Legal Concerns in the Wilderness

shutterstock_133594121Sadly, due to our litigious world, our well-meaning care giver has concerns of legal liability even in the wilderness.   I enjoy going out into the wilderness and on some occasions I’ve come across an accident victim or other medical emergency in the back country.  It is my instinct to provide medical care for someone who needs it, and according to the World Medical Association’s International Code of Medical Ethics, “…a physician shall give emergency care as a humanitarian duty…”

I will attempt to summarize information about legal concerns in the wilderness as given by a recent class in Advanced Wilderness Life Support and the information comes from their student book.  I am not an attorney and the information presented here is for informational purposes only.  I do not gain anything from presenting this information, but I think it’s important for all of us to understand legal concerns when providing medical care in the wilderness.   If you have a specific situation or concerns, I recommend that you speak to an attorney to get your questions answered.

Again just to clarify, I am not the originator of this material.  The information here comes from a recent class in Advanced Wilderness Life Support and from their instruction manual.  You can contact the company who teaches these classes (Wilderness Medical Society) at the address shown here:  http://www.wms.org  I highly recommend taking their AWLS (Advanced Wilderness Life Support) class.

Good Samaritan Laws:  The purpose is to provide liability protection to those with the ability to help in an emergency to remove the deterrent of litigation as long as the caregiver is not grossly negligent.  There are differences in each State in how the law is interpreted.  Actual fines may be imposed in some states, in Quebec and in Europe if there is a failure to render aid.  That obligation might be satisfied by immediately reporting the situation to the proper authorities who can provide help and aid to the victim.

For a medical provider to be protected under the Good Samaritan Doctrine, the following five guidelines must be met:

1)   The person rendering emergency care must not have caused the emergency, either in whole or in part.

2)   The person rendering emergency care must act in “good faith.”

3)   The emergency care must be provided gratuitously, without any compensation.

4)   The provider must not commit gross negligence when rendering emergency care.  It would be difficult to list all possible acts or omissions that might constitute gross negligence.  Once initiating emergency aid in the back country and then either terminating treatment or transferring care to an inadequately trained person before the patient is stabilized to a medical facility can be considered abandonment and that can be seen as gross negligence.

5)   The person rendering emergency care must not have preexisting duty to care for the patient.  A guide for example, would have a preexisting duty to render emergency care to a customer if the customer had contracted with the guide to be taken on a hike and the guide had agreed to provide care to the customer in case of injury when hiking.

If any one of the give conditions above is not satisfied, then the Good Samaritan law, with all it’s protection, will not apply.

It would seem that the most frequent violation that would cause the Good Samaritan Law to be nullified arises from the presence of a preexisting duty on the part of the care giver to provide aid to the patient because of contract law.

Contract Law:  It would behoove a medical provider on an expedition, to avoid being involved in a contract that in any way gives the belief or guarantees that safety and health are ensured during the trip.  A contract is an agreement or promise between two or more parties for performing or not performing certain specified acts in exchange for adequate consideration.  Contracts can be either “express” or “implied-in-fact.”  An express contract usually states explicitly in words, either written or oral leaving little or no doubt as to the existence and terms.  An implied contract is created by conduct or circumstances that “imply-in-fact” a contract exists.

A brochure from a summer camp, expedition company or an adventure guide might sometimes expressly state that they have a trained person available to provide medical care to customers in emergencies arising during the adventure activity.  This could also be implied during an oral presentation or in a brochure.  Good Samaritan law will not be of protection from liability if a court finds that the complaining customer took part in the expedition in part because the company contractually agreed to provide medical aid during an emergency.

Tort Law:  Torts are legally defined as civil (non-criminal) wrongs that might result in harm or injury and, thereby, constitute the basis for a claim (or law suit) by the harmed or injured party against the person who allegedly committed the tort.

Three categories of torts:

1)   An intentional tort (where one person intentionally harms or injures another).

2)   A strict liability tort (making and selling an obviously defective product).

3)   A negligent tort (a careless an unintentional act, such as an automobile accident, which harms or injures another person or another person’s property.)

Most often law suits claim that the tort of “negligence” occurred.  In order to prove that a person who provided emergency medical care in the back country committed the tort of negligence, the person who was harmed must prove the four elements of a negligence claim:

Four elements of a Negligence Claim:

1)   Duty to Provide Care at the Standard of Care:  If the provider gave care that met the prevailing standard in the medical profession, the healthcare provider will likely not have been seen as negligent.  The question of what the prevailing standards are can sometimes be in question.  That standard is often not yet well established in law.  When in doubt, courts will rely upon the traditional legal definition of the standard, which is the “behavior of a reasonably prudent person in the same or similar circumstances.”  Some factors the court may look to in determining the applicable standard of care are:

  1. The defendant’s education
  2. The defendant’s training
  3. Government or organization medical protocols that apply to the particular situation
  4. Industry practice
  5. Private business protocols that might apply

Generally, if there is a duty to provide care that meets a certain standard, an informed consent is obtained from the patient before the treatment is given.  In an emergency however, a health care provider might rely on “implied consent” where most would reasonably assume that the patient would have agreed to the care offered under the emergency circumstances if they were able to do so.

2)   Failure to Perform the Duty:  It is very important to remain well informed of the prevailing medical standards and protocols and be well trained in wilderness medicine to ensure that any care provided meets the applicable standards.  The plaintiff must prove that the care provider did not perform the duty of providing aid consistent with the specified standard of care.  Usually the plaintiff asserts that the provider failed to act at all (an omission) when the provider had a pre-existing duty to provide care.  The plaintiff may also assert that the provider provided care that did not meet the prevailing medical standard or did not perform as would a reasonable person with the provider’s background, education and training.  If the provider prematurely terminates care or transfers care to a less qualified provider before the patient has been stabilized, this can be considered abandonment and constitute negligence.

3)   Loss of injury:  The plaintiff must prove that they sustained a loss or injury which can include damage to property, medical expenses, fright, emotional trauma, personal injury, pain and suffering, and loss of life.

4)   Causation:  The plaintiff must prove that the loss or injury was caused or contributed to by the provider’s failure to perform the duty of providing aid meeting the specified standard of care.

Defense in a tort law claim:  Experience teaches that a record including dates, times, patient history, a description of the scene, and a complete and accurate record can help defeat a plaintiff’s claims.  The care provider can defeat the plaintiff’s claim if the plaintiff failed to carry the burden of proof on one or more of these four elements of the negligence claim.

Jurisdiction:  Laws can widely vary from country to country and even state to state.  Knowing ahead of time, what the jurisdiction is will allow for maximum protection from litigation and optimal conduct.

Malpractice Insurance:  It makes good sense to check with malpractice carriers before undertaking a trip to find out if they will be covered when rendering support during expeditions in various jurisdictions.

References:  Advanced Wilderness Life Support Student Handbook

This document is for informational purposes only, and should not be considered medical advice for any individual patient.  If you have questions please contact your medical provider or your attorney.

 

I hope that you have found this information useful.  Wishing you the best of health,

Scott Rennie, DO

Blog: https://doctorrennie.wordpress.com

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