Basic Team Member Class

Eastern Region, NationalCave Rescue Commission

Basic Team Member Class

Legal Aspects Session Outline

Version 1.0

August 8, 1993

Keith Conover, M.D.

I. Introduction

Legal stuff is boring. Until you get a letter from a lawyer or the District Attorney. At that point, you'll find it vitally interesting. Of course, at that point it'll be too late. Therefore, we elected to get some important legal principles across by putting a cave rescuer on trial. Here's the scenario. Joe Trog runs a cave rescue in BowdenCave. As far as he's concerned, it was a fairly standard rescue, though the patient was pretty badly injured. The victim, Igo Splat, is an unemployed construction ironworker. He sues Joe Trog for 2.3 million dollars because he is partly paralyzed from the waist down.[1]

II. Legal Basics

"The Court of Common Pleas of the County of Karst is now in session; all rise for The Honorable Horace Hanghigh."

"Ladies and gentlemen of the jury, you will be responsible for deciding the facts of this case. In order to make an appropriate decision, however, you will need to understand some important legal principles. What I have to tell you is in many senses a gross oversimplification. But still, I want you to understand the legal basis for this case as much as possible.

"There are many kinds of law, but just three major kinds. First is common law. This is a set of legal traditions passed down over the years, primarily from English and in later years U.S. legal precedent: past court decisions.

"Second is legislative law: specific laws passed by legislative bodies. There are three levels of legislative law: the U.S. Congress, state legislatures, and local municipalities. Finally, there is legislative law: regulations set out by government agencies after legislation enables them to make regulations.

"Each of these kinds of law may apply, in varying degrees, to many types of court cases. However, there are two most common causes of action: criminal cases and civil cases. In a criminal case, the government contends that an individual has violated the law: the two sides of the case are the individual and the government.

"This case, however, is a civil case, which means that two persons have a conflict and are coming to the court for a resolution of that conflict. In this particular civil case, as with many civil cases, the plaintiff is a person who says he has been wronged, and asks for damages, usually in the form of a payment, from the defendant. In order for the plaintiff to recover damages from the defendant, you, the jury, must find the defendant guilty; not guilty in the same sense as having violated the law, but guilty in the sense of having caused injury to the plaintiff and being obligated to compensate him for this injury.

"There are many kinds of civil case known generally as tort claims.

“An example is battery, where the plaintiff claimed the defendant assaulted him and caused him bodily harm. The defendant might be tried in criminal court for violation of a law against battery, but the plaintiff can also bring a civil tort claim for damages related to the battery.

"The particular civil case before you today is a specific claim for damages based on negligence. The legal concept of negligence is similar to what we commonly mean by negligence, but it's not exactly the same. And when you are deciding whether the defendant was negligent in this particular cave rescue case, you must decide based on the legal concept of negligence, not the common meaning.

"To find the defendant guilty of negligence, you must find that five things are true: that the defendant had a duty to act, that there was a negligent act or omission by the defendant, an injury to the plaintiff, that the defendant's act or omission was the proximate cause of the plaintiff's injury, and that the injury was foreseeable by any reasonable person in the defendant's shoes.

"Now, we will have the opening presentation of the counsel for the plaintiff."

III. Negligence: the Chain

"Ladies of gentleman of the jury, there are five things we will prove. These are the five links in the chain of negligence. We will prove all five beyond any doubt, so you will find Mr. Trog guilty of negligence to my pitifully mangled client. These are:

"First, I will show Mr. Trog had a duty to act to save my client,Igo Splat. This should be obvious at the outset, because Mr. Trog freely admitshe is a member of a recognized cave rescue team.

"Second, I'll show, with copious examples from the records of therescue, that Mr. Trog was guilty of egregious, inappropriate acts andomissions related to that duty to act.

"Third, I'll show there was an injury to Mr. Splat. I don't need toshow this; just look at this poor wretch; it's obvious from looking at him he'ssuffered grievous injury. [Yes, Your Honor, I'll try to refrain from suchrhetoric in the future.]

"Fourth, I'll show that the defendant's acts and omissions were theproximate cause of my poor client's injury.

"Fifth, I will show you that Mr. Splat's injuries were foreseeableby Mr. Trog, and that any reasonable person would think so.

"Once I have shown all five links in the chain, you will of necessity find thisvicious, incompetent [yes, Your Honor] man, Joe Trog, guilty of negligencetoward my poor, mangled [yes, Your Honor] client."

IV. Good Samaritan Laws

Next, we hear from the counsel for the defense, Gordon Getemoff.

"Your Honor, the defense moves for summary dismissal based on the Good Samaritan Statute. This state law provides that those providing aid without compensation, in good faith and without gross and willful negligence, are immune from civil suit."

"Well, Your Honor," replied the plaintiff's counsel, "we're here in this court specifically because we plan to show that Mr. Trog was grossly, disgustingly [yes, Your Honor] negligent, so the Good Samaritan state has no standing in this case."

Judge Hanghigh pondered this for a minute.

"The defense' motion for a summary dismissal is denied, as the plaintiff is attempting to prove gross negligence, which would exempt this case from the provisions of the Good Samaritan Statute. However, the Good Samaritan Statute does have a certain standing in this case."

Now addressing you, the jury, he continued, "Because of the provisions of the Good Samaritan Statute, in order for the plaintiff to recover damages, you must find the defendant guilty not only of negligence, but also of either gross or willful negligence. Willful negligence means the defendant intended to harm the plaintiff."

To the plaintiff's counsel: "You aren't claiming willful negligence, are you?"

"No, Your Honor, we just claim gross negligence."

Again to the jury, Judge Hanghigh said, "Gross negligence is a tougher standardthan simple negligence. Gross negligence is something so negligent that anyreasonable person would see it as total incompetence."

V. Standard of Care

Judge Hanghigh addressed the plaintiff's counsel.

"In order to prove gross negligence, you must show the defendant operatedentirely out of line with the current standard of care, in this case, thestandard of care for cave rescue."

A long legal wrangling ensued with counselors and the judge throwing back and forth obscure legal terms and case citations. At the end of this discussion, those few jurors who weren't nodding off looked massively confused. The judge took note of this and explained to the jury:

"We were deciding which standard of care applies to this case. Standard of care is usually is used in medical malpractice cases, but also applies here. Do we compare the defendant's conduct to someone with general rescue training but no specific cave rescue training, to someone with one day of cave rescue training, or someone who has been doing it for twenty years? And, do we consider the way cave rescue is practiced in KarstCounty, how it is practiced in this state, in this region of the country, or across the entire country? The answer in this case is that cave rescue is more or less standardized throughout what is termed the Eastern Region of the National Cave Rescue Commission, and the way cave rescue is taught in classes run by that organization are those we will apply in this case. Counselors may cite reference materials used in cave rescue classes in this region, and the standard practice of cave rescuers in this region, and compare the defendant's conduct against this standard."

VI. The Trial

The details of the trial aren't included here. In class, we use the documentation prepared by the Management Track students to evaluate Joe Trog's performance on this rescue. As they say in medicine, "If you didn't write it down, it didn't happen." The outcome of the trial will depend on how good the documentation is.

VII. Avoiding Law Suits

Well, we hope this brief and very oversimplified mock trial gives someindication of what problems you're likely to have if you're ever sued. But whatyou really want to know is how not to be sued, right?

Cave rescue lawsuits don't occur very often, so there's not a lot of pastexperience to go by. However, medical malpractice suits are common, and theyhave many factors in common with a possible cave rescue law suit. So, we shouldlook at why doctors are sued, and what advice they're given about avoidinglawsuits.

We know from studies of malpractice that doctors don't get sued because they'reincompetent; in reality, competence has very little to do with it. What countsis whether patients trust and believe that their doctor is honest with them,communicates with them, and is trying to help them. Most lawsuits result from a failure to communicate between the doctor and patient. So, do your best tomake sure your patient is happy with what's happening.

In a situation in which a person is critically injured or dead, it is the familyand friends who may sue. In such cases, good communications with them is asimportant as communication with the patient. Seldom does the medic orunderground coordinator communicate with family or friends; it is usually thefamily liaison at the base who does this. Conduct of the family liaison iscritical to prevent lawsuits, and thus the family liaison must be chosen withcare.

Here are some specific guidelines to avoid lawsuits:

• Know what you're doing: take an NCRC cave rescue course, the standard ofcare.
• Identify yourselves: name, what you're doing.
• Channel all contact with the patient through a single rescuer, usually themedic. This minimizes sensory overload for the patient, gives the patient afeeling of constancy, and helps medical assessment by ensuring that one personis continuously monitoring the patient's level of consciousness and mental andemotional status. If you're not the designated contact with thepatient, resist the temptation to chat with the patient.
• Act professionally. Appearance makes a difference in how people view rescuers, even in a cave. Cave mud will cover whatever clothes you're wearing, so fancy uniforms don't mean much underground. However, there are other ways that appearance matters underground. Here are some things that may look bad to the patient: chewing tobacco and spitting in the cave; horseplay with other rescuers; rescue equipment that is packed in disorder, such as a poorly coiled rope.
• Speak professionally: no mouthing off, no off-color jokes, no public griping during the rescue. If you don't have something to say that's directly related to the rescue, be silent. Even if excess talk doesn't make the rescue look unprofessional, it makes a more confusing and frightening environment for the patient. (During a recent cave rescue, a local fireman without cave rescue training was heard to comment, within hearing of the patient, "This rescue is really screwed up. There are too many chiefs and not enough Indians. We should have had the patient out of here two hours ago." In reality, from experienced cave rescuers' views, the rescue was proceeding at an appropriate and efficient pace.)
• Watch what you say. Never say "oops." (At a recent rescue, a local fireman who was helping with the rescue was clambering past the litter. As he climbed up past the head of the litter, he encountered a slightly loose foot-long rock and exclaimed "Oh shit! A loose rock!" Think of how the patient, firmly strapped into the litter, felt. It would have been better to say nothing and to quietly move the loose rock, or to quietly pass on word of the loose rock to the next rescuer climbing past the litter.)
• Explain everything to the patient: the designated contact person should relate an estimate of the patient's injuries, of the difficulty of the rescue, and of the length of the rescue. Honesty is important. Saying "Everything is going to be OK" is a poor way to get the trust of anyone with an IQ over 60.
• Avoid humor during the rescue. Humor, especially "gallows humor" (morbidjokes) and off-color jokes (sexual innuendo) are standard ways for rescuers torelease tension. Save it all until the rescue is over.

See you in court.

[1]What occurs in this scenario is only a rough approximation of what really happens in a court; nonetheless, it gets across certain important basic points.