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Is there a lawyer on board?

Rachel Seddon looks at good Samaritan acts and how your duty of care should supersede any fear of litigation

If someone collapses in the street in front of you, clearly requiring urgent medical attention, is your first instinct to help? Or do you – like an increasing number of doctors – feel a moment’s hesitation, anxious that if you make a mistake, you could be sued for negligence?1 Doctors should never shy away from acting as a good Samaritan in a situation like this. However, with patients quicker than ever to sue, the threat of legal action is enough to make some doctors hesitate, scared to step up as a good Samaritan in case their best efforts to help go wrong.

The legislation

A good Samaritan act is one in which medical assistance is given, free of charge, in a medical emergency where you are not on duty. In Bermuda, the Volunteer Liability Act (2000) states that: “Where, in respect of a person who is ill, injured or unconscious as a result of an accident or other emergency, a volunteer renders assistance […], the volunteer is not liable for damages for injuries to, or the death of that person […] unless it is established that the injuries were caused by gross negligence.” This means if you are called upon to act as a good Samaritan whilst in Bermuda, so long as you do your best to help and your actions are not deemed to be grossly negligent, you cannot be sued if something goes wrong.

As a doctor, there is a moral and ethical duty to help anyone in need of medical care in an emergency

Although there are no laws governing good Samaritan acts in the remaining Caribbean islands, as a doctor, there is a moral and ethical duty to help anyone in need of medical care in an emergency. The WMA’s International Code of Ethical Practice says: “A physician shall give emergency care as a humanitarian duty unless he/she is assured that others are willing and able to give such care.”2

If you are aware that someone needs your help, and you do not declare yourself to be medically trained, you may later be investigated by the medical council or other regulatory body. In other jurisdictions, some doctors can even be charged with negligence if they wilfully withhold treatment (see Box 3: The situation in other countries).
 

Am I protected?

Your membership with MPS means that you can apply for assistance if you are involved in a claim arising from a good Samaritan act.3

Even though it is theoretically possible, to our knowledge, there have been no reported cases of a doctor ever being sued successfully for acting as a good Samaritan in a medical emergency.4,5,6 In the unlikely event that legal proceedings do follow, you are entitled to apply for advice and assistance from MPS, regardless of where in the world legal proceedings are commenced. This includes situations where you provide medical assistance whilst on holiday in a jurisdiction where you are not normally licensed to practise.

Dr Brian Charles, MPS medicolegal consultant in the Caribbean, says: “If you are trained and can offer help in any way, do so before thinking of any possible negative consequences. If the intention was honourable, and your efforts can be shown to be reasonable in all the circumstances, it is very unlikely that an untoward consequence will follow. This is especially so if the family, witnesses and onlookers acknowledge that the outcome would have still been bad or worse if your help hadn’t been offered.”

Off limits

You could be called upon to act as a good Samaritan at any time, in any place. Usually you will have just a few moments to assess the situation, during which time you will determine whether or not you have the expertise to help.

If you feel you are able to help, you should begin to deliver care, explaining to the patient what you are doing, while you are doing it. It is important that you do not act outside your competence. If you feel you are out of your depth, have no hesitation in asking for whatever help is available.

If you are unable to provide the treatment required, either because it is outside your competence or because the equipment is not available, there are still things that you can do to ensure the patient receives the best possible care when help does arrive.

It is helpful to record some essential details, which include:

  • The time, date and place of the emergency
  • Information about the patient’s symptoms and whether their condition seems to be improving or getting worse
  • Any medications the patient is taking, or underlying medical conditions, which could affect the treatment provided.

It would also be prudent to pass on your name and contact details to the doctor whom the patient is referred to, in case they have questions about any treatment you have already administered.

If you are aware that someone needs your help, and you do not declare yourself to be medically trained, you may later be investigated by the medical council or other regulatory body

Times of trouble

Good Samaritan acts further come into play where disasters are involved. This may be at a community level – for example, the 2007 Joe’s River Accident and the Brittons Hill Arch Cot Cave Collapse Tragedy in Barbados – or at an international level, such as the Haiti earthquake in January 2010, where medical expertise was obtained from many agencies outside Haiti. During these events, medical assistance initially came from the community before island-wide resources were brought in at regional and international levels.

Several teams of doctors and paramedics rendered much needed assistance in difficult conditions in Haiti. There were instances where, due to suboptimal conditions, the outcome was likely to be poor. At this time, MPS received many calls from members asking about medicolegal cover and whether they would be protected if the care they provided led to a poor outcome, and was later challenged by the courts.

MPS was able to assure members that, in a disaster situation, many of the conventional ‘rules of engagement’ do not apply. The role of those rendering assistance was primarily humanitarian and MPS is able to extend its indemnity to doctors acting as a good Samaritan, as long as the doctor is acting in the best interests of the patient.

Do no harm

In all situations, you should use your own professional judgment and do your best to help wherever possible. Always remember that your overriding obligation is to abide by the Hippocratic Oath and “do no harm”. However, you should also try to keep in mind how you would justify your actions if they were to later come under scrutiny.

Dr Charles concludes: “Establishing negligence requires the claimant to demonstrate that there was a duty of care, that the standard of care was breached and that this caused avoidable harm. The very fact that help was volunteered in an emergency situation should imply that the result may have been worse. Bearing this in mind, the notion of the good Samaritan principle should protect those offering help.”

1: Onboard flights: What you need to be aware of

  • Regulations in the countries you’re travelling to and from
  • Any medical training received by the cabin/flight crews
  • The common effects of altitude, alcohol, fatigue
  • Does the airline offer indemnity to volunteers who help in a medical emergency?
  • The importance of maintaining contact with clinicians on the ground
  • Know when to request a divert, so the patient can receive treatment at the nearest hospital.

2: What you should do in all situations

  • Ensure your clinical judgment is not impaired
  • Take a full, detailed history and keep a record of your notes
  • Conduct a thorough examination
  • Explain your actions to the patient, where possible
  • Take advice from other medical professionals who also volunteer to assist
  • Be honest and recognise your own limitations
  • Contact MPS if you need advice.

3: The situation in other countries

America: The Aviation Medical Assistance Act (1998) protects the actions of any medically trained passengers who help treat a patient onboard in an emergency, unless the assistance is grossly negligent, or constitutes wilful misconduct.7

Canada: The Good Samaritan Doctrine is a legal principle that protects anyone providing assistance in an emergency from being sued.8

France: Doctors have a legal obligation to assist in an emergency and could face disciplinary action or criminal charges if they refuse.9

Hong Kong: No legal principle to protect a medically qualified passenger who provides medical assistance on board an aircraft.10

UK: There is no legal duty to help, but the General Medical Council, in its Good Medical Practice guidance, dictates that there is an ethical one.11

References

1. Volunteer Liability Act (2000), Emergency services or assistance to person.
2. World Medical Association, International Code of Medical Ethics 
3. A Guide to MPS Membership, Medical Protection Society
4. Ranjan P, The doctor as rescuer, good Samaritan or volunteer  
5. Dachs R, Responding to an in-flight emergency, Am Fam Physician. 2003 Sep 1;68(5):975-976 
6. Eburn M, Protecting volunteers? The Australian Journal of Emergency Management, 18(4) November 2003 
7. Aviation Medical Assistance Act (1998)  
8. www.canadianlawsite.ca/goodsamaritan.htm [accessed 27 October 2011] 
9. Kahn A, Laying down the Law, Public Broadcasting System (1997) –  
10. Lateef F, Tay CSK, Nimbkar N, Is there a doctor on-board? Medical liability during in-flight emergencies, Hong Kong Journal of Emergency Medicine  
11. General Medical Council, Good Medical Practice [2006] para 11