Is There a Doctor in the House? Responding to Severe, Life-Threatening Allergic Reactions
A restaurant’s first response to an allergic reaction by a customer should be to leave it to the customer’s family member or friend to administer first aid. Further, the restaurant should call 9?1?1, if the customer exhibits a severe, life-threatening allergic reaction (anaphylaxis). Given that food allergies appear to be on the rise (e.g., peanut, seafood, gluten, etc.), it seems wise for a restaurant to carry an EpiPen® (epinephrine auto-injector) in its first aid kit, though Washington law does not require restaurants to do so at this time (but does require schools to carry an EpiPen®). If the restaurant carries an EpiPen® in its first aid kit, it should deliver the EpiPen® to the table to have the customer’s family member or friend administer it. If there is nobody at the table or nearby who is available or willing to administer the EpiPen®, restaurant personnel can take solace in the fact that there is a Good Samaritan statute in Washington State that provides immunity to “any person” who voluntarily (without compensation) renders emergency care at the scene of an emergency, so long as the person who administered the first aid is not grossly negligent or committing willful or wanton misconduct:
Immunity from liability for certain types of medical care.
*** CHANGE IN 2014 *** (SEE 6128.SL) ***
(1) Any person, including but not limited to a volunteer provider of emergency or medical services, who without compensation or the expectation of compensation renders emergency care at the scene of an emergency or who participates in transporting, not for compensation, therefrom an injured person or persons for emergency medical treatment shall not be liable for civil damages resulting from any act or omission in the rendering of such emergency care or in transporting such persons, other than acts or omissions constituting gross negligence or willful or wanton misconduct. Any person rendering emergency care during the course of regular employment and receiving compensation or expecting to receive compensation for rendering such care is excluded from the protection of this subsection.
(2) Any licensed health care provider regulated by a disciplining authority under RCW 18.130.040 in the state of Washington who, without compensation or the expectation of compensation, provides health care services at a community health care setting is not liable for civil damages resulting from any act or omission in the rendering of such care, other than acts or omissions constituting gross negligence or willful or wanton misconduct.
(3) For purposes of subsection (2) of this section, “community health care setting” means an entity that provides health care services and:
(a) Is a clinic operated by a public entity or private tax exempt corporation, except a clinic that is owned, operated, or controlled by a hospital licensed under chapter 70.41 RCW unless the hospital-based clinic either:
(i) Maintains and holds itself out to the public as having established hours on a regular basis for providing free health care services to members of the public to the extent that care is provided without compensation or expectation of compensation during those established hours; or
(ii) Is participating, through a written agreement, in a community-based program to provide access to health care services for uninsured persons, to the extent that:
(A) Care is provided without compensation or expectation of compensation to individuals who have been referred for care through that community-based program; and
(B) The health care provider’s participation in the community-based program is conditioned upon his or her agreement to provide health services without expectation of compensation;
(b) Is a for-profit corporation that maintains and holds itself out to the public as having established hours on a regular basis for providing free health care services to members of the public to the extent that care is provided without compensation or expectation of compensation during those established hours; or
(c) Is a for-profit corporation that is participating, through a written agreement, in a community-based program to provide access to health care services for uninsured persons, to the extent that:
(i) Care is provided without compensation or expectation of compensation to individuals who have been referred for care through that community-based program; and
(ii) The health care provider’s participation in the community-based program is conditioned upon his or her agreement to provide health services without expectation of compensation.
[2004 c 87 § 1; 2003 c 256 § 1; 1985 c 443 § 19; 1975 c 58 § 1.]
Emergency care is defined as “care, first aid, treatment, or assistance rendered to the injured persons in need of immediate medical attention”:
Persons rendering emergency care or transportation – Definitions.
For the purposes of RCW 4.24.300 the following words and phrases shall have the following meanings unless the context clearly requires otherwise:
(1) “Compensation” has its ordinary meaning but does not include: Nominal payments, reimbursement for expenses, or pension benefits; payments made to volunteer part-time and volunteer on-call personnel of fire departments, fire districts, ambulance districts, police departments, or any emergency response organizations; or any payment to a person employed as a transit operator who is paid for his or her regular work, which work does not routinely include providing emergency care or emergency transportation.
(2) “Emergency care” means care, first aid, treatment, or assistance rendered to the injured person in need of immediate medical attention and includes providing or arranging for further medical treatment or care for the injured person. Except with respect to the injured person or persons being transported for further medical treatment or care, the immunity granted by RCW 4.24.300 does not apply to the negligent operation of any motor vehicle.
(3) “Scene of an emergency” means the scene of an accident or other sudden or unexpected event or combination of circumstances which calls for immediate action.
[1989 c 223 § 1; 1987 c 212 § 501; 1985 c 443 § 20; 1975 c 58 § 2.]
As stated, immunity will apply to any person rendering emergency care, unless that person is grossly negligent or commits willful or wanton misconduct. Gross negligence is defined under the common law through court cases as an aggravated failure to perform a manifest duty with a high degree of disregard of the consequences causing injury to another person. In contrast, ordinary negligence is a failure to use such care as a reasonably prudent person would use under similar circumstances which act or omission causes injury to person. The difference between ordinary and gross negligence is a matter of degree.
Willful or wanton misconduct by the person rendering emergency care means the person is conscious of the risks (such as side effects), or had specific reasons to know about the risks, and proceeds without any concern for the safety of others. Side effects are listed on the EpiPen® website (https://www.epipen.com/en/about-epipen/epipen-side-effects) and include: increase in heart rate, stronger or irregular heartbeat, sweating, nausea and vomiting, difficulty breathing, paleness, dizziness, weakness or shakiness, headache, apprehension, nervousness or anxiety. Such side effects pale in comparison to a severe, life-threatening allergic reaction (anaphylaxis). As you see in most medication advertisements, there also are warnings for people who have the following conditions: asthma, depression, thyroid disease, Parkinson’s disease, diabetes, high blood pressure and heart disease, have any other medical conditions, are pregnant or plan to become pregnant, or are breastfeeding or plan to breastfeed. There may be no way for restaurant personnel rendering emergency care to know whether a customer has any of these preexisting conditions and little or no time to ask the customer during the emergency.
So long as restaurant personnel act reasonably, and do not commit gross negligence or willful or wanton misconduct, the immunity statute will protect the person from liability. If you have any questions, please feel free to contact any member of the Retail, Hotel & Restaurant team.