The legal liability of paramedics and other health professionals who perform Good Samaritan acts, particularly in response to in-flight emergencies on commercial aircraft, is a topic about which there is disproportionate and largely unwarranted concern. Much of that concern appears to be generated by sensational headlines (Leonard, 2008) and urban legend yet, as one of the major medical defence organisations notes,
‘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’ (Seddon, 2012.)
In the United States, this fear of legal liability had made many health professionals reluctant to provide emergency care outside of their normal professional setting, which has led all 50 states to enact some form of ‘Good Samaritan laws’. Their concern is perhaps understandable. As long ago as 1963, in the American TV drama Doctor Kildare, the eponymous fictional doctor was successfully sued by a couple whose child he delivered stillborn in a Good Samaritan act at the side of the road (Season 3, Episode 2, 3 October, 1963). As Professor Edward Richards, a public health law specialist at Louisiana State University Law Center, notes (2009):
‘There is a widespread myth that physicians will be sued for a poor outcome if they stop to help a stranger in need. Despite the reality that no physician has ever lost a suit over a Good Samaritan act, it is hard for most physicians and nurses to believe that physicians do not get sued for volunteering medical care. Millions of people watched Dr Kildare lose a suit for helping at the scene of an accident. Every physician has heard a story over coffee about some other physician who got sued. It may have happened to Dr Kildare, but it has not happened to any real doctors.’
A duty of rescue?
It is often a surprise to many people that English law imposes no ‘duty of rescue’. As the House of Lords held in Stovin v Wise (1996) ‘…the bystander does not owe the drowning child or the heedless pedestrian a duty to take steps to save him.’
That is the case even if, with minimal intervention, what the court described as the ‘callous bystander’ could save the life of the person at risk, as reading the above extract from the judgment in context makes clear:
‘The classic example of the absence of a legal duty to take positive action is where a grown person stands by while a young child drowns in a shallow pool. Another instance is where a person watches a nearby pedestrian stroll into the path of an oncoming vehicle. In both instances the callous bystander can foresee serious injury if he does nothing…All that would be called for is the simplest exertion or a warning shout. Despite this, the recognised legal position is that the bystander does not owe the drowning child or the heedless pedestrian a duty to take steps to save him’ (Lord Nicholls, 1996).
In civil law jurisdictions, such as those of mainland Europe, the situation is rather different. Many code-based civil law systems impose a duty of rescue, the breach of which is a crime punishable by fine or imprisonment. For example, the French Code Pénal (Art. 223–6) provides that a person who can, without risk to himself or a third person, provide assistance to or prompt the rescue of a person in danger but wilfully fails to do so may be punished by a fine of up to €75 000 or up to five years' imprisonment. The same penalties apply to anyone who in similar circumstances wilfully fails to prevent a crime or another person coming to physical harm. The equivalent German code, the Strafgesetzbuch, contains similar provisions, breaches of which are punishable by fine or imprisonment for up to one year (Art. 323c).
Although English law imposes no obligation on a bystander to assist someone in need, unlike some other common-law jurisdictions (e.g. Canada, Australia and the United States), it also makes no special provision for the person who does intervene as a Good Samaritan. The common law principle is that a bystander has no legal obligation to come to the aid of another person but, if they choose to do so, then they must exercise due care and may be liable if they fail to do so and end up causing harm. As the High Court put the point in Day v High Performance Sports Limited (2003), ‘there is no duty to attempt a rescue but once active steps have been taken a duty of care has been assumed.’
Duty of care
The concept of the ‘duty of care’ is familiar to paramedics and other health professionals, as it forms the basis upon which claims for clinical negligence are founded. For a health professional to be liable in negligence, the claimant must establish that:
Establishing that a duty of care is owed by a paramedic to a patient will rarely be an issue, as such a duty will arise as soon as the paramedic enters into a clinician-patient relationship. Indeed, it is difficult to envisage a situation in which a paramedic who has assumed responsibility for treating a patient and then makes an error in that treatment could ever argue that a duty of care was not owed to the patient.
Typically, where claimants struggle is in proving causation, that is establishing on the balance of probability that the actions of the paramedic caused the harm the patient suffered. Proving that ‘but for’ the actions of the paramedic, what has happened to an already seriously ill or injured patient would not have occurred anyway is often difficult if there is no evidence of fundamental error.
The standard of care expected is an objective and reasonable one, which does not require flawless perfection, but is based upon the average person (often described as ‘the man on the Clapham omnibus’) or, where the standard relates to the conduct expected of a skilled professional, based upon the ‘reasonable professional’. As the House of Lords held in Whitehouse v Jordan (1981), the question to be put is, if an error is made, was it one that might have been made ‘acting with ordinary care’ by ‘a reasonably competent professional professing to have the standard and type of skill’ held or claimed by the defendant?
Thus, if no special or advanced skills are claimed, the standard of care will generally be that of the ordinary and competent paramedic acting responsibly. That standard is derived from the case of Bolam v Friern Hospital Management Committee (1957) in which Mr Justice McNair, when directing the jury in a medical negligence claim, said:
‘A doctor is not guilty of negligence if he has acted in accordance with a practice accepted as proper and responsible by a responsible body of medical men skilled in that particular art. Putting it the other way around, a doctor is not negligent if he is acting in accordance with such a practice merely because there is a body of opinion which takes the contrary view.’
The effect of Bolam is that a professional must act in accordance with a rather than the body of opinion within that profession, which had the effect of allowing the profession to set its own standard of care and to determine when that standard was breached. That rule applied for 40 years until it was modified in the late 1990s in Bolitho v City and Hackney Health Authority (1997), in which the House of Lords held that, if the relevant body of ‘professional opinion is not capable of withstanding logical analysis’, then the court would be entitled to hold that the body of opinion was not reasonable or responsible.
The courts recognise that the standard of care which applies under normal conditions may not be appropriate when dealing with emergencies. In Wilsher v Essex Area Health Authority (1986), Lord Justice Mustill used the term ‘battle conditions’ in addressing situations in which a professional was required to do ‘too many things at once or to make difficult decisions spur of the moment’. In that case the court held that mistakes made under such conditions ‘should not lightly be taken as negligence’. Thus, the courts do recognise that a different standard—in essence, the reasonable practitioner faced with the same situation—should apply when a professional is faced with an emergency in which they have little or no equipment or other resources and rapid decisions have to be made.
The relationship between the absence of any duty of rescue and the duty of care and potential liability which may arise if a health professional nonetheless intervenes as a Good Samaritan act was neatly summed up in Capital and Counties v Hampshire County Council (1997):
‘…a doctor who happened to witness a road accident will very likely go to the assistance of anyone injured, but he is not under any legal obligation to do so…If he volunteers his assistance, his only duty as a matter of law is not to make the victim's condition worse.’
The ‘bottom line’ is that a health professional will only be liable if their intervention makes matters worse. Putting that in context, the outcome for a person in ventricular fibrillation where there is no intervention will be death, so any attempt at life support can only improve the patient's prospects of survival. Performing unneeded CPR on a conscious patient is quite another matter!
Thus, in relation to Good Samaritan acts, and indeed the risk of liability more generally, the aphorism attributed to Hippocrates (Hippocratic Corpus, Epidemics, Book I, s.II) from 400 BCE of primum non nocere or ‘first do no harm’ remains sound legal advice!
American ‘Good Samaritan’ laws
In the United States, a person who intervenes in an emergency may be protected by a Good Samaritan law. The ‘may’ arises because liability for negligence is a matter of state law and Good Samaritan laws differ quite markedly among the states.
Prof Victoria Sutton, Director of Texas Tech University's Center for Biodefense, Law and Public Policy conducted an analytical survey of US Good Samaritan laws which identified a ‘complex web’ in which some states only protected physicians licensed to practise in the state in question, others protected specific categories of health professional, some only granted protection to those with specific training or certification and some protected members of the public. The point on which she identified most consistency across all states was that care needed to have been provided with expectation of remuneration.
The standard of care in order to be protected also varied considerably, ranging from ‘good faith’ efforts conducted with reasonable prudence to those where gross or wanton negligence needed to be proved to those which appear to confer no protection beyond the ‘do no harm’ principle of the common law (Sutton, 2010).
Inevitably, this variation has led to legal challenges and raises the question of whether these laws provide immunity or just a defence? For example, in Wisconsin the state Good Samaritan law provides that (emphasis added) (Wisconsin Statutes, §895.48(1)):
‘any person who, in good faith, renders emergency care at the scene of any emergency or accident has immunity from civil liability.’
In Clayton v American Family Mutual Insurance Co. (2007) the Wisconsin Court of Appeals overturned the decision of a lower court which held that, irrespective of whose version of events was true, the Good Samaritan law protected the defendant against liability for Clayton's injuries. The Appeal court held that:
‘Even if a party claims the protection of the Good Samaritan law, proceedings may continue if there is a genuine issue of material fact as to whether emergency care was rendered, whether it was provided at the scene of the emergency, or whether it was provided in good faith.’
In respect of US commercial aviation, the situation is somewhat simpler as that sector is subject to federal rather than state law. Section 5(b) of the US Aviation Medical Assistance Act of 1998 (49 USC §44701) provides that:
‘An individual shall not be liable for damages in any action brought in a Federal or State court arising out of the acts or omissions of the individual in providing or attempting to provide assistance in the case of an in-flight medical emergency unless the individual, while rendering such assistance, is guilty of gross negligence or willful misconduct.’
Thus, the Aviation Medical Assistance Act provides protection to any individual on a flight subject to US law unless their actions are grossly negligent or wilful.
Usually, the ‘flag’ of the airline will be the starting point for determining whose law applies. However, determining jurisdiction in respect of events that occur on commercial aircraft can be a complex legal process because of the various international conventions that apply to that industry. For example, under Article 28 of the Warsaw Convention 1929, a passenger may commence proceedings:
In flight emergencies: first, do no harm…
Longer flights, bigger aircraft and an ageing population inevitably mean that in flight emergencies are on the increase. As guidance issued by British Airways Health Services (2012) notes:
‘The ease and accessibility of air travel to an ageing population inevitably means that there are those who wish to fly who may not cope with the… physiological environment of the pressurised passenger cabin.’
The same guidance also reminds us that:
‘The passenger cabin of a commercial airliner is designed to carry the maximum number of passengers in comfort and safety, within the constraints of cost effectiveness. It is incompatible with providing the facilities of an ambulance, an emergency room, an intensive care unit, a delivery suite or a mortuary’ (British Airways Health Services, 2012).
Information about the nature and extent of inflight emergencies is quite difficult to obtain. There is no standardised system for recording such events. For example, in one study conducted in 2009, of 32 European airlines asked to provide data on in-flight medical and surgical emergencies, only four airlines were able to provide the necessary data (Sand et al, 2009).
In that study 10 189 cases were analysed and syncope was by far the most common condition reported (5 307 cases; 53.5%), followed by gastrointestinal disorders (926 cases; 8.9%) and cardiac conditions (509 cases; 4.9%). The most common surgical conditions were thrombosis (47 cases; 0.5%) and appendicitis (27 cases; 0.25%). Aircraft diversion only occurred in 2.8% of all cases. More interestingly, in the overwhelming majority of cases (86%) a doctor or other health professional was involved in providing care (Sand et al, 2009).
A more recent study of 11 920 in-flight emergencies which involved interaction with a ground-based medical advisory service supports the view that most in-flight medical emergencies are related to syncope and that few in-flight medical emergencies resulted in diversion of aircraft or death (Peterson et al, 2013).
So here are five points that should be taken into account in dealing with an in-flight emergency:
1. Don't just ‘steam in’
Cabin crew receive regular first aid training and will be able to manage most in-fight emergencies, so offer your help rather than trying to take over. Clearly identify yourself and your level of clinical training. Recognise and explain your own limitations. Managing high-acuity conditions at 36 000 feet is unlikely to be part of your everyday skill set and you do need to take account of travel fatigue or any alcohol you may have consumed.
2. Know or find out what resources are available
The equipment and resources available on-board will vary considerably from carrier to carrier. On long haul flights there may be both a first aid kit (for crew use) and an emergency medical kit (for use by suitably qualified passengers or via ground-based medical direction). Often, details of the indemnity which the airline is willing to provide to Good Samaritans are printed on the outside of the emergency medical kit.
Automated external defibrillators are mandatory equipment for US carriers and will be carried by many other airlines. They may also have more sophisticated equipment. For example, some airlines carry the Tempus IC which combines vital signs monitoring (12-lead ECG, blood pressure, pulse oximetry, tympanic temperature, capnography and glucometry) with a radio or satellite link to a ground-based medical advisory service such as MedAire at the Banner Good Samaritan Hospital in Phoenix, AZ.
3. The usual legal and ethical principles still apply
So far as possible, this patient should be treated like any other patient. Seek consent to treatment, obtain the fullest history possible, act within the limits of your skills and the available resources and make a contemporaneous record of what you did.
4. If in doubt, explain the clinical need for flight diversion
Diverting an aircraft is the pilot's decision, taking account of a wide range of factors including weather, terrain, fuel, landing weight, available airports and access to medical facilities. There may be little point in diverting by hundreds of miles only to land at a remote airport where the patient must then make a road journey for several hours to limited hospital facilities. Your opinion on diversion should be a clinical one: ‘all the indications are that the patient is having a stroke. The sooner he gets to a hospital, the better.’
5. Above all, don't make matters worse
Doing no harm is not just about liability, it is also in the patient's best interests. A small number of in-flight emergencies are serious, but the vast majority only require minimal intervention. Often, the simple reassurance that a health professional is on hand may be sufficient to get the patient through the remainder of the flight. Ignore the disaster movies and, recently published research notwithstanding (Neill and Anderson, 2013), it's generally better to use a ball point pen to make a record of what you did rather than to perform a makeshift cricothyroidotomy!