Abstract
To the Editor:
I read with appreciation, interest, and concern the article Wilderness First Aid: Is There an “Industry Standard?” in Wilderness & Environmental Medicine. 1 I have the following comments about the article and suggestions about future articles and research.
For a defense-oriented attorney and possibly for the plaintiffs' bar, the use of the word standard creates issues. In everyday life, the word means a reference point or median, but it has a different definition in the field of law. In law, standard is the lowest acceptable level of doing or not doing something that a reasonable person would accept. It may not be the median or average. As such, stating that something other than the lowest acceptable level is the “standard” creates a path for a lawsuit against anyone or anything performing below the median but above the lowest acceptable level.
This is important because the 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 standards are for a particular activity, we have made the plaintiff's job that much easier.
Plaintiffs' lawyers grasp onto an article using the term in a respected publication, 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 are few legal references to a definition of first aid, and those that do exist 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. 2 One court described first aid as anything that did not require training; consequently, cardiopulmonary resuscitation (CPR) was not first aid because it required training. 3 If a court determines that an act was outside the definition of first aid, there is no defense for a nonlicensed healthcare 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, 5th Edition at present is the only document that provides wilderness first aid advice for those wanting to understand what is and is not first aid. 4
Many times articles such as these seek to improve the care for those injured in the outdoors. Articles rarely accomplish that goal and mostly encourage litigation, which also fails to accomplish the 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 the time to take more than a basic first aid course. While already taking several hours each week to volunteer and then spending their vacations with a group of youths, their time cannot be stretched much further. This is a classic example of how the need to protect kids by requiring more training for adult leaders in the end 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 standards 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, which requires a standard first aid card to work on a river. Colorado horse packer's statute, C.R.S. §§ 12-55.5-103.5, has 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. For fishing guides in California, Fish & Game Code § 2542 specifies the agency shall prescribe the first aid training required of guides. Maine requires first aid training, M.R.S. § 12853, but leaves the level of training to the regulatory agency and requires 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 3 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 3 organizations provide training that is recognized by all states and the federal government for protection under state Good Samaritan acts.
Litigation that claims the first aid care provided by outfitters and guides is negligent is rare. 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 re-examined. 5 But instead of a chart of what is being done, 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 guarantee a loss by the defendant, the study should look at what is being done and what might work.
More important, as mentioned early in the article and by Dr Forgey, is a study of what really occurs and what can be resolved with basic first aid: what first aid supplies can reasonably be carried by a group, what techniques and supplies can be used with knowledge that can be retained by the group, and what procedures are actually effective in the outdoors when the group is miles or hours from Emergency Medical Services (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 automated external defibrillators (AEDs) 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 any reports of head injuries sustained while whitewater rafting that a helmet would have prevented. The study 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 the use of and/or carrying of prescription drugs during an excursion because of the ineffectiveness at a distance from EMS and consequently take pressure off physicians to prescribe these drugs in violation of the law, as well as their medical malpractice insurance carriers.
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.