Event legal medical obligations

[Hank Trent]

Over on another thread, Dale Beasley wrote:

While having dinner with my wife (also an RN) and her mother who is btw an attorney, who puts no faith in the good samaritian law. We can say we are a brotherhood, and we would never sue anyone, but we know that is not true. The event organizers are under legal obiligation to provide a safety net for injuries and a plan of evacuation.

Addressing the issue of what an event is legally obligated to provide, and not the issue of medical professionals and good samaritan laws...

I was thinking about this as well, and I'm curious what the legal obligations actually are. I mean actual examples of case law or whatever, showing what standard a reenactment-type event would be required to provide to participants.

Because here's what I don't get.

Let's say I decide to go camping on private or public land. I go out alone, I don't have a cell phone or an EMT standing by, or any way to be evacuated. That's normal, for some of the population. Other segments of the population wouldn't dare stray out of sight of civilization. But lots of hunters and backpackers do it all the time. I do it all the time.

So let's say I go to the same or a similar site, camping and hiking, everything pretty much the same except for the funny clothes and gear and the fact that fifty or a hundred other people are there for roughly the same purpose. I'm still there voluntarily, not paying anyone to care for me, anymore than when I was alone. Except now, I can't do it without trained medical people standing by and an evacuation plan.

Why? I mean, I know that's how society works, but what is the actual legal basis? It's not like medical problems at a small event would swamp a local hospital, like a festival that might suddenly bring 50,000 new people into a town of 10,000.

Is it just because there was no one to sue before when I was alone, but now there might be, and those people are trying to cover their ass? How does a small-scale EBUFU event differ, legally, from a group of friends out hunting together who chipped in a few bucks to pay for food and permits? What legal definition or legal standards is an event held to, and how do you know when it reaches that threshold of "event" vs. "friends camping"?

Hank Trent
hanktrent@voyager.net

[Charles Heath]

Re: Event legal medical obligations

Hank, just about everyone active in the hobby can recall a $600,000 EMS bill from a certain event; however, the county involved dropped the bill. Considering other incidents over the years, including a well known shooting, this particular organizer must be coated with Teflon. While this was not our hobby, so to speak, it is nonetheless worth mentioning.

I'd like to know the real answer to this, too.

Beyond the usual medical issues, medical skills, identification of first responders (all via the registration process), and identifying the location of the nearest Doc-In-The-Box and/or hospital for most EBUFU events, there isn't much going on for man and beast. Smotherman's practice of collecting a copy of medical insurance cards was novel for the time, but that useful bit of administration hasn't been popular. Again, most of us can remember a day and age when "real medical" wore an unobtrusive black armband at events, but I'm not sure we need to go back to that, since most events are less than the size of battalions ten years ago.

Not to mention what to do in those areas with neither E911 or 911 service.

[Abrams]

Re: Event legal medical obligations

Its the lawyers and the possibility of hitting a lito-lotto (litogation-lottery)

Could there not be a disclaimer of liability similar to when you go sky-diving? That if something untoward happens, that you assumed all responsibilities for your own safety, and cannot sue the company that hosts the sky-diving? Surely there is something similar that can be done for events like ours?

Like Hank said, I cannot sue anyone when I am out by myself. There are no deep pockets to tap into. But because I am out with friends there are? That just does not make sense.

[Spinster]

We've got two issues here: Medical control, and the legal obligations that stem from putting on an event.

Okay, lets go by the premise that all of us are gentlemen of goodwill and nobody involved at these events is suing anybody.

Further, lets even go with the analogy that this is like a bunch of friends getting together and going hunting.

This might hold together rather well until someone is fatally injured. Then who is suing is the grieving brother who has to raise the kids, or the financially strapped spouse. Neither really cares what Kenny would have wanted, 'cause Kenny is dead, he's not pulling in a paycheck, and he did not leave a heck of a lot of life insurance either. And they are going to be looking for whoever killed Kenny, or contributed to his death.

This exact scenario is why any accounting client of mine who owns hunting land in the state of Alabama or Mississippi has been led by the hand over to the lawyers office, and placed that property in a Limited Liability Corporation. Even if the land is not rented out, ever. Even if its planted in timber that will grow for the next 30 years.

That extra layer of corporate ownership gives some legal protection for Joe Landowner--to keep some sympathetic jury from also awarding his house, car, boat, and pension plan to the grieveing widow of Bubba, who was fatally injured while crossing a creek with a loaded gun. In many southern states, the idea of contributory negligence is that if any responsibility can be proved (Joe let Kenny use his land, and Joe knew there were places Kenny could trip) then the whole debt can fall on someone who is 1% responsible for the problem.

Joe Landowner can easily lose his land, or the value of it, in these types of cases. Doesn't matter if it was great-granddaddy's--if Joe Landowner cannot pay the judgement, the land is forfeit. Jury awards can and do outstrip the available insurance that a landowner has for these situations.

So, yeah, lets make sure that volunteer medical staff actually exist, have the minimal tools of their trade in a knapsack, are known to ALL the folks at the event, and are operating in a legal environment that gives them some level of comfort (like coverage in event insurance).

And, lets make sure somebody has a box that contains a clue--Joe Smotherman's medical card collection, or Elizabeth Clark's handy dandy medical form that would tell medical folks what medicine the person was (or should have been)taking.

This way, we have a really really good chance of Kenny not being dead when he finally does get carted out by several strong fellers to the real local EMS that took a good while to reach us because, hey, we're in the woods!

[Old Overholt]

Re: Event legal medical obligations

There are so many issues presented in this post. I have been a living historian for 25 years now, and given the inherent danger involved in participating in every event - the heat, the cold, outdoor food storage and cooking, physical exertion, alcohol, open fire, edged weapons, firearms, horses, etc. - I am constantly (and pleasantly) surprised that we do not see more injuries or accidents than we do. This is a testament to the safety precautions, goodwill and common sense of the vast majority of those who participate in the hobby, as well as a remarkable degree of looking out for each other.

For many years, Holmes Brigade has worked under contract with the State of Missouri to put on the Athens reenactment every three years. We have also worked closely with the State in their reenactments at Pilot Knob and Lexington, and several other state historic sites. We have learned over the years that in putting on such an event, Missouri requires a minimum of $2 million in liability insurance coverage. We have found this baffling as Missouri has a sovereign immunity cap of about $360,000 for negligence of state agents, which we are when we volunteer for a state park. We have also been surprised to learn that the insurance that we do obtain covers only injuries or damages to third parties (i.e. spectators), not fellow participants. In other words, if a spectator was hit by a flying ramrod or runaway horse, there would be insurance coverage. If a fellow reenactor were so injured, the event insurance does not cover him or her, at least in our experience. Depending on the owner of the land that is hosting an event, we have seen a varying degree of insistence on event insurance by the various units participating. Thus far, we have never been required to have our own group insurance by NPS or many other local governments or states except Missouri. Private landowners are a different story, and those with deep pockets will usually always insist on some kind of insurance. If I remember correctly, Frank Aufmuth had some insurance requirements in putting on the Marmaduke's Raid event as some of it was on Corps of Engineers land. It just depends.

Each event is going to be different depending on whether it is a living history event (with weapons demonstrations or none) or battle reenactment, depending on the landowner, and depending on the laws of the state in which it is put on. As an attorney, I can promise you that the laws vary widely from state-t0-state with regard to such issues as the good samaritan law, assumption of risk, comparative fault, liability caps, definition of independent contractors, volunteers, employees, agents, etc., validity of pre-event liability waivers, etc. There is no blanket approach to putting on an event because of the wide differences in state law.

As I am quite used to the feelings towards lawyers out there, I won't take too much umbrage at the notion expressed above that somehow lawyers are out looking for a good reenactment injury lawsuit to screw things up for all of us. However, you have to understand that we are playing in a fantasy world, but living in the real one. Put yourself in the shoes of someone who is minding his own business when a tompion, ramrod or other projectile is accidently (read negligently, under the law) lodged in your head or other body part because a new recruit has not been appropriately trained or supervised but allowed to participate by his unit? What about becoming a real casualty after taking a "hit" by being run over by an artillery crew or cavalry horse that doesn't see you lying there? Who's fault is that? Is it yours for being involved in the first place (assuming the risk)? Is it the kid who nervously fired his musket in the back of your head? Is it the fault of the company "commander" who is "supervising" his unit? Is it the fault of the event promoter or landowner who did not require all participants to be certified in weapons handling or horsemanship before putting on an event on their land? I daresay that most living historians that I know - hardworking family people almost all of them - would be looking for some type of recovery if they lost an eye or some other serious injury that affected their ability to work and provide for their family, if such an injury was caused by the negligence of someone else. It's just the world we live in. As for hitting a litigation lottery as a result, keep in mind that that is also not how the real world works. As I stated above, most event insurance does not cover injuries to participants, only spectators. You are therefore left with suing a fellow reenactor who may or may not be covered by his own personal insurance, and I would guess most of us are not covered by a simple homeowners policy for reenactment activities. If there is no insurance coverage, then you are left suing someone personally and trying to collect from them personally. What do most of us have? Reenacting gear! Depending on the state law you are dealing with, you are usually left with trying to garnish wages or sitting on a lien against a house that may or may not ever be sold. In other words, it's pretty useless to sue someone who is not covered by insurance unless they are personally wealthy. That is why the landowners usually insist on insurance, because they are the deep pockets and know that suing a reenactor in most cases would be pointless from a financial standpoint.

I have rambled (as those of my profession are prone to do), but the long story short is that insurance and liability issues in the hobby will not be going away any time soon.

[ElizabethClark]

Re: Event legal medical obligations

Link to the medical information form and instructions Mrs Lawson mentions is on this page:

http://www.elizabethstewartclark.com/GAMC/LS/index.htm

It is free, and copyright permission extends to making as many free copies as required.

[Dale Beasley]

Re: Event legal medical obligations

I would like to form a "Think-Tank" of individuals who are really concerned and not "just want to talk" about this issue. Formulate a generic Plan of Action / Medical Operation Order, one that could be looked at by...say two to three attorneys...and put it into play. Any bites?

[AZReenactor]

Re: Event legal medical obligations

I don't know that Hank's question has been fully addressed to the point that it has been determined that there is an issue to be concerned about.

What are the actual legal obligations and examples of case law or whatever, showing what standard a reenactment-type event is required to provide to participants?

I frequently help organize patrols and expeditions into the back country (public lands) of Arizona with participants wearing funny clothes while looking out for Indians and other bushwackers, but I'm nothing like a commercial outfitter. It doesn't mean we are careless or reckless with health and safety and have emergency plan, first aid supplies etc. in place, but what it does not mean is that we are taking on the paternal role of responsibility for an individuals complete health and safety. While we cooperate and coordinate with one another and some people look to me or military ranked role players for leadership and guidance, at the end of the day we are really simply a group of individuals hiking and camping in the same area with a common theme.

As far as I can tell, in the end, insurance requirements, etc are largely based on the land use requirements and vary a great deal from site to site.

[yankeecav]

Re: Event legal medical obligations

It is entirely possible that in having a medical plan, etc in place at an event may actually open you to more legal exposure.

The thinking is this, you anticipated a problem and formulated a policy and procedure. If a problem occurs and you don't follow the policy and procedure you may have actually increased your exposure in a legal sense.

Another problem, and this has already been addressed to some extent, but every state is different. You would need attorneys in each and every state that an event occurs in (read all 50) to give their opinion. And then, what if we don't like the answer they give? I can tell you that most attorneys, in giving their opinion (which opens themselves up for exposure if the opinion is wrong) are going to be ultra-conservative in their advice. That means costs for us go up for all sorts of things, ie, insurance, paid emts, etc.

Now I am not one of those that wants to stick his head in the sand until a major problem occurs but maybe we need to find out if there is even an issue first. Just random thoughts.

[Curt Schmidt]

Re: Event legal medical obligations

Hallo!

Not being a lawyer, my opinions are just that...

In today's litigious society, it seems one can file suit for anything- the color of my shirt for example, and sort it out later if dismissed as a frivolous suit, etc.

That having been said, the real potential, risk, and costs associated with the possibilities of "law suits" is a worthy topic. HOWEVER, under the "law" there is:

The Federal Tort Claims Act (FTCA) which covers
(or defines) the scope of the federal government's liability.
And for the purpose of this topic, there are multiple and varying State Tort Claims Acts (Governmental Immunity Statutes) which cover
an individual state's scope of governmental liability (usually on a state, county, and municipal level).
Some states follow the Federal Tort Claims Act (mine for example as does neighboring Pennsylvania) and hold public agencies to the same negligence standards as private individuals.

The Ohio Revised Code "exempts" property owners up until a fee is charged for the use of the land.

Which, IMHO, complicates Ohio and Pennsylvania events (a fee also complicating many states').

ORC � 1533.18.1] � � 1533.181 Immunity from liability to recreational users.

(A) No owner, lessee, or occupant of premises:

(1) Owes any duty to a recreational user to keep the premises safe for entry or use;

(2) Extends any assurance to a recreational user, through the act of giving permission, that the premises are safe for entry or use;

(3) Assumes responsibility for or incurs liability for any injury to person or property caused by any act of a recreational user.

(B) Division (A) of this section applies to the owner, lessee, or occupant of privately owned, nonresidential premises, whether or not the premises are kept open for public use and whether or not the owner, lessee, or occupant denies entry to certain individuals.

IMHO still, it gets messier when say reenactors take the field as to their interpersonal liabilities, their units, and the event sponsor who has donated, rented, or leased the land for the event. (The worthless "waiver" discussion aside).

Ohio has a history going back to 1975 (IIRC) of trying, fighting, succeeding, and failing on issues of Tort Reform regarding these issues.

Is there a.... lawyer in the house? (Willing to post opinions??)

Others' mileage will vary...

Curt
Not a Lawyer Mess

[yankeecav]

Re: Event legal medical obligations

Is there a.... lawyer in the house? (Willing to post opinions??)

And there is the rub. Since we are talking about liability, why would a lawyer give free legal advice out in the open to people and groups that they have no connection to?

It would certainly open the attorney to liability issues of their own.

Each event, organizer, property owner, participant, etc. has to discern the importance of these issues and then seek individual legal advice if they deem it important enough.

[Dale Beasley]

Re: Event legal medical obligations

Tom,
In that case, why would a MD or a RN want to open themselves? The purpose of my post was to formulate a Medical Care Plan for events. One that was safe, one that establshed scopes of practice, and one that would best protect the reenactor soldier.

[yankeecav]

Re: Event legal medical obligations

Tom,
In that case, why would a MD or a RN want to open themselves? The purpose of my post was to formulate a Medical Care Plan for events. One that was safe, one that establshed scopes of practice, and one that would best protect the reenactor soldier.

Dale,

If you are talking about putting medical advice on the forums that is a good question, why would they?

I understand the purpose of your post. A side issue to that is whether event organizers would actually increase their liability exposure by coming up with such a plan. While it sounds counter-intuitive it actually can happen by assuming a duty that you never had in the first place.

[Dale Beasley]

Re: Event legal medical obligations

Tom,
I'm going to leave the "Legal what-ifs" to you legal guys. I am focusing on a Medical Operation Order.

[yankeecav]

Re: Event legal medical obligations

Tom,
I'm going to leave the "Legal what-ifs" to you legal guys. I am focusing on a Medical Operation Order.

I understand. The point I was trying to make is that in adopting a Medical Operational Order an event may be opening themselves to more liability questions than they would have if they had no MOO at all.

It is something that organizers, etc. should be aware of prior to adopting such an order.

I am not saying that your concept is good or bad but everyone should go into something like that with their eyes wide open as to the potential consequences.