This question was posted as a comment on my post Liability for failing to install an AED? (April 7, 2016). In that post I concluded that:
The statement ‘the standard of care has now shifted creating a potential liability for organizations that do not have AEDs installed’ is just too broad and simply does not reflect Australian law. It may be true for some places, so your local Westfield may be remiss if they don’t have one or two, but saying that this would or could actually lead to a finding of negligence or liability is a very long stretch.
Today’s question flows on from that discussion. My correspondent asks?
I was recently told that some medical clinics don’t have AEDs installed because they’re worried that if they have one, it will give rise to some additional duty of care that could wind up with them getting sued. I am wondering if this is true?
I note your article above specifically says that it’s not “intended for a doctor’s surgery or nursing home”. Thinking about those situations, I would assume that the likelihood of cardiac distress would be much higher in a medical surgery than it is in say a shopping mall or office block. And patients are specifically attending medical clinics to seek medical help. So if anything, I would assume that negligence would be a bigger risk if the doctors *don’t* install an AED, than if they do?
I can intuitively believe that if a doctor completely bungles the use of an AED the tort of negligence could come in to play. But surely any time a patient attends a doctor’s surgery and the doctor completely bungles up the treatment in a negligent manner than similar risk of an action in tort arises?
I would be very interested to hear your thoughts on this?
Could you imagine a medical practice that fails to have necessary equipment because they’ll be liable if they do? I suppose we’d see the doctor practising in a bare room. If the doctor’s that scared of his or her own capacity to actually use medical equipment one would have to question whether they should continue as a medical practitioner.
The duty on a medical practice is to provide reasonably competent services. There would be some equipment that it would be negligent to operate without – eg a medical practice that did not have facilities for handwashing and disposal of contaminated waste would be negligent if, as a result, someone suffered an injury. The question of whether an AED meets that ‘minimum’ standard would be a question of risk assessment. What sort of practice is it and what sort of patient’s do they see.
But, as my correspondent notes, a medical practice is very different from a shop or shopping centre. People come to a medical clinic for medical care. Even if the practice does not generally see people at risk of cardiac arrest people may come in seeking emergency help if they’re having difficulties and see that the medical practice is there. I agree with my correspondent the legal risk has to be higher by not having one, than having one (which is not to say that it’s much of a risk either way).
I’m not sure how you can completely bungle the use of an AED but certainly a medical practitioner is expected to provide reasonable care and one might reasonably expect a medical or nursing practitioner to be competent and trained in the use of an AED in a way that a bystander may not be.
My thoughts are that a medical clinic should be thinking about what we should do that will provide the best service for our patients, not how do we do the least possible. Not installing an AED for fear that one somehow be liable if it’s used is ridiculous. They are intended to be used by anyone. Further medical, nursing and other health practitioners should be confident in using fairly standard equipment. If not, why are they in practice?
It may be reasonable to choose not to install one on a cost-benefit basis, but it can’t be reasonable to choose not to install one for fear that ‘it will give rise to some additional duty of care that could wind up with them getting sued’. It won’t.