Joined: 22 Mar 2007
SCA Branch: Shire of Drygestan, Kindgom of the Outlands
|Posted: Thu Feb 27, 2014 12:14 pm Post subject: On the proposal to disband the Chirurgeonate
|I wish to provide my commentary in regard to Board of Directors proposal to disband the Chirurgeonate.
I humbly request your patience; the ramifications of your "modest proposal" are quite reaching, and I wish to explain them thoroughly. First, however, should you be disinclined to read further (which by current opinion seems likely) allow me to provide my summary: Resoundingly "NO."
The BoD"s current proposal is this: "The Board has long been concerned that there might be a significant liability risk associated with the office of the Chirurgeonate and warranted Chirurgeons. It now appears that the liabilities of keeping the office outweigh those of removing the office and associated official warrants."
This is an old argument. In fact, it"s an issue that a previous iteration of the Board of Directors pondered some years back, in which they decided "SCA branches are encouraged to make every effort to have qualified volunteer first aid personnel available" with the caveat that "they are specifically prohibited from requiring the presence of a medical officer at official events, and from in any way implying that the official status of an event depends upon the presence of organized first aid services." (GPD40)
In reality, the proposal to disband the chirurgeonate in an attempt to shield the Society from legal liability is myopic and fails to consider that not having a Chirurgeonate may expose the SCA to other kinds of liability, and that the SCA exists in places other than the United States, where laws concerning first-aid and emergency response are very different. Though the SCA was started in the United States, the SCA today is international and must consider more than one country's laws. (Chirurgeon)
In the United States and other Common Law countries, a person is usually not obliged to render assistance at an accident or in an emergency unless a "Duty to Assist" exists through a special relationship (e.g. firefighters, emergency medical technicians, etc. have a general duty to rescue the public within the scope of their employment, those acting in loco parentis have a duty to rescue minor children in their care, etc.) (Shapo)
Of specific note, a duty to assist arises where a person or organization creates a hazardous situation. If another person then falls into peril because of this hazardous situation, the creator of the hazard – who may not necessarily have been negligent – has a duty to rescue the individual in peril. (Bayles)
It is for this reason that organizations such as the Boy Scouts, the Sierra Club and others strongly suggest that their leaders and guides have first aid training appropriate to the circumstances, and provide liability coverage to them provided they act within the scope of their training, almost exactly as the SCA does now.
The reason that these organizations provide for first aid care at their events is virtually identical to that of the SCA. Acting in a manner to remove one of our provisions for safety seems foolhardy, and almost certainly an invitation to legal exposure.
While the full reasons for the recommendation of outside council to disband the Chirurgeonate have not been disclosed, it seems a reasonable guess to assume that the principle of Implied Agency may be at the root of it. That being said, it also seems apparent that the outside counsel is not completely familiar with the way the Chirurgeonate operate within the SCA. Based on this proposal, I believe that the BoD itself may not be completely familiar with it.
In that the Board of Directors has at its disposal two very effective resources for the discussion of this subject, specifically the Legal Council and the Grand Council, both of which are made up of SCA members who are by far more familiar with the actual purpose and function of the Chirurgeonate, I have to wonder why neither of these bodies were consulted prior to presenting this proposal to the populace.
I should like to formally request that this subject be brought to them, so that more expert advice may be obtained prior to the Board making any decision on this ill-thought matter.
For the purposes of my response to this proposal, allow me to sum up the reality of the function of the chirurgeonate:
In brief, the Chirurgeonate is not an authorizing agency in the certification of First Aid, as outside council and members of the BoD apparently appear to believe. Corpora and the Chirurgeon"s Handbook specifically lay out the roles and responsibilities of the Chirurgeonate, and this documentation clearly shows that no actual or implied agency exists. Chirurgeons operate strictly under the provisions of the Good Samaritan doctrine, and are certified by external, nationally recognized organizations.
From a legal standpoint, If a person with no prior duty to assist renders aid to a victim of an accident or injury, where that aid is voluntary and without expectation of reward, then the person giving that aid is usually immune to liability under the provisions of most state or province "Good Samaritan" laws, provided that the attempt is not made recklessly.
The office of the Chirurgeonate acts to ensure that those who volunteer are properly and currently certified through a recognized external organization and to provide a structure and format for the documentation of injuries treated. It should be noted that there have been several cases in which the documentation obtained and maintained by the Chirurgeonate has prevented torts of both misfeasance and nonfeasance from being brought against the SCA. Removing this protection seems foolhardy.
While the possibility of torts of malfeasance and misfeasance might be reduced by dissolving the chirurgeonate, the fact that we had an existing first aid structure in place for many years would most likely increase the probability for torts of nonfeasance and negligence should someone be injured at an event and be unable to obtain first aid in a timely fashion because an organized chirurgeonate no longer exists. This likelihood is exacerbated by the fact that we utilize feedback from the chirurgeonate to update, modify and enforce the rules of the marshallate.
As the balance of Good Samaritan first aid and the Duty to Assist is different in each state, province and country where the SCA holds events, admittedly there is no simple way to shield the SCA and its officers from legal exposure in every jurisdiction where the SCA operates.
However, the disbandment of the Chirurgeonate will in no way reduce the legal exposure of the SCA, Inc. People can, and have, sued for myriad reasons. The removal of our First Aid service will give the impression of abandonment, and will most likely result in an increase of torts of nonfeasance and negligence, whether they have merit or not. Without the protection offered by the documentation of treated injuries currently created and maintained by the Chirurgeonate, demonstrating the lack of merit of a tort will become exponentially more difficult, making it almost certain that our legal liability will increase.
Stating that "broadly and effectively publish the discontinuation of the office with sufficient time for participants to evaluate the risks to themselves of continued participation under the new policy and arrangements." will eleminate liability for removing the chirurgeonate seems to indicate to me that you find the existence of the legal entity of the SCA, the corporation, to be more important than the members that it allegedly serves.
Furthermore, without a chirurgeonate, cost certainly will become an issue. Certain legal jurisdictions, like the state of Pennsylvania, require some form of onsite first aid and/or emergency care at large events with attendance in the thousands. At events where we have a statutory "duty-of-care" imposed on the SCA due to large attendance, like the Pennsic War, while we do not need a Chirurgeonate per se, we do need to provide first aid. The costs of satisfying these "duty-of-care" obligations with services hired from outside the SCA can be prohibitive, whereas SCA Chirurgeonate volunteers donate their time. Removing the free services provided by the chirurgeonate will require the hiring of a far larger staff of paid providers, guaranteeing an increase in the cost of the event.
Finally, in an action that completely baffles me, on February 14th, 2014, the following announcement was released: "The SCA Board of Directors is directing the Society Seneschal to develop and implement a new Deputy Society Seneschal Office and accompanying kingdom level infrastructure to deal with broad-based event support services… …The new Office will be charged with developing a clearinghouse of event support services like local port-a-john providers, *local externally certified SCA first-aid volunteers*, local emergency services companies, perhaps even local event sites, etc." (Emphasis mine)
At first glance, this certainly seems to confirm what many have already come to believe; that the request for commentary on the proposal is nothing but a sham, and that the fate of the chirurgeonate is already sealed.
However, further reflection on this announcement further shows the short sightedness of the proposal to disband the chirurgeonate, to wit: part of the duties of this new office will include the creating of a clearinghouse of "local externally certified SCA first-aid volunteers."
After making the disruptive and moral crushing proposal to disband the chirurgeonate in an ill thought effort to reduce legal liability, in virtually the same breath you are proposing to create another office that will pick up the responsibility of [re]creating a list of recommended first aid providers, thus creating exactly the same — if not far greater — legal exposure through actual implied agency that you sought to avoid by removing the office of the chirurgeonate?
To quote Abraham Lincoln: "Peter, if you call a sheep"s tail a leg, how many legs will a sheep have? "Five, of course." said the other. "Well Peter, that might be true, but calling a sheep"s tail a leg does not make it a leg." (Smith)
The chirurgeonate, as a guild and later as an office, has served the society faithfully since at least 1985. We take our role seriously, and have the experience and knowledge to ensure that the "externally certified SCA first aid providers" that become warranted as chirurgeons have a working knowledge of SCA practice and tradition as an adjunct to their modern first aid training. Moreover, we have, through the use of a training period, ensured that they understand the requirements of limiting their first aid response to basic first aid training, and that they must go "off baldric" and resort to their own licensure in order to provide more advanced first aid.
I seriously doubt that the new office you seek to create will have that experience and knowledge. By relegating first aid to a service akin to port-a-john providers and local event site rental agencies you are inviting disaster. Without an SCA Chirurgeonate structure, these ad hoc first aid providers cannot be disciplined or suspended for misbehavior or lack of cooperation with the Marshallate as grievance procedures would be meaningless. There will be no uniform guidelines on how combat injuries are handled. There will be no event and injury reports that the SCA can use to compile injury statistics and to evaluate the management of first aid at events, or the effectiveness or hazard of certain types of armor. Pretending that SCA marshals and seneschals who are untrained in the medical field can provide usable feedback as to mechanisms of injury is ludicrous.
The service that you are seeking to provide already exists. The legal exposure offered by the existence of the office of the Chirurgeonate is negligible, and the liability thus incurred by the office is non-existent! I submit that the need to dissolve the office of the chirurgeonate is ill-conceived, and that following through on it will ultimately raise – not lower – the legal exposure and liability of the Society.
Furthermore, by the BoDs own admission, the removal of the Chirurgeonate will require that "participants evaluate the risks to themselves of continued participation." Is the BoD actually considering an action that will decrease, rather than increase, the membership and activities that compromise the most crucial of its core competencies?
Society for Creative Anachronism Board of Directors. Governing and Policy Decision #40. Milpitas, CA: Society for Creative Anachronism.
Chirurgeon's Handbook. Milpitas, CA: Society for Creative Anachronism, 2004.
Shapo, Marshall S., Principles of Tort Law. St. Paul, MN: Thomson/West, 2003.
Bayles, Michael; Bruce Chapman (1983). Ethical Issues in the Law of Tort. New York: Springer-Verlag. pp. 20–21.
Smith, Henry M., Proceedings of the Worcester Society of Antiquity, Volume 2, Worcester Historical Society, Worcester, Mass. 1879. p. 42
In service to chirurgy, the kingdom, The Crown and you,
THLord Conal Mór MacNachtan
Outlands Kingdom Chirurgeon
"The age of chivalry is never past, so long as there is a wrong left unredressed on earth, or a man or women left to say, I will redress that wrong, or spend my life in the attempt."
-- C.S. Kingsley (1819-1875) "Life, vol. 2, ch. 28"
"The age of chivalry is never past, so long as there is a wrong left unredressed on earth, or a man or woman left to say, I will redress that wrong, or spend my life in the attempt."
-- Charles S. Kingsley, Life (vol. II, ch. XXVIII)