Legal Issues in Travel Medicine

Karl Neumann, MD, FAAP

Thank you, ISTM members.

Once again you have taken the time and effort to answer our query, the latest one on legal issues in travel medicine. Several of you said that the topic is sufficiently important to be formally discussed by international experts at an ISTM conference and that, increasingly, what was once thought to be largely an American problem is hitting home in the rest of the world.

(Also, three respondents suggested that we look into Good Samaritan laws; most countries have them. Many of us have answered calls to medically assist passengers during flights, for example. Apparently, in some countries, it is a crime not to answer such a call. We will discuss this issue in a future issue.)

In this query ISTM members were asked to comment on potential legal problems in their practices of travel medicine. Here are representative responses.

Malpractice Insurance

New Zealand: I do not have clients sign consent forms. I believe that consent is implied if they have received written information and have had time to read it and then come for the vaccine. I generally give the patient written information regarding each vaccine at the first visit. In my practice there is usually a gap of minutes to days between the advice given and the vaccine being administered by the practice nurse. Our New Zealand "no faults" compensation system for medical error reduces risk of liability. But if the error causes a significant loss to a medical insurer they may well seek compensation from the travel medicine practitioner who made the "error"... I am very cautious about signing "fit to travel" disclaimers from insurers.

U.S. I recently spoke to a well-regarded malpractice lawyer about another matter, and mentioned my travel medicine practice, which constitutes about 10-15% of my internal medicine practice. He felt very strongly that I should report this to my insurance carrier, even if it meant higher insurance premiums. He thought that advising patients about health and safety overseas is quite a different risk than practicing internal medicine in a mid-western city of about 200,000 people. Since I did not follow his advice (at least, yet), I can not report what my insurance company's reply is.

U.K. I was involved in litigation some years back. A traveller developed Guillian Barre (GB) after oral polio vaccination (OPV).  The claimant stated he would not have accepted the vaccine if he was made aware of the very rare risk of GB. The case came down to the whether the rare adverse event should have been discussed with the claimant.

It was settled out of court. There is no evidence that GB is causally linked to OPV. What is always a problem in my practice is the level and detail of discussion about adverse events.  My defence union informs me that to obtain informed consent, I need to detail all adverse events contained in the data-sheet, on all vaccines and drugs administered or prescribed. I believe this is not in the best interest of my clients as I need to educate them on disease prevention and other important health issues in my 20 minutes.  I can either practise defensively or morally.

Australia. Deep vein thrombosis has been much in the news in the past few years with many law suits, albeit most of them against airlines, but some have involved physicians. Many of the suits are described on the web site: AirHealth.org

U.S. Rather than give the patient a verbal litany of all possible adverse effects, the patient can be given Vaccine Information Statements (VIS) to read and then sign that they have done so, understand the contents, and have had their questions asked prior to immunization.  VISs are available at http://www.cdc.gov/nip/publications/vis/ , though admittedly these are American information products for vaccines used in the U.S. (we are probably pioneers and leaders in this area since Americans are so quick to sue these days), so possibly not helpful to everyone.  Others could develop their own, as long as they had a mechanism for updating them on a timely basis.

U.S. As a medical-legal consultant, I can tell you that vaccine litigation is becoming more prominent.  According to standards, everyone should be given a VIS before being given a vaccine. I recommend consent forms which state that you gave the VIS and they are consenting to the vaccine.

U.K. I have been an expert witness in a number of cases following patient deaths, principally involving failure by clinicians to test for or diagnose falciparum malaria. An additional issue has been the liability of community pharmacists when recommending chemoprophylaxis. (I'm presenting a poster on a related issue, the quality of pharmacy chemoprophylaxis advice, in Lisbon.)

U.K. For physicians going to work overseas, my understanding is that normal duties of care apply, plus perhaps problems with `practising' in a foreign country where one is not licensed, plus uncertainty over whether MDU or MPS coverage applies. (MDU and MPS are medical defence mutual societies, based in London, that indemnify most non-US physicians against malpractice.)

U.K. That old chestnut, the giving of advice telephonically, often to complete strangers, comes to mind. Staff needs to be reminded that liability exists whether the caller is a patient of the practice or not, and regardless of whether the caller pays for the advice or not.

U.S. No telephone advice for unregistered, unknown patients. If they inquire about cost of visit and vaccines, the receptionist can provide that information. (Please do not use the word "clients," it is something insurance companies use to demean the value of physicians.)

U.S. Here is the consent form I have travelers sign:
   

Vaccines, health precautions, insect protection and malaria prophylaxis are extremely helpful but do not guarantee illness prevention.  IF YOU BECOME SERIOUSLY ILL DURING OR UP TO A YEAR AFTER TRAVEL, IT COULD BE MALARIA.  SEEK LOCAL CARE OR EVACUATION AT ONCE.  Contact your physician or our clinic upon your return. Medical Consent for services: I understand that vaccines can in rare instances cause complications including death.  I also understand that the chance of serious harm is less than 1 in 1,000,000 and that these vaccines and medications are FDA approved.  I agree to accept this risk to decrease my chances of contracting a serious preventable disease.  I also give permission for you to provide my personal physician with a list of vaccines that I have received. We do not accept any insurance.
Signed	___________________________ Date _____
	Traveler, Parent or Guardian

U.S. I believe implied consent is holding out your arm and sitting still for the shot. I do have a handout on yellow fever vaccine I give to each recipient of that vaccine. For telephone advice for travelers unknown to us, my receptionist looks up an accepted web site and reads off what they list for that country in this language: "Our concerns for travel to Zimbabwe are...." That way she has not given medical advice on the phone to someone I have never met.

U.S. All my patients sign consent forms after my risk assessment and after I have discussed their options and costs that might be involved. The consent form includes declaration of pregnancy/intended pregnancy, risk assessment, and treatment plan. A copy is given to the patient, another is scanned into our computer notes. I have not taken out any additional malpractice cover, though I have considered it. I am aware that a nurse has been sued for not warning a traveler about Bilharzia at a destination, where the illness was contracted.

Expatriate posting

Considerations will vary with jurisdictions obviously, but the concept of `duty of care' that employers have towards their employees also comes into play; e.g., a nuclear power company would be negligent if it sent pregnant employees into a radiation zone.

There are also cost implications for employers (e.g., what will be the cost of rescuing an immunocompromised individual who develops a complicating illness in an environment where there is no adequate medical care?). The well being of the employee may also be jeopardised in such a situation if evacuation is delayed or not possible due inclement weather, for example. An additional consideration arises if the employee is under consideration for posting to a critical position, when fellow employees and facilities may be placed in jeopardy in the event of critical employee illness.

The ways around this dilemma appear to be to let the employee know that it is not in his best interests to accept the posting, and to advise the employer of the employee's lack of fitness for posting, without revealing any diagnosis. The problem is then effectively handed back to the employer.

Replies from Germany, U.K., and Italy. Similar anti-discrimination legislation, and covering other diseases and handicaps, is in effect in the European Union.

Adventure Travel

Fifteen years ago and longer, adventure travel companies used to actively recruit physicians onto their trips by offering substantial discounts.   Most physicians found that their liability insurance would not cover them on such trips.  The adventure travel companies asked for some legal opinions, and found that if the doctor accepts a discount for the trip, this makes him/her an employee of the company, and therefore liable for the care given.  This would negate the "good Samaritan" interpretations of a bystander offering care in good faith.

However, I'm aware of only one suit of a doctor on an adventure travel trip, and that doctor was not a "trip doctor," just a client like anyone else.  The doctor was an obstetrician, and the patient died of an illness that could have been compatible with high altitude pulmonary edema, but this was never clear.  The suit was eventually settled, so no precedent was set.  Trip leaders who were not doctors have been sued, but again, the suits were settled.

On a note that has always been disturbing to me, at least one adventure travel company has decided that carrying a group first aid kit could be a liability, especially if non-medically licensed persons used these medications on a client.  However, I've always argued that taking a group of people into a remote, medically unserved environment would necessitate having medications and first aid items along.  The company would prefer that each individual have their own prescriptions, which makes sense at first, until you think about having nitroglycerin, injectable pain medications, etc., for unlikely but serious events that each person may not have individually prepared for.

U.K. Malpractice insurance generally does not cover care out of country. When I go overseas with a group, I have them sign a waiver so I cannot be sued, and, at the same time, include consent to treat if they are a minor, to be signed by the parent/guardian.

Karl is the editor of NewsShare.