Legal Ruling Serves to Focus Program Health and Safety Strategy (Munn v. The Hotchkiss School)

by Bill Frederick

In 2007, Cara Munn, a student attending The Hotchkiss School, suffered permanently debilitating tick-borne encephalitis while on a study abroad trip to China. In 2013 a Connecticut court awarded her $41.75 million dollars (Munn v. Hotchkiss School). There is an appeal underway and in August 2017 the Connecticut Supreme Court was asked to answer two questions pertinent to the appeal. The court said that: 1.) The public policy of Connecticut does not preclude imposing a duty on a school to warn about or to protect against the risk of a serious insect-borne disease when organizing a trip abroad and, 2.) The jury award to the plaintiff fell within the necessarily uncertain limits of just damages and did not warrant a remittitur. The case now goes back to the Second Circuit Court of Appeals. In her concurrence on the two questions before the court, Connecticut Supreme Court Justice Carmen E. Espinosa raised significant questions around foreseeability that suggests that it might be reconsidered in the appeal.

Regardless of how the overall appeal plays out, the Connecticut Supreme Court has made a statement. It may be specific to Connecticut and applicable to secondary schools and minors with the corresponding legal notions of custodial care and In Loco Parentis, but it suggests that all secondary schools (and perhaps gap year programs, higher education and all the subsets of international education to varying degrees) need to “warn about” and “protect against the risk of a serious insect-borne disease when organizing a trip abroad.”

There is a spectrum of measures across each category that might be undertaken to warn about and protect against the risk of vector-borne diseases.  Programs make the strategic error of doing the minimum. The logic is that whatever measure taken would demonstrate the performance of due diligence. However, the only sure way to guarantee your school or program’s protection from vector-borne disease related liability is to ensure your students don’t get these diseases. And, no matter what precautions you implement, there is still some chance of disease. Whether a school or program has done a great job of taking care of their students may be determined by a judge or a jury. Arguing that minimal measures should protect your organization from the letter of the law, when they obviously didn’t protect your student from a potentially serious illness, is not the argument that you want to be making. In the face of a potentially tragic event, you will be wishing that you were able to point confidently and competently at a well thought-out and robust strategy. Categories for warning and protection include:

• Understanding the hazard
• Warning
• Preventative measures (before you go)
• Avoidance measures (while you are there)
• Response measures (what to do if someone becomes ill)
• Understanding the hazard

In order to warn or protect from insect-borne diseases, every program and program leader need to know what diseases are endemic at their destination, which diseases pose a threat, and the best measures for prevention, avoidance and response. Different countries have differing recommendations for vaccines and chemoprophylaxis, but for U.S. based institutions and programs, the U.S. Centers for Disease Control (CDC) is the accepted authority. You can go to the CDC website for information or you can subscribe to a medical intelligence service like TravelCare® International, LLC that will organize the information in a very accessible format and which is consistent with the CDC. Additionally, if your school has a relationship with a travel medicine doctor, nurse or clinic, you can ask them to put together information summaries for staff. Some travel assistance companies provide vector-borne disease information to their clients. Finally, there are a number of online courses in travel health available and short courses for lay-persons in travel medicine (Travel Medicine First Aid) are also available.

Warning

There are degrees of warning. At a minimum you could forward a link to the CDC website to participants, and their families in the case of minors. A better approach would be to cut and paste the relevant sections into an email. Even better would be to use TravelCare® to forward a report to your participants. Orientations should include an overview of all the likely risks including insect-borne diseases and the best prevention and avoidance measures. Orientation content and student preparation processes should be well documented.

Preventative Measures (before you go)

The CDC makes recommendations for vaccines and chemoprophylaxis. A couple of vector-borne diseases are preventable with vaccines, i.e., yellow fever and Japanese encephalitis. The best preventative strategy for malaria is chemoprophylaxis (taking medication to prevent getting a disease). The CDC recommends 5 different drugs with varying regimens, effectiveness and side effects.

• Chloroquine – Chloriquine resistant malaria has grown significantly around the world particularly in the most dangerous strain of malaria (P. falciparum) making this a less likely choice.
• Doxycycline – Requires a daily dose. It once was considered to be inexpensive, but as the primary treatment for Lyme disease and having become the primary chemoprophylaxis for the U.S. military, it is no longer inexpensive. It has two particularly notable side effects. It can cause photosensitivity, making users very prone to severe sunburn. It also may cause fungal infections (vaginal and esphogeal). On the plus side it may also protect against some tick borne infections.
• Mefloquine (Lariam) – Requires a weekly dose and is the least expensive chemoprophylaxis. It has a very notable side effect in that it frequently causes very vivid dreams and other neurologic issues. It is not recommended for anyone who has any history of mental health challenges or seizures. Some resistance is reported in Southeast Asia.
• Atovaquone/proguanil (Malarone)  - A daily regimen. Not inexpensive. Anecdotally, there are comparatively fewer side effects reported, mostly gastrointestinal issues.
• Primaquine – This drug should not be taken by anyone with a liver enzyme (glucose – 6 – phosphate dehydrogenase) deficiency and anyone considering should be tested for it. This drug kills the malaria parasites in the liver (as opposed to the bloodstream), which may make it a good choice if you are particularly concerned about P. ovale and P. vivax.

Avoidance Measures (what to do while in country)

When you know what the vector hazards are at your destination, it is then important to understand if the vector is primarily a day biter or a night biter. The mosquito that carries malaria; sand flies that can carry leishmaniasis; and the triatomine bugs that carry American trypanosomiasis (Chagas disease), are all primarily night biters. The Aedes aegypti mosquito, which carries dengue, Zika, chikungunya and yellow fever, is primarily a day biter (and urban dweller). In some regions where malaria is not a threat, it may still make sense to use chemically treated mosquito nets at night. And, whether you are concerned about day biters or night biters, avoid sitting outside at a café unprotected at dawn or dusk when mosquitos are most active.

It is also important to understand that not all insect repellents are created equally. If you went bug repellent shopping at a Walmart or an REI, many of the products you’d find are not very effective. There are there 3 products that research shows are effective: Products with DEET (N,N-Diethyl-meta-toluamide) with a concentration somewhere between a 25% - 35% are optimal foreffectiveness. The other two effective products are picaridin and IR3535. Additionally, there are products that sound like they might be good for your skin. They smell great and sound minimally toxic. Their ingredients may have repellent properties, but the time frame of effectiveness is so brief that by the time you’ve finished applying it, it is time to reapply it. Long sleeves and long pants afford protection. For additional protection, especially against ticks, you could apply permithrin, an insecticide, to your clothes.

Compliance with avoidance measures is another issue. Last month I was teaching a travel medicine course in Chiang Mai, Thailand where there is currently an epidemic of dengue fever.  It was hosted by a study abroad provider and course participants included a UN security officer, some researchers from Brunei, an aid worker from Myanmar and a number of study abroad practitioners. One of the host staff was just recovering from dengue fever and the director of the program and his whole family had had dengue in previous years. When surveyed, no one in the class was using insect repellent. “Preventative complacency comes with time, denial and the excuse of inconvenience” according to David Johnson the president of Wilderness Medical Associates. I would add peer perception to that. If you don’t see anyone else using bug dope then it must be ok not to use it. So effectively protecting students is more than just a matter of giving them the information.

Response Measures (what to do if you think you may have an infection)

Knowing what the vector disease exposures are, trip leaders should also have some idea of how they will respond if a staff or student becomes ill. Certainly no one would expect non-medical professionals to make a diagnosis of a vector-borne illness and the symptoms of most vector-borne diseases are similar to flu, but programs need to have identified acceptable medical facilities to bring their students to in the event of illness. It helps a lot if program staff have more than just CPR training under their belts and every program should have a medical professional available who has some understanding of travel and tropical medicine, of the medical infrastructure of low income countries and also is very familiar with U.S. standard of medical care. Some schools utilize a travel assistance provider. Some have an advisory physician who works at their school or is on their board. Some schools build a relationship with a travel clinic.                                         

Health, safety and security strategy starts with understanding the Safety Matrix® (who/what/where/when/why/how and how long) of a particular program. By the time a group departs to begin a program, you want a strategy in place that you can feel confident about. How do you know if your strategy is sound? If you can easily articulate why you did what you did and why you didn’t do what you didn’t do, and you wouldn’t second guess your choices even if someone did contract a vector-borne disease, then you likely have a robust plan in place.