Women and Birth
Volume 19, Issue 3 , Pages 61-64, September 2006

To assist or not to assist: The legal liability of midwives acting as good Samaritans

  • Helen Newnham

      Affiliations

    • Corresponding Author InformationTel.: +61 8 9273 8613(O)/+61 8 9386 5385(H); fax: +61 8 9273 8699.

School of Nursing, Midwifery and Postgraduate Medicine, Edith Cowan University, Pearson Street, Churchlands, WA 6018, Australia

Received 17 May 2006; received in revised form 13 June 2006; accepted 20 June 2006.

Article Outline

Summary 

At common law no legal duty exists to rescue. This article examines the common law position and whether NSW case of Lowns v Woods 1996 ATR 81-376 creates a new duty to rescue. Recent legislation in some states provides protection from litigation to those who assist in emergencies providing they act in good faith and without gross negligence. The implications for midwives who act as good Samaritans are discussed.

Keywords: Duty to rescue, Emergencies, Legal liability, Legislation

 

Back to Article Outline

Introduction 

For many midwives, stopping at emergencies provokes uncertainty, as to their legal liability and responsibilities. This paper outlines the common law position, namely that there is no duty to rescue another in danger or to go to the aid of a stranger, unless some form of relationship already exists between the parties. Once assistance is given, a relationship is established and a legal duty is created. The common law standard of care required of a midwife, who renders assistance, is according to their level of experience, given the circumstances. The court would consider how a reasonable midwife would act at an emergency, without equipment and hospital facilities.

In 1987, Patrick Woods, a known epileptic, was an 11-year-old boy and was on holiday with his family in New South Wales. His mother returned from a walk and found him having an epileptic seizure. She sent his sister to the general practitioner (GP), Dr. Lowns, and a brother to get an ambulance. Both the ambulance and GP were nearby. The GP refused to attend. The boy suffered brain damage and quadriplegia. The GP claimed, he was not asked to attend but had he been asked, he would have done so as required by the Medical Practitioners Act (1938) NSW. The trial judge rejected his evidence. At trial and on appeal, the court found that, despite the plaintiff not being a patient, a relationship was established given the special circumstances. The GP was found liable in negligence on the bases that first, he owed the plaintiff a duty of care and secondly, that he breached that by failing to respond in an emergency when he had been asked to do so. Patrick Woods was awarded US$ 3.2 million in damages.1

Whether to stop and render assistance to strangers is of concern for some midwives. There is no legislation which creates a duty of care. It has been argued that Lowns v Woods,1 creates a duty of care though the writer considers this would be unlikely for reasons discussed below. More recently civil liabilities legislation has been introduced in some states. The article refers to recent legislation in Queensland, Victoria, NSW, South Australia and Western Australia which provides some protection for good Samaritans, from civil liability arising out of emergencies. The paper also addresses the legal and ethical implications of non-emergency care being given.

Back to Article Outline

Negligence 

The law of negligence exists to compensate persons who are injured through an act or omission of another. The injured person, who becomes in law, the plaintiff, sues the wrongdoer or defendant. ‘Negligence is based on the principle that a person must take reasonable care to avoid acts or omissions which would be likely to harm any person they ought reasonably foresee as being so harmed’.2 The plaintiff must prove that a duty of care existed, that it was breached and the injury was a foreseeable consequence of the breach or failure to meet the required standard of care.

At the original trial of Woods v Lowns,3 Justice Badgery-Parker explained negligence and foreseeability in terms of assisting strangers in an emergency by stating the following:

In general terms, the common law does not impose a duty to assist a person in peril even when it is foreseeable that the consequence of a failure to assist will be the injury or death of the person imperiled …. It has been held in other common law jurisdictions that a doctor is under no duty to attend upon a person who is sick, even in emergency, if that person is one to whom the doctor has not and never has been in a professional relationship of doctor and patient …. Although there is no Australian authority in which the general proposition has been specifically applied in respect of a medical practitioner the general principle is clear, and there is certainly no Australian case in which a doctor has been held liable for damages because of a failure to attend upon and treat someone who was not already his patient.

The NSW Court of Appeal found Dr. Lowns liable in negligence on the basis that the circumstances were such as to impose a duty of care which was a duty to attend the child and that his refusal to do so constituted a breach of duty. Causation was established on the basis that, had the intravenous Valium been given, the likelihood of brain damage would have been low. Consequently, Dr. Lowns was found liable in negligence, for a breach of the Medical Practitioners Act (1938) NSW for not attending Patrick Woods when asked to do so.

Back to Article Outline

Legislation 

With the exception of road traffic legislation which generally requires those involved in an accident to render assistance, there is no specific legislation which requires midwives to assist those in need, if the person in danger is not a patient or in a special relationship with the rescuer. The duty imposed on Dr. Lowns can be differentiated on the basis that the Medical Practitioners Act (1938) NSW imposed a professional duty on him to attend in an emergency. In life threatening situations and where a relationship of parent and child; a teacher and student; doctor/nurse and patient exists a legal duty is created and assistance must be rendered.4, 5

Queensland has passed the Law Reform Act6 to protect doctors and nurses from civil litigation in an emergency, provided they have acted in good faith (honest intent) without gross negligence and the services were performed without aid or reward. The word ‘emergency’ is not defined in the Queensland legislation. Amendments to the Victorian Wrongs Act7 in 2002 provide similar protection for doctors and nurses providing assistance at emergencies. However, it goes further than the Queensland legislation by including any good Samaritan who goes to the aid of another person in an emergency or accident, provided they too have acted in good faith, and without reward. Similarly, in NSW the Civil Liability Act8 provides protection for good Samaritans, which it defines as ‘a person who acts in good faith and without expectation of payment or other reward, comes to the assistance of a person who is apparently injured or at risk of being injured.’ The Civil Liability Act9 deals with the liability of good Samaritans. Protection against liability is provided for medical practitioners and other good Samaritans who without expectation of payment or other consideration, come to the aid of a person who is apparently in need of emergency assistance. Medical practitioners are specifically identified in the Civil Liabilities Act9 while nurses or midwives are not specifically mentioned except as persons registered under an Act (such as the Nurses Act10) as having medical qualifications. The good Samaritan or medically qualified good Samaritan must be acting in good faith and without recklessness in assisting a person in apparent need of emergency assistance. The South Australian, Wrongs Act11 provides similar protection for medically qualified health professionals acting in good faith in emergency situations. The South Australian and Western Australian legislation define ‘emergency assistance’ as:

(a)emergency medical assistance; or

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

The definition is not particularly helpful. In defining ‘emergency assistance,’ the word ‘emergency’ appears in both subsections of the definition. It seems that while the meaning of ‘emergency’ in the various state legislation is unclear or is not specified it does according to Eburn5 mean ‘a major accident or illness that is life threatening and requires urgent treatment but it is not clear whether a less drastic situation can be called an ‘emergency’.’

Alcohol and substance abuse 

There is, however, one important point to note in the WA and NSW legislation. They go further than the Queensland or Victorian legislation, as they specifically remove personal protection for good Samaritans with or without medical qualifications, should their ability to apply reasonable care and skill be significantly impaired by reason of alcohol or other substance that is self-induced.

In determining the duty of care, the courts will determine what a reasonable person would or would not do, by way of response to a foreseeable risk. This is an objective standard. The civil liabilities legislation or equivalent establishes a duty of care and the precautions a person (midwife) must take to meet the standard of care required by the law.

Implications for midwives 

Crowley-Smith12 suggests the duty in Lowns v Woods1 is restricted to doctors only based on the Medical Practitioners Act (1938) (now repealed) and the specific facts of the case. Whether such a duty also extends to midwives who may be asked to render assistance in a given situation is still unclear. As yet no such case has come before an Australian court. If, however, an adverse outcome were to follow the refusal of a midwife to attend when asked to do so, a plaintiff may be able to argue that a relationship was established and a duty of care owed. The likelihood of a midwife being successfully sued under these circumstances is probably remote.

Are midwives required by law to rescue? 

It would seem the decision in Lowns v Woods1 has not created a duty to rescue. The decision of the Court of Appeal in Lowns v Woods1 does not, according to Abadee13 ‘do violence to the general principle that a medical practitioner is under no legal duty to attend upon and treat someone who was not already his or her patient.’ The finding was based on the particular circumstances of the case which established a duty of care by the defendant to the plaintiff.

Arguably health professionals have a moral obligation to assist in an emergency. While society expects those with additional skill in first aid or medical care to offer their assistance in emergencies it is quite a different matter to have this expectation imposed as a legal duty to rescue.

If you do render assistance are you liable? 

Despite the facts in Lowns v Woods1 and the subsequent imposition of a duty on Dr. Lowns, health professionals do not have a duty of care to rescue or assist those in need. However, once assistance is given, by a health professional, a duty of care arises. There is, however, no expectation that midwives would be held to the same standard as they would in a hospital setting. In determining whether the rescuer has met the standard of care the courts will consider what is reasonable in the circumstances. Historically, the courts have been lenient with rescuers provided they have acted in good faith.14 The courts acknowledge that the rescuer may be acting in situations outside their experience.5 Judging by the lack of negligence actions against health professionals or indeed any bystanders, the risk of being sued in emergency situations is small.12, 4 There may be many reasons for this but it is suggested that the community is keen to encourage or at least not discourage those with the skill to assist in emergencies to do so.

Stopping at the roadside or attending on request 

What is still unclear is whether the civil liability or similar legislation will protect a midwife if he or she is asked as a ‘favour’ where it is known the person is a midwife and where no payment is offered. For example, where a midwife is asked to attend or offer advice to a woman with an ante-partum haemorrhage or where a decrease in fetal movements has been noted by the woman. Ethical codes of practice, such as the National Competency standards for Midwives or the Australian Nurses and Midwives Council, Code of Ethics may offer some guidance. While a midwife must practice within the National Competency Standards for Midwives they do not have the force of the law. They only give guidance in a broad sense by stating that a midwife must practice within the common law and legislation. The midwife therefore must turn to the law for guidance.

Once assistance is given a legal duty of care arises but what is unclear is the extent of that duty. It would seem, however, that in most cases midwives are protected by the good Samaritan legislation but the assistance must be given in an emergency which implies a life threatening condition requiring immediate assistance. The ante-partum haemorrhage example may be an emergency and hence the midwife would, it is suggested, be covered under the good Samaritan legislation assuming he or she is acting in good faith. If the situation is not one of emergency and a midwife is asked to attend or advise on a matter the situation under the good Samaritan legislation is less clear. To avoid or possibly reduce the risk of litigation a midwife may be well advised to establish his or her role before attending the woman. After assessing the woman, the midwife would, in the examples cited, almost certainly advise the woman to seek medical assistance. If that advice is ignored the midwife should be clear that he or she accepts no further responsibility for the situation.

Following such an incident, the midwife is advised to document carefully, as soon as possible, the facts of the case and the advice or care given. This is prudent practice, should it be necessary to justify the action taken, in either a court of law or at a professional disciplinary hearing instituted by a regulatory authority such as the Nurses and Midwives Board. Each case would be assessed individually so it is impossible to say with any certainty that a midwife would be protected. However, well-written documentary evidence of the events would greatly assist in the defence of any subsequent action.

Back to Article Outline

Conclusion 

Lowns v Woods1 can be distinguished on the basis of the Medical Practitioners Act (1938) NSW and the particular set of circumstances. With the enactment of civil liability or similar legislation in some states it is unlikely the case of Lowns v Woods1 alters the legal liability for midwives attending emergencies or that a higher standard of care will be imposed. In a non-emergency situation, ethical codes of practice may provide some guidance but to avoid or defend a legal action the midwife needs to be clear about his or her role and to carefully document any advice or care that was given. While there is a dearth of cases against good Samaritans, the legislation goes some way to alleviating the anxiety of midwives when faced with emergency situations outside the work environment.

Back to Article Outline

References 

  1. Lowns v Woods. Aust Torts Reports 81-376; 1996.
  2. Wallace M. Health care and the law. 3rd ed.. Sydney: Lawbook Co.; 2001;p. 188
  3. Woods v Lowns. 36 NSWLR 344 at 354; 1995.
  4. Staunton P, Chiarella M. Law for nurses. 5th ed.. Sydney: Churchill Livingstone; 2003;p. 99–100
  5. Eburn M. Emergency law. 2nd ed.. Sydney: Federation Press; 2005;p. 45–48
  6. Law Reform Act. Qld.; 1995.
  7. Wrongs Act. Victoria; 1958.
  8. Section 56, Civil Liability Act 2002; NSW.
  9. Civil Liability Act 2002; WA.
  10. Nurses Act 1992; WA.
  11. Wrongs Act 1936; SA.
  12. Crowley-Smith L. The duty to rescue unveiled a need to indemnify good Samaritan health care professionals in Australia?. J Law Med. 1997;4:352–360
  13. Abadee A. A medical duty to attend?. J Law Med. 1997;3(306–308):308
  14. Forrester K, Griffiths D. Essentials of law for health professionals. 2nd ed.. Sydney: Harcourt; 2005;p. 91

PII: S1871-5192(06)00024-2

doi:10.1016/j.wombi.2006.06.001

Women and Birth
Volume 19, Issue 3 , Pages 61-64, September 2006

Article Tools