This worrying story comes from a Victorian paramedic student who tells me that:
As part of the degree we undertake placements state wide and last week I was in a rural A & E department after bringing in a patient. Whilst there, one of the nurses approached us (the paramedics) and asked if we could help move a patient from their vehicle into the A&E as technically they (the hospital staff) are not allowed to deal with patients not already inside. The patient in question had been brought to the hospital by his friend, and not by an ambulance. When we walked out, his friend had already gotten him out of the car and onto a wheelchair so we didn’t end up needing to assist. He’d fallen from a tree and was in considerable pain in his neck and upper back, with tingling in his hands, and unable to stand without assistance and even then he couldn’t walk. Once inside, he was made to stand by the doctor (with help mainly from his friend and us) and sit onto the bed, obviously without spinal precautions such as a collar etc.
Later we heard that he had suffered fracture(s) to his vertebrae although I’m not sure of the extent of his injuries.
My question is: What are the implications had the fractures been unstable and he had suffered neurological injuries whilst getting out of the car after being told by the hospital staff that they couldn’t help him. And as paramedics who hadn’t been officially dispatched to the job, would the paramedics be at risk while helping him seeing as though they were specifically asked by hospital staff and were not officially attending?
This story is worrying, not only for implications of the patient, but because it shows some fundamental misunderstanding of the law in particular by the hospital.
Let us assume that the patient’s fractures were ‘unstable and he had suffered neurological injuries’. There are four critical time points when this may have happened:
- when he fell out of the tree;
- as he was being loaded into his friend’s car and driven to the hospital;
- in the hospital carpark; or
- in the hospital when directed by the doctor to move onto the bed without appropriate spinal precautions.
The incidents at (1) and (2) are not relevant to this discussion.
A hospital, particular one that operates an emergency department, is holding itself out as providing a service to anyone that comes to its doors (Barnett v Chelsea and Kensington Hospital Management Committee  1 QB 428). Even if there was no emergency department a hospital, like the occupier of any building, must owe a duty to people who are on its premises. Imagine, if you will, that a person comes to your house and knocks on the door and asks for assistance and then collapses. Although you in no way caused their injury and may not know the person you cannot just leave them lying at your doorstep, you have a duty to do something even if it is no more than a duty to call an ambulance.
One has to infer from this story that the friend had approached the A&E staff and been told that he had to bring his friend into the casually area. If that were not the case the nurses wouldn’t have known to approach the paramedics and would not have made the point that they ‘are not allowed to deal with patients not already inside’. Although it is not usual for lawyers to be definitive, particularly when considering short stories, I prepared to say with a firm degree of conviction the hospital that tells its A&E staff that they cannot treat people unless they are actually inside the casually room is opening its doors to a negligence action.
The hospital owes the duty to the patient not only because he is a person seeking their assistance, but also because he is on their grounds. The nurses are stuck between a direction from the hospital and the patient’s needs. The direction from the hospital does not however define what the hospital’s duty is – if they have a duty to respond, the direction to the staff is evidence of the hospital’s negligence rather than any sort of defence.
In Lowns v Woods (1996) Aust Torts Reports 81-376, Dr Lowns was found to have been negligent when he failed to respond to a call for assistance that was made to him when he was at his practice and where it was clear the patient was very nearby. If that was the conclusion for a private practitioner how much clearer will the case be for a hospital A&E? A person approaches the A&E, he has made it onto the hospital grounds, the staff are there to provide an emergency service and they fail to attend. A more clear-cut case of breach of duty of care is hard to imagine.
The nurses are stuck between a rock and a hard place. On the one hand they have the direction from their employer, on the other the humanitarian impulse to assist and also their professional duty. Remember in Dekker v Medical Board of Australia  WASCA 216, Dr Dekker was found to be guilty of unsatisfactory professional conduct when she failed to assist at a car accident (see Further legal ruling affecting ‘Doctors as ‘good Samaritans’ – do I have to stop?’ (January 3, 2015)). That finding was overturned due to the facts of the case, but in my correspondent’s story there is a person in the hospital car park approaching registered health professionals, who have an expertise in emergency medicine and who are at work in an emergency department. It’s hard to see how refusing to attend would not be conduct ‘that is of a lesser standard than that which might reasonably be expected of the health practitioner by the public or the practitioner’s professional peers’ – ie ‘unprofessional conduct’ within the meaning of the Health Practitioner Regulation National Law (as set out in the Schedule to the Health Practitioner Regulation National Law Act 2009 (Qld) and adopted into the law of Victoria by the Health Practitioner Regulation National Law (Victoria) Act 2009 (Vic)).
The nurses may be concerned that if they act in the carpark, contrary to the directions of the hospital, they are ‘no longer covered by the hospital’s insurance’. Many people use that sort of language, but it is wrong. First what the ‘insurance’ covers does not determine what duty the hospital owes. If actions are not covered by ‘insurance’ then the relevant defendant has to meet the liability from its own resources. Here the nurses are employed by the hospital to work in its A&E and provide emergency medical services. If, as I have argued above, the hospital owes a duty of care to people in its carpark as well as those who have crossed the threshold of the doors, then nurses who are at work, and who go outside to assist, are still acting in the course of their employment. In the event of any negligence the hospital would be liable regardless of the alleged direction.
To return to the question – ‘What are the implications had the fractures been unstable and he had suffered neurological injuries whilst getting out of the car after being told by the hospital staff that they couldn’t help him?’ In my view the hospital would be liable in negligence for the aggravation of those injuries.
Does that mean hospital staff have to attend to every request? The answer has to be yes, they have to respond but what the response is will vary with the circumstances. If everyone is engaged treating a patient with life threating injuries they may not be able to leave. If the person is outside the hospital grounds or even too far from A&E then it may be appropriate to call someone else, another doctor, nurse or the paramedics – either those in the hospital or to make a triple zero phone call. In some cases the reasonable response would be to tell the person who is seeking assistance to call triple zero.
In this case we are told that the nurses approached the paramedics. The fact that the paramedics were not ‘officially attending’ is irrelevant. One assumes that means ‘had been directed to the task by the ambulance co-ord centre’ but what is that the only way to ‘officially’ attend. Like Dr Lowns the paramedics were approached not just because they were someone there, but because they were paramedics. They attended whilst at work and whilst wearing the uniform of their service. What happened here is akin to paramedics seeing an accident occur in front of them or being approached either at their station or whilst sitting in their ambulance (see Failure to attend by NSW Police and Ambulance (December 18, 2013)). When they approached the person in need of assistance they did not stop being paramedics or forget everything they knew just because they were in a hospital. They approached the person in need of assistance and they did so because they were paramedics currently at work as paramedics. I think it is axiomatic that they owed the person a duty of care but if it is not axiomatic, let us consider the ‘salient features’ that establish a duty of care.
This list comes from the decision of Allsop P of the NSW Court of Appeal in Caltex Refineries v Stavar (2009) 75 NSWLR 649. Allsop P said (at -):
… If the circumstances fall within an accepted category of duty, little or no difficulty arises. If, however, the posited duty is a novel one, the proper approach is to undertake a close analysis of the facts bearing on the relationship between the plaintiff and the putative tortfeasor by references to the “salient features” or factors affecting the appropriateness of imputing a legal duty to take reasonable care to avoid harm or injury.
These salient features include:
(a) the foreseeability of harm;
(b) the nature of the harm alleged;
(c) the degree and nature of control able to be exercised by the defendant to avoid harm;
(d) the degree of vulnerability of the plaintiff to harm from the defendant’s conduct, including the capacity and reasonable expectation of a plaintiff to take steps to protect itself;
(e) the degree of reliance by the plaintiff upon the defendant;
(f) any assumption of responsibility by the defendant;
(g) the proximity or nearness in a physical, temporal or relational sense of the plaintiff to the defendant;
(h) the existence or otherwise of a category of relationship between the defendant and the plaintiff or a person closely connected with the plaintiff;
(i) the nature of the activity undertaken by the defendant;
(j) the nature or the degree of the hazard or danger liable to be caused by the defendant’s conduct or the activity or substance controlled by the defendant;
(k) knowledge (either actual or constructive) by the defendant that the conduct will cause harm to the plaintiff;
(l) any potential indeterminacy of liability;
(m) the nature and consequences of any action that can be taken to avoid the harm to the plaintiff;
(n) the extent of imposition on the autonomy or freedom of individuals, including the right to pursue one’s own interests;
(o) the existence of conflicting duties arising from other principles of law or statute;
(p) consistency with the terms, scope and purpose of any statute relevant to the existence of a duty; and
(q) the desirability of, and in some circumstances, need for conformance and coherence in the structure and fabric of the common law.
It is clearly foreseeable that a person who has ‘fallen from a tree and was in considerable pain in his neck and upper back, with tingling in his hands, and unable to stand without assistance and even then he couldn’t walk’ would suffer more harm if not properly managed. The nature of the harm that could occur is catastrophic. The paramedics could do something to avoid that harm, in fact they are experts, they could have directed both the patient and his friend to stop moving, and then treated the patient in accordance with their clinical practice guidelines (CPG A0804 – Spinal Injury accessed 19 August 2015). The fact that he was in a hospital carpark does not detract from the need to properly treat him particularly if the hospital staff weren’t prepared to come outside. The patient (the potential plaintiff) was of course was vulnerable. He’s already been injured and one can infer from what he and his friend were doing, they did not know or appreciate the risks. They came to hospital seeking care and although they may not yet have made it into A&E they are now being assisted by a Victoria Ambulance paramedic. Neither the hospital or paramedics have ‘assumed responsibility’ but in this case that doesn’t suggest no duty of care, rather it suggests a breach – they should have because that is what they are there for and that is what the person in need of care is seeking – professional medical assistance. Proximity is self-evident, the person is in the hospital carpark so is proximate to the hospital, and within arm’s length of the paramedics. One could go through the rest of the list and I think it would be clear that the paramedics owed a relevant duty of care.
To return to the question – ‘would the paramedics be at risk while helping him seeing as though they were specifically asked by hospital staff and were not officially attending?’ The paramedics are not risk for attending; him that is what they do so they would be performing their duty. I would suggest that they are at risk in not attending or, if they attend, not treating the person in an appropriate manner using their professional skills and training. The fact that he’s in a hospital carpark is irrelevant – see Victorian Paramedics treating patients inside the A+E (June 12, 2015).
The ultimate issue, if this person’s ‘fractures [had] been unstable and he had suffered neurological injuries whilst getting out of the car’ would be exactly when did the injuries occur? If they happened in the car park the hospital may claim that it met its duty of care by directing the paramedics to the scene and that they could have, and should have, managed the situation at that point. That is, asking the paramedics to attend met their duty of care.
If however the injuries were sustained when the fellow was getting out of the car and before the paramedics got there, the allegation would be that it was negligent of the nursing staff not to attend or at least not to say ‘leave him in the car, we’ll get someone to you’.
If the injury occurred in A&E where the patient ‘was made to stand by the doctor (with help mainly from his friend and us) and sit onto the bed, obviously without spinal precautions such as a collar’ then the focus would be on the doctor’s conduct but also on the paramedics. Did they say ‘hang on doctor, this guy’s reporting ‘pain in his neck and upper back, with tingling in his hands, he’s unable to stand without assistance and even then he can’t walk’. If not, then the doctor doesn’t have the relevant history even though there’s someone there (the paramedic) who could intervene and give that information.
First of all let me stress I have only my correspondent’s version of events and at that only one paragraph. No doubt there are more subtleties including issues of what was going on in A&E and whether or not the report that ‘… (the hospital staff) are not allowed to deal with patients not already inside’ was accurate – a point that may be denied by the hospital. So this is not definitive advice on a real case; it’s a discussion on the limited facts given above.
Given those limited facts I would have no difficultly arguing:
- That the hospital owes a duty of care to persons who arrive seeking assistance, even if they don’t make it into the doors. A direction that hospital staff are not to deal with patients other than those in the building would be convincing evidence of a breach of that duty.
- Where there is a duty of care, it may not require personal intervention, sending someone to assist, such as a paramedic, may be sufficient.
- The paramedics owe a duty of care to anyone they come to assist regardless of whether the calls come via the triple zero call centre or not. These paramedics were on duty, approached in their capacity as paramedics, to assist a person in need of urgent medical help. They would owe a duty of care. That duty would be to act as a reasonable paramedic which must require treatment in accordance with the Clinical Practice Guidelines, taking into account that they are in fact in the hospital car park. That might mean not doing everything that one normally does before transport but that would be a matter for clinical judgment.
- In my view, and given the limited facts, had this person’s ‘fractures been unstable and he had suffered neurological injuries whilst getting out of the car’ he would have a good cause of action against the hospital.
- If the neurological injuries were sustained after the paramedics arrived, that is after he was in the wheel chair and during his transfer into A&E, he would have a good cause of action against both the hospital and Ambulance Victoria. Where and how liability would be shared would depend on much more evidence about who did and said what.