Do bars with opiate overdose lifesavers expose themselves to liability?

Example of a Naloxone kit. | PHOTO mountainside-medical.com/

 

Imagine you’re enjoying a drink after skiing when a fellow patron goes pale, has a seizure or becomes unresponsive. Witnessing a fentanyl overdose could be a reality for restaurant and bar owners who have watched the overdose crisis sweep the province.

Some have chosen to stock and train staff with Naloxone kits, also known as Narcan. This lifesaving medication is for opioid overdoses and when injected into a muscle helps the victim breathe normally.

Narcan kits have been made available in pharmacies, police departments and even in some elementary schools. Now restaurants and bars are joining a list of organizations that want to be prepared for the worst.

But the questions remains whether stocking the medication could make them liable in certain situations.

Shaun Frost, a lawyer at Guild Yule LLP, said the question is hard to answer as no such case has been before courts in B.C.

What it would come down to, he said, is tort law and possibly the Good Samaritan Act.
The Good Samaritan Act states there is no liability for those administering emergency aid except for cases of gross negligence, someone who is employed for medical care or provides care with a view to gain.

“It would probably apply,” Frost said. “The restaurant would likely be considered a citizen stepping in to help another citizen in an emergency.”

What is less clear is establishing whether in tort a restaurant has a duty of care for guests who are overdosing.

Frost explained in Canadian law there is no general duty to rescue unless the defendant caused the danger through his or her negligence.

For example, he said, if you were to find someone drowning in river you do not owe them a legal duty to jump in and try to rescue them. However, if you do attempt the rescue and in doing so make the situation worse through your negligence you can be found liable. That same logic may apply to the Naloxone issue.

Several steps would be needed to prove liability including establishing a duty of care that was breached and proof of causation.

“A commercial establishment may be held to a higher standard than a citizen,” Frost said. “But it is a very difficult case to bring. I would be surprised if it went before the courts.”

Because the drug is not dangerous to receive when not overdosing, there’s less risk.

“If Naloxone was more dangerous and caused harm if wrongfully given it would raise the stakes of liability,” he said.

He added a business who provided proper training to their staff would be less exposed than one with untrained staff.

Locally, some staff training has been provided by ASK Wellness of Kamloops, a community outreach organization. They didn’t respond to interview requests before print.

WorkSafe BC declined to be interviewed on the topic and the B.C. Food and Restaurant Association did not respond to interview requests.

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