I have previously written about doctors, and others, acting as good Samaritans – see
- Nurses as ‘good Samaritans’ – can I be liable if I do stop?(March 22, 2014)
- Doctors as ‘good Samaritans’ – do I have to stop?(March 23, 2014)
- NSW SES Good Samaritans(August 25, 2014)
- Non-operational staff travelling in marked emergency service vehicles (NSW) (October 29, 2014)
- Further legal ruling affecting ‘Doctors as ‘good Samaritans’ – do I have to stop?’ (January 3, 2015)
- RFS volunteers as roadside good samaritans (February 4, 2015)
- Good Samaritan legislation and scope of practice (March 27, 2015)
- American Good Samaritan protected by Ohio Statute (May 20, 2015) a
Today’s question takes us into the sky. A recently graduated medical practitioner says:
I am a newly registered doctor. While I was waiting at the airport recently, I recalled a flight I had been on years ago, during which flight crew asked if there was a doctor on board, as there was a medical emergency. This started me thinking about what I’d do if I heard such a call again. After a quick search online, I found a wealth of news articles on the subject.
Most of the articles made sense, but two of them included comments, which I questioned. Both were American in origin.
The first (link below) states in the third paragraph that in Australia, “Doctors…are mandated by law to assist passengers in need”. I was aware of no such law, with the exception of the much cited (on your blog, at least) Woods vs Lowns. If this is the only (ie. no other sources) cause of a duty being established, would a general page over the aircraft PA be sufficient, or would a doctor need to be personally requested?
The second article quotes an American doctor, Paulo Alves, who is the medical director of a company which provides phone medical advice to airline staff during an emergency. In the final 8 paragraphs, he says that Good Samaritan laws may be voided if a responding volunteer accepts anything from the airline by way of compensation or show of gratitude. The author then implies that even accepting a seat upgrade or receiving an unsolicited gift basket from the airline may mean that the law doesn’t apply. This is an American article, so I was hoping you could comment on whether something similar would be the case here.
Regardless of either of the above, in a real such situation, I have no doubt that I would step forward voluntarily (as I’m sure would almost any doctor). Any Australian doctor, at least, would also be covered by indemnity insurance, although pending the answer to the above, I can only see it being called upon very rarely, if at all.
Doctor’s are not mandated by law to assist when asked. As noted the only case on point is Lowns v Woods (1996) Aust Torts Reports 81-376. As has been discussed in previous posts on this blog, in that case the critical facts were that the doctor was approached because he was a doctor, at his place of practice, ready to see patients but not yet engaged in doing so. That is quite different from a doctor at an airport or on a plane. A doctor on a plane is not at his or her place of work, may be travelling with small children, may be affected by alcohol or fear of flying, may be on his or her first real holiday and has splashed out on first class seats with their partner who has put up with years of ‘on call’ disruptions and this time it’s not going to happen again and of course the doctor may be in a practice where he or she hasn’t seen an emergency presentation in years. All of that would have to be considered and suggests that the circumstances that gave rise to a duty in Lowns v Woods would not lead to a duty in these circumstances.
As was discussed in the unfortunate case of Dr Dekker (see Further legal ruling affecting ‘Doctors as ‘good Samaritans’ – do I have to stop?’ (January 3, 2015)) it could be unsatisfactory professional conduct to fail to render assistance when a doctor can, but to determine that the medical authorities need to bring evidence that the doctor could actually have done something to assist. Surely we are beyond the days of believing a doctor, with no equipment and in a foreign environment can work miracles just because he or she is a doctor!
So there is no specific rule mandating doctors to assist in an emergency on an airplane but the rules of general application discussed above could apply. So in the right circumstances it may be negligent or professional misconduct to fail to assist but that has to take into account all the circumstances so is unlikely in the circumstances suggested by my correspondent.
As to the second article, it has been noted that there is ‘good samaritan’ legislation in every state. I confess I don’t know which state law applies on an aircraft. The conventional wisdom is that the law in an aircraft is the law of the country where the aircraft is registered, so an Australian aircraft – with the prefix VH – is governed by Australian law but the law we are discussing is state law. Which state’s laws apply I’m not sure but given there is good Samaritan legislation in every state it doesn’t really matter.
The critical issue in Australian good Samaritan law is that the person who steps forward to help does so without any expectation of payment or reward; see Civil Law (Wrongs) Act 2002 (ACT) s 5; Civil Liability Act 2002 (NSW) s 56; Personal Injuries (Liabilities and Damages) Act 2003 (NT) s 8; Civil Liability Act 1936 (SA) s 74; Civil Liability Act 2002 (Tas) ss 35B;Wrongs Act 1958 (Vic) ss 31B; Civil Liability Act 2002 (WA) s 5AB. In Queensland the situation is slightly different as the services have to be ‘performed without fee or reward or expectation of fee or reward’: Law Reform Act 1995 (Qld) s 16.
In every state other than Queensland if the doctor (or other volunteer) steps up to help and at the time doesn’t expect any reward they are protected even if they are, later, offered or receive ‘anything from the airline by way of compensation or show of gratitude… [including] accepting a seat upgrade or receiving an unsolicited gift basket from the airline’. It would be different if the flight attendant did approach a doctor and offer that reward eg ‘Doctor, there is a patient that needs your assistance and if you’re willing to help, we can make sure you and your family are upgraded to first class for your return flight’; but if the call is ‘Is there a doctor’, the doctor volunteers to assist without demanding, or being offered – that is expecting – any return then the Acts will apply.
As noted the only complex case would be in Queensland where the action has to be performed both ‘without fee or reward’ or an expectation of a fee or reward. I still don’t think that would matter. An act is done for fee or reward if it is negotiated before the event, and an expectation may be where the doctor expects to get a reward such as an upgrade, but doesn’t. Where there is no suggestion of a reward and no expectation of it, I can’t see a subsequent token of appreciation would convert what was a protected action into an unprotected one.
In short although it is less clear in Queensland, my conclusion would be provided the doctor doesn’t expect any reward, then the legislation applies even if the airline or, the patient, later offer what can be seen to be a gratuity.