Abandonment Issue Raised in Asiana Crash Case

A video showing the aftermath of the crash of Asiana Airlines Flight 214 in San Francisco last July is raising a new question in some peoples' minds about patient abandonment. The video shows Ye Meng Yuan, the 16 year old Chinese student who was run over by fire apparatus, lying in the grass before being struck.

According to attorney Anthony Tarricone, who represents Yuan's family "At least five firefighters knew of her presence before she was covered in foam. Nobody examined her, nobody touched her, nobody protected her, moved her or did anything to take her out of harm's way, and then they abandoned her there."

From this statement, many in the EMS community are saying… “abandonment”…. ah yes… I remember hearing about that… patient abandonment…. yes… yes… bad to do…  hmmm… wonder if it applies to these facts?

The law surrounding abandonment has an interesting history. In fact it is one of those legal concepts that is discussed more in EMS classes than law school. It is rarely discussed as a legal issue at all… which make me wonder whether Mr. Tarricone intended the refer to the tort/negligence theory of abandonment or whether he just meant that no one attended to Yuan.

Let’s take a look at abandonment as discussed in Legal Considerations for Fire and Emergency Services 3rd Edition, soon to be published by Fire Engineering:

Abandonment occurs when a medical provider who has assumed care and control of a patient in need of medical attention either stops providing care leaving the patient unattended or leaves the patient under the care of someone with lesser qualifications WITHOUT LEGAL EXCUSE OR JUSTIFICATION. While some authorities identify abandonment as an intentional tort, most courts that have dealt with the subject view it as a breach of the standard of care under a negligence theory.

Concerns over abandonment in a pre-hospital setting arise from cases against physicians for the abandonment of patients in hospital or office settings. These cases arose when physicians left patients in the care of less qualified medical personnel, or failed to properly monitor patients they had been treating.

The legal concepts surrounding abandonment have been transposed onto the pre-hospital environment seemingly in the absence of case law by well-intentioned writers and lecturers on the subject. These transposed-concepts often include rigid requirements (a paramedic cannot pass care to EMT, a doctor who treats a patient at a scene must accompany the patient to the ER, etc.) that simply cannot be justified by any cases.

The law in this area is evolving slowly. For those interested in further information on abandonment, the following cases are recommended:

Meiselman v. Crown Heights Hospital Inc., 285 NY 389, 34 N.E. 2nd 367 (1941)

Miller v. Dore, 154 Me. 363, 148 A. 2d 692 (1959),

Crowe v. Provost, 52 Tenn. App. 397, 374 S.W. 2d 645 (1963)

Katsetos v. Knowland, 170 Conn. 637, 368 A. 2d 172 (Conn. 1976)

Schliesman v. Fisher, 158 Cal. Rptr. 527 (1979)

Johnston v. Ward, 288 S.C. 603, 344 S.E. 2d 166 (1986)

Allison v. Patel, 211 Ga. App. 376, 438 S.E. 2d 920 (1993)

Manno v. Maclntosh, 519 N.W. 2d 815 (1994)

Incidentally these are the only cases I have seen involving patient abandonment – and I would be very much obliged to anyone out there who can provide me with any more on point.

So, was there “patient abandonment” of Yuan in the Asiana crash case? This is not a situation where there was one and only one patient. There were 307 people on that aircraft when it crashed. Virtually all MCI incidents would appear to provide a substantial justification for a responder to “leave a patient unattended” or “stop providing care”, assuming patient care was ever initiated. To that extent, and based solely what limited information I know about the circumstances, I am not seeing a case of patient abandonment. Perhaps that might change with further study and investigation – but I don’t see it.

That is not to say that everything went flawlessly and improvements could not be made. But patient abandonment is not a major legal issue in the Asiana crash case.

… But just in case I am wrong – remember the provider had to have established a patient-provider relationship with the patient for there to be abandonment. Take another look at Attorney Tarricone’s comments: “At least five firefighters knew of her presence before she was covered in foam. Nobody examined her, nobody touched her, nobody protected her, moved her or did anything to take her out of harm's way.”

Sounds like he just made the case for the fact that a patient-provider relationship was never established.

More on the story.

About Curt Varone

Curt Varone has over 40 years of fire service experience and 30 as a practicing attorney licensed in both Rhode Island and Maine. His background includes 29 years as a career firefighter in Providence (retiring as a Deputy Assistant Chief), as well as volunteer and paid on call experience. He is the author of two books: Legal Considerations for Fire and Emergency Services, (2006, 2nd ed. 2011, 3rd ed. 2014) and Fire Officer's Legal Handbook (2007), and is a contributing editor for Firehouse Magazine writing the Fire Law column.

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