Is there a doctor on-board?: medical liability during in-flight emergencies

Transcription

1 Hong Kong Journal of Emergency Medicine Is there a doctor on-board?: medical liability during in-flight emergencies F Lateef, CSK Tay, N Nimbkar Provision of emergency medical care to passengers during flights on commercial aircraft is an issue which concerns many physicians. As world population ages and air travel increases, the number of medical events on board aircrafts is also expected to increase. This paper discusses the liability of the physician-passenger who volunteers and renders care as well as advises the crew, on certain actions. Complex medico-legal issues will be mentioned and there will be a brief discussion on the in-flight environment and unscheduled landings. (Hong Kong j.emerg.med. 2003;10: ) Keywords: Aircraft, emergencies, first-aid, legal liability Introduction In-flight medical emergencies affect a substantial number of travellers. The exact incidence is not known as there is currently no method of monitoring these in-flight incidences and airlines are not required to report them. In-flight mortality is uncommon but serious events do occur which require immediate emergency care. Studies from the USA have quoted figures ranging from 13 to 33 events per day on board airplanes, or one incident per 33,600 to 39,600 passengers. 1-3 A British Airways study gave a rate of one incident per 11,000 passengers. 4 In 1991, 1.2 billion passengers flew on commercial airlines and this number is increasing annually. 5 First-aid is commonly required, especially during international flights. 6 It is highly likely that a physician on flight may have to render help in an incident. Most flight crews have been through some form of first aid Correspondence to: Fatimah Lateef, MBBS, FRCSEd(A&E) Singapore General Hospital, Department of Emergency Medicine, Outram Road, 1 Hospital Drive, Singapore f_lateef@hotmail.com National University of Singapore Business School, Department of Bussiness Policy, Singapore Tay Swee Kian, Catherine, LLM(London), LLB(Hons)(London) University of Health Sciences, Uniformed Services, Bethesda, Maryland, USA Narayan Nimbkar, MBBS, FRCSEd(Surgery), FACS training to enable them to recognize emergencies. This training focuses specifically on the aviation environment. 7 Physician passengers are frequently called upon to assist the flight crew when an emergency arises. Together, they will render emergency care, stabilize the patient and ensure rapid notification of ground medical personnel. As such, physicians need to have a greater awareness of the types of emergency problems which they might encounter on commercial air travel, the availability of equipment on board, and how to treat some common problems. First-aid skills are the same whether a doctor, nurse or a trained layperson renders them. It represents the initial response, which includes a sequential set of standard operating procedures. The challenges of air-borne first aid include space constraints, lack of privacy, cultural and language barriers, lack of resources, noise and physiological as well as logistical problems. In-flight medical emergencies are medical problems or events that occur during a flight. Aerospace medicine is a sub-discipline of preventive and emergency medicine that ties together physics, life-support and medicine, to protect aircrew and passengers in the atmospheric flight and space. 8 The environment quickly becomes hostile to humans with increasing altitude. From the earliest physiologic observations of balloonists in the 1700s to the latest International Space Station Life Support, our understanding and approach to aerospace medicine has advanced exponentially.

2 192 Hong Kong j. emerg. med. Vol. 10(3) Jul 2003 Most of the literature on in-flight emergencies have highlighted the more life-threatening diagnoses such as acute myocardial infarction and cardiac arrest. Nonfatal and less life-threatening emergencies do occur more commonly, despite the rather scarce information available on their management. In-flight environmental factors The cabin pressure in commercial aircraft is adjusted to the equivalent of barometric pressure at the altitude of 1,500 to 2,500 meters (5,000 to 8,000 feet) above sea level. At these pressures, there will be a reduction of the partial pressure of arterial oxygen from 95 to about 56 mm Hg in healthy individuals. This represents a 4% reduction in the oxygen carrying capacity. The arterial partial pressure of oxygen can be maintained to a certain extent by hyperventilation. Altitude is particularly poorly tolerated by patients with pre-existing hypoxia. Pressurization of the internal environment of the aircraft increases the total air pressure, thereby increasing the inspired as well as alveolar partial pressure of oxygen. 9 As a result of the decreased pressure, air and gas in body cavities expand, as described by Boyle's Law (volume of gas varies inversely with pressure). This can manifest in a variety of ways as the trapped gas expands. (Table 1) The low humidity, usually in the range of 10-20%, may cause discomfort in some passengers, with symptoms such as dry eyes, dry nasal mucosa and exacerbation of reactive airway disease. Table 1. Clinical manifestations and some consequences of trapped gas expansion. Site of trapped gas Pleural space Intestinal lumen Subcutaneous tissue Middle ear Paranasal sinus Blood Dental root Air splints Intravenous infusion bottle Blood pressure cuff Endo-tracheal tube cuff Manifestation Pneumothorax (±tension) Abdominal pain and distension Subcutaneous emphysema Ear ache or pain Facial pain Air embolism or decompression sickness Tooth pain Compartment syndrome Increased flow rate Tourniquet effect Air leak, hypoventilation While ascending through the first 9,000 to 18,300 meters (30,000 to 60,000 feet), the external temperature decreases in a linear fashion, at an average of 2 degrees Celsius (3.6 degrees Fahrenheit) per 305 meters (1,000 feet). 9 First-aid kits First-aid kits are found on the majority of aircrafts. However, the contents and types of kits vary from airline to airline and also between aircrafts of the same airline. Usually these kits are customized to meet the needs of individual airline and the contents are frequently reviewed to ensure they are current and relevant. Organizations such as the Joint Aviation Authorities (JAA, Europe), Federal Aviation Administration (FAA, USA) and Aerospace Medical Association (ASMA, USA) are involved in the review and recommendations for medical kits for international airlines. The Air Transport Medicine Committee will then assess the recommendations, follow the evolution and periodically adapt the kits accordingly There may be one or a combination of any of the following kits on board an airplane: A daily use first aid kit, which crew members can access readily and provide simple and common medications for personal use by the passengers (e.g. paracetamol for fever). - An emergency first-aid kit, which is a standard firstaid or survival kit. - A medical or doctor's kit, which is utilized only when a medically trained doctor is available to render help and treatment. When flight attendants request the assistance of a physician onboard, the latter can ask for a medical kit, as distinct from the standard regular first-aid kit. The Federal Aviation Administration has requested that this 'doctors only' kit be made available on all US commercial aircrafts since These kits contain the items listed in Table 2. 2,13 The contents represent the best estimate by the FAA and its advisors, of the items that would be required in the event of an emergency during flight. The 1998

3 Lateef et al./is there a doctor on-board? 193 report from the Aerospace Medical Association Task Force also recommended that certain medication be available onboard. (Table 3) 11 Unscheduled landings An unscheduled landing of a commercial flight is one in which the flight is diverted from the original schedule, to land as quickly as possible at the nearest airport. This is a decision which should be made with a great amount of deliberation. 2 Diversion of aircrafts from a planned route and unscheduled landings are undesirable from the airlines' perspective. Fuel must be dumped before landing, passengers may miss connections and extra costs will be incurred from accommodation and redirection expenses. There is inconvenience and sometimes danger to passengers as well. Thus, if an emergency can be adequately managed on-board, it is preferred to have the flight continued as scheduled. 5 Examples of problems for which unscheduled landings have been done, but were subsequently deemed unnecessary, included chest pain relieved by nitroglycerine in a stable patient, minor Table 2. Contents of the 'Doctor's Kit' A stethoscope A sphygmomanometer Oropharyngeal airway (3 sizes) Sublingual nitroglycerine Needles and syringes Epinephrine Diphenhydramine 50% Dextrose Table 3. Medication recommended by the Aerospace Medical Association Taskforce (1998) Acetaminophen Albuterol Aspirin Diazepam Aluminium hydroxide/magnesium carbonate Glucagon Ketorolac Lignocaine Meclizine Oxymetazoline Promethazine Simethicone laceration of the scalp, seizure in a known epileptic and asthmatic attack which was relieved by patient's own medication. Therefore, physician-passengers should be aware of the options available to them when faced with an emergency. According to the FAA Report, 13% of all in-flight incidences on-board domestic aircrafts resulted in emergency diversions. The top three causes for these diversions were: 3 cardiac events (46%), neurological events (18%) and respiratory problems (6%). Diversion for genuine problems depends on the air routes operated, and location of airports with medical and aviation facilities. Increasing use of super widebodied and super long hull aircrafts is likely to restrict the choices for these emergency landings Medical liability during in-flight medical event To the best of our knowledge, there is no known actual percentage of all flights having a doctor-passenger on board, as understandably, most doctors choose not to make themselves known for fear of medical litigation. Further, there are no "Good Samaritan" laws protecting a doctor-passenger who provides medical assistance on board an aircraft. There is thus nothing to alleviate doctors' concerns in order to make them more willing to render assistance during in-flight medical emergencies. Even if there were "Good Samaritan" laws, the assisting doctor-passenger must provide medical care similar to the care that others with similar training would give under such circumstances. The standard of medical care expected of doctorpassenger on board aircraft is the same as those for doctors working in a hospital environment. The medical standard of care is a medical judgment as established by the Bolam test in the landmark case of Bolam v Friern Hospital Management Committee [1957] 1 WLR 582. Per McNair said: "Where you get a situation which involves the use of some special skill or competence, then the test as to whether there has been negligence or not is not the test of the man on the top of a Clapman omnibus, because he has not got this special skill. The test is the standard of the

4 194 Hong Kong j. emerg. med. Vol. 10(3) Jul 2003 ordinary skilled man exercising and professing to have that special skill. A man need not possess the highest expert skill; it is well-established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art." There is no lower standard of medical care for inexperienced doctors. Under the Bolam test, a doctor is not negligent if he has conformed with responsible professional practices. He is judged by the standard of awareness and sophistication to be expected of a doctor in his type of practice. Under the Bolam test, a doctor conforming to responsible professional practices would not be negligent simply because 'there is a body of opinion who would take a contrary view'. To determine whether a doctor is negligent, the court will rely on expert professional opinion. The standard of medical care is a medical judgement (see Sidaway v Bethlem Royal Hospital Governors [1985] 1 All ER 643). The Bolam test established that the standard of medical care was that of professional colleagues, which must accord with a 'responsible body of medical opinion'. The Court of Appeal has ruled that the Bolam test is supplemented by the House of Lords decision in Bolitho v City & Hackney Health Authority [1998] AC 232 in that "even if the doctor's actions were supported by a body of medical opinion, the court would still examine the expert testimony to see if it was founded on a logical basis". Thus the Bolam test does not give immunity from judiciary inquiry over the medical process. To qualify as a 'responsible' body of opinion, such testimony must satisfy the threshold test of logic. This means that the experts must direct their minds to the comparative risks and benefits and have reached a 'defensible conclusion' on the matter. In determining whether a doctor has breached the medical duty of care owed to his patient, a judge will not find him negligent as long as there is a respectable body of medical opinion, logically held, which supports his actions. Is there a duty of care owed by volunteerdoctors? In a negligence lawsuit, a passenger-plaintiff must prove that the passenger-doctor owes him a duty of care, and has breached that standard of medical care, thereby causing him injuries and harm. The passengerdoctor does not owe a duty to volunteer medical help unless there is a pre-existing doctor-patient relationship. This is the case in the United Kingdom, United States, Canada and Singapore. In Singapore, doctors are bound by the Singapore Physicians' Pledge (derived from the Hippocratic Oath) and biomedical ethics to render medical assistance when they are asked to help. (Section 45 (1)(d) of the Medical Registration Act on 'professional misconduct'). Other European countries do impose an obligation to render assistance. If the passenger-doctor does render assistance, then the standard of medical care expected from him is governed by the Bolam test in Singapore. America has the 1988 Aviation Medical Assistance Act which gives limited "Good Samaritan" protection to any medically qualified passenger who provides medical assistance on board an aircraft during an inflight medical emergency. The doctor must be a 'volunteer' giving care in good faith and receiving no monetary compensation. Gifts in the form of travel vouchers or seat upgrades are not compensation. The passenger-doctor must give medical care similar to the care that others with similar training would provide under such circumstances with limited resources in the airplane. Although this Act frees the passengerdoctor from responsibility for assisting during an inflight medical emergency it does not free him if he is guilty of gross negligence or willful misconduct. It is interesting to note that the Aviation Medical Assistance Act also relieves airline carriers from liabilities due to the performance of the air carrier in obtaining the assistance of a passenger-doctor in an in-flight medical emergency. The expected level of care available onboard aircrafts seems to be increasing as seen in the recent lawsuits against airlines. For airline passenger medical care, it would now seem reasonable to expect medical kits to be available on board aircraft together with cardiac monitor and automatic external defibrillator (AED). This is so, as early defibrillation is the standard of care for patients in ventricular fibrillation. To enhance passenger safety, some airlines such as Air Canada and Scandinavian Airlines Systems have provided emergency telemedicine. Practising emergency room physicians will be standing by to

5 Lateef et al./is there a doctor on-board? 195 guide crew members in treating any in-flight medical incidents. Private international laws who has jurisdiction? Air law is quite all encompassing and can include conflict of laws, commercial law, criminal law, contract law, national law, multilateral conventions and treaties. In the area of airline liability and medical liability on board aircraft, as it involves the crossing of national borders, complex issues arise because of the various types of legal systems around the world. Each country has its own distinct legal system. If an American passenger was medically assisted by a Singaporean passenger-doctor onboard a Singapore Airlines aircraft bound for New York, which law governs Singaporean law or American law? These issues come within private international law. "International law" is contrasted from "national law" which covers the laws of a particular jurisdiction or country. If both parties are residents in Singapore, flying onboard Singapore Airlines, the matter can be governed by national law and international law will not be relevant. The country in which the aircraft is registered would have legal jurisdiction to hear the lawsuit. Furthermore, the country in which the medical incident happened or the country of citizenship of the plaintiff and defendant can also have jurisdiction to hear the case. By section 16 of the Supreme Court of Judicature Act, the Singapore High Court may have jurisdiction if the defendant-doctor is served with a writ or other originating process in or outside Singapore pursuant to the Rules of Court. This affirms that a Singapore court has jurisdiction to hear the dispute despite the fact that it has international aspects. By the same section, the parties can also submit voluntarily to the jurisdiction of the High Court. Therefore, any defendant residing in Singapore can be sued in Singapore courts even if the cause of action arose outside Singapore. But the question of forum non conveniens can still be raised. Even though a dispute is brought before a court of competent jurisdiction, the court may stay the proceedings if it believes that another more appropriate forum should hear and decide the case. If there is a claim against an air-carrier, under which jurisdiction can the injured passenger or next-of-kin sue? Under article 28 of the Warsaw Convention 1929, the passenger can choose one of four jurisdictions to sue, namely: - The place of incorporation of the carrier - The place where the carrier has its principal place of business - The place of destination - The place where the carrier maintains an establishment through which the contract was made. The meaning of 'accident' for the purpose of article 17 of the Convention will however continue to be litigated. Further, under the Montreal Convention 1999, for cases involving death or passenger injuries, an action can be brought in the country of the passenger's principal and permanent residence, as long as the carrier provides services to that country. Enforcement of judgments An important consideration arising from public international law is enforcement. After obtaining a favourable judgment from the court in the appropriate jurisdiction, the question may arise when the party wishes to enforce that judgment in another jurisdiction. Enforcement of foreign judgments requires both recognition by the relevant authority in the foreign state as well as the execution of the foreign judgment. Each jurisdiction has its own rule on the enforcing of foreign judgments. There are provisions enabling one Commonwealth country to recognize and execute the judgments issued by courts from another Commonwealth country. For judgments from non-commonwealth countries, any bilateral treaty between the Commonwealth country and the foreign country will govern the matter regarding reciprocal enforcement of judgments.

6 196 Hong Kong j. emerg. med. Vol. 10(3) Jul 2003 Medical arbitration To overcome the problems of enforcing foreign judgments, parties may choose to arbitrate rather than litigate to resolve their medical disputes. Arbitration involves an expert arbitrator to hear and decide on the dispute in private proceedings, unlike court litigation. The main advantage of arbitration is the easy enforcement of foreign arbitral awards over foreign judgments due to the multilateral treaty the 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards. States which have ratified the New York Convention must enforce arbitral awards given by other member states. Over 100 states including USA, United Kingdom, China and Thailand have ratified the New York Convention. Summary A physician passenger on a commercial aircraft has the ethical obligation to render medical aid when requested by the crew. The physician does not, in this case, have the usual doctor-patient relationship, as we understand it. He is however expected to abide by standard medical care. This expectation leads to the logical conclusion that the physician should understand the limitations in the in-flight environment. He should also be cognizant of the problems and challenges faced by the crew and airlines especially with respect to diversion of flights. Acknowledgement We would like to acknowledge the following people for their contributions: Dr. Myint Soe, PhD, MA (Cambridge), MA(Illinois), BA(Rangoon), Barrister (UK), Advocate and Solicitor(Singapore) and Mr. Justinian Zai Qiao Jian, Year 3, Faculty of Medicine, National University of Singapore. References 1. Speizer C, Rennie CJ 3rd, Breton H. Prevalence of inflight medical emergencies on commercial airlines. Ann Emerg Med 1989;18(1): Cummins RO, Schubach JA. Frequency and types of medical emergencies among commercial air travelers. JAMA 1989;261(9): DeJohn CA, Veronneau SJ. The evaluation of in-flight medical care abroad US air carriers, 1996 and 1997, Washington DC. Federal Aviation Administration, Office of Aviation Medicine, (Technical Report Number: DOT/FAA/AM-0013). 4. Dowdall N. "Is there a doctor on the aircraft?" Top 10 in-flight medical emergencies. BMJ 2000;321(7272): Donaldson E, Pearn J. First aid in the air. Aust N Z J Surg 1996;66(7): Hordinsky JR, George MH. Response capability during civil air carrier inflight medical emergencies. Aviat Space Environ Med 1989;60(12): Millett DP. Final report of the Subcommittee on the Training of Flight Attendants in First Aid. Aviat Space Environ Med 1988;59(10): Ogle J. Aerospace Medicine. emedicine Journal 2001; 2(10): Issacs SM, Saunders CE, Durrer B. Aeromedical Transport. In: Auerbach PS, editor. Wilderness Medicine: Management of wilderness and environmental emergencies. 3rd ed. St Louis: Mosby; 1995: Rayman RB. Inflight medical kits. Aviat Space Environ Med 1998;69(10): Thibeault C. Emergency medical kit for commercial airlines. Air Transport Medicine Committee, Aerospace Medical Association. Aviat Space Environ Med 1998; 69(11): Federal Aviation Administration emergency medical equipment requirement. Federal Register 1985;52: Cottrell JJ, Callanghan JT, Kohn GM. Inflight medical care: One year's experience with the expanded medical kits. J Aviat Space Environ Med 1988;54: Anderson JM. Emergency medical kits to be required cargo on commercial airliners. But will they fill the bill? JAMA 1986;256(2): Mills FJ, Harding RM. Medical emergencies in the air. I: equipment and prevention. Br Med J (Clin Res Ed) 1983;286(6372): Goodman PH. Medical equipment on commercial airlines. N Engl J Med 1986;315(14): Cockerell CJ. Basic medical equipment on commercial airlines. N Engl J Med 1986;314(16): Gendreau MA, DeJohn C. Responding to medical events during commercial airline flights. N Engl J Med 2002;346(14): Rodenberg H. Medical emergencies aboard commercial aircraft. Ann Emerg Med 1987;16(12): Rosenberg CA, Pak F. Emergencies in the air: problems, management, and prevention. J Emerg Med 1997;15 (2): Goodwin T. In-flight medical emergencies: an overview. BMJ 2000;321(7272):