A sports trainer or first aider treats a person, hands the care to paramedics, but do they then take back the care of the patient.
I am a Level 2 sports trainer with about 10 years’ experience. Recently I had a player knocked out for approx. 15-20 secs. On field assessment there was no signs or symptoms of concussion or injury. Player was moved to the bench and then had delayed onset concussion signs and symptoms and complained of a sore neck. Player deteriorated rapidly and became emotional unstable. I called an ambulance and they arrived 7-10 minutes later. I had performed inline manual support of player’s neck. Paramedics determined it was soft tissue (which I was pretty sure it was but followed protocols.) Paramedics then advised player that they were happy for him to go home and be monitored by his mother and did not transport him to hospital. I followed up with patients mother the next day as she is a friend of mine. She advised that he had a big headache, sore neck and was still not quite right. I suggested she get medical advice. A colleague has queried if I then took back the duty of care in following up and giving advice. What are your thoughts on this? I have resumed duty of care? I always follow up with serious cases the next day or 2 and don’t want to put myself at risk.
Let me change the facts a bit and remove the words ‘as she is a friend of mine’; that is we can explore the point with more clarity if the only relationship is first aider/patient.
The Civil Liability Act 2002 (NSW) s 5B (and its equivalent in each jurisdiction) says:
A person is not negligent in failing to take precautions against a risk of harm unless:
(a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and
(b) the risk was not insignificant, and
(c) in the circumstances, a reasonable person in the person’s position would have taken those precautions.
If we take that as a starting point, there is no doubt that the trainer/first aider owes a duty of care to their patient on the playing field. I accept that, in the scenario I’m given, the care provided by everyone met the requirements of ‘reasonable care’. For my correspondent it means the ambulance has been called, paramedics have assessed the patient and I accept made a reasonable decision to allow the person to go home with his mother. If that was the end of the story that would, indeed, be the end of the story. If the patient later suffered complications or their condition deteriorated it does not follow that the care provided up to that time has been reasonable.
The complication is that my correspondent rings the next day to check up on the patient. I think there can be no doubt that at some point in the conversation the question ‘how is he?’ will be asked. There are two possible answers. Either 1) ‘he’s fine everything’s good’ or 2) ‘he’s not fine’ in fact the very answers my correspondent was given serve as an example of the second type of answer, ‘he had a big headache, sore neck and was still not quite right’.
If the answer was (1) ‘he’s fine’ all well and good. If the answer was a type (2) answer, what do you do with that information? You can either say ‘oh dear, sorry to hear that, I hope he gets better soon’ or ‘gee, that’s not so good, you should probably get medical advice’. In some circumstances the answer might be ‘we have to get off the phone and you have to call triple zero and ask for the paramedics’.
What’s the risk? Let’s assume that the person has spinal or head injuries, or even both. The risk could be catastrophic if care isn’t obtained. Remember I’m assuming that the only relationship is first aider/patient, not that there is a friend or family relationship. In that case the trainer/first aider has special knowledge, perhaps more than the patient or his carer. The trainer/first aider, because of that knowledge, knows of the risk and of the need to care. Presumably the carer does not (if they did they would already have sought that extra care). So you have a vulnerable person, the trainer/first aider has the relevant knowledge and can do something to protect the vulnerable person (ie give advice) and if they don’t the vulnerable person can’t protect themself because they don’t know of the need to do so.
Imagine if later the person drops dead and it’s found that they had cerebral oedema and if they’d been brought to hospital earlier it could have been treated and their life saved. I can imagine the carer, in our scenario the mother, saying ‘The person who treated him rang me and asked how he was, I told him and that person didn’t say ‘seek medical care’ so I didn’t think to do so. If it was serious that person would have or should have said something’. And that argument is attractive, because why else did you make the phone call? If you’re not prepared to give advice if the answer is ‘things aren’t good’ what’s the point of following up with the person? There have been cases where doctors have been liable because in consultations they didn’t stress the need to get further care or follow up on tests or the like and the plaintiff/patients have claimed ‘they didn’t tell me it was urgent or important or critical’. I think a similar argument could work here.
Why did I remove the words ‘as she is a friend of mine’? Because if there’s a pre-existing friendship the call can be explained by that relationship and one would understand that a friendly inquiry does not create a legal duty, but I would still expect advice to be given to seek care. But if there is no pre-existing relationship, the only reason for the phone call is because you, the person making the call, was the person who provided care at the field and you are providing follow up care. If you don’t have in mind what you are going to say if the answer to ‘how is he’ is ‘not good’ then why are you making the call?
So yes, I think making the follow up call does bring with it a duty to respond ‘reasonably’. That doesn’t mean that the caller has to rush over and provide an ambulance service or to deliver advice and care beyond their level of skill or expertise. In this case a reasonable response may be exactly what was given ‘I suggested she get medical advice’ but the alternative of saying nothing or advising the person to do nothing in circumstance where they know you are a relevant health carer so you know your advice is, in the circumstances, required and likely to be acted on would be indefensible and could be negligent.