By Dr. JD, a plaintiff’s attorney, practicing in the Northeast
We continue our series of articles penned by one attorney, an MD, JD, giving you a view of the world through a malpractice plaintiff attorney’s eyes. This attorney is a seasoned veteran. The series includes a number of pearls on how to stay out of harm’s way. While I do not necessarily agree with 100% of the details of every article, I think the messages are salient, on target, and fully relevant. Please give us your feedback – and let us know if you find the series helpful.
In a medical emergency we want the best-trained people responding.
Of course, those best-trained people are aware that they can face liability for such work.
Good Samaritan laws, named for the one person in Jesus’ parable who did not consider the drawbacks when he stopped to help, were created to encourage medically-trained people to aid in an emergency.
These laws do not create a duty to engage in hands-on rescue. Even states like Vermont that require intervention by everyone only require that it be reasonable under the circumstances. A call to 911 can often suffice. This applies to medically-trained rescuers as well, particularly since they are expected to know when just calling for help is the right course of action.
What these laws do is limit liability for trained assisters to acts of willful misconduct and gross negligence.
This does not prevent a doctor from being sued for malpractice for emergency care. It is a defense raised in a suit that the case must be dismissed unless the high threshold of willful misconduct or gross negligence can be proven.
However, this is actually a far stronger protection than it sounds. Courts seek to promote the public policy of trained rescue, and are inclined away from finding a basis to continue these cases.
These laws have several requirements:
1. The care must have been undertaken gratis at the time and without expectation of future payment.
Decreased liability risk is the quid pro quo for providing rescuing care without any hope of recompense.
This is why these laws generally do not apply to care in hospitals (California and Colorado are exceptions, and even then only as to treatment of a patient the doctor was called unexpectedly and was not already attending to routinely) or medical offices.
Unexpected gifts, such as an upgrade to first class after helping an MI victim on a plane or tickets to a top Broadway show from a grateful rescuee, would not preclude the law from applying. There was no bargain for remuneration when the care was rendered and the gift is clearly not a standard payment for medical care.
2. There cannot have been a pre-existing duty to the patient
If the patient is a current patient of yours or you are under an agreement to provide care, you have a pre-existing duty to the patient. You cannot seek the protection of a Good Samaritan Law since those laws encourage physicians who are strangers to the patients to get involved in emergency care.
A care agreement can be contractual, such as a shared coverage agreement with another practice or an on-call arrangement with your hospital as a requirement of your privileges, or it can be implied, such as treating a member of your staff who is injured at the office since you would be under a duty to offer emergency care within your personal facility.
That there is no payment involved does not change the duty issue. If you volunteer with a charity to cover at a health fair for the uninsured, you may be held under a duty to anyone who shows up needing care and could not invoke a Good Samaritan law. Some states, though, actually carve out a charity immunity for liability.
For the duty to attach, it is essential that you be in the situation to act as a medical practitioner. Therefore, while you could not claim protection under a Good Samaritan law if you were volunteering at the first aid station at your child’s hockey game, you could do so if you were there as the coach and just happened to provide emergency care when one of the players was injured.
3. The goal is stabilization
Remember, these laws are geared to emergency situations. They do not require definitive care to be rendered and there will not be liability for less-than-definitive care unless such was so clearly possible that failing to do it would be grossly negligent.
4. Once aid is commenced, the responder must remain at the scene until someone capable of taking over arrives.
The only exceptions would be leaving to get help or because it is too legitimately unsafe to stay.
Therefore, a doctor who comes upon an injured hiker in a wilderness park where there is no cell phone reception can go for help after stabilizing the hiker. He will still be under the protection of the Good Samaritan law. But a doctor on his way to a personal appointment, who stops to render assistance at the site of a car accident and stabilizes the victim, but then leaves and merely calls 911 from his car as he drives away, will not be covered.
Similarly, the first doctor does not have to stay at the scene if a grizzly bear is approaching. He can still receive Good Samaritan protection. But the second doctor cannot invoke the law’s protection if he drives away on the basis that it was getting dark and roads can be dangerous at night.
5. The patient should have consented to the emergency care if possible.
Consent is implied if the patient cannot answer and there is no one to speak for him. However, if it can be obtained, it should be.
Obviously, written forms and an extensive discussion will not be involved in an emergency setting. But stating one’s credentials and a basic risk/benefit statement should be done. An example might be “I’m a doctor. Your leg is bleeding badly. I’m going to put on a tourniquet. It will probably hurt and there may be damage to the tissues of the lower leg due to the loss of blood flow, but if I don’t do it now you could bleed to death before the ambulance comes.” (I’m not sure what you do if the patient – in a stupor – says No, go away….)
This brings us to the predicate of these laws that most concerns physicians – what they do not cover.
The first type of conduct that is not covered -“willful misconduct”- is clear as to its meaning. It is literally choosing to do something that is known to be wrong.
However, it is the second type of conduct – “gross negligence” – that actually concerns physicians- because the point at which ordinary negligence, which is immunized, becomes gross negligence, which is not immunized is not a bright line distinction.
Let’s therefore look at what it actually means in practice.
These laws take into account that the doctor will be working under limited conditions. The law accepts all that is reasonable in that setting even if such conduct would likely be malpractice in a conventional setting.
Gross negligence, by contrast, is conduct that is so unreasonable that it simply cannot be accounted for by the limitations of the situation.
It is conduct that the doctor knew was extremely likely to be very dangerous. He still recklessly proceeded. As one court phrased it, a grossly negligent act that would not be immunized under a Good Samaritan statute is one which is “the result of a conscious indifference to the right or welfare of the person to be affected by it.”
This analysis carries within it the legal principle of “imminent peril”. In the absence of a serious present danger, the doctor plunged in – in a maximal way – rather than prudently doing less.
The doctor’s own background and skills also factor into this analysis. An emergency situation is not carte blanche to greatly exceed one’s own abilities.
Bearing these principles in mind, let’s now look at two fact patterns, both based on actual cases, to see how “gross negligence” might be assessed in real-life situations:
(i) Dr. A, an emergency room physician, comes upon a car crash site. The driver is trapped in the car but is conscious, free of serious pain and has a steady pulse and normal respiration. Dr. A calls 911 and an ambulance is dispatched. Dr. A then pulls the driver from the car to do a more extensive physical examination. Unfortunately, he aggravates a previously stable spine fracture. The patient would have been immobilized on a backboard once the ambulance arrived.
The driver survives but suffers serious spinal cord damage. He sues.
Dr. A looks to the Good Samaritan law as a defense.
The relevant points are that:
– the essential requirement of stabilization was already met and there were no clinical indicia suggesting the driver was in imminent peril and in need of immediate more extensive examination.
– an occult spine injury should have been reasonably considered under the circumstances of a serious car crash.
– an ambulance, which was better equipped, was on the way.
– as an emergency room physician, Dr. A was in a position to make those judgments and to act prudently.
Dr. A was held to have been grossly negligent. He lost his immunity under the Good Samaritan law. Bad outcome for Dr. A.
(ii) Dr. B, a surgeon, comes upon a car crash site. The driver has a clear head injury and one blown pupil. Dr. B assesses a Glasgow Coma Score of 5. Dr. B calls 911 and an ambulance is dispatched. Dr. B then uses a drill from his car repair kit to create a burr hole. He then places the barrel of a pen through the hole to drain the intracranial space. (Sounds like MacGyver.) Before he uses these implements, he passes them through the flame of his cigarette lighter. The goal: sterilization.
The driver survives but develops osteomyelitis of the skull. The ingrate sues.
Dr. B invokes the Good Samaritan law as a defense.
The relevant points are that:
– the driver was not stable and was in imminent peril.
– Dr. B, as a surgeon, had the skills to diagnose the driver’s serious condition and to perform the procedure.
The next step will be determining whether using a mechanic’s drill, a pen and a cigarette lighter to treat the driver (rather than waiting for the ambulance) was sufficiently dangerous and unwarranted to take it out of the protected realm of a reasonable judgment call under the circumstances.
This will be a question of fact.
In this analysis, that the patient was suffering a severe head injury that should justify “battlefield surgery.” Using a drill not made for skulls and only minimally sterilized implements might be reckless if the ambulance was expected within a clinically acceptable period (and if the bur hole could be made quickly). But if any delay of ambulance or bur hole drainage was expected, those options be reasonable and come under the heading of “stabilization”.
Dr. B should be able to claim immunity under the Good Samaritan law.
The critical point is that apparent extremeness of the conduct is not the issue. Removing someone from a car can be grossly negligent if it was not needed and carried real risk. A roadside intracranial bur hole drainage can be fully protected if the ambulance / ER drainage would be delayed and the doctor had the skill to intervene.
A doctor faced with an emergency should therefore consider the following factors:
– Is there any lesser conduct that will maintain the patient until more adequate help arrives?
– If not, do I have the knowledge, skills and tools to carry out more extensive treatment?
If there is no safe alternative and the physician knows that he is capable, he can go forward under the protection of the law.
In summary: Good Samaritan laws will protect a physician who provides emergency care (a) to someone without a pre-existing duty, (b) that is appropriate under the circumstances, and(c) done without compensation. A doctor will lose Good Samaritan immunity if grossly negligent. Whether a doctor’s conduct was grossly negligent will be based on the circumstances of the emergency and the doctor’s qualifications.
Medical Justice’s thoughts: This issue frequently arises on an airplane. I am unaware of any reported case where a doctor was burned for providing Good Samaritan care on an airplane. The risk of litigation based on care you may provide on a plane is exquisitely low. Next, in the case above where the doctor removed the patient from the car, this is sometimes a judgment call. If gasoline is leaking and there’s a reasonable perception the car may become a fireball, removing the driver may be perfectly justified. Recently, we learned of a Medical Justice member who saw a car drive into a ravine. The car was mostly under water. The doctor was able to open the door and save two of the four passengers while help was on the way. It’s almost impossible to think things through when you’re diving into in a water-filled ravine to do what you can. Kudos to him.