Today’s correspondent is a ‘medical student in Queensland’ who posits

… a scenario that regards the legislative protections in place for specialist doctors who are bystanders in a hospital environment.

Imagine the following (perhaps not so hypothetical) scenario – a patient in a regional hospital without a vascular surgery service is taken to the theatre for a routine operation by a general surgeon (i.e. for an appendectomy). During the course of the operation, a major blood vessel is damaged, leading to a catastrophic bleed that threatens the patient’s life. There are no specialist doctors employed by the regional hospital which can be called to help in this situation. One of the theatre staff is friends with a vascular surgeon who by chance is currently vacationing in the area (a 5 minute drive from the hospital, having a surf at the local beaches), and calls said vascular surgeon to ask for advice. Despite the advice being applied by the general surgeon in theatre, the catastrophic bleeding continues. Note that the vascular surgeon has no relationship with the regional hospital or the patient- they have never been an employee the regional hospital or its parent hospital and health district, and have never before seen this patient.

1)         Does the vascular surgeon now owe a duty of care to the catastrophically bleeding patient on the operating table?

2)         Does good Samaritan legislation cover the vascular surgeon should he decide to rush to the operating theatre and personally attempt to control the bleeding?

3)         Would the answer to the above question change if this happened in a state other than QLD? or in the ACT or the NT?

I ask this because I was under the impression most good Samaritan legislation only covers people in the pre-hospital environment, and while this would be a rate situation I personally have heard of this happening at a hospital I was placed at.

Whenever someone tells me they are a student I do hope I’m not answering an assignment question, but I’ll assume that I am not (but if I am, do make sure that the answers are referenced appropriately).

The first thing that springs to my mind with questions like this is why is it assumed that he practitioner in question is going to be negligent, because the issue can only arise if there is a poor outcome and alleged negligence?  Second, if one has an impression of the law the best solution is to go to the law and read it.  None of the ‘good Samaritan’ legislation (and yes, I know it’s not actually called ‘The Good Samaritan Act’ in any state or territory but the term is used in the relevant legislation – see https://emergencylaw.wordpress.com/civil-liability-legislation-in-each-state/) is limited to the ‘pre-hospital environment’.

Question 1

Giving advice to a colleague on the phone would not give rise to a duty of care to the patient.  It would certainly not give rise to a duty to attend the hospital and actually become involved in the patient care.  If it did no doctor could ever seek advice from a colleague. The doctor treating the patient is responsible for his or her decisions, whether those decisions are based on the advice of others or not.

Question 2

In this context the relevant legislation would be the Law Reform Act 1995 (Qld) s 16 which says:

Liability at law shall not attach to a medical practitioner, nurse or other person prescribed under a regulation in respect of an act done or omitted in the course of rendering medical care, aid or assistance to an injured person in circumstances of emergency—

(a) at or near the scene of the incident or other occurrence constituting the emergency; or

(b) while the injured person is being transported from the scene of the incident or other occurrence constituting the emergency to a hospital or other place at which adequate medical care is available;

if—

(c) the act is done or omitted in good faith and without gross negligence; and

(d) the services are performed without fee or reward or expectation of fee or reward.

The ‘scene of the incident or other occurrence constituting the emergency’ is the hospital itself as that is the place where the patient is and where the circumstances are beyond the capacity of the local staff.  That hospital, on the scenario given, is not a ‘place at which adequate medical care is available’.

Provided the good doctor is not expecting to get paid or receive any other reward, that is he or she is simply acting out of humanitarian need, there is no reason that this Act would not apply.

Question 3

In the ACT the Civil Law (Wrongs) Act 2002 (ACT) s 5(1) says;

A good samaritan does not incur personal civil liability for an act done or omission made honestly and without recklessness in assisting, or giving advice about the assistance to be given to, a person who is apparently—

(a)     injured or at risk of being injured; or

(b)     in need of emergency medical assistance.

A good samaritan is (s 5(4)):

(a)     a person who, acting without expectation of payment or other consideration, comes to the aid of a person who is apparently—

(i) injured or at risk of being injured; or

(ii) in need of emergency medical assistance; or

(b)     a medically qualified person who, acting without expectation of payment or other consideration, gives advice by telephone or another form of telecommunication about the treatment of a person who is apparently—

(i) injured or at risk of being injured; or

(ii) in need of emergency medical assistance.

Section 5(4)(b) clearly applies to the situation where the doctor give advice. There is nothing on its face to say s 5(4)(a) would not include the doctor who travels to the hospital where he or she has no pre-existing relationship to help save a life provided that he or she is not expecting to be paid.

In the Northern Territory the Personal Injuries (Liabilities And Damages) Act 2003 (NT) s 8 says:

(1) A good Samaritan does not incur personal civil liability for a personal injury caused by an act done in good faith and without recklessness while giving emergency assistance to a person.

(2) A good Samaritan with medical qualifications does not incur personal civil liability for advice, given in good faith and without recklessness, about the treatment of a person being given emergency medical assistance…

(4)     In this section:

“emergency assistance” means:

(a)     emergency medical assistance; or

(b)     any other form of assistance to a person whose life or safety is endangered in a situation of emergency.

“good Samaritan” means:

(a)     a person who, acting without expectation of payment or other consideration, comes to the aid of a person who is apparently in need of emergency assistance; or

(b)     a person with medical qualifications who, acting without expectation of payment or other consideration, gives advice about the treatment of a person who is apparently in need of emergency medical assistance…

The doctor who gives advice is a good Samaritan under paragraph (b) of the definition in s 8(4).  There is nothing on its face to say that a doctor who assists a colleague at a hospital where there is no pre-existing relationship and no expectation of getting paid is not also a good Samaritan under paragraph (a) of the definition in s 8(4). There is nothing in the Act to limit it to the out of hospital environment.  In the scenario given if the local staff are unable to cope then there is, in the hospital, a need for ‘emergency medical assistance’ and if the visiting doctor is able and willing to provide that then I see no reason why he or she does not fall within the definition of a ‘good Samaritan’.

Without going through them all I can think of no example of good Samaritan legislation that would lead to a different result in any of the other jurisdictions.

Conclusion

My answers to the questions are:

1)         Does the vascular surgeon now owe a duty of care to the catastrophically bleeding patient on the operating table?

No.

2)         Does good Samaritan legislation cover the vascular surgeon should he decide to rush to the operating theatre and personally attempt to control the bleeding?

Yes, provided he or she does not expect to get paid.

3)         Would the answer to the above question change if this happened in a state other than QLD? or in the ACT or the NT?

No.