State Laws Allow Outdoor Recreation Organizations to Cope With Severe Allergic Reactions

Most outfitters and guides have been faced with a client who has a history of severe food or insect allergies, going on an outdoor adventure where access to emergency medical care will be limited or delayed.   For those individuals, any exposure to the allergen could be fatal, unless a drug called epinephrine is administered.  Until recently, an outfitter’s decision to carry and administer epinephrine for use in an anaphylactic emergency, potentially exposed them to liability in the event of an injury or death arising out of such an event.  It had historically been of questionable legality for lay-rescuers in a commercial setting to possess or administer epinephrine.  However, in the last few years, many states have passed laws that allow businesses and organizations to carry the drug, and allow lay-people with proper training to administer it in an anaphylactic emergency – with less fear of liability.

Severe allergic reactions have become significantly more common over the last twenty years.  The Centers for Disease Control estimates that food allergies rose by fifty percent between 1997 and 2011.  Several reported cases of anaphylaxis fatalities where the deceased had a mild to moderate history of a systemic reactions prior to the fatal episode, involved a delay in treatment with epinephrine.

This evolving medical landscape related to anaphylaxis has prompted changes in the recommended treatment protocols for anaphylaxis.  Significantly, the 2015 recommendations from the American College of Allergy, Asthma and Immunology indicate that any person with a mild to moderate history of anaphylaxis, who is exposed to that allergen, should immediately be treated with epinephrine to avoid cardiorespiratory collapse.  For the outdoor recreation industry, in medical terms, this means that in order to meaningfully treat a potentially fatal allergic reaction, epinephrine must be available.

The apparent recognition of the need for immediate public access to epinephrine has prompted important changes in state law across the United States.  As of 2015, only six states had legislation allowing trained lay-people to administer epinephrine, and limiting liability in the event of an adverse outcome.  In 2015, thirteen states passed such legislation.  In 2016, thirteen more states passed the legislation. At least five more states have epinephrine legislation pending.

Generally, these state laws allow an entity (for example, a rafting company), to go to a physician and get a prescription in that entity’s name for epinephrine auto-injectors.  The entity must maintain the supply of epinephrine in a readily accessible place, for use in an anaphylactic emergency.  Any employee who goes through a simple state-certified training program may administer the epinephrine auto-injector to a person who is having an anaphylactic reaction, without fear of liability.   The laws provide legal immunity for the entity, the individual who administers the epinephrine auto injector, and the physician or pharmacist who prescribes it.  There are variations in state laws that are critically important to understand for legal compliance, but the general statements above are a good descriptor of the majority of state laws.

For many outfitters, it has now become possible to implement an epinephrine protocol, and to carry this life-saving medication into the outdoors.  With severe food and insect allergies on the rise, and the need for quick access to epinephrine becoming increasingly important, the legal protection for outfitters who wish to carry the lifesaving drug is welcome news.   Another important development is the recent announcement by CVS drugstores that it will be selling a $100 epinephrine auto-injector – a cost savings of nearly 80% from the only other commercially available brand of auto-injector, manufactured by the pharmaceutical giant Mylan.  It may not be as expensive, or legally questionable, for outdoor recreation organizations to carry epinephrine auto-injectors.

This article is meant to provide a general overview of the changing legal and medical landscape surrounding anaphylactic reactions and the administration of epinephrine.  Any outfitter who wishes to implement an epinephrine protocol at their company should contact legal counsel who is familiar with the new developments in state law, and a wilderness medical training provider who is familiar with the new anaphylaxis treatment protocols.

Disclaimer: This blog post is not intended to provide legal advice, nor should it be viewed as such. Legal advice can only be provided based on specific facts. We recommend, as we must, that you consult an attorney before implementing any advice in this blog post. Receiving or viewing this blog post does not constitute an attorney-client relationship.

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