You Be the Judge: A Slippery Slope

A trek up Mount Everest ends in a lawsuit. How would you rule?

A signpost next to the path to Mount Everest that reads "WAY TO M.T. EVEREST B.C."

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In the fall of 1989, Patricia Vodopest read an article in The Mountaineer magazine titled “Breathe Like a Sherpa at High Altitudes” by Rosemary MacGregor. The article described a recent trek to Mount Everest where MacGregor — a nurse and stress-management/biofeedback therapist — conducted a preliminary study to test whether a special breathing technique was effective in alleviating high-altitude sickness. Vodopest later read a second article in the Boeing Alpine Club newsletter titled “Nepal, Himalayan Breathing Research Trek — WOULD YOU LIKE TO GO?” The article concluded with a callout inviting anyone interested in participating in a second research group to contact MacGregor. The expedition would include 15 trekkers, led by MacGregor, whose crew included a University of Washington professor who assisted in the research proposal, as well as other medical professionals.

Vodopest agreed to participate, and MacGregor trained her on the breathing techniques. At MacGregor’s request, Vodopest signed a Release from Liability and Indemnity Agreement, which stated that she had been informed of all dangers of the trek, including illness, and that she released MacGregor “from all liability, claims and causes of action arising out of or in any way connected with my participation in this trek.” The release also stated, “I personally assume all risks in connection with all activities, and further agree to indemnify and release Rosemary MacGregor, other group leaders, and all other participants from all liability, claims and causes of action or harm which may befall me arising from my participation in this trek.”

On March 5, 1990, the trekkers left Seattle for the Solo Khumbu area of Nepal. During their ascent, Vodopest and the other climbers recorded their oximetry readings and completed environmental symptoms questionnaires. At 8,700 feet, Vodopest began to show symptoms of altitude sickness. MacGregor said it might be a food issue, and Vodopest continued to climb. At 11,300 feet, Vodopest became very ill, and MacGregor told her that she probably had the Khumbu flu and advised her to “breath away” symptoms. The breathing technique didn’t help. Her symptoms — head pain, loss of balance, racing heartbeat, nausea — became life-threatening. The next morning she was sent down the mountain and ultimately diagnosed with cerebral edema from altitude sickness and ended up with permanent brain damage.

Vodopest sued MacGregor for negligence in “promoting the use of her breathing technique, rather than advising Vodepest to descend to lower altitude, as a remedy for the obvious symptoms of high-altitude sickness.”

In response, MacGregor moved for summary judgment based on the release Vodopest signed before joining what MacGregor called a recreational trip, which waived Vodopest’s right to sue. The trial court ruled in favor of MacGregor and dismissed the case.

Vodopest appealed. The Court of Appeals upheld the summary judgment, concluding that the trip was primarily recreational, and the release was therefore valid.

Vodopest appealed to the Washington Supreme Court, arguing that the primary purpose of the trip was for “medical research using human subjects,” and, as such, experimenters owe research subjects a duty of reasonable care over and above what is covered in the release of liability.

How Would You Rule?

The Washington Supreme Court ruled in favor of Vodopest. They determined the critical question was not whether the trip was a recreational trek or a research project, but whether MacGregor’s conduct that allegedly caused the injuries occurred within the scope of the medical research project — a question of fact that should not have been dismissed. The court concluded that a pre-injury agreement releasing a medical researcher from liability for negligent conduct during research violates public policy. The Court pointed out that the “public’s interest in the safety of human subjects and … in the integrity of legitimate and necessary research militate against allowing researchers to negligently conduct research with impunity.”

Vodopest v. MacGregor (1996)

This article is featured in the September/October 2020 issue of The Saturday Evening Post. Subscribe to the magazine for more art, inspiring stories, fiction, humor, and features from our archives.

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Comments

  1. This may have been a trek up Mount Everest, but was also a descension into a terrible snake pit of legal technicalities vs. humanity. Being an experienced climber, Ms. MacGregor should have erred on the side of caution at 8,700 feet when Ms. Vodopest clearly showed symptoms of altitude sickness, and sent her back down.

    I understand MacGregor had a lot of credentials, but allowing Vodopest to go thousands of feet higher at that point was negligent and wrong, signed contract or not be damned. This woman suffered permanent brain damage as a result, and likely wouldn’t have, had she gone back down at the 8,700 foot level when problems became apparent.

    I agree with the judgement ruling of the Washington Supreme Court, Joan, for the very reasons given. This is an excellent example of why (in certain cases) appeals to a higher court are necessary for the proper and just outcome.

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