Associate Professor Catherine Tay is a lecturer in the Department of Business Policy at the National University of Singapore (‘NUS’). She also lectures on medical law and biomedical ethics at the Faculty of Dentistry of NUS.
She also supervises on medical law in the Special Study Module at the Faculty of Medicine of NUS. In this article, Professor Tay deals with the medico-legal considerations for physicians volunteering medical assistance during an
in-flight medical event.
To the best of my knowledge, there is no known actual percentage of all flights having a doctor-passenger on board, as understandably most doctors choose not to make themselves known for fear of medical litigation. Further,
there are no ‘Good Samaritan’ laws protecting any physician-passenger who provides medical assistance aboard an aircraft. There is nothing to alleviate doctors’ concerns so that they are more willing to render assistance during
in-flight medical emergencies. Even if there were ‘Good Samaritan’ laws, the assisting physician-passenger should provide medical care similar to the care that others with similar training would give under such circumstances.
In-flight Medical Care Onboard Aircraft
In-flight medical intervention does improve passenger condition and good results can be achieved if medical kits are used properly on stricken passengers. The sufficiency of the medical kit’s contents, such as glucose,
nitroglycerin and epinephrine, all points towards the future of airline passenger care.
The expected level of care available onboard aircraft seems to be increasing, as seen in the recent lawsuits against airlines. For airline passenger medical care, it would now seem to be reasonable to expect medical kits to be
available onboard aircraft together with cardiac monitors and the automatic external defibrillator (‘AED’). This is so as early defibrillation is the standard of care therapy for patients in ventricular fibrillation. In 2000, Air
Canada equipped its aircraft with AEDs and complements its onboard medical kits with cardiac monitors. Training sessions of Air Canada staff now include Cardio Pulmonary Resuscitation (‘CPR’). Heavy investments in equipment,
training and installation costs onboard aircraft will ensure a high quality in-flight medical emergency system, providing passengers the best possible chance of surviving if one suffers a cardiac arrest.
To enhance passenger safety, since 2000, some airlines such as Air Canada, Canadian Airlines and Scandinavian Airlines Systems have provided emergency telemedicine. Practising Emergency Room physicians stand by to guide crew
members in treating any in-flight medical incident.
The standard of medical care expected of doctor-passenger onboard aircraft is the same as that of doctors working in a hospital environment.
The medical standard of care is a medical judgment as established by the Bolam test in the landmark case of Bolam v Friern Hospital Management Committee [1957] 1 WLR 582. Per McNair J:
Where you get a situation which involves the use of some special skill or competence, then the test as to whether there has been negligence or not is not the test of the man on the top of a Clapham omnibus, because he has not got this special skill. The test is the standard of the ordinary skilled man exercising and professing to have that special skill. A man need not possess the highest expert skill; it is well-established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art. [emphasis added]
There is no lower standard of medical care for inexperienced doctors. Under the Bolam test, a doctor is not negligent if he has conformed to responsible professional practices. He is judged by the standard of awareness and
sophistication to be expected of a doctor in his type of practice. A doctor conforming to responsible professional practices would not be negligent simply because ‘there is a body of opinion who would take a contrary view’.
To determine whether a doctor is negligent, the court will rely on expert professional opinion. The standard of medical care is a medical judgment (see Sidaway v Bethlem Royal Hospital Governors [1985] 1 All ER 643) and
confirmed by the most recent case of Dr James Khoo & Anor v Gunapathy d/o Muniandy [2002] 2 SLR 414. The Bolam test established that the standard of medical care was that of professional colleagues, which must accord
with a ‘responsible body of medical opinion’. The Bolam test has been affirmed by the local courts in the recent cases of Tan Hun Hoe v Harte Denis Mathew [2001] 4 SLR 317; Yeo Peng Hock Henry v Pai Lily
[2001] 4 SLR 571; Supuletchimi v Dr Tay Boon Keng & Singapore General Hospital (Suit No 210 of 2000); Dr James Khoo & Anor v Gunapathy d/o Muniandy (supra); and Vasuhi d/o Ramasamypillai v Tan Tock Seng Hospital
Pte Ltd [2001] 2 SLR 165.
The Court of Appeal in the Gunapathy case ruled that the Bolam test is supplemented by the House of Lords decision in Bolitho v City & Hackney Health Authority [1998] AC 232 in that ‘even if the doctor’s
actions were supported by a body of medical opinion, the court would still examine the expert testimony to see if it was founded on a logical basis’. Thus the Bolam test does not give immunity from judicial inquiry over the
medical process. To qualify as a ‘responsible’ body of opinion, such testimony must satisfy the threshold test of logic. This means that the experts must direct their minds to the comparative risks and benefits and have reached a
‘defensible conclusion’ on the matter.
In determining whether a doctor has breached the medical duty of care owed to his patient, a judge will not find him negligent as long as there is a respectable body of medical opinion, logically held, which supports his
actions. This is seen in the Gunapathy case where the defendants’ doctors passed the Bolam threshold of logic with regard to their diagnosis, treatment plan and advice to their patient.
Is a Volunteer-doctor Obliged to Provide Emergency Medical Treatment?
In a negligence lawsuit, a passenger-plaintiff must prove that the doctor-passenger owes him a duty of care, and the doctor had breached that standard of medical care, thereby causing him injuries and harm. The doctor-passenger
does not owe a duty to volunteer medical help unless there is a pre-existing doctor-patient relationship. This is the case in the United Kingdom, United States, Canada and Singapore. However, in Singapore, doctors are bound by the
Singapore Physician Pledge (derived from the Hippocratic Oath) and biomedical ethics, to render medical assistance if they have been asked to help. (See s 45(1)d of the Medical Registration Act (Cap 174).) There is a humanitarian
obligation which the Singapore Medical Council expects as a medical standard of care. But whether the failure to respond to a request for medical attention constitutes infamous conduct will depend largely on the circumstances of
each case. Other European countries do impose an obligation to render assistance. But if the doctor-passenger does render assistance, then the standard of medical care expected from him is governed by the Bolam test in
Singapore.
The US has the 1988 Aviation Medical Assistance Act, which gives limited ‘Good Samaritan’ protection to any medically qualified passenger who provides medical assistance aboard an aircraft during an in-flight medical emergency. But the doctor must be a ‘volunteer’ giving care in good faith and receiving no monetary compensation. Gifts in the form of travel vouchers or seat upgrades are not considered compensation. The passenger-doctor must give medical care similar to the care that others with similar training would provide under such circumstances with limited resources in the aircraft. Although this Act frees the doctor-passenger from responsibility for assisting during an in-flight medical emergency it does not free him if he is guilty of gross negligence or wilful misconduct. Paul Hattis in article (Jama 3 March 1989, 261(9): 1357) noted, ‘… some case law has held that even in the absence of a statute restricting liability, one who voluntarily assumes the care of an injured person is liable only for “wilful and wanton” negligence’.
It is interesting to note that the Aviation Medical Assistance Act also relieves airline carriers from liabilities, due to the performance of the air carrier in obtaining the assistance of a doctor-passenger in an in-flight
medical emergency.
Conflict of Laws — Who has Jurisdiction?
Air law is quite all encompassing and can include conflict of laws, commercial law, criminal law, contract law, national law, multilateral conventions and treaties. In the area of airline liability and medical liability onboard
aircraft, as it involves the crossing of national borders, complex issues arise because of the various types of legal systems around the world. Each country has its own distinct legal system.
If an American passenger was medically assisted by a Singaporean doctor-passenger onboard a Singapore Airlines aircraft bound for New York, which law governs? Singaporean law or American law? These issues come within private
international law. ‘International law’ is contrasted from ‘national law’, which covers the laws of a particular jurisdiction or country. If both parties are residents in Singapore flying onboard Singapore Airlines, the matter can
be governed by national law and international law will not be relevant.
The country in which the aircraft is registered would have legal jurisdiction to hear the lawsuit. Furthermore, the country in which the medical incident happened, or the country of citizenship of the plaintiff and defendant
can also have jurisdiction to hear the case.
By s 16 of the Supreme Court of Judicature Act (Cap 322), the Singapore High Court may have jurisdiction if the defendant-doctor is served with a writ or other originating process in or outside Singapore pursuant to the Rules
of Court. This affirms that a Singapore court has jurisdiction to hear the dispute despite the fact that it has international aspects. By the same section, the parties can also submit voluntarily to the jurisdiction of the High
Court. Therefore any defendant residing in Singapore can be sued in Singapore courts even if the cause of action arose outside Singapore. But the question of forum non conveniens can still be raised. Even though a dispute is
brought before a court of competent jurisdiction, the court may stay the proceedings if it believes that another more appropriate forum should hear and decide the case.
If there is a claim against an air-carrier, under which jurisdiction can the injured passenger or next-of-kin sue? Under art 28 of the Warsaw Convention 1929, the passenger can choose one of four jurisdictions to sue, namely,
The meaning of ‘accident’ for the purpose of art 17 of the Convention will, however, continue to be litigated.
Further, under the Montreal Convention 1999, for cases involving death or passenger injuries, an action can be brought in the country of the passenger’s principal and permanent residence, as long as the carrier provides service
to that country.
Conclusion
Each year, billions of passengers travel on commercial airlines, and there is very little literature on medical issues and medico-legal considerations on air travel. The number of medical events onboard aircraft will increase
as air travellers will always increase (barring terrorism-incidents of the 11 September 2001 variety). Environmental and clinical aspects such as cabin pressures do increase the risk of hypobaric hypoxia. Cabin air quality in
aircraft should pose no risk to passengers. Providing emergency medical care to air travellers aboard commercial aircraft is the future to consider for the aviation industry. Improvement of the resources onboard aircraft to deal
with in-flight medical emergencies is crucial for airline passenger safety and comfort. To reduce medical events onboard, physicians could identify which patients of theirs will be at increased risk to travel!
Bolam is still alive!
Catherine Tay Swee Kian
National University of Singapore
[The writer wishes to thank Dr Myint Soe, Mr Justinian Zai Qiao Jian, Mr T Subramaniam and Mr Michael Low for their assistance in this article.]