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Avoid Pitfalls When Being a Good Samaritan

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Gatekeeper:
Your Malpractice Advisor: Avoid Pitfalls When Being a Good Samaritan
Lee J. Johnson, Esq., MA, JD


Posted: 11/02/2010

Introduction
Physicians are often tempted to help out in an emergency, perhaps to save a life. Besides coming to the aid of an injured person or person in distress, a number of doctors -- particularly retired physicians -- volunteer their services at community clinics.

However, doctors often question whether they're putting themselves at risk for a malpractice lawsuit, even if they're trying their best to help. In some situations, they may indeed be putting themselves at risk.

Public policy behind Good Samaritan laws is to encourage health professionals to render aid in emergencies. All 50 states and the District of Columbia have one. The federal government has one that covers domestic airplane travel.

Each state law is different. What is common in all states is an attempt to encourage aid by restricting the liability of those who provide it.

What Constitutes a "Good Samaritan" Act?
There are 3 qualifications: The treatment must be rendered in a true emergency; usually must be outside of a hospital or other medical facility; and must not be reimbursed.

Emergency Care
Good Samaritan protections require a true emergency. If a patient walks up to you at a first-aid booth and asks for advice or treatment for an ongoing condition, you could be sued and held to the standard of ordinary negligence. If you volunteer at a clinic or an international aid organization and provide routine care, you are not protected. Some states are enacting legislation in an effort to encourage volunteerism for the indigent, but most states do not afford such protection.

One question that arises is whether an accident can be considered a true emergency. Take the example of 2 similar cases, one finding an emergency and the other not.

In a New York case, a doctor was protected by the statute. He was stopped in the lobby of his apartment building by the superintendent's wife, who begged him to look at her husband. The doctor took the man's pulse and heart rate, then called for an ambulance. The superintendent died at the hospital. The widow sued the physician for wrongful death, but a judge dismissed him from the case.

Compare that with an Indiana case in which an appellate court ruled that the protection applies only to the treatment of accident victims, not to all emergencies. A physician had been called at home by a neighbor who was having chest pains. The doctor made a house call, examined the patient, diagnosed pleurisy, prescribed medication, and asked the patient to call if symptoms didn't improve.

The patient's husband called an hour later reporting a respiratory incident. The physician returned, found the woman in full cardiac arrest and initiated CPR, but the patient died. The court ruled that the doctor should be held to the standard of ordinary negligence.

Outside a Hospital or Medical Facility
Good Samaritan laws typically apply only to physicians who voluntarily provide service outside the routine practice of medicine. In most states, there is a requirement that the medical care takes place "outside a hospital, doctor's office, or any other place having necessary medical equipment."

Another reason why volunteering for community service doesn't guarantee immunity from liability is that medical equipment is often available at the site of the medical treatment.

California, Colorado, and some other states provide protections regardless of place of aid. For example, in this Utah case an internist joined a code team voluntarily and was allowed protections in the hospital settings. The court ruled that the doctor was protected as long as the he had no preexisting duty to provide assistance. The court reasoned that it would be arbitrary to make a volunteer liable merely because the emergency occurred in a hospital. Therefore, a doctor working in the emergency department would not be protected, but a cardiologist on rounds who responds to a code might be.

The more prevalent state laws do not afford Good Samaritan protection in a hospital setting. An example is this Indiana case: A physician took over a breech delivery when the original obstetric specialist couldn't be located. The parents sued both doctors because of their baby's injuries. The court held that the doctor who delivered the baby wasn't entitled to Good Samaritan protection because it didn't take place "outside a hospital, doctor's office, or any other place having necessary medical equipment."

No Payment
To qualify for Good Samaritan protections, the medical care must be "voluntary," ie, the doctor must not seek remuneration. As a Good Samaritan, you can't seek or accept payment. If you billed a patient after treatment, you could lose the legal protection. Then if something goes wrong, you could be held to the standard of ordinary negligence. Patients who receive emergency aid may offer you a gift in appreciation. If you graciously accept, you must make it clear that the gift should not be considered remuneration.

What's the Standard of Care?
The usual standard of care in a malpractice lawsuit is what a "reasonable" practitioner in the same specialty would have done in similar circumstances at the time of the event. Some states, including California, provide Good Samaritan protection if the doctor is acting in "good faith." Most states simply reduce the standard of care to "gross negligence," which can be defined as reckless disregard of the consequences of one's actions in affecting someone else's life.

Usually gross negligence is found only in a situation in which the doctor's action leaves the patient in dire straits, perhaps in worse condition. An example would be initiating first aid and then walking away from the scene before the arrival of emergency medical services.

Once you begin to render aid, you must not leave the scene of the accident unless you need to go call for help or someone arrives and takes over who has equal or greater expertise. Also, you would not be expected to endanger yourself as in treating a bleeding patient with AIDS without gloves or staying in a car that is about to be engulfed in flames.

Are You Required to Help?
Some doctors think that the Good Samaritan laws create a duty to rescue. Some states, including Vermont, Minnesota, and Louisiana, attempt to mandate aid. Some state courts seem to imply a greater responsibility when there is a prior treatment relationship. However, the laws generally encourage rather than mandate aid by providing protections from liability.

Other Considerations: Consent and Coverage
Although informed consent is a strict requirement for most medical care, it's often impossible to obtain in emergencies. If the patient is an adult with capacity, you must seek informed consent before you can render emergency aid. If the patient is a minor, then you must seek consent from the parent or legal guardian.

Conversations about informed consent will not be possible if the patient is unconscious or disoriented.

State informed consent laws typically do not require informed consent if obtaining it would mean a delay in treatment that could endanger the victim's life or health. You should document your medical judgment about the need for immediate treatment as soon as possible.

Coverage and Defense
Malpractice insurance policies cover medical malpractice liability in Good Samaritan situations. Usually the defense attorney will be able to make a motion to have the doctor defendant dropped from the case or will argue at trial for the doctor's immunity from liability on the basis of the standard of gross negligence. Of course, nothing prevents the patient from naming you in a lawsuit.

If you think you can help, should you volunteer? For the most part, Good Samaritan Laws have provided physicians with effective protection. There have been few lawsuits against doctors rendering emergency aid. In most of those, the physician was exonerated. Good Samaritans will be protected as long as they act in good faith, in an emergency outside a medical facility, without compensation, and don't commit gross negligence.

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