Case Study: Snakebite and Medical Malpractice

On August 11, a victim sustained a rattlesnake bite to the index and middle fingers of his left hand. Suction cups and a tourniquet were immediately applied, and the victim was transported to the hospital within 15 minutes. Another 15 minutes passed before Dr. A arrived. Dr. A proceeded to treat the patient by injecting antivenom into the base of the fingers bitten by the snake and into the left deltoid, despite an instruction sheet accompanying the antivenom that cautioned, “Do not inject serum into a finger or toe.” Dr. A packed the patient’s hand in ice and admitted him to the hospital. Two days later, the patient was sent home with instructions to keep ice on the hand.

Eight days later the victim’s two fingers, hand, and arm were edematous, discolored, and odorous from gangrene. Dr. B assumed care of the patient. He applied a heating pad and injected antibiotics. On September 9, the two fingers required amputation. Is Dr. A liable for medical malpractice?

In tort law, members of society owe a duty to others to act reasonably and in a way that will not hurt another person or his or her property. In the context of wilderness medicine, redress for a private civil wrong is typically sought under a medical negligence doctrine. To bring a cause of action under a negligence theory, the plaintiff (the party filing the claim) must establish the following four elements:

Medical malpractice is a specific form of negligence occurring during the execution of a physician’s professional or fiduciary duties. Medical malpractice can be defined as medical care that falls below the standard of care expected of a reasonably prudent physician under similar circumstances, resulting in foreseeable harm to the patient.²⁵ In all negligence suits, the plaintiff bears the burden of proof in establishing the requisite four elements under a “more probable than not” standard. In other words, the plaintiff must establish that there was a greater than 50% probability that the defendant’s breach of duty caused the harm.

In the snakebite case presented earlier, the first element is clearly demonstrated. Dr. A’s actions established a physician–patient relationship and an acceptance of the duty to render care. Establishing the second and third elements is more problematic. The court held that Dr. A did not breach his duty. The court elaborated, “There are wide variations in accepted methods of treatment of rattlesnake bites. The method of treatment chosen and used by the defendant was an acceptable method of treatment.” In other words, even though physicians must act with the level of skill and learning possessed by minimally qualified members of the profession, they are judged by reference to the beliefs of the school that they follow. That is, their practice need not be followed by a majority consensus, provided that it is supported by a recognized school of practice in the medical community.

The court further held that the plaintiff failed to establish causation. Expert testimony showed that “rattlesnake bites in extremities always present some chance of tissue destruction” and that the most probable cause of tissue death in the two distal phalanges was the rattlesnake venom. Thus Dr. A was found not liable. Whether Dr. A’s intervention met the standard of care and caused the ultimate amputation are debatable. Typically, though, both parties to the litigation use expert witness testimony to establish their respective positions vis-à-vis standard of care and causation issues.

Each state has its own body of statutory, regulatory, and case law in addition to federal law. Thus, although this chapter presents general legal and risk management principles, physicians should always familiarize themselves with the laws and precedents in their own states before implementing policies and procedures related to wilderness or travel medicine. Unless the trip application has a jurisdiction clause explicitly limiting the venue for litigation (often the state in which the tour outfit has its headquarters or principal place of business), a plaintiff could theoretically bring a claim in his or her own state of residence, in the state where the physician is licensed, in any state where the tour outfit conducts business or has some nexus, or in the jurisdiction where the injury occurred.

Case Study: Duty to Warn

A middle-age male traveler booked a tour to Bolivia through a travel agent. In the trip brochure, the tour operator represented itself as an experienced and reputable company and stated that it researched all locations to which it arranged tours and “would care for participants from ‘portal to portal.’ ”²³ In addition, the travel agent asked both the tour operator and local health agencies about health requirements and necessary precautions. During the trip, the traveler developed high-altitude cerebral edema after flying from Chile (at sea level) to La Paz, Bolivia (elevation 3962 m [13,000 feet]) in less than 1 hour. He subsequently sued the travel agent and tour organizer for failure to warn him of the health risks associated with his travel.

In general, there is no duty to warn of dangers that are as obvious to the participant as to the organizer. Obvious dangers might include possible seasickness or airsickness, substandard sanitation, and poor environmental conditions. Moreover, travel agents and tour operators have no duty to investigate potential vacation sites (not even those where conditions and terrain are dangerous) or lower standards of medical care in foreign countries. However, they do have a duty to warn travelers of known unreasonable risks or dangers, such as political turmoil and criminal attacks, that are foreseeable or likely to occur. Typically, to incur this duty to warn, the travel agent or tour operator must have actual or constructive notice of the hazardous condition arising from their knowledge of special circumstances (e.g., prior occurrences). In addition, travel agents and tour operators may contractually expand their duty to warn through representations made in brochures or other advertisements. In the case mentioned earlier, for example, the court recognized that tour organizers are not insurers of the safety of tourists with whom they contract and need not warn of obvious hazards. Nonetheless, in this case the travel organizer contractually expanded its obligation through its representations and brochures and created a reasonable expectation on the part of the tourist that it would research the risks of high-altitude travel and warn him of accompanying dangers.

Even in the absence of liability, trip organizers and medical practitioners have incentive to prevent travel-associated injury or illness because they suffer financially and ethically when a tourist experiences physical or financial loss, fellow travelers are inconvenienced, or the reputation of the company or medical practice is potentially damaged. Sound risk management principles dictate that travel companies provide as much useful information as feasible to prevent adverse consequences. Companies lacking the wherewithal to research health hazards may benefit from the assistance of a medical adviser. Depending on the nature of the trip, some or all of the following information may be useful to participants:

Whether an outfitter has an obligation to provide helmets and safety equipment depends on many factors, including anticipated hazards, experience of participants, industry practice, and so forth. However, even when the outfitter requires participants to furnish their own safety equipment, it is advisable for the outfitter to identify the potential hazards and required gear. Perhaps a more pressing concern is the noncompliant participant who refuses to wear or use furnished safety gear or who otherwise acts in a reckless manner. In these instances, signed waivers may be of some value, but juries are not always sympathetic to waivers because the trip operator is sometimes perceived as being in a better position to ensure participant safety. The more prudent risk mitigation step might be to include a statement in the trip brochure or application indicating that the trip operator may, in its discretion, dismiss any participant at any time during the trip for cause, including failure to wear appropriate safety gear or to comply with safety rules, at no liability or cost to the trip operator.

The Americans With Disabilities Act

Molly, who is a double amputee as a result of a car accident, applies to Whitewater Ventures to participate in a rafting trip. The outfitter rejects her application, claiming that she would not be able to meet their safety standards and swim independently. Frank is hearing impaired and requests that National Park Adventures (NPA) provide a sign language interpreter on a biking and hiking trip out west. NPA refuses, citing the unduly burdensome expense involved in hiring a signer. Tommy is a 10-year-old boy with autism who requires a behavior plan and one-to-one aide to support him in a parks and recreation program run by a major metropolitan park agency. The city indicates that it cannot accommodate this request because its staff lacks the required expertise to provide these services. Meghan uses a wheelchair for mobility, and is interested in participating in a mountain trek in Nepal. The adventure outfitter declines her request to provide bus transportation throughout the entire trek. Do all of these individuals have a legal right to access these recreational activities, and must the providers of these recreational opportunities offer an accommodation if needed?

For persons with and without disabilities alike, recreational, travel, and wilderness pursuits provide enjoyment and diversion and lead to enhanced fitness, self-esteem, leisure skills, social opportunities, mental well-being, and quality of life.¹⁶ The ADA has opened doors to leisure and recreational activities for persons with disabilities (see Chapter 102). Under Title II of the ADA, state and local governments may not refuse participation by a person with a disability in a service, program, or activity simply because that person has a disability.¹ Title III of the ADA prohibits all places of public accommodation and services operated by private entities from discriminating against the disabled.² These private entities include both for-profit businesses (such as adventure outfitters and tour operators) and nonprofit groups (such as community sporting leagues, YMCAs, and Boys and Girls Clubs).

Furthermore, an entity may not apply eligibility criteria that screen out an individual or any class of individuals with disabilities “unless such criteria can be shown to be necessary for the provision of the goods, services, facilities, advantages, or accommodations.”³ For example, “a cruise line could not apply eligibility criteria to potential passengers in a manner that would screen out individuals with disabilities unless the criteria are ‘necessary.’ ”⁴

An entity is not, however, required to permit an individual to participate in services when the individual poses a direct threat to the health or safety of themselves or others. This determination that the participant poses a significant risk must be an individualized assessment using reasonable judgment based on current medical knowledge or the best available objective evidence. In addition, the “safety exception” may justify excluding individuals when they pose a threat to themselves. The safety exception holds that an entity may impose legitimate safety requirements that are necessary for safe operations. As an example, the regulations cite as a valid screening criterion the requirement for all participants in a recreational rafting expedition to meet a necessary level of swimming proficiency.

For screening criteria to be valid, they must be uniformly applied to all prospective participants, not merely to those with disabilities. Moreover, they must be based on actual risks, not on mere speculation, stereotypes, or generalizations about a person or class of persons with a particular disability. A tour organizer could not, for example, categorically exclude all persons with a history of angina from a high-altitude trip, but rather must afford individuals with documented, well-controlled angina an opportunity to establish their fitness and eligibility for the trip. In the case described earlier, Whitewater Ventures may require that Molly be able to swim independently, but the provider must apply this criterion to all applicants and must afford Molly the opportunity to demonstrate her ability to meet this eligibility criterion. Moreover, as a reasonable accommodation (see later), Molly could likely wear a personal flotation device, if needed, to demonstrate swimming proficiency.

Even when screening criteria are valid and the prospective participant cannot meet those requirements, a public accommodation must make reasonable modifications in policies and practices or must accommodate the disabled individual unless such modifications would cause an economic or administrative burden or would fundamentally alter the nature of the goods, services, or facilities offered. For example, in the case of Tommy described earlier, if the metropolitan park agency has a budget in the millions of dollars, the cost of hiring an outside aide to provide one-to-one support for Tommy and to develop and implement a behavior plan may not be an undue burden. On the other hand, if National Park Adventures is a small entity with annual revenues of $300,000 and only two full-time staff members a court might find a signer to be an economic burden for such a small outfit, although the court might cite other less costly accommodations that NPA could provide to Frank, such as a written tour book. These decisions must be made on a case-by-case basis depending on the facts of the case. Similarly, a court would consider the specific facts of a case in determining if an accommodation would fundamentally alter the nature of the goods, services, or facilities. A cruise line could be required (as a reasonable modification) to provide an individual who relies on a wheelchair for mobility with a stateroom on the same level as the restaurant. However, a mountain trek would not be required to transform to a bus tour to accommodate this same individual.

Medical Screening

To minimize the potential for discrimination claims, tour operators should provide physicians granting medical clearance as much information as possible regarding the physical demands of the trip. Tour organizers must provide detailed information concerning environmental conditions, specific health hazards, health and living conditions in the destination site, and availability of local medical resources. Companies should be as specific as possible in describing environmental conditions (e.g., altitude in feet, temperature in degrees). Trip organizers also must delineate the type, intensity, duration, and frequency of activity (e.g., bus tour, mild walking [1.6 to 3.2 km or 1 to 2 miles per day], vigorous hiking [specify distance and terrain], backpacking [specify weight of gear], trekking to remote areas [e.g., 24 hours from definitive medical care], climbing, swimming, canoeing).

The health care professional in turn must tailor the medical history and examination to the physical demands of the trip. The physician should become familiar with the patient’s medical history, including any medications that could interact with the environment to which the patient is traveling. If applicable, the clinician should advise the patient to bring extra medications or medical equipment (e.g., a spare pair of eyeglasses, extra hearing aid batteries, an anaphylaxis kit) in case complications or exacerbations occur. The physician also should inform the patient of applicable first-aid procedures and may also need to inform the trip organizer of special needs or accommodations.

Because patients and their physicians are sometimes hesitant to disclose confidential medical information to a travel company, medical clearance forms should emphasize functional abilities and limitations rather than diagnoses. If medical clearance forms request sufficiently detailed information about the prospective participant’s medical fitness to meet the physical demands of the trip, travel companies frequently do not need to know about specific medical diagnoses. Companies that do request confidential medical information should disclose this information only to employees who have a need to know and should ensure that the company medical adviser or trip physician safeguards this information in a locked file, typically at the company’s offices, unless arrangements have been made for the physician adviser to store medical records at his or her private office. The company also may want to encourage high-risk patients to share medical information with trip leaders or bring along key medical records. It may be desirable for the trip physician or individual trip participants to bring along key medical documents or summaries that can easily be stored in their backpacks, particularly when traveling under Spartan conditions or to remote sites. Even though a company-employed medical adviser or private family physician makes determinations about medical fitness and medical clearance, the travel company bears the legal responsibility for excluding disabled participants or for failing to accommodate their needs.