Medicolegal Issues in Expedition and Wilderness Medicine




There is increased participation in wilderness expeditions to remote and austere environments, which increases the likelihood of an accident and/or medical emergency and the professional liability risks for trip organizers. Trip organizers, outfitters, tour guides, and health care providers must understand the medicolegal liabilities involved in and the legal protection and immunity available when rendering care in austere and challenging settings to mitigate risks and prepare for the level of medical care that may be required. There is a great deal of variability in the legal protections provided by Good Samaritan laws and interpretations may differ among jurisdictions.


Key points








  • There are unique liabilities inherent in wilderness trips that guides, organizers, and health care providers should understand to help mitigate risk and protect their clients and themselves.



  • The elements of a medical malpractice claim in a wilderness medicine setting are the same as those in a hospital setting.



  • There is variability in state statutes on licensing requirements and level of medical training mandated for guides and trip leaders.



  • Good Samaritan laws immunize liability if there is no preexisting duty to treat, no established doctor–patient relationship, no compensation or expectation of compensation, and gross negligence did not occur.






Introduction


Wilderness activities are generally quite safe, especially when compared with other athletic activities, with the majority of injuries being minor musculoskeletal trauma and lacerations that can most often be addressed with basic first aid. However, in recent years, there has been a significant increase in expeditions and wilderness trips to remote and austere environments. Wilderness enthusiasts and adventure seekers now encompass a wide range of ages, abilities, experience, and underlying medical conditions, which present many opportunities for tour organizations and outfitters, but also present several medicolegal challenges in the event of an accident, injury or medical emergency ( Box 1 ).



Box 1





  • A family practice physician is participating as a client in an organized rock climbing trip in a remote setting and comes upon an injured man who has an obvious limb-threatening injury associated with an open fracture.




    • Is she legally obligated to help?




      • Answer : It depends on where the accident occurs, but in general she is not legally obligated to help this victim in the United States or in many other common law countries. In some states, she would be required to at least call for assistance. Note that there may be a difference between legal actions and ethical actions.




    • The victim has full decisional capacity and refuses any and all care.



    • What should the physician do in that circumstance?




      • Answer : She should respect the patient’s personal autonomy. There has not been a physician–patient relationship established and those with decision-making capacity are entitled to refuse care.




    • The victim subsequently becomes disoriented and confused. The physician decides to render aid by splinting and suturing the gaping wound to the best of her ability. The wound later becomes infected and ultimately the victim loses his limb from gangrene. He sues for medical malpractice.



    • Is this physician protected by Good Samaritan laws?




      • Answer: Yes, provided that there was an emergency situation, the physician had no preexisting duty to treat, there was no expectation of compensation, and the physician acted reasonably and prudently. It is important to understand the fundamental elements found in all Good Samaritan laws as well as the variations that occur by jurisdiction to be prepared when responding to a medical emergency in a wilderness setting.





Medicolegal scenarios to consider in wilderness and expedition medicine


Wilderness settings may pose increased risks of injury and illness to participants as compared with more urban settings for a variety of reasons, such as extremes in weather, adverse and rapidly changing environmental conditions, and delays and challenges in transport and evacuation, as well as limitations in readily available medical supplies and trained personnel. These circumstances also increase the liability exposure to organizers and leaders of wilderness and adventure travel trips. Trip organizers, leaders, and medical personnel should be familiar with liability issues to mitigate risks and implement risk management strategies when planning trips.


Health care providers, guides, trip leaders, and organizers should have a fundamental understanding of basic medicolegal principles, such as the elements necessary for medical malpractice claims, professional liability, extent and geographic variability of immunity provided by Good Samaritan laws, waivers, and medical clearance, as well as duty to rescue and abandonment doctrines. It is important for trip health care providers and organizers to have a thorough understanding of the laws surrounding the duty to act and degree of medical training to which they must adhere to mitigate these increased liability risks, especially with clients who may have little to no wilderness experience or who may have unrealistic expectations of receiving the same standards of care and resources available in tertiary care settings. Wilderness medicine malpractice claims are most often based on complaints of lack of proper health warnings, failure to provide medical services and facilities, and negligent delivery of medical care causing harm or injury.




Introduction


Wilderness activities are generally quite safe, especially when compared with other athletic activities, with the majority of injuries being minor musculoskeletal trauma and lacerations that can most often be addressed with basic first aid. However, in recent years, there has been a significant increase in expeditions and wilderness trips to remote and austere environments. Wilderness enthusiasts and adventure seekers now encompass a wide range of ages, abilities, experience, and underlying medical conditions, which present many opportunities for tour organizations and outfitters, but also present several medicolegal challenges in the event of an accident, injury or medical emergency ( Box 1 ).



Box 1





  • A family practice physician is participating as a client in an organized rock climbing trip in a remote setting and comes upon an injured man who has an obvious limb-threatening injury associated with an open fracture.




    • Is she legally obligated to help?




      • Answer : It depends on where the accident occurs, but in general she is not legally obligated to help this victim in the United States or in many other common law countries. In some states, she would be required to at least call for assistance. Note that there may be a difference between legal actions and ethical actions.




    • The victim has full decisional capacity and refuses any and all care.



    • What should the physician do in that circumstance?




      • Answer : She should respect the patient’s personal autonomy. There has not been a physician–patient relationship established and those with decision-making capacity are entitled to refuse care.




    • The victim subsequently becomes disoriented and confused. The physician decides to render aid by splinting and suturing the gaping wound to the best of her ability. The wound later becomes infected and ultimately the victim loses his limb from gangrene. He sues for medical malpractice.



    • Is this physician protected by Good Samaritan laws?




      • Answer: Yes, provided that there was an emergency situation, the physician had no preexisting duty to treat, there was no expectation of compensation, and the physician acted reasonably and prudently. It is important to understand the fundamental elements found in all Good Samaritan laws as well as the variations that occur by jurisdiction to be prepared when responding to a medical emergency in a wilderness setting.





Medicolegal scenarios to consider in wilderness and expedition medicine


Wilderness settings may pose increased risks of injury and illness to participants as compared with more urban settings for a variety of reasons, such as extremes in weather, adverse and rapidly changing environmental conditions, and delays and challenges in transport and evacuation, as well as limitations in readily available medical supplies and trained personnel. These circumstances also increase the liability exposure to organizers and leaders of wilderness and adventure travel trips. Trip organizers, leaders, and medical personnel should be familiar with liability issues to mitigate risks and implement risk management strategies when planning trips.


Health care providers, guides, trip leaders, and organizers should have a fundamental understanding of basic medicolegal principles, such as the elements necessary for medical malpractice claims, professional liability, extent and geographic variability of immunity provided by Good Samaritan laws, waivers, and medical clearance, as well as duty to rescue and abandonment doctrines. It is important for trip health care providers and organizers to have a thorough understanding of the laws surrounding the duty to act and degree of medical training to which they must adhere to mitigate these increased liability risks, especially with clients who may have little to no wilderness experience or who may have unrealistic expectations of receiving the same standards of care and resources available in tertiary care settings. Wilderness medicine malpractice claims are most often based on complaints of lack of proper health warnings, failure to provide medical services and facilities, and negligent delivery of medical care causing harm or injury.




Medical malpractice


Medical malpractice law in the United States is derived from English common law and has evolved over time subsequent to rulings in various state courts. Tort law in common law jurisdictions, such as the United States, is a civil wrong or wrongful act causing an injury to another for which a remedy may be obtained, usually in the form of damages. Tort laws include negligence cases and intentional wrongs that result in harm. Medical malpractice is a specific type of negligence occurring during the provision of medical care. The injured party must show that the health care provider acted negligently in rendering care and that such negligence resulted in the injury incurring damages.


In the United States, as opposed to many other countries, medical malpractice law has traditionally been under the authority of individual states and not the federal government. The elements of a medical malpractice claim in a wilderness medicine setting are the same as those in a hospital setting. To prevail, an injured party must prove duty, breach of duty, causation, and damages. Failure to prove even one of these elements is fatal to a plaintiff’s malpractice case.


Duty can be created by actions or law. If no preexisting duty exists, there is generally no legal liability for failing to help another person, even if the help provided would create no risk to the rescuer. For example, there is generally no legal obligation to provide aid to a stranger drowning in a river. However, if one person places another into a dangerous situation (ie, pushes someone into the river), then the law creates a duty to rescue. A duty may also be created by one’s profession. For example, by virtue of their job descriptions, public servants such as police and fire fighters have a duty to protect the public and would, therefore, be required to make reasonable attempts to rescue someone in danger. A physician hired by a cruise line to care for passengers on board the ship would have a similar duty. Finally, if one chooses to provide medical advice or medical care to another, then the law creates a duty to act reasonably. For example, advising someone on a hike that their chest pain is noncardiac or that a mushroom is safe to eat may result in liability if the person relies on that advice and later dies. Fear of liability has often caused medical personnel to avoid providing aid and was the impetus for development of Good Samaritan statutes, which are discussed elsewhere in this article.


Breach of duty is another way of saying “negligence.” Once a duty to provide medical care is established, in most cases the provider must act reasonably. A typical definition of breach of duty would be “failing to exercise the skill, care and knowledge that a reasonably well-qualified practitioner in the same specialty would apply under the same or similar circumstances.” There are several important points within that definition. First, any medical care provided must be “reasonable.” The law does not require perfection, nor should any provider’s actions be compared only with the best and brightest in the profession. Some states have also created statutes requiring that plaintiffs prove that a practitioner was “grossly negligent” before the practitioner can be held liable for medical malpractice. Breach of duty is also a situation-specific standard. The “standard of care” for treating an acute myocardial infarction is markedly different when comparing an emergency department at an urban center in the United States with an encampment at the summit of a mountain. In general, the most difficult thing to prove in malpractice claims involving wilderness activities is a breach of duty or violation of a standard.


Medical malpractice not only requires that an injured party sustain actual damages; it also requires that another party’s negligence caused those damages. For example, in a malpractice suit involving care rendered to a patient who fell from a cliff, the injured party would have to prove that the allegedly negligent medical care caused the injury rather than the fall from the cliff. The causation issue is sometimes clarified by the “but for test” where courts posit the question “but for the defendant’s alleged negligence, would the plaintiff have suffered the injury?” Negligent acts will not support a malpractice lawsuit if they do not lead to a significant injury. For example, advising a hiker to rub poison sumac on a wound to prevent infection may inflame the tissues, delay healing, and could even precipitate a significant rash or infection. However, if the patient suffers no permanent damages, it is unlikely that a malpractice suit would come from the negligent advice.


Finally, compensable damages must occur for a lawsuit to be viable. De minimis damages such as a bruised leg, a sprained wrist, or time off of work, and solely “soft damages” such as emotional distress are generally insufficient to warrant the costs of filing and prosecuting a medical malpractice claim. Malpractice lawsuits are usually filed in a state trial court and usually adjudicated by jury trial. Because there may be significant state-to-state variability in malpractice case law, each health care provider, guide, or trip organizer should have some familiarity with laws in their own states and in the state or country where the trip will take place.

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Dec 2, 2017 | Posted by in Uncategorized | Comments Off on Medicolegal Issues in Expedition and Wilderness Medicine
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