Should airlines pay for services they request a medical professional to perform?

[Will]

Which leads me to a bad medical joke: (Apologies )

An anaesthetist is flying in his Y class seat on a flight, when he hears the dreaded "Is there a doctor on board" call. He looks around, and noone else seems to be responding, so he decides to do the right thing and pushes his call button. The FA attends, and he tells her "I am an anaesthetist, can I help?" She replies "Thank God you are an anaesthetist, that's what we needed. We need you in J, there's an orthopaedic surgeon who needs his light adjusted!"

How about this:

On the same flight a call goes out for another doctor! Luckily a cardiologist is on board in business, and pushes his buzzer: "I'm a cardiologist, can I help?"

The flight attendant says "I'm so glad you're here. A cardiothoracic surgeon in first class has finished with his meal - do you want his leftovers?"

 

[Will]

I share lots of the concerns of the other doctors on this thread.

There is the issue of good samaritan liability being attached if 1. payment is provided (?is a bottle of wine payment? the courts haven't ruled on this yet!) and 2. US jurisdiction is involved (my MDA specifically excludes the US, as I'm sure many others do).

On the other hand, is there a possible negligence claim in failing to attend? One would hope not, but the NSW supreme court has made clear that all doctors have an obligation to everyone, patient or not - see Woods v Lowns NSW SC for a precedent-setting illustration. You might think that over-indulgence in the wine was a perfect excuse, but could you prove it? I'm not sure.

I think the fairest solution depends on class of travel. If you have paid for economy and volunteer, you get a few hours out of your seat and a bottle of wine +/- points is appropriate. If in business or first, you should be comped a flight of similar length for you and your partner if you spend >= 1 hour out of your seat assisting.

 

[thewinchester]

I share lots of the concerns of the other doctors on this thread.

There is the issue of good samaritan liability being attached if 1. payment is provided (?is a bottle of wine payment? the courts haven't ruled on this yet!) and 2. US jurisdiction is involved (my MDA specifically excludes the US, as I'm sure many others do).

On the other hand, is there a possible negligence claim in failing to attend? One would hope not, but the NSW supreme court has made clear that all doctors have an obligation to everyone, patient or not - see Woods v Lowns NSW SC for a precedent-setting illustration. You might think that over-indulgence in the wine was a perfect excuse, but could you prove it? I'm not sure.

I think the fairest solution depends on class of travel. If you have paid for economy and volunteer, you get a few hours out of your seat and a bottle of wine +/- points is appropriate. If in business or first, you should be comped a flight of similar length for you and your partner if you spend >= 1 hour out of your seat assisting.

Even though I'm not a medical professional, as someone who is a Snr. First Aid officer in a workplace plus love matters technical and legal, this discussion is one I find quite interesting.

The US exclusion under your MDA and unwillingness to provide assistance when subject to that jurisdiction seemed odd to me, specially coupled with the normal legal protections arising from each jurisdictions good samaritan legislation.

My knowledge of aviation law in respect of jurisdiction is light, but some quick research informs me that the jurisdiction in which the airframe is registered to applies regardless of the airlines location - regardless of where the airframe is physically located at the time of an event.

In the US context, all medical praticioners who are of a sound mental & physical (read not drunk or under the influence of other drugs) and respond to a call for medical aid from airline staff are universally indemnified by law under the Aviation Medical Assistance Act 1998 (49 USC 44701). That act also extends good samaritan protection to persons in these situations.

For the Australian context, The Royal Aust. College of General Praticioners also has a good article which covers these issues.

Surprisingly, Tasmania is the only state for which no legislation exists protecting persons from liability when providing assistance as a good samaritan. So while the aircraft might be subject to the laws of New South Wales thus providing an appropriate defence (assuming the assistance was provided by a person of sound mind), if the issue arose in Tasmanian airspace I'd be more than a little nervous providing assistance even with an appropriate indemnity.

So it gets back to the original question - should airlines pay a medical professional for service they ask to be provided? My answer would be no.

This is because if payment, remuneration or reward was an expectation or agreement up front (before the event) for providing such services, this would generally nullify any available legal protections. The cost of medical indemity can be quite high, and any claims against a practitioners coverage can generally increase the costs of their premiums.

I would however suggest that if, as a result of providing such valuable skills as a result of medical needs arising in-flight, it would be recommended business practice to thank the medical professional in an appropriate manner after the event.

This ensures that the relevant legal protection and defences remain in force should anything go south, and would help to increase/retain loyalty to the airline by them thanking a pax who went above and beyond to help them with their needs and that of a fellow pax.

 

[Will]

Thanks for your thoughts and the articles.

A few things.

1. The case study in the AFP actually left out an extremely important fact, which surprises me as it is highly relevant. The woman was actually involved in a serious motorcycle crash before the flight, but boarded anyway without going to hospital. The same doctor attended her before take-off for (I think) chest pain but didn't recommend that she didn't take off. The conduct may have reached some of the thresholds required to create liability - arguably it was grossly negligent. There's certainly a case to be argued which could be expensive.

2. I agree with you about good samaritan laws providing broad protection which is why I am concerned about gifts/ other compensation being provided ex post facto. "I put it to you, doctor, that you only offered to assist in the expectation that you might receive an upgrade!". Don't tell me it could never happen.

3. The blanket exclusion of all claims made under US law is a serious matter. Whilst it does not make me 'unwilling' to assist - and I am slightly offended you read that into my reply - it does expose the person assisting to significant personal risk. The jurisdictional issues you talk of are all well and good - but to assert a defence based on them requires having a lawyer turn up at the court in which the suit is filed, and that is likely to cost >$5000. And you might lose, depending on how the court is feeling that day. And that might set you back $500,000, or $5,000,000. It's a risk I will take - and have taken - but I'm not kidding myself that the actions are risk-free.

In summary, while the risk is very low, and one is probably indemnified by statute, the potential costs are disastrous. And you could theoretically be successfully sued for not attending (again, see Lown v Woods).

 

[Will]

I went back to look at the details of the case.

He did attend her before take-off, for a broken arm. He says he didn't do a primary survey as it 'might have been misunderstood'. An understandable mistake, but almost fatal in this case.

http://www.ncbi.nlm.nih.gov/pmc/articles/PMC2550436/pdf/bmj00604-0038.pdf

 

[drmikki]

I actually met this surgeon a couple of weeks ago, and although I didn't ask him specifically I don't think there were any legal ramifications from this case, nor should there have been. I do not think there was any negligence involved, despite the documented lack of a primary survey. A tension pneumothorax comes on suddenly and is exacerbated by altitude/pressurisation so would not have been present at the time of examination, and a simple pneumothorax in an asymptomatic patient is difficult to diagnose at the best of times, let alone on a plane with background noise, etc. This is a good samaritan act, not a full consultation so it's reasonable to limit your examination to the relevant complaint and related systems given the environment - in the initial review, her complaint was her arm, so the appropriate examination is isolated to that limb. If she had complained of other injuries or other symptoms then of course the examination would be expanded.
This presentation is something that I am paranoid about encountering when flying, particularly given the limitations of sharps on flights these days! If you need a lifesaving procedure, you don't want me doing it with plastic cutlery

I am intrigued by those doctors whose indemnity doesn't cover international good samaritan acts - if mine didn't cover it I suspect I'd be changing companies, cos there's no way I would be able to sit back knowing I can help someone but not able to act for legal reasons.

A quick review of the major indemnity providers' PDSs reveals:
MDA National cover good samaritan acts worldwide, in good faith. Although the policy specifically excludes practise overseas without prior permission Good Samaritan acts are a specific exclusion to this restriction.
MIPS cover Good Samiritan acts EXCEPT in the US and when US law applies. This seems a bit complex - where does US law apply?? On a United flight travelling between two non-US destinations? An Air Canada flight to Australia in US air space? Qantas flight to/from LAX currently over Fiji?
MIGA cover Good Samaritan acts worldwide, and specifically state in their policy that they cover worldwide including US.
Avant cover Good Samaritan acts worldwide. (Including for students if they have a student policy).
Invivo (QBE) cover what they term "Emergency First Aid" worldwide.

 

[Will]

I actually met this surgeon a couple of weeks ago, and although I didn't ask him specifically I don't think there were any legal ramifications from this case, nor should there have been. I do not think there was any negligence involved, despite the documented lack of a primary survey. A tension pneumothorax comes on suddenly and is exacerbated by altitude/pressurisation so would not have been present at the time of examination, and a simple pneumothorax in an asymptomatic patient is difficult to diagnose at the best of times, let alone on a plane with background noise, etc. This is a good samaritan act, not a full consultation so it's reasonable to limit your examination to the relevant complaint and related systems given the environment - in the initial review, her complaint was her arm, so the appropriate examination is isolated to that limb. If she had complained of other injuries or other symptoms then of course the examination would be expanded.
This presentation is something that I am paranoid about encountering when flying, particularly given the limitations of sharps on flights these days! If you need a lifesaving procedure, you don't want me doing it with plastic cutlery

Good points. Let me clarify - *I* don't think it was grossly negligent. I think it was reasonable. However, the relevant consideration is whether the action could be launched in the first place - as soon as you're sued, you've already lost.
Personally, having read this cautionary tale, if I was in the same situation I would be super-cautious, and given the high-risk mechanism would certainly be cautioning against flying before attending an ED. An US could probably have picked up a small PTX, and then flying would be right out!

And hopefully there's a scalpel somewhere in the doctor's bag! What about your emergency cricothyroidotomy for the woman choking on the rubbery plane-chicken-meat?

I am intrigued by those doctors whose indemnity doesn't cover international good samaritan acts - if mine didn't cover it I suspect I'd be changing companies, cos there's no way I would be able to sit back knowing I can help someone but not able to act for legal reasons.

A quick review of the major indemnity providers' PDSs reveals:
MDA National cover good samaritan acts worldwide, in good faith. Although the policy specifically excludes practise overseas without prior permission Good Samaritan acts are a specific exclusion to this restriction.
MIPS cover Good Samiritan acts EXCEPT in the US and when US law applies. This seems a bit complex - where does US law apply?? On a United flight travelling between two non-US destinations? An Air Canada flight to Australia in US air space? Qantas flight to/from LAX currently over Fiji?
MIGA cover Good Samaritan acts worldwide, and specifically state in their policy that they cover worldwide including US.
Avant cover Good Samaritan acts worldwide. (Including for students if they have a student policy).
Invivo (QBE) cover what they term "Emergency First Aid" worldwide.

Thanks. Really helpful to know. I'm going to change my MDA next year (for other reasons), and this will be an important consideration.

 

[thewinchester]

2. I agree with you about good samaritan laws providing broad protection which is why I am concerned about gifts/ other compensation being provided ex post facto. "I put it to you, doctor, that you only offered to assist in the expectation that you might receive an upgrade!". Don't tell me it could never happen..

This is the point, if the provision of such grautities or gifts after the fact aren't a codified procedure on the part of the carrier (more an unspoken, unwritten one), then no lawyer could reasonably proffer this as an argument for why assistance was provided - assuming the jurisdiction even permits such a case of the scenairo to make it to a court.

c3. The blanket exclusion of all claims made under US law is a serious matter. Whilst it does not make me 'unwilling' to assist - and I am slightly offended you read that into my reply - it does expose the person assisting to significant personal risk. The jurisdictional issues you talk of are all well and good - but to assert a defence based on them requires having a lawyer turn up at the court in which the suit is filed, and that is likely to cost >$5000. And you might lose, depending on how the court is feeling that day. And that might set you back $500,000, or $5,000,000. It's a risk I will take - and have taken - but I'm not kidding myself that the actions are risk-free.

I didn't read into it, and it wasn't meant as anything towards you. I was speaking in general terms on account that a medical praticioner might not have MDA coverage in the identified jurisdiction.

Here's the thing, the case won't and shouldn't even make it past filing. If it does, any doctor on account of their education could have the case dismissed by a simple MS Word template filing citing USC or laws relevant to the flag carriers jurisdiction that the case has no legal merit on account of such laws which prohibit the filing of such claims, not withstanding rhe jurisdiction invalidity of the case under international treaty to which the country is signatory.

A couple of hundred dollars and registered post fees, and the case can be dispensed without a lawyer needing to appear on your behalf. Any local or district civil court judge posessing all their faculties wouldn't touch the case based on the written defence, as most would lack the necessary legal expeirence to prosecute a case with international treaty implications.

Regardless most MDA's would, assuming the incident didn't occur in a jurisdiction which you weren't covered, be able to dispense with such a case without breaking a sweat.

In summary, while the risk is very low, and one is probably indemnified by statute, the potential costs are disastrous. And you could theoretically be successfully sued for not attending (again, see Lown v Woods).

The core issues you raise in respect of Lowns V Woods (1996 ATR 81-376, case review from the Journal of the Australian College of Midwives) on my initial reading are no longer relevant in the context, specially since it was prior to Civil Liability Act (NSW) 2002.

Further, in the appeal arising from Lowns V Woods, the appeal decision does not 'do violence to the general principle that a medical practitioner is under no legal duty to attend upon and treat someone who was not already his or her patient.’ (Abadee A, A medical duty to attend?. J Law Med. 1997;3(306–308):308,).

The Journal of the Australian College of Midwives goes further saying the appeal case reaffairms no legal duty to rescue has been established. Further, "the case argues health professionals have a moral obligation to assist in an emergency"... "it is quite a different matter to have this expectation imposed as a legal duty to rescue." (Newnham H, To assist or not to assist: The legal liability of midwives acting as good Samaritans in Journal of the Australian College of Midwives, Volume 19, Issue 3, Pages 61-64)

The Civil Liability Act by virtue of the exclusions it introduced gave rise to introduction of incapability or defect as a legimate defence for not providing assistance. All the respondant (ie the doctor in question) would need to argue is that they declined to provide assistance as they had consumed X number of glasses of (insert name of preferred champagne here), and they chose to exercise reasonable care by not attending to a potential paitent.

 

[drmikki]

And hopefully there's a scalpel somewhere in the doctor's bag! What about your emergency cricothyroidotomy for the woman choking on the rubbery plane-chicken-meat?

Exactly what I worry about!
Inflight meal plastic cutlery and a good strong arm, mate. Channel the House of God :mrgreen:

 

[anat0l]

And hopefully there's a scalpel somewhere in the doctor's bag! What about your emergency cricothyroidotomy for the woman choking on the rubbery plane-chicken-meat?

Well, what happened to trying the Heimlich maneuver first? Of course, that also has its own set of .... problems if you can't be seen as a good Samaritan ("that man groped my chest! I don't care if I was choking on a piece of meat!")

Exactly what I worry about!
Inflight meal plastic cutlery and a good strong arm, mate. Channel the House of God :mrgreen:

"Dr Nick...amongst the most grievous charges...performing major surgery with a knife and fork..."
"But I cleaned them with my napkin!"

Metal knives are generally finding their way back on flights, but most of them would be lucky to cut butter let alone human skin. So in a lot of cases you'd still be hosed for a scalpel substitute. Try harder in working out how to sterilise an instrument in-flight! (Unless such things matter little when saving someone's life...)

 

[Will]

Exactly what I worry about!
Inflight meal plastic cutlery and a good strong arm, mate. Channel the House of God :mrgreen:

No body cavity that can't be reached :mrgreen:

That's what one of our cardiothoracic surgeons channels whenever the M&M meeting has a case of a periocardiocentesis that enters the LV

This is the point, if the provision of such grautities or gifts after the fact aren't a codified procedure on the part of the carrier (more an unspoken, unwritten one), then no lawyer could reasonably proffer this as an argument for why assistance was provided - assuming the jurisdiction even permits such a case of the scenairo to make it to a court.

You have more faith in the legal system than I do
Unspoken rules have a bearing, IMO. I

I didn't read into it, and it wasn't meant as anything towards you. I was speaking in general terms on account that a medical praticioner might not have MDA coverage in the identified jurisdiction.

The US exclusion under your MDA and unwillingness to provide assistance when subject to that jurisdiction seemed odd to me, specially coupled with the normal legal protections arising from each jurisdictions good samaritan legislation.

Thankyou - you can probably see why I read something into though, given no-one mentioned unwillingness before this point.

Here's the thing, the case won't and shouldn't even make it past filing. If it does, any doctor on account of their education could have the case dismissed by a simple MS Word template filing citing USC or laws relevant to the flag carriers jurisdiction that the case has no legal merit on account of such laws which prohibit the filing of such claims, not withstanding rhe jurisdiction invalidity of the case under international treaty to which the country is signatory.

A couple of hundred dollars and registered post fees, and the case can be dispensed without a lawyer needing to appear on your behalf. Any local or district civil court judge posessing all their faculties wouldn't touch the case based on the written defence, as most would lack the necessary legal expeirence to prosecute a case with international treaty implications.

Regardless most MDA's would, assuming the incident didn't occur in a jurisdiction which you weren't covered, be able to dispense with such a case without breaking a sweat.

If I find myself in the situation of being sued by a Texas court, I guarantee you I'm not going to try to get it dismissed with a form letter and my own personal interpretation of the US code! I doubt many other doctors would either. The stakes are too high, and too much can go wrong. A lawyer is required who knows, for example, that defences have to be delivered by hand by a member of the defence team to the clerk of the court between 10-12 weekdays (just to give an example of a possible local idiosyncracy that might render your self-defence nullifed).

The core issues you raise in respect of Lowns V Woods (1996 ATR 81-376, case review from the Journal of the Australian College of Midwives) on my initial reading are no longer relevant in the context, specially since it was prior to Civil Liability Act (NSW) 2002.

Further, in the appeal arising from Lowns V Woods, the appeal decision does not 'do violence to the general principle that a medical practitioner is under no legal duty to attend upon and treat someone who was not already his or her patient.’ (Abadee A, A medical duty to attend?. J Law Med. 1997;3(306–308):308,).

The Journal of the Australian College of Midwives goes further saying the appeal case reaffairms no legal duty to rescue has been established. Further, "the case argues health professionals have a moral obligation to assist in an emergency"... "it is quite a different matter to have this expectation imposed as a legal duty to rescue." (Newnham H, To assist or not to assist: The legal liability of midwives acting as good Samaritans in Journal of the Australian College of Midwives, Volume 19, Issue 3, Pages 61-64)

The Civil Liability Act by virtue of the exclusions it introduced gave rise to introduction of incapability or defect as a legimate defence for not providing assistance. All the respondant (ie the doctor in question) would need to argue is that they declined to provide assistance as they had consumed X number of glasses of (insert name of preferred champagne here), and they chose to exercise reasonable care by not attending to a potential paitent.

I disagree with your interpretation of these statements. The civil liability act introduces good samaritan protections - which would not apply in Lowns v Woods as no assistance was offered and the protection is only against negligence in providing assistance.

As to Mr Abaadee's claim that the finding does not "do violence to the general principle that a medical practitioner is under no legal duty to attend upon and treat someone who was not already his or her patient." - our library doesn't have access to the J Law Med so I can't read his full argument, but I don't see how you could possibly make that statement when that is exactly what the court of appeal found.

The facts of the case: A doctor was at work. A boy came up to him and asked for help for his fitting brother up the street. The doctor said "call an ambulance". The ambulance came too late. Severe brain damage. Court found that duty of care existed between the doctor and the person he had never met, who never was a patient. $4+ million damages.

How on earth can this be interpreted as not establishing a duty to rescue? Beats me.

 

[drron]

A scalpel is not absolutely neccessary in the emergency treatment of a tension pneumothorax.Many years ago I was supplementing my meagre registrar's salary by doing GP locums.So fortunately had a doctor's bag with me.An MVA occurred about 500 metres in front of me.When I got to the scene the young woman driver of one car was getting bluer and bluer.Her mother was getting louder and louder.A large bore IV cannula inserted into the chest saw the woman return to virtually normal within a minute.Unfortunately you can no longer carry such things on to an aircraft.
I thought the mother wanted to reward me there and then.:shock:

 

[beardoc]

And hopefully there's a scalpel somewhere in the doctor's bag! What about your emergency cricothyroidotomy for the woman choking on the rubbery plane-chicken-meat?

In this case, hypoxia is a fantastic muscle relaxant, and a laryngoscope and McGill's forceps should be able to get it out easily. No need for the "crike"!

 

[drmikki]

"Dr Nick...amongst the most grievous charges...performing major surgery with a knife and fork..."
"But I cleaned them with my napkin!"

Try harder in working out how to sterilise an instrument in-flight! (Unless such things matter little when saving someone's life...)

I know plenty of surgeons who refer to a scalpel and forceps as "knife and fork", and I have done procedures where a sterile teaspoon is used... :shock:

As for sterility, you are correct in that it matters LESS in a truly lifesaving procedure. At that point, you do whatever you can, but then you make the conclusion that if they survive you can worry about the infection. I have 'scrubbed' for a procedure in a major tertiary hospital by putting glove and gown on, neglecting the 3-5 minutes of handscrubbing. The patient was undergoing CPR and the only possible course to saving him was cutting the abdomen; he didn't have 3 minutes to wait for cleaner hands.

Sterility on an airplane is something I worry about less - I know all you AFFers are somewhere in the back with your high-alcohol duty free purchases and I plan to utilise the strongest for that purpose.

And drron, I agree a scalpel for a tension pneumothorax is unnecessary - I believe Prof Wallace used a coathanger in the previously quoted case! That said, I suspect given the sharps restrictions you are more likely to have a scalpel than a cannula, particularly a 5cm cannula as required to reliably decompress a middle-larger sized person's chest wall.

Good strong arm, right?

 

[docjames]

And drron, I agree a scalpel for a tension pneumothorax is unnecessary - I believe Prof Wallace used a coathanger in the previously quoted case! That said, I suspect given the sharps restrictions you are more likely to have a scalpel than a cannula, particularly a 5cm cannula as required to reliably decompress a middle-larger sized person's chest wall.

Good strong arm, right?

The onboard kit I opened when assisting on a flight recently (that seems to have prompted this thread :shock had large bore cannulas available. Didnt see any scalpels. Plenty of airway equipment. And decent array of (emergency-type) medicines.

 

[Will]

The onboard kit I opened when assisting on a flight recently (that seems to have prompted this thread :shock had large bore cannulas available. Didnt see any scalpels. Plenty of airway equipment. And decent array of (emergency-type) medicines.

Correct me if I'm wrong - and I'm sure one of you surgical or ED types will - but isn't a cannula for a tension pneumothorax only a temporising measure? Isn't a chest tube required within hours?

 

[drmikki]

Oooh, that was going to be my next question, if anyone knows what is in the medical kits both drugs and equipment wise?

Its not the bore but the length of the cannula in the case of pneumothorax; studies in "Injury" (from memory) showed that most standard cannulae failed to reach the chest cavity in about 50% of people. In volume resuscitation, you want a large bore cannula but short length to increase flow rate (although the literature is starting to move against high volume rapid resus with crystalloids, at least in trauma).

Wow, this sounds like a whole lot of work for a Sunday... time to go do something else I think! Thanks for the interesting and wideranging opinions from medical legal and other backgrounds - yet another reason I love this forum!

 

[drmikki]

Heheh, your reply came through after I hit send... Must have been typing at the same time!

Correct me if I'm wrong - and I'm sure one of you surgical or ED types will - but isn't a cannula for a tension pneumothorax only a temporising measure? Isn't a chest tube required within hours?

Yes, decompresses the tension and converts it into a simple pneumothorax and then a chest drain is needed - timing dependant on resources and clinical condition in this case. Additionally, I believe that a one way valve (or a 3-way tap and a syringe) are needed once the tension is released, if you plan to leave the cannula in as a temporising measure until landing. I'm not sure the onboard doctor's bag has a chest drain... but if it does you can improvise a heimlich valve by cutting the finger off a latex glove, cutting the fingertip off so you have a 6-8cm latex tube, and attaching one end to the chest drain. It should theoretically be possible to do the same for a cannula, but I have never tried it.

 

[samiam]

And hopefully there's a scalpel somewhere in the doctor's bag! What about your emergency cricothyroidotomy for the woman choking on the rubbery plane-chicken-meat?

Perchance an opportunity to recreate the steak knife and Biro cricothyrotomy?

 

[samiam]

In volume resuscitation, you want a large bore cannula but short length to increase flow rate (although the literature is starting to move against high volume rapid resus with crystalloids, at least in trauma).

Crystalloids or Colloids? YMMV!

(Sorry, couldn't miss that opening).