian if the person is underage and father-to-be, if necessary (and known). This would be different from “signing away her/his child’s rights.” If a parent-to-be chooses to exercise their right to engage in potentially dangerous activities after due warning and when such activities could be postponed to a less dangerous time, it would seem fair that they should assume responsibility for the any consequences of their choice.
This is not intended, in any way, to preclude some of the excellent suggestions made in this discussion.
We’ve had a lot of experience with this issue, although in an employment context, not in academic laboratories. I would strongly advise against such waivers. First, they would not stand up in court, especially with respect to birth defects, where the mother (or father – it takes both) can’t sign away her/his child’s rights.
Also, consider the PR implications, especially if the press links it with the Sheri Sangji tragedy. The only answer is to make the lab as safe as possible by:
· Rigorously assessing every operation, experiment and chemical and taking appropriate action;
· Ensuring that every student and lab worker is well trained in safety and in the hazards of all the chemicals they might encounter. In fact, the very first chemistry class for any student should be a comprehensive class in chemical safety;
· Ensuring that everyone has access to the best protective clothing and equipment;
· Ensuring that every student and lab worker has access to good medical advice regarding any individual characteristics that might put them at risk. It’s not enough to suggest that they consult with their own physician, who may have relatively little training in toxicology. There should be an occupational or environmental medicine specialist on hand who they can talk to confidentially.
It’s been a long time since I was a student, but the labs I worked in – even in public health school – were a long way from this standard.
Michael J. Wright
Director of Health, Safety and Environment
See us on the web at www.usw.org
I have a suggestion, which I must state is not popular: have the person in question, particularly a pregnant person, sign a waiver that not merely promises that they will not sue in case of misadventure (such as birth defects), but that they accept full responsibility for any consequences of chemical exposure, with the understanding that not all hazards may be currently known and that some responses to exposure can be idiosyncratic. (The listed LD-50 for glucose may not apply to a person with diabetes.) The reason for this (again particularly in the case of birth defects) is that any relatives other than the victim (for want of a better word) can sue on the victim’s behalf.
This is not to preclude previous consultation with a physician, which I would suggest should be documented, but the list of teratogens is growing and SDS’s (if they are like MSDS’s, as valuable as they are) are not always going to be up-to-date, will contain boilerplate and cannot cover all synergistic effects of exposure to a combination of substances. Consultation with a (qualified) physician would seem a requirement for informed consent, in which I am a strong believer. Nor should it preclude lab safety training, which should also be documented.
I recently got an email from a colleague asking:
“Our department is looking for model policies for students with medical conditions which might limit their participation in the laboratory (such as asthma, pregnancy, allergies, etc.). We’re getting a suggestion from “on high” to have a caveat emptor policy where we just refer students to the SDS’s and tell them that they have to make their own decisions in consultation with their physician.
Do you know of any models we might look at for review, consideration, and/or adoption?”
David C. Finster
Professor, Department of Chemistry
University Chemical Hygiene Officer
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