Having said all this, let’s move on to the all-important gray areas, the realms that physicians would like to imagine are Good Samaritan but are not. The first is uncompensated care. A nurse in the department asks you for a prescription for a child at home. Another coworker says, “Just take a look at my arm for a second.” These do not constitute Good Samaritan activities because a doctor-patient relationship has been established, not by payment of services, but by the doctor’s willingness to see the non-emergent patient and give an opinion. There have been plenty of lawsuits brought after physicians gave free advice to neighbors, friends or other health care professionals. The same logic applies when physicians volunteer their services at sports games or mass gatherings. I was the expert on a case in which a physician was sued after she had volunteered her services at a folk concert in New England. At the event, an attendee had an airway problem, which eventually resulted in a legal action against the doctor. I have even seen cases where physicians have sued other physicians after getting free advice that turned out to be wrong. There is no reason to believe that Good Samaritan protection covers any and all non-compensated medical activity.
Now, without a doubt, you will be put-upon at work to “just take a look” at a fellow health care worker. This doesn’t have to put you at risk as long as you get a chart. The chart is the record of that patient visit, and it provides you with malpractice insurance coverage. I always let my colleagues know that if there is a bill sent, we’ll take care of it. But at least do me the favor of letting me have my insurance coverage for the visit. Everyone wants it fast, and they want it now, but the seeing of a patient in the emergency department without a chart is never a good idea. Know that your malpractice carrier can deny coverage on any patient for which there is not adequate documentation. And in groups where insurance is paid on a per-patient basis, you would have not paid the premium on that visit. It just doesn’t make any sense. When it comes to caring for friends, family and colleagues, have a record, and be prepared to practice medicine as you would with any other patient.
The biggest Good Samaritan quandary facing emergency physicians is the question of in-house emergencies. The concept of in-house Good Samaritan protections does apply in many states to physicians who truly have no obligation or pre-arranged duty to act. However, this depends heavily on state law and the specific situation. If, in your contract with the hospital, it says that you will respond to in-house emergencies, this pushes the Good Samaritan defense pretty much out the window. Your emergency care during an in-hospital emergency will be seen as a pre-arranged duty, which was laid out in your contract. The better wording in a contract would be to say, “the emergency physician will respond, as would any other staff physician, in a Good Samaritan mode if not required to stay in the emergency department based upon the current demand.” Remember this: if it is a pre-arranged duty, it is not truly Good Samaritan. Good Samaritan applies when there is no pre-arrangement, no previous doctor-patient relationship and you don’t receive compensation. If it doesn’t meet all three of those tests, the question of Good Samaritan can be challenged in various states and venues.
There is no question that there is inconsistency from state to state on this issue. It is the job of the director of the emergency department to inform each of his/her physicians what exists in the contract and what the state law requires. Be sure of this: If there is any financial reward for any action taken, Good Samaritan protections will be negated.
Finally, do not think that the nobility of your pursuit will guard you from liability. What you and I consider to be good works may not be considered good works by the court. I was the expert in a case in which the physician had donated his time to a camp for children with diabetes. This emergency physician would have been wise to have checked with his/her malpractice carrier to see if his actions were covered under his insurance policy. In another case, an emergency physician had donated his time to a summer camp for children with disabilities. The doctor’s free food and lodging at the camp was considered by the court to be remuneration. It was also brought out that the physician knew he was going to see sick children and had the same obligation to act as if he were seeing them in an emergency department situation.
I know that to even contemplate these types of situations brings anger, fear and loathing to the hearts of emergency physicians. But it’s the truth. Emergency physicians need to have both compassion and candor. When facing a situation in which you volunteer your medical services, run down the Good Samaritan criteria mentioned earlier. If it measures up, go ahead. You are a noble person and your chances of legal troubles are extremely low. When the scenario enters the gray areas, however, it’s best to have discussed such situations in advance and have a plan about how they’re going to be handled. The ability to think down the road is what separates out the emergency physician from the “defendant physician.” Semper paratus.