Hypothermia: Legal Aspects

 

 

 

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By Bob Amick

Rex brings up an interesting point about field care for hypothermia. A later post expresses concern about "good samaritan laws," and the legal* ramifications for rendering care. Perhaps the following will clarify some of the concerns. (*-Please note that I am not an attorney and the following information is not to be construed as legal advice. It is primarily information which I have gathered as an EMT and Red Cross Emergency response Instructor over about 25 years, and working on National Scout Jamboree Medical Centers and many high adventure Scout/Explorer trips and events. The information discussed here was derived in consultation with physician/attorneys and other knowledgeable individuals.)

If you need specific legal advice on these matters it is recommended that you consult with your local council risk manager/attorney or other qualified professional.

First, as a Scout leader, by virtue of assuming the role of a person entrusted to care for youth on Scouting activities, you also assume a "duty to act." That is, if a Scout is ill or injured, you are legally responsible for providing emergency medical care (i.e., first aid) for that the best of your training and ability, and to ensure that the Scout is promptly given more "definitive care" (i.e., notifying emergency medical services, responding an ambulance, and/or hospitalization/emergency room care) if the injury or illness warrant such care.

To fail to provide such care especially if it can be shown that you have been trained in appropriate procedures would legally be considered "abandonment" of the victim and would constitute negligence on your part. You may only relinquish care of the victim to a person with equal or greater qualifications than yours (e.g., an EMT, Paramedic, nurse, or physician) and you must be able to verify that the person is qualified.

As far as "permission to treat" goes, any Scout trip must have a parental consent and medical treatment consent/waiver filled out and signed by the Scout's parent or legal guardian. This gives the leader blanket permission to treat or arrange for treatment of emergent AND non-emergent medical/trauma problems while the Scout is under the care of the leader. I posted a copy of our permission slip in January, and would be happy to send another copy to anyone interested. As noted in another post, anyone with life threatening illness or injury who is mentally incapable of refusing or consenting to treatment, gives "implied" consent for treatment under the law. This applies to minors (under age 18 in most states) and to adults. It also applies to those who object to any medical treatment on religious grounds, if the injury/illness is immediately life threatening, and/or the individual is under the age of majority (18)or is not an "emancipated minor." (check with your legal/medical advisor in your area to clarify these issues for your situation).

It is always essential and appropriate to get verbal consent from anyone you treat, even if you have written permission, and as noted this should be done in the presence of a witness. Nontheless if you have a "standing written consent" from parents, there is no question, and it may save you a lot of time and frustration in an emergency room if you are far away from home.

Hypothermia treatment utilizing heat transfer by body contact in a field setting when other options are not immediately available is uniformly defined in wilderness medical treatment protocols and literature, and considerable evidence has shown this method to have saved lives. It is defined as a "standard of care" for hypothermia which any "reasonable and prudent" person with appropriate knowledge and training would administer given the circumstances and lack of other options.

Certainly,if you are in "civilized" surroundings where sources of external heat such as vehicles, warm water, warmed beverages, etc., are available, and the patient is still capable of ingesting warmed beverages, those are appropriate. The body heat transfer is usually a "last resort" effort for severe hypothermia in remote settings. It has frequently been used in wilderness mountain climbing or other expeditions as a lifesaving measure. Nontheless, it is always appropriate when other techniques are unavailable or ineffective. So long as the treatment is conducted appropriately (as noted in another post) in the presence of of other adults/scouts, and the treatment is obviously necessary, there is little cause for concern. Most of all it may save someone's life.

It is somewhat frightening to realize that many (especially new) Scout leaders, and particularly parents of Scouts are extremely uninformed about the life threatening dangers of hypothermia (and other facets of trauma and illness recognition and treatment), and would tend to err on the side of "avoiding" treatment for fear of legal entanglements. In point of fact, they would place themselves in much greater legal peril by witholding treatment, and subsequently causing the serious injury or death of a Scout.

Good Samaritan laws (for the most part, the language varies from State to State) only protect those individuals who render care voluntarily, without an expectation or "duty to act" as a part of their job or volunteer position. For example, if you are driving down the road and stop at the scene of an accident, voluntarily, to assist, AND if you render care according to the "standard of care" under which you are trained/experienced without negligent acts or omissions, you are given immunity from litigation should the person you assisted choose to file suit against you.

Although anyone may file a lawsuit against you for nearly any reason, the probability of the suit being successful is negligible if you have acted in "good faith, and in a reasonable and prudent manner" to assist someone to the "best of your training and ability." On the other hand, if you are a Scout leader,(or volunteer firefighter, volunteer ambulance technician, or Scout camp staff member et al, whether you get paid or not), and if you are acting in an "official capacity" at the time, you still have a "duty to act" and (unless your state laws are written differently than most) are NOT protected by "good Samaritan laws."

The good news, however, is that there are virtually NO successful lawsuits against anyone in these categories who provide care appropriately according to the "standard of care" under which they have been trained.

In point of fact, far more successful lawsuits have been filed against those persons who knowingly withheld care of a victim, without a legitimate reason. You are much better off trying to do something you are trained and/or qualified to do to the best of your knowledge and ability. Conversely if you try to do something you are not qualified to do, you may also be at risk, so just maintain your efforts to the "standard of care" that you have been trained in..no more and no less.

The legal system is very understanding of those who make a good faith effort even if unsuccesful. Conversely it is very unforgiving of those who fail to act without good cause, or of those who act recklessly and negligently.

I would especially say AMEN to the post saying that hypothermia is largely preventable!. It is important to remember that little folks (i.e. young Scouts/children) are far more susceptible to hypothermia than older Scouts or adults. There have been cases in which leaders have dismissed or ignored initial complaints of being "cold" or chilled by Scouts as "whining." In fact, some of those cases resulted in Scouts suffering mild hypothermia, and had action not been quickly taken, could have been tragic. Simple precautions such as not wearing cotton clothing for any reason, and using adequate synthetic underwear and outer garments, as well as proper hydration and nutrition go a long way it preventing a problem.

Sometimes, it is necessary to just inform a Scout that he needs to "put on his hat" to forestall chilling.. Many times they just miss little things that can save them from a lot of discomfort.

The other factors are just recognizing when wind-chill is serious and taking prompt action to remove the source of heat loss. Most Scouters know, if you become hypothermic yourself, your brain tends not to function very well, and you make bad decisions, which may be tragic. Someone who is still in control needs to take control and remove the person or group from any further exposure, and to reverse the effects of the wind chill.

Finally, I would strongly encourage anyone who is in a Scout leadership position, as well as the Scouts themselves, to take a Red Cross or equivalent training class in first aid and CPR. If you can get an experienced instructor, (i.e. someone who has actually worked in the emergency medical services field as an EMT, Paramedic, Rescue squad, firefighter, outdoor guide, etc., and has first hand experience, your class will be greatly enhanced). The Red Cross has a new class called "emergency response" and "CPR for the Professional Rescuer" which is designed for volunteer and professional "first responders." It is extremely well designed, and well suited to Scout leaders and older Scouts.

I currently teach this class to Explorers in my high adventure and emergency management posts, and to Venture crews and Scout leaders in my district. They find the training extremely useful, and sufficiently thorough that they often assist in teaching future classes. A few have also become instructors when they turn 17 and are quite good at teaching their fellow Scouts! Most of all they are much more aware of the dangers of a variety of outdoor risk factors and know not only how to treat them, but more importantly how to avoid them in the first place!

Good Scouting!

Bob Amick, EMT-B, is Exploring Training Chair at Longs Peak Council, Boulder, CO

Heath & Safety

 

 

   

 

 


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Hypothermia Intro ] Hypothermia Symptoms ] Hypothermia & Dehydration ] [ Hypothermia: Legal Aspects ]

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Last modified: October 15, 2016.