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The New Zealand Medical Journal

 Journal of the New Zealand Medical Association, 08-November-2002, Vol 115 No 1165

Responding to in-flight requests for medical assistance
Wendy Brandon, Alice Ruddenklau, Anna Moodie and Sarah Gillies
Many doctors will be familiar with requests for medical assistance while aboard an international flight. Such requests are becoming increasingly common; a recent study estimates that as many as 350 requests for in-flight medical assistance occur per day worldwide.1 Yet many doctors are unaware of, and increasingly nervous about, the potential legal ramifications of volunteering assistance. This article addresses both a practitioner’s obligation to respond to such requests, and their legal status as ‘Good Samaritans’.
Are doctors obliged to offer assistance?
New Zealand-registered doctors have an ethical obligation to provide assistance in a medical emergency, subject to their capacity to assist at the time.2 Failure to provide assistance may result in professional disciplinary charges and it has been suggested that prosecutions might, in theory, be brought under the Crimes Act 1961.3 However, in the view of the writers that latter potential liability is remote.
In New Zealand, there is no general ‘Good Samaritan’ law that compels any person to render assistance in an emergency. A prosecution brought under s151 Crimes Act 1961 would require the person, whose request or need was ignored, to establish that the practitioner had a duty to provide the necessaries of life. Obligation to render assistance to persons in dire need may also exist under the ‘right to life’ provisions of the New Zealand Bill of Rights Act 1990, although the writers suggest that such a claim is unlikely to be successful.
Although there is no case law directly addressing the liability of a doctor for failing to render assistance in a Good Samaritan situation, there are examples in several jurisdictions of doctors being found liable for damages and/or guilty of professional misconduct for failing to respond to requests for assistance. In such cases, however, the requests were made in the “professional context”, that is to a medical service or a doctor who was the only professional reasonably available to provide assistance, or the requests were made to the doctor’s place of business and/or during business hours.4
There is also a rather dated case from the United States in which a doctor was sued for “abandonment” in circumstances in which he initiated assistance but did not continue.5
In terms of the doctor’s capacity to provide assistance, the facts and circumstances of each situation will ultimately determine the issue if the doctor is subsequently called to account for his or her conduct. It would be unwise for any doctor to offer assistance if their judgement was impaired, for example if they had been drinking, or if they were unduly tired, or otherwise ‘unsafe’. Other factors affecting the doctor’s performance would also be relevant. For example, in the context of a medical emergency on an aircraft it would be relevant that medical assistance is likely to occur in a confined and noisy environment, with poor lighting, and with minimal equipment and/or medication available. Additionally, there may be language difficulties or cultural issues affecting the doctor’s ability to assist. In some situations, the doctor may be the only medical professional on board, and therefore may have to deal with an emergency that is outside his or her own area of practice, experience or expertise, and in circumstances in which he or she might otherwise have declined to respond.
All of these factors and potential risks should be considered by any doctor before responding to a request for assistance.
Potential liability
If a doctor decides to provide medical assistance in an in-flight emergency situation, the question becomes whether he or she can be sued subsequently for negligence and if so, in what jurisdiction. Doctors might gain some measure of comfort from the absence of any reported cases of claims against medical practitioners alleging negligent in-flight emergency care.
However, in the absence of any such cases, potential liability is uncertain. For example, there are several jurisdictional options available to a would-be passenger-plaintiff. In many cases, the contract for carriage (the ticket) will specify the jurisdiction that will apply in the event of disputes; the rule of thumb is that the applicable jurisdiction is that in which the aircraft is registered. However, on the basis of jurisdiction options available under two international conventions – the Convention for the Unification of Certain Rules Relating to International Carriage by Air (the Warsaw Convention 1929)6 and the Convention on Offences and Certain Other Acts Committed on Board Aircraft (the Tokyo Convention 1963)7 – a passenger may have a valid claim in the country:
  1. in which the aircraft is registered;
  2. in which the air carrier is domiciled or ordinarily resident;
  3. of destination;
  4. over which the aircraft was flying when the injury was suffered.

Although these are the only jurisdictional options available under the Tokyo and Warsaw Conventions, there does not appear to be any legal impediment to prevent a passenger-plaintiff from commencing proceedings in their own country of origin.
The applicable law, if not expressed in the contract of carriage, might also be determined by agreement between the parties, or by a court order made under conflict of laws principles after the proceedings are commenced. An additional complication is that tickets are becoming increasingly obsolete.
A claim for negligence would be determined according to the laws and procedures of the country in which the proceedings were commenced. However, the accepted principles of the law of negligence are generally applicable. As a matter of logic, it is likely that a doctor can only be sued as a doctor if the claim is brought in the jurisdiction in which they are registered. If the doctor is not registered in the jurisdiction in which the claim is brought, the court is likely to proceed to consider the claim on the basis that the assister is a mere Good Samaritan rather than a medically qualified, or professional, person. In that context, it is relevant that, in the common law jurisdictions, the courts have adopted a lenient attitude towards rescuers’ liability and have been reluctant to apply the relevant legal principles strictly.8 This factor also might provide some measure of comfort.
In practice, passengers who have suffered some injury during an in-flight medical emergency have generally brought their claims against the air carrier under the Warsaw Convention. Article 17 of that Convention stipulates that a carrier is responsible for personal injury suffered on a commercial international flight, and for damages in the case of death or bodily injury sustained by a passenger as the result of an accident occurring on an aircraft or during the boarding or landing of the passengers at an airport.
In cases arising in the United States, the general approach taken by the courts is that claims brought under Article 17 succeed only if the plaintiff is able to prove that their injury was caused by something or some event external to the person.9 Illness, disease or some personal pre-disposition (such as asthma or a heart attack) unless ‘caused by’ the air carrier or some defect in the aircraft (for example, a lack of oxygen)10 is not a ‘personal injury’ for the purposes of Article 17. Article 17 has, thus far, also been applied to defeat claims brought by passengers who have suffered a deep vein thrombosis (DVT) during, or shortly after, travelling by air.
It is also possible under the Warsaw Convention to bring claims against a carrier’s agents. It might be argued that a doctor who gives assistance becomes an ‘agent’ of the carrier, but this argument seems tenuous at best.
The Tokyo Convention applies in relation to criminal acts. It asserts the competence of the country of registration of the aircraft for the purposes of any crime committed on board. It also recognises possible concurrent jurisdictions, depending on the circumstances of the crime. However, it is suggested that the likelihood of any doctor facing criminal charges as a result of medical assistance given in good faith is remote.
Protection from liability
Some airlines offer indemnities to doctor-passengers who render assistance. Others, (including Air France, SwissAir, KLM and SAS) apparently treat a doctor who has responded to a request for assistance as an ‘occasional employee’, thereby providing cover under the insurance policy of the airline company.11
This willingness to provide indemnities may reflect the increasingly diverse nature of the circumstances in which aircrew may require assistance, and the increased frequency of such requests. Such requests do not always result from medical emergencies. For example, the incidence of ‘air rage’ has greatly increased in recent years. An episode of air rage can endanger aircrew, other passengers and even the aircraft itself. While airlines are now training aircrew personnel how to deal with such episodes, it is often necessary to sedate or subdue enraged passengers, perhaps forcibly. It has been reported that from time to time aircrew have requested assistance from a doctor-passenger to administer sedation and to monitor the sedated passenger until the aircraft reaches its destination.12
As a direct response to heightened anxiety on the part of doctors about possible litigation and liability, in 1999 both the Medical Defence Union and the Medical Protection Society introduced worldwide indemnity cover for Good Samaritan acts by members.
Legislative protection
Perhaps most reassuringly, the United States’ legislators have been especially pro-active in enacting legislation to protect doctors from claims in that jurisdiction. The Aviation Medical Assistance Act 1998 provides protection for persons who provide emergency medical assistance, unless the assistance is grossly negligent or wilful misconduct is evident. Airlines are not liable for damages arising out of either a request to obtain the assistance of a doctor-passenger or the assistance given, provided that the aircrew personnel believe in good faith that the doctor is a medically qualified individual.13 Similar legislation has been enacted in some Canadian states.14
In Australia, Queensland is the only state to have enacted such legislation thus far. The Law Reform Act 1995 replaced the Voluntary Aid in Emergency Act 1973, but no cases have yet been reported under this legislation. The Act applies only to medical practitioners and nurses registered in Australia who act “in good faith and without gross negligence”, where those services are provided without fee or reward, or expectation of receiving a fee or reward.15
Conclusions
In New Zealand, the question of the liability of a doctor who renders assistance during an in-flight emergency has not yet been tested in court. Principles developed from other situations and jurisdictions can give guidance, particularly on the issue of whether there is an obligation to respond16 and of course, although outside the scope of this paper, Accident Compensation legislation will also be relevant in relation to any claim brought in New Zealand, or against a New Zealand-registered carrier.17 Certainly, requests made specifically to a known doctor have created obligations to respond both in New Zealand and overseas. Obviously, as discussed above, the circumstances, such as a doctor’s capacity at the time, may qualify any duty.
In responding to that dreaded question “Is there a doctor on the flight?” a doctor is exposing him or herself to a remote, but potential liability for negligence, both as a professional person and as a Good Samaritan. However, in most situations a doctor responding to an in-flight request is likely to be protected from liability by some form of indemnity or the operation of law. In the meantime, doctors should not allow the relatively remote threat of litigation to deter them from their professional obligation to provide assistance if they are able in the circumstances to do so. The absence of any reported cases indicates that the fear of litigation is more perceived, than real. The approach of the international courts suggests also that the law recognises a certain ‘self interest’, in that we are all vulnerable and it is unfair, if not morally repugnant, to subject someone who responds to a request for assistance to liability for damages, provided they have acted in good faith and taken reasonable care in the circumstances.
Author information: Wendy Brandon, Partner; Alice Ruddenklau, Solicitor; Anna Moodie, Solicitor; Sarah Gillies, Law Clerk, Minter Ellison Rudd Watts, Lawyers, Wellington
Correspondence: Wendy Brandon, Minter Ellison Rudd Watts, P O Box 2793, Wellington. Fax: (04) 498 5001; email: wendy.brandon@minterellison.co.nz
Footnotes:
  1. Reuters. Plane first aid improving. 4 April 2002.
  2. St George I, (ed). Cole’s medical practice in New Zealand. Medical Council of New Zealand; 1999. Page 15 notes that: “The ethical obligation is to accept as a patient any person who is said to be in an emergency; the New Zealand Medical Association states: A doctor must give the necessary treatment in an emergency, unless he is assured that it can and will be given by others.”
  3. Ibid. Page 16 cites Section 151, which establishes a duty to provide the necessities of life for anyone who has charge of another person where that person is unable to provide themselves with the necessaries of life, and Section 160 which provides that culpable homicide includes the killing of a person ‘by an omission without lawful excuse to perform or observe any legal duty’. Whether either of these provisions would apply to a doctor who assists in an emergency is untested.
  4. Woods v Lowns [1996] Aust Torts Reports 81-376 and Kent v Griffiths [2000] 2 WLR 1158.
  5. Zelenko v Gimbel Bros (1937) 287 NYS 134.
  6. The Warsaw Convention 1929 deals with the rights of passengers and owners or consignors of cargo and the corresponding liabilities of carriers in relation to international carriage by air. There are over 135 countries that are a party to the Warsaw Convention, including New Zealand.
  7. The Tokyo Convention 1963 applies to offences against penal law and acts that may, or do, jeopardise the safety of a civilian aircraft registered in a contracting state, while in flight or on the surface of the high seas, or of any area outside the territory of that state.
  8. For example, in Capital and Counties plc v Hampshire County Council [1997] QB 1004, Stuart-Smith LJ referred to a doctor who witnessed a road accident and volunteered assistance. In such a situation, Stuart-Smith LJ stated, the doctor’s “only duty is not to make the patient worse”.
  9. For example, Hipolito v Northwest Airlines Inc., No. 00-2381, 2001 WL 861984 (4th Cir. July 31, 2001), which established that for recovery for personal injury under Article 17 there must be an “accident” that is an “unusual or unexpected event or happening external to the passenger”. If the injury results from an internal reaction to the usual, normal and expected operation of the aircraft, it has not been caused by “accident”.
  10. In Prescod v AMR, Inc No. CV-99-0496 (CD Cal June 1, 2001), the airlines involved were held liable for the death of a passenger whose luggage containing a breathing device and medication was not allowed as hand luggage on the plane and was subsequently lost. The daughter had advised the airline that it was necessary for her mother to have the bag on board.
  11. Hedouin V, Lallemand M, Revuelta E, et al. Medical responsibility and air transport. Med Law 1998;17:503–6.
  12. Gendreau MA, DeJohn C. Responding to medical events during commercial airline flights. N Engl J Med;346:1067–73.
  13. Section 5(a) of the Aviation Medical Assistance Act 1998.
  14. Haberfield L. Lowns v Woods and the Duty to Rescue, Tort Law Review: 6; 56-80.
  15. Section 16 Law Reform Act 1995 (Qld)
  16. For example, Woods v Lowns (supra, note 4).
  17. The writers have not included any discussion as to the possible operation of the ACC law in this area. Such a discussion would be lengthy and likely inconclusive and would involve complex and technical issues around jurisdiction and the relevant Injury Prevention Rehabilitation and Compensation Act 2001 provisions.


     
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