Letter to the Editor: Wilderness and Environmental Medicine

June 23, 2009

Jonna Barry, Managing Editor

Wilderness and Environmental Medicine

1505 N. Royer Street

Colorado Springs, CO 80907

I read with appreciation, interest and concern the article Wilderness First Aid: Is There an “Industry Standard”? in the latest Wilderness and Environmental Medicine. I have the following comments about the article suggestions about future articles and research.

For a defense oriented attorney and possibility for the plaintiff’s bar the use of the word standard creates issues. The word in everyday life, means a reference point or median, it has a different definition in the law. A standard in the law is the lowest level of acceptable level of doing or not doing something that a reasonable person would accept. It may not be the median or average. As such, a statement that something is the standard which is not the lowest acceptable level creates a path for a lawsuit for anyone who may not meet the median but is above the lowest acceptable level of work.

This is important because a violation of a standard is the first step in proving negligence. In general in outdoor recreation activities, the hardest thing to prove is a violation of a standard. By putting in writing what the standard’s are for a particular activity, we have made the plaintiff’s job that much easier.

Plaintiff’s lawyers grasp on to an article using the term from respected publications, such as this Journal, as proof that the outfitter or guide did not meet the industry standard. It then falls on the defense to prove, and normally at a much greater cost, at trial, that the standard is not at issue or was not the legal definition used in the article.

Consequently I was happy to see the article did not really reach a conclusion about what the standard is above that of simple first aid courses.

A major issue is what is wilderness first aid? There few legal references to a definition of first aid, those that do simply reference the American Red Cross definition: immediate and temporary treatment of a victim of sudden illness or injury while awaiting the arrival of medical aid. One court described first aid as anything that did not require training, consequently CPR was not first aid because it required training. L.A. Fitness International, Llc, v. Mayer, 980 So. 2d 550; 2008 Fla. App. LEXIS 5893; 33 Fla. L. Weekly D 1136. If a court determines that an act done was outside the definition of first aid, there is no defense for a non-licensed health care provider. Many wilderness first aid courses teach techniques that are clearly outside of the simple definition of first aid: immediate and temporary treatment. The Wilderness Medical Society Practice Guidelines for Wilderness Emergency Care, 5^th at present is the only document that provides wilderness first aid advice for those wanting to understand what is and is not first aid.

Many times articles such as these want to improve the care for those injured in the outdoors. Articles rarely accomplish that goal and mostly encourage litigation, which also fails to accomplish that goal. What does occur is an increase in litigation and a decrease in participation. The Boy Scouts of America and Sierra Club were both referenced in the article. Both groups are led by volunteers. Volunteers do not have more time to take more than a basic first aid course while all ready taking several hours each week to volunteer and then spending your vacation with a group of youth cannot be stretched much father.

This is a classic example of we need to protect more kids by requiring more leader training which protects the kids because they now never leave the city. Volunteers have only so many hours and kids have too many chances to get hurt.

The article speaks to statutes or governmental regulations referencing first aid requirements. There is a misnomer that a legal standard in the industry can be higher or lower than a state statute. The standard for a particular industry is the state statute and in this case the statutes that were recognized in the article would be the standard for medical training needed in that occupation.

The article did miss several dozen state statutes requiring first aid training for guides and outfitters, as well as all federal requirements. Most states put first aid requirements into specific statutes affecting a specific activity. As an example Colorado has no state statute requiring first aid training for outfitters and guides, but the state has no state statutes for outfitters and guides. Colorado does have a statute controlling the first aid requirements for whitewater outfitters and guides. C.R.S. §§ 33-32-105.5 that requires a standard first aid card to work on a river. Colorado horse packer’s statute C.R.S. §§ 12-55.5-103.5 have a similar requirement.

Various state and federal land managers have specific first aid requirements for permittees or concessionaires working on state or federal land. This varies by land manager and the type of service being offered.

The article mentioned the marketing term “wilderness first responder” (WFR) which is not recognized by any state or federal agency as a first aid course. Many state Good Samaritan laws provide coverage for first aid based on the provider of the first aid training. No state Good Samaritan law recognizes WFR or WFR providers as providing training that would be protected by the Good Samaritan law. See Connecticut C.G.S. § 52-557(h) or Illinois I.C.S.A § 745 ILCS 49/67.

Many state statutes require the regulatory agency to specify the first aid training required. Fishing guides in California pursuant to Fish & G Code § 2542 specifies the agency shall prescribe the first aid training required of guides. Maine requires a first aid training M.R.S. § 12853 but leaves the level of training to the regulatory agency with a different level of first aid training for trip leaders M.R.S. § 12860.

Statutes once enacted are difficult to change so many of the statutes requiring first aid training are out of date. Worse are those that specify the items to be in first aid kits. California Gen Ed § 32043 requires a snakebite kit on field trips for some school outings.

There are three agencies chartered by the Federal Government to provide first aid training: The Boy Scouts of America, the American Red Cross and the National Ski Patrol. All three organizations provide training that is recognized by all states as for protection under state Good Samaritan acts recognized by all states and the federal government as first aid training providers.

Litigation that claims the first aid care is rare when brought against outfitters and guides. Litigation against search and rescue groups and volunteers is growing. In both cases the claim that the first aid care was negligent was combined with other claims. Both groups need to be protected in any additional studies done to determine what training is appropriate or necessary.

I agree with Dr. Forgey’s editorial that the issue needs to be reexamined. But instead of a chart of what is being doing, I would strongly urge any study to look at best practices for the industry with an eye to the ever changing future. Instead of listing the standard, which will then allow plaintiff’s to gauge their lawsuits and start advertising for them or the minimums which would guaranty a loss by a defendant the study should look at what is being done and what might work.

More importantly as the article relates too in the beginning and Dr. Forgey mentions is a study of what really occurs and that can be resolved with basic first aid. What can first aid supplies be reasonable carried by a group, what can be used with the knowledge that can be retained by the group and what is actually effective in the outdoors when miles or hours from EMS. The desire to stop litigation is leading groups to wildly divergent and in many cases ridiculous results. One Texas University outdoor program was told to carry AED’s on their wilderness backpacking trips. Another example is the use of helmets in whitewater rafting; an industry that prior to the use of helmets never had a reported head injury. Colorado, West Virginia and California have not received a report of a head injury that a helmet would protect in a whitewater rafting. This would assist outfitters and guides as well as state and federal land management agencies in determining what is really possible and therefore needed. It might also reduce the desire to teach and or carry prescription drugs because of the effectiveness at a distance from EMS and consequently take pressure off physicians to prescribe these drugs in violation of the law or their medmal insurance carrier.

What we need is realistic analysis and study of what is possible and plausible in a wilderness setting. What will save a life and what won’t, what should be done and what is a waste of time. That study should be labeled in such a way as to not create the basis for injured participants to start litigation.

Sincerely,

James H. Moss

Cc    Wm Forgey, MD