Medical Good Samaritans and the law: What GPs need to know

Neelima Choahan

6/09/2018 2:17:38 PM

For the seventh of a series on legal matters in general practice, newsGP spoke with two experts about whether GPs can face legal liability for negligence if they give assistance in an emergency.

Most GPs would not hesitate to help in an emergency situation, but could they be leaving themselves open to legal liability for negligence if they do so?
Most GPs would not hesitate to help in an emergency situation, but could they be leaving themselves open to legal liability for negligence if they do so?

One hour into a 13-hour international fight, a 39-year-old passenger developed left-sided chest pain. A call was made by the cabin staff: ‘If there is a doctor on board, would they please make themselves known to the cabin staff?’
Most GPs would not hesitate to help in an emergency situation, but could they be leaving themselves open to legal liability for negligence if they do so?
Stuart Le Grand, Le Grand Margalit Lawyers
Personal injury lawyer Stuart Le Grand says a Good Samaritan is not liable for any damage caused by their well-intentioned acts or omissions.
Who is a Good Samaritan?
‘Generally speaking, a Good Samaritan is someone who comes forward to render assistance in a medical emergency without expectation of being paid,’ Mr Le Grand said.
‘Healthcare professionals have historically expressed anxiety about the possibility of legal liability for negligence arising from the giving of assistance in emergency situations.’
However, Mr Le Grand said a Good Samaritan is not liable for any damage caused by well-intentioned acts or omissions.
‘Australian states and territories have in place Good Samaritan legislation to ensure that people who step forward to provide emergency medical assistance are not held legally liable for their actions, provided they acted in good faith,’ he said. ‘These provisions were introduced following the Ipp Review into the law of negligence.
‘Interestingly, however, the Ipp review recommended against the creation of special legal rules for either volunteers or Good Samaritans.
‘Despite this, the effect of the legislation is that a Good Samaritan will enjoy legal immunity for actions that are alleged to have been negligent, provided the Good Samaritan was acting in good faith.’
Legal protection
‘In ACT, NSW, Tasmania and Victoria, a Good Samaritan is someone who provides assistance to a person who is, amongst other things, “at risk of being injured” [ACT and NSW] or “apparently at risk of death or injury” [Tasmania and Victoria],’ Mr Le Grand said.
‘In the NT and SA, “emergency assistance” means “emergency medical assistance” or “any other form of assistance to a person whose life or safety is endangered in a situation of emergency”.
‘The WA legislation provides protection for a person “at the scene of an emergency” who “assists a person in apparent need of emergency assistance”.’
Mr Le Grand said, in Queensland, the Law Reform Act 1995 provides that a medical practitioner, nurse or member of an organisation listed in the regulations is not liable for acts done in good faith and without gross negligence. The Civil Liability Act 2003 also extends protection to persons who provide duties to enhance public safety for certain entities listed in the Civil Liability Regulations 2014.
No legal protection
However, Mr Le Grand said there are some circumstances where the immunity will not apply, including where:

  • they intentionally or negligently caused the initial injuries (NSW)
  • the Good Samaritan is not a doctor, nurse, member or employees of a listed organisation (Queensland)
  • their ability to perform is significantly impaired by the consumption of alcohol or drugs (every jurisdiction other than Queensland and Victoria).
Mr Le Grand said the question of what constitutes ‘significantly impaired’ will be a matter of expert evidence.
‘The legislation should alleviate the previously held fears that stopping to assist in an emergency situation will expose you to legal liability,’ he said.
‘The purpose of the legislation is to encourage people, particularly healthcare professionals, to assist strangers in need without the fear of being sued.
‘In a practical sense, it would seem easier for the injured person to sue the person who caused the accident, not their rescuer.’
Dr Sara Bird, Manager, Medico-legal and Advisory Services, MDA National
MDA National’s Dr Sara Bird says GPs should worry more about the consequences of not helping in an emergency if they are able to do so.
What is a medical Good Samaritan?
Dr Bird said it is important to define the act of being a medical Good Samaritan.
‘Essentially, it is a doctor who comes to the aid of an injured person, or a person who is at risk of injury, with emergency assistance or advice, and without an expectation of payment or other reward, and where there is no prior doctor–patient relationship,’ she told newsGP.
‘Sometimes doctors work as volunteers with the reward of attendance at sporting and other events and think they are being a Good Samaritan … but that technically isn’t a Good Samaritan.’
Dr Bird said doctors often worry about their legal liability if they assist in an emergency situation, but, in fact, the greater concern for a doctor should be if they don’t assist if able to do so. She said the Medical Board of Australia’s code of conduct outlines doctors’ professional obligations when providing treatment in emergencies.
‘If a complaint was made about a doctor’s failure to provide Good Samaritan assistance, it would be assessed against the code of conduct,’ Dr Bird said.
Treating patients in emergencies
‘Doctors may be subject to disciplinary action if they don’t provide assistance in circumstances where they could,’ Dr Bird said.
In part, the code of conduct states:
Treating patients in emergencies requires doctors to consider a range of issues, in addition to the patient’s best care. Good medical practice involves offering assistance in an emergency that takes account of your own safety, your skills, the availability of other options and the impact on any other patients under your care; and continuing to provide that assistance until your services are no longer required.
The definition of ‘unsatisfactory conduct’ for doctors in NSW also includes a failure to attend a person in need of urgent medical attention without reasonable cause, after being requested to do so.
Dekker v Medical Board of Australia
It was an evening in 2002 in Western Australia and Dr Dekker had just narrowly avoided being hit by a car when she heard the same car crash into a ditch.
But, instead of stopping to help, Dr Dekker drove to the nearby police station to report the accident.
In 2013, the State Administrative Tribunal found that Dr Dekker had been guilty of ‘improper conduct in a professional respect’ for failing to stop and render emergency assistance in the ‘near miss’ incident involving her car and the second car.
But the Court of Appeal ultimately overturned the decision.
‘The doctor gave evidence she was in a “state of shock”, “petrified”, “freaked out” by the near miss,’ Dr Bird said.
‘The Court of Appeal found that the Tribunal did not consider the mental state of the doctor and other reasons why she didn’t stop and render assistance at that time, and so the Tribunal decision was overturned.’
Dr Bird said that decision provides reassurance to doctors that their professional duty to render assistance in an emergency situation will depend on a consideration of a range of issues and the particular facts and circumstances of the emergency.
Are you covered if you provide medical assistance during a flight?
Every Australian state and territory has legislation that protects Good Samaritans from liability. Dr Bird said the legal protection for doctors who provide assistance during in-flight emergencies is complex, and can be complicated further by issues of legal jurisdiction.
‘The law governing events during a flight is usually the law of the country in which the aircraft is registered, except when the aircraft is on the ground or in sovereign airspace,’ she said.
‘However, the country of citizenship of both the passenger being assisted and the Good Samaritan can also have jurisdiction.’
Dr Bird said GPs should also check with their medical defence organisation whether they are covered for Good Samaritan acts, especially in overseas jurisdictions such as the US.
A few drinks
A doctor who had four drinks over two hours was driving home when he came across and stopped at a motor vehicle accident. Would he still be covered by the Good Samaritan legislation given the consumption of alcohol?
‘In most jurisdictions, Good Samaritans who are “intoxicated or under the influence of alcohol or drugs” are excluded from the legislative protections from liability, but it is unlikely that this doctor would be considered to be intoxicated,’ Dr Bird said.
‘A doctor who has consumed a large amount of alcohol would need to consider the extent to which the consumption of alcohol may affect their ability to provide competent care.’
According to Dr Bird, at a certain level of alcohol consumption a given doctor’s performance will deteriorate to a point where the risk:benefit ratio from a particular intervention in an emergency becomes unfavourable. Their judgement may also be impaired.
Community expectation
‘Ultimately, where there is a person in need of emergency treatment and you are the only person on the scene or the only person who has had medical training … you will need to try to balance the risks and the severity of the potential consequences of your intervention or your non-intervention,’ Dr Bird said.
‘I think there is an expectation amongst the whole community that doctors will use their skills and expertise in an emergency situation if they can.’

Good Samaritan Law of Negligence medico-legal documents

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