The average person is legally protected if he or she jumps in with an EpiPen to save the life of someone who is suffering a potentially lethal allergic reaction, experts say.
Much like defibrillators in sports arenas, EpiPens exist to save lives — not create unnecessary legal woes, says Bernard Dickens, a retired professor of health law and policy at the University of Toronto.
“The law encourages rescue in that situation by protecting the rescuer,” Dickens said. “The EpiPen seems to fall into the same place.”
The pen-like disposable needles administer an emergency dose of the hormone epinephrine to treat severe allergic reactions; often to foods such as peanuts or shell fish.
On Wednesday night, Hamilton, Ont. became the first city in Canada to move towards putting auto-injectors — more commonly known as EpiPens — in every restaurant in the city.
The city council voted to place auto-injectors in a local food court or nationally recognized food chain as a pilot project. The project will start in March and run for a year, with the results assessed before it potentially expands to every eating establishment in the city.
The 'perception of peril'
The board of health still isn't sure how the city will fund the project. The move was inspired by the death of a 12-year-old girl who died from an allergic reaction in a nearby Burlington, Ont. food court earlier this year.
Council directed the city’s lawyers to look into any liability issues that might arise when using an auto-injector on someone who then is injured or dies. Dickens says the city doesn’t have anything to worry about.
“Peril invites rescue,” he said. “The perception of you being in peril is all it takes.”
Ontario’s Good Samaritan Act would help keep people safe from any liability issues, says Heather McLeod-Kilmurray, an associate professor in the faculty of law with the University of Ottawa. In the act, any person who isn’t a health care provider who provides emergency first aid to a person in need is waived from liability issues.
''The only way the average person could fall outside that is if you shoved the EpiPen in their eye and they went blind. But that would be ridiculous.' - Heather McLeod-Kilmurray, associate professor in the faculty of law, University of Ottawa
But there could be a couple of grey areas, she said. One is if a person expressly did not give consent and someone went ahead and injected them anyhow. Then he or she could be held liable if the person was injured or died.
Another issue could arise if a health care professional was at the scene and, though not technically working, administered the EpiPen anyhow.
“If it’s a doctor or a paramedic who gives it to them, that could muddy things,” McLeod-Kilmurray said, adding that a person who is medically trained could have a higher “expected standard of care.” But for an average person, simply doing your best would qualify meeting the standard, she says.
“The only way the average person could fall outside that is if you shoved the EpiPen in their eye and they went blind. But that would be ridiculous,” she said.
But even if a restaurant is carrying EpiPens, patrons are under no obligation to help someone. “Technically, there is no duty to rescue in common law,” she said.
Understanding the risks
According to Anaphylaxis Canada, EpiPens are safe to use on healthy people. But there are risks: Large doses or accidental intravenous injection of epinephrine can cause cerebral hemorrhaging because of a sharp rise in blood pressure. The injections are supposed to go into the muscle of the mid-outer thigh.
EpiPen manufacturer Mylan also says epinephrine should be administered with caution in patients who have heart disease, as it can cause heart problems. But the company advocates for its use in life-threatening situations, regardless.
These risks point to a need for increased training in how EpiPens should be used, says Laurie Harada, the executive director of Anaphylaxis Canada. “It’s really important to understand the signs and symptoms,” she said.
The push for EpiPens in restaurants comes as anaphylactic shock deaths are decreasing in Ontario. From 1986 to 2011, there were 82 anaphylaxis deaths in the province — but 63 of those came from before the year 2000. There were 19 deaths from 2003-11.
Food allergy deaths also dropped in recent years. There were only two deaths caused by food allergy from 2003-11. There were 32 from 1986-2000.
Among the 82 people who died from anaphylactic shock since 1986, 17 of them had been prescribed an auto-injector. Only nine of them were carrying one at the time.
That number shows the need for people to become more educated about EpiPen use, Harada says. “Surprisingly, a lot of people who are at risk don’t carry it,” she said.
“It’s like a seatbelt. Most people don’t get into an accident — but if you do, it’ll help.”