The doctor’s duty in emergencies

A 10-year-old child, who was known to have epilepsy, got severe fits near the private practice of a General Practitioner (non-specialised doctor). The doctor was called to attend to the patient, but he declined as this was not his patient and he had no therapeutic relationship with the child. The child was the patient of a specialist pediatric neurologist for many years ever since he was diagnosed as an epileptic. However, the specialist was miles away from the place the child got the fits. The child suffered severe brain damage and lost the use of both the arms and legs as a result of these fits. He had thereafter to use a wheel-chair, in addition to having the services of an attendant for the rest of his life.

Legal action taken
The two doctors were sued. In the course of the case, the judge made a number of observations:
• The doctor was aware that the child faced a major, life-threatening medical emergency requiring urgent attention.
• The doctor was only 300 metres from the site of the emergency.
• The doctor was approached at his place of practice.
• The doctor was ready to begin his day’s work and was not occupied in any professional activity, which would have precluded him from treating the child.
• What was asked of the doctor involved no risk to him.
• The doctor was not disabled by any physical or mental condition from travelling to and treating the child (for example, he was not tired, ill or inebriated).

Court found it difficult to imagine any reasonable doctor failing to respond to a request for assistance in these circumstances. Although no doctor-patient relationship existed between the child and the general practitioner, the question was whether he owed the child a duty of care in these circumstances. Court found that the doctor indeed owed a duty of care to the child. This duty arose because the child was in urgent need of medical treatment. Court found that the doctor had been alerted to the need for emergency care. His failure or refusal to attend to the child without reasonable cause amounted to a breach of his duty of care.

The general rule is that no person, not even a doctor, is under a legal obligation to rescue a stranger. However, circumstances may exist in which a medical practitioner comes under a duty of care, the content of which is a duty to treat a patient in need of emergency care. Indeed, it is misconduct in all Medical and Dental Practitioners Acts not to offer emergency care. There is an ethical responsibility for all health personnel to provide emergency care to the level to which one is trained and experienced. In most jurisdictions, health workers need not fear to offer emergency assistance for the fear of being sued if their attempts are not successful. Protection from civil liability is assured where help has been provided in an emergency without expectation of financial reward.

The accusations
It was alleged that the specialist was negligent in failing to prescribe rectal diazepam (valium) and in failing to instruct the child’s parent in its administration for use in emergencies where an epileptic fit occurred and professional medical care was not readily available. This was the situation which, in fact, arose. Expert medical evidence indicated that the course of treatment adopted by the specialist (of not instructing the parent to give rectal valium) was in accordance with accepted medical practice then.

This decision was regarded by the peers of the specialist as proper standards. However, court ruled against the specialist. The court is the expert of experts, as the saying goes. The court ruled: “It is the law, not the medical profession which determines the standard of care which is required.” The judge had this to add: “It is incumbent upon (the specialist) in the exercise of reasonable care and skill as a specialist pediatric neurologist to instruct the parents about the use of rectal diazepam and to equip them to administer it.”

Dr Sylvester Onzivua is a Consultant Forensic Pathologist.

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