Replies to This Discussion

Permalink Reply by Brian Dumser on August 30, 2008 at 6:40pm

"If they have CPR trained personnel and an AED but no epi-pen - have they breached the duty."

I don't think they would have an EPI-pen anyway, since those are prescribed for the patient by their own doctor. If anything, in the case of a day care center, it would be up to the parents to provide one to the caregivers.

As for people not having CPR training, we've got a situation going on here in Chicagoland where a Metra (train) rider suffered a heart attack and died because the train conductors are not CPR trained. In addition, they are not required by Metra to be CPR trained. Therein lies the issue. The conductors are afraid of being sued. They fail to realize that as "professional" emergency responders we can be sued also. Just my 2 cents, stay safe!

Permalink Reply by Michael on March 17, 2010 at 6:46pm

Curt, you may be interested in an Australian perspective. In the Northern Territory of Australia it is a criminal offence to callously fail to provide assistance when you are aware that a person needs assistance and you are in a position to help. That case has only been tested in the courts once and the court find there were many 'outs' for a defendant, they had to know that the person needed assistance, they had to believe that they could provide assistance and their failure had to be 'callous' so if you decided not to help for good reason then the offence could not be proved.

In terms of liability for not going to help the only case is Woods v Lowns that was heard in the New South Wales Supreme Court and then on appeal to the Court of Appeal. In that case a doctor was asked to go to the aid of a fitting child and refused even though, in evidence, he said he would have been able to assist. The critical factual issue was whether he was in fact asked, he said the young girl who went for the doctor must have gone to the wrong house as she never asked him, but she was sure the person she did ask was in fact the defendant and the court accepted her testimony. On appeal the issue of where do you draw the line, and why the common law should not allow such a claim was considered by the dissenting judge (Mahoney J) so his reasoning may be off assistance. All the cases are online and I can point you to them if you are interested.

Permalink Reply by Curt Varone on March 17, 2010 at 8:53pm

Thanks Michael

My home state of Rhode island has a similar law to the Northern territory making it a crime not to render aid to someone at the scene of an emergency. I think the Woods case may raise another fascinating issue: abandonment. I am not sure that factually it was raised in Woods, but it would seem that once the doctor patient relationship was created, the failure to the doctor to assist opens him to abandonment (do you use that term Down Under? - I believe it has old English Common Law roots).

Another challenge: the slippery slope! Once a duty exists, how far must to person go to meet it? If the doctor in the Woods case went to assist the child, but chose not to do (say) mouth to mouth resuscitation, could he be negilgent? What if he did not bring his medical bag, and a device or medication in the bag could have saved the child? Could he be negligent? If he brought his medical bag, but didn't have an AED, or was out of - let's say - epinephrine for an allergic reaction, could he be negligent?

Permalink Reply by Michael on March 17, 2010 at 9:26pm

The problem in Woods case was that there was no pre-existing doctor patient relationship so this was a "duty to rescue a stranger", case. The issues of what he may or may not have done were not really discussed.

The problem as I see it was that the Dr put all his defence eggs in one basket, arguing that he was never asked but he said, if he was asked he would have gone as any doctor should have, he would have been able to administer valium IV and he would have controlled the fitting and then directed the paramedics to take the patient to hospital (even though they probably knew to do that anyway). Had he raised the issues of 1) no duty to rescue a stranger and 2) even if he had gone he would not have been able to help, then we may have more definitive answers.

I assume the US law has the same principles, but on the question of whether he would have been negligent for not doing CPR or not having certain medication in his bag would have required evidence of what a reasonable doctor could be expected to do or carry, but generally if you are not a road side emergency physician you can't be liable for not using what you don't have. Key questions would be where are you called from? In this case he was at work so he may be expected to have an appropriate bag ready to go, but different if he'd been in his car or at home when called.

It was this slippery slope argument however that caused Mahoney J to dissent. He said there were too many issues like that to allow a court to introduce a new duty to rescue where there had not been one so it was better to leave matters like this to professional bodies who could determine whether or not a failure to assist in any particular circumstances would be unsatisfactory professional conduct warranting disciplinary action, rather than a tort allowing the patient to succeed in damages.

Michael.

Permalink Reply by Curt Varone on March 18, 2010 at 10:36am

There's an interesting line of cases in the US related to AEDs and CPR, and it get's kind of hard to figure exactly where the line is drawn once you start down the slippery slope. Does a college sports team have to have a CPR qualified person present for every practice? Does a health club, or even a gambling casino have a duty to have an AED immediately available? There is one case where a casino had a nurse on duty who responded with all her equipment EXCEPT an intubation kit (which she was not licensed to use anyway), and when the outcome was not in the patient's favor - part of the suit was over whether she should have taken the intubation kit. Most courts recognize the slippery slope problem and try to keep us, as the good guys, off it.

Permalink Reply by Oldman on May 31, 2010 at 8:48am

The 80th Texas Legislature passed Senate Bill 7, which relates to instruction in cardiopulmonary resuscitation and the availability and use of automated external defibrillators at public school campuses and certain athletic events.

The bill requires the following:

- School districts shall annually make CPR and AED training available to employees.

- All coaches, nurses, PE teachers, band directors, cheerleader sponsors, and student trainers maintain current certification in CPR and AED.

- The State Board of Education is to add elements related to CPR and AED training in TEKS for the Health Curriculum.

- At least 1 AED must be located on every campus (including elementary, junior high and high school).

As the law stands now here, if the school doesn't have an AED, not only have they breached their duty, but also state law. Epi-pens are another matter. While they are mandated in the Health and Safety code for fire departments and EMS organizations, generally speaking, a school could not have an epi-pen unless it is prescribed to an individual student. It would be secured in the nurses office or clinic, and only for that student.