It's Nursing Week and you are at a booth in a busy shopping mall. After spending a couple of hours talking with people, answering questions and taking blood pressure readings, you start to sip a well-earned cup of coffee. You glance down the mall and observe a middle-aged man suddenly clutch at his chest and fall to the floor. You alert your colleagues to call 911 as you run down the mall to do what you can. You reach the man, announce "I know CPR," and initiate resuscitation.

You have just spent an invigorating day on the ski slopes. As you drive home, you are horrified to see a car spin out of control and roll over into the ditch a couple of car lengths ahead of you. Suddenly you are faced with a dilemma. You are an experienced nurse who wants to help and yet, lurking in the back of your mind, there is the nagging fear that you could be sued. You wonder if you are legally obligated to stop and assist. Could you be liable if you fail to do so?

Have you ever thought about what you would do if faced with similar situations? Morally and professionally, you're willing and happy to assist, but you question what possible consequences could attach to your actions. You are aware there could be unsuccessful outcomes and you wonder what financial and professional risk you should take in responding, or even if you should respond.

If you are ever faced with situations like these, you should be aware that, in Canada there is no legal duty that forces you to help someone in an emergency. While the nurse may feel a moral or an ethical duty to do so, the nurse cannot be held liable for failing to assist where there is no legal duty to do so.1

In order to reduce the fear of malpractice liability for coming to someone's aid, most of the provincial and territorial legislatures have enacted legislation, generally known as Good Samaritan legislation, to protect those who voluntarily and gratuitously come to the assistance of others in emergency situations. Some legislation specifically refers to "registered nurse," "physician" or "registered health discipline member,"2 while others refer to "volunteer" or "person." This legislation provides protection from liability for those who come to the assistance of others in an emergency situation. The exception to this protection is where gross negligence has occurred. Alberta's legislation states, for example:

2. If, in respect of a person who is ill, injured or unconscious as the result of an accident or other emergency,

a. a physician, registered health discipline member, or registered nurse voluntarily and without expectation of compensation or reward renders emergency medical services or first aid assistance and the services or assistance are not rendered at a hospital or other place having adequate medical facilities and equipment, or...

the physician, registered health discipline member, or registered nurse or other person is not liable for damages for injuries to or the death of that person alleged to have been caused by an act or omission on his part in rendering the medical services or first aid assistance, unless it is established that the injuries or death were caused by gross negligence on his part.3

Manitoba, New Brunswick and Nunavut do not have specific Good Samaritan legislation, although New Brunswick, under the Medical Act of 1981, does protect from liability physicians who render voluntary first aid or emergency treatment outside of a hospital or doctor's office.4 Ontario publishes a pamphlet that urges the use of common sense and goes on to state that "...in an emergency medical situation, any doctor, nurse or medical person, including someone trained in assisting, should step forward to help with no real concern for a successful lawsuit against them."5

Once you have begun to assist the victim you have entered into a nurse/client relationship with that person and you are bound by a duty of care to him. You have a duty, in law, to the injured person to continue to treat that person until you are relieved by another competent professional, the preference being one with medical training, or until the person is out of immediate danger.6 You are not expected to perform miracles; you are expected to act in accordance with your knowledge, skills and standards to ensure the client receives safe, competent care. "Even medical people are expected to provide only assistance that is reasonable, considering their training, the circumstances of the accident and the extent of the injuries involved."7 You have a duty not to further endanger your client; if you do so you could be found liable for negligence in a court of law. However, legislatures recognized that emergencies do not always happen in ideal situations and determined there must be "gross negligence" to incur liability.

Gross negligence, a common thread throughout the legislation, has been defined as "a manifestly smaller amount of watchfulness and circumspection than the circumstances require of a person of ordinary prudence."8 The Supreme Court of Canada has stated that gross negligence means "very great negligence" and that it must be left to the trial judge in each case to put the matter to the jury in that way with such reference to the evidence as may be necessary.9 Gross negligence by a nurse would be thoroughly outrageous behaviour with little regard to nursing standards.

Over time there has been discussion in Canada regarding legislating a positive duty to rescue, similar to that found in European law, where all persons are required to aid those they find in distress.10 In North America, Vermont and Minnesota have passed legislation which imposes a responsibility for a person to act when they know that someone is exposed to grave physical peril.11 In Canada, Quebec embodies a positive duty in legislation that you must come to the aid of anyone in peril:

Every human being whose life is in peril has a right to assistance.

Every person must come to the aid of anyone whose life is in peril, either personally or calling for aid, by giving him the necessary and immediate physical assistance, unless it involves danger to himself or a third person, or he has another valid reason.12

Most Canadian provincial and territorial legislatures do have statutes requiring drivers of motor vehicles who are involved in accidents to, among other things, "render all possible assistance."13 Thus far, there is no indication of ever adopting requirement to act legislation into criminal law.14

Whether you are called upon for assistance in your role as a hockey mom, an equestrian dad, a camper, a good neighbour or merely as someone passing by, your knowledge, training and skills are valuable. If you act in accordance with nursing standards, it will be extremely difficult for anyone to find that your care is negligent.

References:

1. Linden, A.M. Rescuers and Good Samaritans, Alberta Law Review, Vol. X, 1971, p. 89; Sharpe, G. The Law & Medicine in Canada, Second Edition (1987) Butterworths Toronto and Vancouver, p. 271; Sneiderman, B., Irvine, J.C., and Osborne, P.H. Canadian Medical Law, Second Edition (1995) Thomson Canada Limited, p. 165; Feutz-Harter, S. Nursing and the Law (1993) Professional Education Systems, Inc., U.S.A., p. 23.
2. Alberta, Emergency Medical Aid Act Chapter E-9 RSA [1980]; Saskatchewan, The Emergency Medical Aid Act Chapter E-8 R.S.S. [1978]; Newfoundland and Labrador, Emergency Medical Aid Act R.S.N. C. E-9 [1990]; Northwest Territories, Emergency Medical Aid Act Chapter E-4 R.S.N.W.T. [1988]; Yukon, Emergency Medical Aid Act R.S.Y. 1986, c. 52.
3. Emergency Medical Aid Act Chapter E-9 RSA 1980.
4. An Act Respecting the New Brunswick Medical Society and the College of Physicians and Surgeons of New Brunswick S.N.B. 1981 C87 s. 68.
5. Ministry of the Attorney General, It Doesn't Hurt to Help, Toronto [1985].
6. Ministry of the Attorney General [1985]; Kidd, S.B. The Physician's Legal Manual (1996) Emond Montgomery Publications Limited. Toronto p. 481.
7. Ministry of the Attorney General [1985].
8. Black, H.C. Black's Law Dictionary, Sixth Edition, 1990, West Publishing Co., St. Paul, MN. pp. 1033-1034.
9. Studer v. Cowper (next friend of) [1951] S.C.R. 450 ; Quicklaw p. 5;( per Kerwin J.)
10. Sharpe, G. The Law & Medicine in Canada, Second Edition (1987), Butterworths Toronto and Vancouver, p. 273; Linden, A.M. Canadian Tort Law, Fifth Edition (1993) Butterworths Canada Limited, p. 267.
11. Iserson, K.V., Sanders, A.B., and Mathieu, D. Ethics in Emergency Medicine, Second Edition (1995) Galen Press, Ltd. Tucson, Arizona, p. 19.
12. Quebec Charter of Human Rights and Freedoms, R.S.Q. c-12, art. 2 [1975, 1996].
13. Ontario, Highway Traffic Act R.S.O., 1990, c. H.8, s. 200(1), 1997, c. 12, s. 16.
14. Sharpe 1987, p. 285.

Note: This article has been reprinted with permission from Canadian Nurse, September 1999.

All articles appearing in this section are for information purposes only and should not be construed as legal advice. Readers should consult legal counsel for specific advice.

Addendum:

The following legislation has been enacted or changed since this article was written:

Ontario, Good Samaritan Act, 2001, S.O. 2001, c. 2
Nunavut - Emergency Medical Aid Act, RSNWT (Nu) 1988, Ch E-4