US Court Rules Airline Liable for Asthma Death

Posted on: Wed, 02/25/2004 - 3:24pm
Nutternomore's picture
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Joined: 08/02/2002 - 09:00

My guess is that this story (although about asthma), combined with the recent implementation of the new DOT rule about filing compliants against airlines re:food allergies, as described here,

[url="http://www.foodallergy.org/advocacy.html#complaint"]http://www.foodallergy.org/advocacy.html#complaint[/url]

means that the airlines should become much smarter about working with passengers with food allergies.
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[url="http://news.airwise.com/stories/2004/02/1077657250.html"]http://news.airwise.com/stories/2004/02/1077657250.html[/url]
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US Court Rules Airline Liable For Asthma Death
February 24, 2004
The US Supreme Court ruled on Tuesday that an airline can be held liable for the death of a passenger from a severe asthma attack caused by exposure to second hand smoke.

The 6-2 ruling was a defeat for Olympic Airways, the Greece-based airline that challenged a USD$1.4 million award against it in the case of a 52-year-old doctor from California who died on a 1998 flight from Athens to New York.

The airline had argued that it cannot be held liable under the Warsaw Convention, an international treaty on airline liability, when a passenger's pre-existing medical condition has been aggravated in the aircraft cabin.

The US Justice Department disagreed. It said an airline's unreasonable refusal to assist a passenger who becomes ill during an international flight, in violation of its own policies and industry standards, can lead to liability.

The case involved Dr. Abid Hanson. After boarding the flight in Athens, Hanson and his family discovered they were in non-smoking seats near the smoking section, which was not separated by a partition.

A flight attendant repeatedly rejected requests from Hanson's daughter to move him to a different seat. The attendant said the flight was full, even though there were 11 empty seats.

After Hanson died on the plane, his family sued and claimed his death stemmed from a severe asthma attack caused by inhaling second hand smoke.

The airline argued that his death stemmed from an allergic reaction to food or some other medical problem unrelated to the smoke.

A federal court in California determined that smoke exposure was the primary cause of death, said the flight attendant's actions amounted to "willful misconduct," and awarded the family USD$1.4 million in damages.

A US appeals court in San Francisco upheld the decision. It said the flight attendant's failure to assist Hanson fell within the treaty's definition of an "accident" for which the airline can be held liable.

The high court upheld the decision awarding the USD$1.4 million in damages. Justice Clarence Thomas said the conduct at issue constituted an "accident" under the treaty and the airline can be held liable because of its unusual and unexpected refusal to assist a passenger.

Justices Antonin Scalia and Sandra Day O'Connor dissented. Scalia said appellate courts in Australia and Britain have issued decisions in the past year at odds with the high court's holding.

"Tragic though Dr. Hanson's death may have been, it does not justify the court's putting us in needless conflict with other signatories to the Warsaw Convention," Scalia wrote.

(Reuters)

Posted on: Wed, 02/25/2004 - 4:50pm
MommaBear's picture
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Joined: 09/23/2002 - 09:00

Quote:Originally posted by Nutternomore:
[b]The US Justice Department disagreed. It said an airline's unreasonable refusal to assist a passenger who becomes ill during an international flight, in violation of its own policies and industry standards, can lead to liability.
[/b]
more specifically:
".........an airline's unreasonable refusal to assist a passenger who becomes ill during an international flight, in violation of its own policies and industry standards......."
What [i]is[/i] the industry "standard"? Were any steps to "assist" the passenger undertaken after he became ill? How is "unreasonable refusal" defined?

Posted on: Wed, 02/25/2004 - 5:05pm
MommaBear's picture
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Quote:Originally posted by Nutternomore:
[b]
A flight attendant repeatedly rejected requests from Hanson's daughter to move him to a different seat. The attendant said the flight was full, even though there were 11 empty seats.
[/b]
Hypothetically, would any of the following scenarios affected the verdict:
#1. .......[i]if there had been no empty seats?
#2. .......[i] if the flight attendant [b]had[/b] accomodated the request to move to a different seat and the man had still expired despite being moved to a seat of his request?
#3. .......[i] the flight attendant requested passengers to extinguish smoking materials, the passenger was moved to a seat of his request, the flight was rerouted to facilitate emergency landing, the passenger transported to the appropriate facility, and despite state of the art intervention, expired?
**************************
was the only request by the passenger to move to a different seat? Any requests preflight?
**************************
Disclaimer: I am not offering advice in any manner or form.

Posted on: Thu, 02/26/2004 - 1:34am
California Mom's picture
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Joined: 07/14/2000 - 09:00

What a sad, sad story. [img]http://uumor.pair.com/nutalle2/peanutallergy/frown.gif[/img] I hope the flight attendant who refused to move that man doesn't sleep well for the rest of her life. Can you imagine the helplessness the man's daughter/family must have been feeling when the flight attendant refused to move him?!?! This sounds like such a horrendous, needless tragedy.
On a brighter note: I am glad I finally have a reason to respect Clarence Thomas!
Momma Bear, you raised some really interesting and provocative points. I, too, wonder about the alternate scenarios you provided.
Miriam

Posted on: Thu, 02/26/2004 - 3:38am
MommaBear's picture
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Joined: 09/23/2002 - 09:00

I also wonder if the man attempted [i]to move himself[/i]. Was he [i]prohibited[/i] in any manner from moving himself?
Was there a federal air marshal on that flight? Are there federal air marshals on flights?
I have flown once to and fro, in my lifetime, and that was long ago.
As I understand it, failure to obey a crew member in certain circumstances is scrutinized very closely. Maybe I don't understand it. I could very well be wrong. Anyone?
Absolutely not attempting to make light of the situation, but what is most vivid in my mind is a fictional depiction of "crew member vs. passenger" in a recent film (?comedy?) I saw at the theaters. I believe the passenger in the movie was attempting to request a seat change. Again, it could be a completely fictional depiction and have no validity at all.
Anyone?
edit to change "federal marshal" to "federal air marshal".
[This message has been edited by MommaBear (edited February 26, 2004).]

Posted on: Thu, 02/26/2004 - 4:17am
AlwaysAvoidAnaphylaxis's picture
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Joined: 06/23/2001 - 09:00

I would have moved myself. I have learned not to rely on others for things that are absolutely necessary. I would have also called the airline company while inflight to demand the move. I also would have told all people who were smoking that i could die from an asthma attack from their smoke (he probably knew that smoke was very bad for his asthma). He was a doctor, so you would think he had all the meds he needed on board with him.
Nevertheless, a terrible tragedy that should not have happened.

Posted on: Thu, 02/26/2004 - 9:17am
Sandra Y's picture
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Joined: 08/22/2000 - 09:00

There's a good chance that if he had attempted to "move himself" he would have been restrained. He could even be tied up. This is what can and does happen if you disobey or become "unruly" on a plane.
If it's an emergency and the plane hasn't yet taken off, you could probably just get yourself kicked off the flight and you'll be taken into custody--preferable to dying of an asthma attack, and it could all be straightened out eventually on the ground. But once the plane takes off, it could be very dangerous to disobey the flight attendant's instructions. They can instruct other passengers to restrain you and tie you up.

Posted on: Thu, 02/26/2004 - 5:59pm
Nutternomore's picture
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Joined: 08/02/2002 - 09:00

Here's a local take on the story...
[url="http://www.sfgate.com/cgi-bin/article.cgi?f=/chronicle/archive/2004/02/25/BAGN457OSD1.DTL&type=health"]http://www.sfgate.com/cgi-bin/article.cg...DTL&type=health[/url]
Airline loses case over forcing man to sit near smokers
Bay Area doctor with asthma died
Henry K. Lee, Chronicle Staff Writer
Wednesday, February 25, 2004

Posted on: Fri, 02/27/2004 - 12:34am
Gail W's picture
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Joined: 12/06/2001 - 09:00

The airline was held [i]liable[/i] because the flight attendant's actions were "willful misconduct" that was determined to be "an accident".
That confuses me somewhat. They awarded damages even though recognizing it was an accident.
Thinking about how this applies and does not apply to schools.... staff conduct attached to the school district's policies and state/federal laws.

Posted on: Fri, 02/27/2004 - 1:05am
MommaBear's picture
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Joined: 09/23/2002 - 09:00

Gail,
????????????is this a "failure to act"/"foreseeability"/"reasonable" sort of deal??????????????? I mean, being held responsible to do what another person of one's similiar training/experience/education would be [i]expected [/i]/[b]is capable to do[/b]? I mean, depending on who is around...............
I mean, I might be totally clueless. I'm just wondering.
Anyone?
Disclaimer: I am not offering advice in any manner or form.

Posted on: Fri, 02/27/2004 - 1:08am
MommaBear's picture
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Joined: 09/23/2002 - 09:00

Do airlines allow everyone with a alteration in health/healthcare needs to fly?

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