New medical equipment requirements
Those who are old enough will recall that in the early days of the airlines flight attendants were required to be registered nurses as a condition of employment. I doubt if we could get enough nurses for the job today but new, on-board medical equipment will soon require more emergency medical training for flight attendants and others to use the equipment effectively.
Airline inspectors and technicians are all too familiar with the necessity to check the serviceability, installation, and currency date of all on-board emergency equipment. Periodic maintenance checks include such items in the inspection process. It should come as no surprise that the list of emergency medical supplies has been expanded to include high-tech defibrillators and enhanced emergency medical kits that contain far more items than the smaller kits described in Appendix A of FAR 121. Technicians dealing with the maintenance of this equipment will have increased surveillance because of the Minimum Equipment List (MEL) effect of this gear. In some cases daily inspections will be necessary. Under the new regulations if the equipment is not on board and or not working, a flight cannot be dispatched. Flight attendants have a daunting task coming at them regarding the use of this equipment.
For those that don’t watch TV shows like "ER" or other medical series, a defibrillator is an electrical device designed to stabilize the heart and bring it back to a normal beat. You know the words . . . "clear" where the patient rises up off the table from the shock. You’ve probably seen this. Such treatment will now be available on board with portable equipment. Cabin crew members will be trained in the use of the equipment and assume the duties of a medical technician in addition to serving the passengers their usual fare. They will have an increased responsibility in using the high-tech medical equipment provided for them in the passenger cabin. But, only if they want to! There is no legal requirement on the part of the airline or its agents to perform any medical service.
The big question will be who will manage the use of this equipment? Flight attendants will not be required or expected to administer medications or start IV’s. But if they know how, they can (if company rules permit it). The automated external defibrillators (AEDs) however have instructions for their use printed right on the unit so that anyone can read and follow them. They are designed to be relatively simple to use. All procedures however are left to the discretion of the airline. Obviously, if a physician happens to be aboard the aircraft he or she can (if he/she wants to) take charge and complete procedures such as intravenous injections if necessary. Emergency equipment will be available for anyone trained to use it. The rules however make the decision to offer any treatment discretionary with the air carrier and its agents. The law only requires the air carrier to have the emergency medical equipment on board. It doesn’t require them to use it!
Minimum equipment test
Technicians, pilots, and inspectors will have to become conversant with such medical terms as AEDs and EMKs (emergency medical kits). These now will be included in the MEL for the aircraft and required to be on board and working before flight. The certification and condition of this equipment will be critical to the emergency response protocol. If the equipment is not aboard or serviceable the aircraft cannot be dispatched. Can you imagine the crew telling the captain that . . . "the defibrillator is not working . . . we can’t take off until we get another one . . ."
A little known piece of legislation that was enacted in 1998 provides the FAA with the authority to enact the new regulations. The law is the Aviation Medical Assistance Act of 1998 (49 USC 44701). The reason that the requirements have been dormant for some time is because the law first required the FAA to do a survey and compile data that took over a year to complete. The survey, as you could guess, found that there was a need for additional training of flight crews and the enhancement of EMKs. AEDs would be included in the kit. Basic small first-aid kits remain the same as a third part of the mix of medical equipment and are not specifically addressed in the new regulations (Effective 4-12-04).
For example, enhanced emergency medical kits will now contain potent injectable drugs such as epinephrine, lidocaine, and atropine which are common cardiac specific drugs. The new kits will contain more than double the treatment items and equipment presently required in the on-board emergency medical kit as set out in Appendix A of FAR 121. (Take a look at it if you have not.) The rules will apply to both FAR 121 and 135 operations where at least one flight attendant is required. Again, who will administer the drugs is the question. If the flight attendants can’t or won’t, they will sit useless until a doctor or other medically qualified person happens to be on board the aircraft. Where a passenger medical person is not on board, the cabin crew will simply be expected to make the person stable and comfortable and let the captain decide whether to divert and land as soon as possible. This assumes that the company rules did not permit medical care by employees.
What about lawyers and liability?
As we all know, tort lawyers have a fertile field of recovery for their plaintiff-patients who are victims of alleged medical negligence, whether by doctors or individuals. Clearly, one would have to be careful about rendering any kind of first aid to an injured person.
In order to protect citizens who render first aid, all of our states have enacted some sort of "Good Samaritan" protection for them against allegations of negligence in their treatment of injured persons. The Aviation Medical Assistance Act likewise provides for the same type of liability protection as follows:
"(a) Liability of Air Carriers. An air carrier shall not be liable for damages in any action brought in a federal or state court arising out of the performance of the air carrier in obtaining or attempting to obtain the assistance of a passenger in an in-flight medical emergency, or out of the acts or omissions of the passenger rendering the assistance, if the passenger is not an employee or agent of the carrier and the carrier in good faith believes that the passenger is a medically qualified individual.
(b) Liability of Individuals. An individual shall not be liable for damages in any action brought in a federal or state court arising out of the acts or omissions of the individual in providing or attempting to provide assistance in the case of an in-flight medical emergency unless the individual, while rendering such assistance, is guilty of gross negligence or willful misconduct."
Sec. 5, 49 USC 44701
A medically qualified individual is defined in the law as any person who is licensed, certified, or otherwise qualified to provide medical care in a state, including a physician, nurse, physician assistant, paramedic, and emergency medical technician. If you are sick, all you can hope for is that someone on board your aircraft includes one of the above. Obviously, cabin personnel must make some inquiry of the person to be reasonably sure they are qualified to do what they are doing. They probably don’t carry a license around with them so the choice will be difficult and up to the flight attendant or captain. Otherwise, there is some question about whether or not one can and will receive any medical attention at all while in flight.
An employee who provides medical assistance would be providing such care as an agent of the company and therefore the company would be responsible for the acts of the employee. As an employee, he or she should be provided a defense and indemnity by the company in any litigation resulting from treatment of a passenger. Employees should always remember that there is no obligation under federal law to render aid to a sick or injured passenger while in the air and should follow company rules on the subject. An employee who chooses to provide assistance that is contrary to company rules, may be protected under the federal law from passenger claims (as an "individual") but they must consider whether or not the company will provide them a defense against such a passenger claim.
As a common carrier, all airlines are absolutely responsible for any injuries sustained on the aircraft as a result of actions by the airline. Any conduct by an employee causing injury will involve the liability of the airline. No question about this. But when a passenger comes aboard sick or is otherwise incapacitated en-route, the airline has no clearcut responsibility for his or her sickness or injury, nor for providing medical attention.
A fictional best-selling book describes the anger of a man when his wife died aboard an airliner while traveling cross-country. She suffered internal bleeding as a result of a pregnancy in the story. He was distraught at the fact that he lost his wife and unborn child because the captain would not divert the aircraft and land. The captain did not choose to land the aircraft simply because the facts he had did not describe a gravely sick person. He decided to continue to his destination. The story describes how the husband’s lawsuit against the fictional airline is progressing in the courts. In the story, he and his lawyer feel his case against the airline is ironclad for liability.
Well, the story is fiction but in reality there would be a big question of liability for his wife’s demise. If the airline did not precipitate the medical problem then case recovery would be difficult at best. The final decision to make a diversion landing, rests only with the pilot in command who must consider the overall safety of the flight and other operational threats, for the safety of all the passengers.
Federal marshals EMT’s?
There is some talk that federal marshals are now being trained as emergency medical technicians (EMT’s) in order to effectively come to the aid of any one sick or injured and to treat the results of any altercation while on board. This is a good idea. Of course, marshals are not aboard all airline flights and it would be just your luck he or she won’t be on the one you get sick on. If you have a cardiac event in flight hope for a "medically qualified" passenger or a flight attendant qualified and willing to use the equipment.
The effective date of the new law and its regulations is April 12, 2004. Some major carriers have already placed enhanced equipment on board their aircraft. The three-year lead is designed to provide for training flight attendants, flight crews, technicians, and other safety people, on the installation, maintenance, and use of the new equipment. The equipment will be there but whether it gets used or not is the question. Just don’t get sick! AMT
Stephen P. Prentice is an attorney whose practice involves FAA-NTSB issues. He has an Airframe and Powerplant certificate and is an ATP rated pilot. He worked with Western Airlines and the Allison Division of GMC in Latin America, servicing commercial and military overhaul activities and is a USAF veteran.