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Deep Vein Thrombosis (DVT) - Not An Accident |
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Adv. Peggy Sharon
In a recent ruling by the Tel-Aviv District Court (Sept. 2007) the court addressed the question whether a death of a passenger resulting from DVT can be considered an "accident" according to the Warsaw Convention. The court reaffirmed a previous ruling that determined that DVT should not be considered an accident within the scope of the Warsaw Convention and that despite the unfortunate circumstances, the claim should be dismissed.
Adv. Peggy Sharon , Senior Partner
The Sequence of Events
Marina Zelaksonov was a software engineer who was frequently sent to the Far East by her employer, Texas Instruments. In September 2002 during an 11 hour flight from Bangkok to Tel-Aviv she felt ill and as the plane began its final approach, Marina lost consciousness. Passengers and a doctor on board performed CPR to no avail. After landing, she was rushed to a nearby hospital only to determine she was already dead. The cause of death was respiratory arrest due to Pulmonary Embolism. The embolism was the result of Deep Vein Thrombosis (DVT) which can be triggered by prolonged periods of sitting.
The Claim
Following Marina's death, her family and her estate filed a claim against EL-AL Israel Airlines, against her employer - Texas Instruments, and against the State of Israel. The family alleged that EL AL is a "carrier" according the Israeli Carriage by Air Law - 1980, and that Marina died during "air transportation". The family claims that EL AL was negligent in that it did not inform its passengers about the risks of prolonged sitting during flights and therefore was liable according to the Israeli law (which refers to the Warsaw Convention). The family alleges that EL AL was liable for Marina's death according to article 17 of the Warsaw Convention3.
Court's Decision
The District Court reaffirmed previous rulings and determined that:
- Any bodily injury which occurs during flights and/or is related to the flight can only be dealt with under the framework of the Warsaw Convention.
- In order to be compensated, 3 accumulative conditions must be fulfilled: (a) that an accident occurred (b) during air travel (c) which caused bodily injuries.
- Based on previous rulings in Israel and from abroad4, it was determined that DVT cannot be regarded as an "accident". The accidental event needs to be external to the passenger. Therefore, the conditions of the Warsaw Convention were not met and the claim should be dismissed.
Conclusion
This court's decision reinforces previous rulings on the issue of airline liability in cases of DVT, and determines that air carriers will not be liable. In order to establish liability of the carrier, the plaintiff needs to prove an accidental event external to the passenger which triggered the injury. The pre-trial hearing regarding the liability of the employer and the State of Israel was scheduled to a later date.
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