Public Access Bleeding Control and the Standard of Care: A Rising Tide Lifts All Boats
If anything positive has come out of armed conflict, it’s the ability to better treat life-threatening trauma.
The past two decades have seen a major shift in the availability of military-grade tourniquets, hemostatic gauzes, bandages, and chest shields. All are easily acquired and deployed. Gone is the 1950s-era reliance on fashioning a tourniquet from a neckerchief and stick or sealing a chest wound with a petroleum jelly impregnated dressing. In their place are hermetically sealed throw kits that contain essential bleeding control equipment.
During World War II, every GI was issued a pouch containing a first aid packet, sealed tin that contained a Carlisle Bandage, a type of pressure bandage developed by the U.S. Army in the 1920s, and a packet of sulfanilamide to control infection. The bandage was designed to be securely tightened so that pressure could be easily applied to a wound—an essential means of controlling bleeding.
Today’s basic bleeding control kits contain an updated version of a Carlisle Bandage and wound packing gauze to fill any voids. More advanced kits also include a tourniquet to control arterial bleeding in a limb or extremity, a chest shield to treat open chest wounds, and a hemostatic gauze that can be used to control arterial bleeding if a tourniquet cannot be deployed. These kits are compact and can fit in a jacket pocket.
Training in the use of such equipment is widely available, often at minimal or no cost. Perhaps the best known of these is the Stop the Bleed (STB) initiative of the Committee on Trauma of the American College of Surgeons. While the benefits of training are manifold, the widespread availability of public access bleed control stations and related training may impact negligence lawsuits.
While the benefits of training are manifold, the widespread availability of public access bleed control stations and related training may impact negligence lawsuits.
For a lawsuit to move forward in most U.S. jurisdictions, plaintiffs must prove four elements: a duty of care, a breach of that duty, damages, and causation.
As with any negligence claim, the first element is to show there is a duty of care between the plaintiff and the defendant. This duty may stem from court precedent, public behavior, legal statutes, or regulations—or a combination.
So is there a general duty to provide first aid? As is often the case, the answer is “it depends.”
Duty of Care
The U.S. Occupational Safety and Health Act of 1970 (OSH Act) gives the Occupational Safety and Health Administration (OSHA) the authority to promulgate workplace safety standards. With some exceptions, the OSH Act applies to all private sector and government employers in the United States. Not covered under the OSH Act are those that are self-employed, certain farm workers and their families and employees regulated by another federal agency.
According to OSHA’s general workplace first aid standard:
In the absence of an infirmary, clinic, or hospital in near proximity to the workplace which is used for the treatment of all injured employees, a person or persons shall be adequately trained to render first aid. Adequate first aid supplies shall be readily available. (29 CFR 1910.151(b))
For every employer, OSHA has established a duty to provide for first aid to injured employees. But why should that duty begin and end at the employment relationship? Should it be any different for a guest or customer? Public venues such as museums, theaters, and sports arenas are employers, as well. Should owners of these venues also provide first aid training for responding to incidents involving attendees and visitors? Does the duty to provide first aid extend outside the employer/employee relationship?
Training. OSHA has not provided definitive guidance of what comprises adequate training—i.e., standard of care—or what constitutes adequate equipment. “OSHA does not certify first aid training programs, instructors, or trainees,” according to Patrick J. Kapust, acting director of Directorate of Enforcement Programs, in a 2019 letter.
Kapust noted that “the specific content of first aid programs must be consistent with the work environment in question, and with the type of work being done.” He further added that OSHA has relied upon the American Red Cross for guidance in the past. In fact, OSHA Instruction CPL 02-00-002 (30 October 1978), which is still in effect, says that the American Red Cross Standard Course is the recommended minimum level of first aid training required for all employers. The 1978 instruction, however, is almost 45 years old and predates STB and other public access bleeding control initiatives.
OSHA regulation 29 CFR 1910.151(b) requires that “[a]dequate first aid supplies shall be readily available.” In Appendix A to that section, OSHA has issued a non-mandatory recommendation that work place first aid kits comply with ANSI/ISEA Z308.1- 2015 Minimum Requirements for Workplace First Aid Kits. OSHA also recommends that additions to the kit be made on a case-by-case basis to reflect the needs of the particular workplace. Interestingly, however, OSHA makes no recommendation that training in any way be tied to the first aid kit deployed.
Proximity. In a letter dated 16 January 2007 to Charles F. Brogan (the “Brogan Letter”) Richard E. Fairfax, director of the Directorate of Enforcement Programs, reaffirmed OSHA’s interpretation of “near proximity” noting that:
While the standards do not prescribe a number of minutes, OSHA has long interpreted the term “near proximity” to mean that emergency care must be available within no more than 3-4 minutes from the workplace, an interpretation that has been upheld by the Occupational Safety and Health Review Commission and by federal courts.
Fairfax went on to note that:
Accordingly, in workplaces where serious accidents such as those involving falls, suffocation, electrocution, or amputation are possible, emergency medical services must be available within 3-4 minutes, if there is no employee on the site who is trained to render first aid. OSHA exercises discretion in enforcing the first aid requirements in particular cases. OSHA recognizes that a somewhat longer response time of up to 15 minutes may be reasonable in workplaces, such as offices, where the possibility of such serious work-related injuries is more remote.
The Brogan Letter predates Hartford Consensus III: Implementation of Bleeding Control—the foundation document upon which most public access bleeding control programs, including STB, are based—by more than eight years.
OSHA’s guidance suggests that near proximity means somewhere between 3 and 15 minutes, depending on the injury risk profile of the workplace. In the case of uncontrolled life-threatening bleeding resulting from such incidents, the time between injury and death can be as short as 3 to 4 minutes.
The time between injury and death can be as short as 3 to 4 minutes.
Examples of high-risk workplaces are construction or heavy industry sites where that nature of the work itself involves activities that are inherently dangerous. Medium risk workplaces might be a warehouse or loading dock. In many instances, however, serious bleeds can occur in workplaces that would otherwise be considered low risk. For example, in recent years there have been mass shootings at schools, nightclubs, and concert venues. Another example would be a serious bleed resulting from a fall into a glass table in an office or display case in a store or museum that shatters.
Standards. The standard of care is a flexible concept that changes with time and with circumstances. In United States v. Carroll Towing Co., as decided in 1947, Judge Billings Learned Hand put forth the factors upon which the standard of care can be calculated. The case involved a barge, moored at Pier 51 in Manhattan, that broke away from its moorings. Hand wrote that the standard of care depends on the relationship between the probability of an event occurring, the expected harm, and the burden of precautions.
As Hand explained in Carroll:
[T]he owner's duty, as in other similar situations, to provide against resulting injuries is a function of three variables: (1) the probability that she [the barge] will break away; (2) the gravity of the resulting injury, if she does; (3) the burden of adequate precautions. Possibly it serves to bring this notion into relief to state it in algebraic terms: if the probability be called P; the injury, L; and the burden, B; liability depends upon whether B is less than L multiplied by P: i.e., whether B<PL.
Hand’s decision explained that there is a positive correlation between the burden of adequate precautions and probability times injury. To maintain equilibrium, if one side of the equation changes so too must the other. If the burden of precautions drops and probability times injury remains constant, this would suggest that the standard of care is raised. Changes in the standard of care can occur over time or quickly.
An example of a change in the standard of care occurring quickly can be found in the current COVID-19 pandemic. Holding the gravity of the resulting injury of contracting COVID constant, equilibrium of the standard of care equation depends on the relationship between the burden of adequate precautions, or in this case treatments, and the probability of injury. Newer treatments reduce the probability of injury thereby reducing the right side of the equation. If the left side of the equation is not similarly reduced then the potential for liability increases. As the additional burden of using new treatments in most instances is presumably negligible, a physician who fails to use the most current treatments could open themselves up to increased medical malpractice liability.
A similar shift has occurred around bleeding control, although perhaps over an extended period of time. Properly deployed public access bleeding control equipment can reduce the gravity of injury in the instance of a serious bleed. Assuming that in most instances the probability of such a bleed remains constant then for the standard of care equation to remain in equilibrium the left side of the equation must decrease.
Public access bleeding control equipment and the related training such as STB are widely available. The cost of such equipment is reasonable, as is the cost of training—which in many instances may be little or nothing. Bleeding control equipment may also be deployed by a non-employee who has received training elsewhere. Together, these factors impact the standard of care formulation by decreasing the burden of adequate precautions. Business owners and employers who ignore a shift in the standard of care do so at their own peril as this might leave them open to negligence claims for breaching their duty of care requirements under a higher standard.
Detective Andrew Bershad is a tactical medic with the New York City Police Department and a member of the Emergency Service Unit.
Dr. Michael Jones is the vice chair for education and the residency program director for the Department of Emergency Medicine at Albert Einstein College of Medicine and Jacobi and Montefiore Medical Centers. He is also the medical director and co-chair of the board of directors of the Central Park Medical Unit.
Steven Peluso is an attorney in private practice in New York City and is a volunteer emergency medical technician and general counsel for the Central Park Medical Unit and serves on the unit’s board of directors.