Good Samaritan Statutes: When Do They Protect You?

Car accident? Sick passenger on a plane? You may want to help, but when are you putting yourself at risk? Here is a review of relevant case law.
Scenario #1: Providing Emergency Treatment at an MVA

“I was driving on a stormy New England afternoon when I came upon a car on its roof in a ditch, the driver’s body lying half in and half out of his window. I called 9-1-1 then went to see if I could help. The man was trapped under the dash with an obvious head injury, a GCS that I had calculated to be 5 with a blown pupil on the left. I thought something needed to be done immediately so I sterilized a ¼ inch drill bit and used the 18 volt DeWalt I had in my tool box to drill through his skull on the appropriate side, placing a sterilized Bic pen case through the hole. The fire department arrived and I rode to the hospital with the patient. He survived but is talking about suing me for his subsequent osteomyelitis  in his skull.  Am I covered by Good Samaritan statutes?”
-Evan Weinstein, MD

The simple answer is “it depends.” Once someone decides to assist a third party in an emergency, that person’s actions must be within certain bounds.
Good Samaritan statutes generally immunize actions taken by the rescuer to help someone in an emergency, but most statutes do not cover acts of “gross negligence” or “willful misconduct.” 
“Gross negligence” is  generally taken to mean a reckless action that is taken without regard for the safety of others while “willful misconduct” is generally considered to be an action that is reasonably likely to cause an injury to another person.

Not all Good Samaritan statutes are created equal. For example, Florida only immunizes some providers if they behave “as an ordinary reasonably prudent person would have acted under the same or similar circumstances” (Florida Statute 768.13(2)(a)). In Florida, simply negligent emergency care can be actionable and the Good Samaritan statute provides no extra protection for rescuers under most circumstances. However, Florida statutes immunize EMTALA-related emergency care as long as that care does not demonstrate “a reckless disregard for the consequences so as to affect the life or health of another” (Florida Statute 768.13(2)(b)).

Some statutes provide an even greater amount of protection than a “gross negligence” standard. Georgia statute § 51-1-29 immunizes any emergency care provided in “good faith” to victims at the scene of an accident or an emergency. In this case, even a grossly negligent act taken in good faith would still be immunized.


Recent Good Samaritan cases illustrate the issue regarding negligence versus gross negligence.

In Dunlap v. Young, 187 S.W.3d 828 (2006), two paramedics provided treatment to a woman in respiratory distress. Despite their efforts to save her, the woman died from her condition. In the lawsuit that followed, the expert witness stated that the paramedics did not intubate the patient quickly enough and that the single paramedic performing CPR did not administer cardiac medications. There was also an issue over whether the paramedics should have stabilized the patient in the field instead of immediately transporting the patient to the emergency department.

The appellate court noted that the Good Samaritan statute immunized all actions that were not “the result of a conscious indifference to the right or welfare of the person or persons to be affected by it.” The court held that the actions taken by the paramedics did not rise to that level.

While there may have been some issues with the care the paramedics provided, many of their decisions were considered “judgment calls.” The court noted that “the Good Samaritan law seeks to protect such judgment calls.”

In McCain v. Batson, (Mont., 1988) a young woman visiting Yellowstone, Montana fell into an excavation pit and impaled her leg on a piece of metal. She refused to go to the closest hospital and instead contacted a physician in town. The physician noted that the wound had “considerable” dirt inside, cleansed it thoroughly, then loosely sutured the wound. The physician then recommended that the patient go to the closest hospital for cleansing and closure in an operating room. Instead, the patient went to the hospital, took antibiotics, and then drove to her home town. She did not seek further medical care for almost a week, at which time the wound had become infected and required significant medical and surgical treatment.

The patient sued the physician for medical malpractice, alleging that he did not adequately clean and debride the wound and that he did not inform the patient that his suturing was only temporary. The physician used the Good Samaritan statute as his defense. The main issue in the lawsuit was whether the physician’s actions amounted to gross negligence under the statute. While an expert was asked whether the physician’s actions were grossly negligent, no one actually defined the term. The court noted a deposition exchange showing how loosely the term had been defined:

Plaintiff’s Attorney: In your opinion, if this was a temporary suturing job by [the physician], did that, in your opinion, constitute gross negligence, gross malpractice?
Physician: Well, you see you really haven’t told me what gross malpractice is yet or gross negligence.
Plaintiff’s Attorney: Well, it’s a heck of a lot worse than ordinary malpractice.
After analyzing the testimony, the Montana supreme court held that an “emergency” situation existed and that no gross negligence or willful or wanton acts were committed.

Applying these concepts to your case, while it is possible that you saved the patient’s life by drilling the burr hole with a carpenter’s drill, the applicability of the Good Samaritan statute will depend on what standard is established by the Good Samaritan statutes in the state where you provided the care. In Georgia, it is likely that Good Samaritan statute would immunize your care. In Florida, your care would probably not be immunized under ordinary negligence standards. In most other states, your actions would be judged using a “gross negligence” standard. Expert witness testimony is used to guide the jury on determining whether medical gross negligence existed, so the determination in your case would likely amount to a “battle of the experts.”

The caveat that I use in my risk management lectures regarding Good Samaritan statutes is that the further you stray from BLS and ACLS guidelines, the more likely it is that Good Samaritan statutes may not apply to your actions.

“It’s the middle of the night in a small hospital. An elderly man with COPD who was directly admitted yesterday to a med-surg bed for bronchitis developed a nosebleed after his nasal cannula was inadvertently tugged. The floor nurse notified the on-call ENT doctor and he asked to have the emergency physician check it out. The only ED patient was one that signed in to be seen for dyspepsia. So, the EP went upstairs with a nosebleed tray. The exam showed an anterior bleed that initially stopped with silver nitrate. Just after the emergency physician finished giving some instructions to the floor nurse, the bleeding resumed just as briskly as it started. The emergency physician applied 4% cocaine and placed an anterior nasal pack. The bleeding stopped but the O2 sat decreased to 87% and so the emergency physician ordered a 50% humidified, venturi mask. The sats increased to 99% (better than before the nosebleed). The situation was explained to the patient, the PCP and the on-call ENT and a procedure note was written.
When the EP returned to the ED, there was only the one patient … whose ECG showed a STEMI. The next day she also found out that the inpatient she saw for the nosebleed was found unresponsive on morning rounds. Several months later both cases convert to active malpractice claims.”
-Tom Scaletta, MD

There are several issues raised in this scenario. First was the issue of whether the care provided to the ICU patient was “emergent.” Emergency physicians generally do not have privileges to provide routine inpatient care, but most hospital bylaws include language that permits any physician to render care to a patient in an emergency. If called to provide care to an admitted patient, it is appropriate to provide stabilizing treatment until the patient’s treating physician arrives. As this scenario demonstrates, providing ongoing care after a patient has been stabilized may detract from care provided to emergency department patients, who are the emergency physician’s primary responsibility.

The second issue involves “causation” of either patient’s injuries. While the emergency department patient presented with dyspepsia and was ultimately diagnosed with a myocardial infarction, did the emergency physician’s temporary absence from the department cause any injuries the patient may have suffered? Based on the description in the scenario, I think that causation would be difficult to prove. Similarly, it seems that the physician provided appropriate care to the admitted patient and that causation of the patient’s death the following morning would be difficult to prove.

A third issue involves whether Good Samaritan statutes might apply in this instance. Many state Good Samaritan statutes do not immunize care provided in a hospital setting.

The New Jersey case of Velazquez v. Jiminez, (NJ 2002) examined whether Good Samaritan immunity should apply to in-hospital emergencies.

The plaintiff was delivering a baby and had complications due to bilateral shoulder dystocia. After delivering the baby’s head, the physician was unable to deliver the rest of the baby’s body and called for help. The obstetrician who responded specialized in high-risk maternal fetal medicine. She was unable to complete the vaginal delivery and then performed an emergency Caesarean section. The baby was severely brain damaged and required constant care before dying of pneumonia at two years of age.

In coming to its decision, the New Jersey supreme court surveyed other states’ applications of Good Samaritan laws. At that time, eleven state Good Samaritan statutes excluded emergency care provided in a hospital setting and seven state Good Samaritan statutes included it. emergency care provided in a hospital setting. The other 29 states had made no determination regarding Good Samaritan protections afforded to those responding to in-hospital emergencies. Ultimately, the court decided that the New Jersey Good Samaritan statute should only apply to emergency care provided at a location with “lack of adequate facilities, equipment, expertise, sanitation and staff.” Hospitals did not meet that definition.

Also of note was the physician’s contention that limiting the Good Samaritan statute to out-of-hospital events would make physicians less likely to help in the event of an emergency. The court refused to “impute such conduct to the highly respected medical profession” (even though it mentioned that Virginia’s Good Samaritan laws were expanded to cover emergency obstetric care when obstetricians threatened to boycott on-call emergency room services) and also noted that physicians’ contracts, hospital protocols, ethical rules, regulatory standards” might essentially create a duty to act within a hospital setting.

“I was driving home from a midnight shift when I had to stop, along with many others as the entire roadway is closed to travel, because of an accident. Am I obligated to get out and assess the situation?”
-Joe Bocka, MD

From a legal perspective, probably not. Absent a pre-existing duty to a third party, no one is legally obliged to help that party. For example, if you ran the person’s car off the road and caused the injuries, then you might have a legal duty to aid that person. However, I wasn’t able to find any state or federal laws requiring off-duty health care providers to stop and help accident victims. One California court decision noted that “No one is obliged by law to assist a stranger, even though he can do so by a mere word, and without the slightest danger to himself. (Malloy v. Fong, 232 P.2d 241 (Cal. 1951).

Of course, if you’re on duty and aiding the public in an emergency is part of your job description, you may have a legal obligation to provide assistance.

“Let’s say I was taking a flight from Cincinnati to Los Angeles when the dreaded words come over the P.A. system. ‘If there is a doctor on board, please report to the front cabin.’ A man in first class had collapsed, seemingly with a heart attack. I rendered care and the man regained consciousness. To thank me, the stewardess gave me a seat in first class and popped open a bottle of champagne. Now, six months later, the man is suing me for complications he experienced the following day, saying it was my fault. Am I still covered under Good Samaritan laws even though I took compensation of a seat upgrade and a bottle of bubbly?”
-Amal Mattu, MD

First of all, in order to be successful in a medical malpractice lawsuit, a plaintiff must prove that you had a duty to care for him, that you breached that duty, and that the plaintiff suffered damages that were caused by your breach in duty. If you treated the patient as a reasonably well-trained physician would have under the same or similar circumstances, you did not breach any duty and there will be no case against you.

Most Good Samaritan statutes require that emergency care be provided without compensation or the expectation of compensation. Whether the champagne and seat upgrade amounted to “compensation” sufficient to negate protection under the Good Samaritan Act in your state would be a question of law that the judge would decide or a question of fact that the jury would decide. Here are several recent Good Samaritan cases that involved the question of whether compensation was expected and/or received.

In Chamley v. Khokha (2007), a patient undergoing kidney surgery began bleeding during the operation. The surgeon believed that the source of the bleeding was kidney vessels and requested the assistance of a vascular surgeon to help stop the bleeding. A vascular surgeon came emergently to assist in the surgery and helped remove the patient’s kidney. The patient’s vena cava was punctured during the surgery and was also repaired by the vascular surgeon. Later, the patient’s condition deteriorated, she was transferred to another hospital and she died the following day.

In a subsequent lawsuit, the vascular surgeon claimed the “Good Samaritan” defense and was dismissed from the case.

The North Dakota Supreme Court noted that while North Dakota’s Good Samaritan statute immunized liability for emergency assistance provided to another person unless intentional misconduct or gross negligence was proven, the immunity did not apply to those rendering aid or assistance with an “expectation of remuneration.” Because the vascular surgeon was employed by the hospital to provide surgical services to patients, because the patient was in the hospital when the incident occurred, and because the surgeon billed for his services, the court held that the Good Samaritan statute did not apply.

In Willingham v. Hudson, (Ga. 2005), multiple physicians who were not on call for the emergency department were called by the hospital to help treat multiple severely injured patients from a tornado. One patient with a severe leg laceration was taken to the operating room where the wound was explored, irrigated with saline and antibiotics, then loosely sutured. Several days later, the wound developed a necrotizing infection that ultimately resulted in an amputation of the patient’s leg.

The treating physician presented a Good Samaritan defense in response to the patient’s lawsuit. The plaintiff raised several issues. First, she argued that the care provided was not “emergency care” under the statute. The Georgia appellate court noted that “emergency care” does not require that the victim be in “a critical or life-threatening condition” but only that the patient receive “necessary personal services during an unforeseen circumstance that calls for immediate action.” The plaintiff also alleged that the physician had a duty to go to the hospital to render care at the time of the treatment. The Georgia appellate court reviewed the physician’s employment agreement with the hospital and found no such duty. Finally, the plaintiff alleged that the physician performed services with the “expectation of compensation” which would negate the Good Samaritan immunity. From the physician’s deposition the court determined that he had not intended to bill the patient, nor had he billed the other tornado victims he treated in the ED that day. Accordingly, the court held that the physician provided his care without the expectation of compensation during that disaster. Having met all the requirements for Good Samaritan protections, the court dismissed the case.

In Hernandez v. Alexian Brothers Health System (Ill. App., 2008), a patient undergoing a biopsy in a radiology suite suffered a cardiac arrest and was immediately transferred to the emergency department where “any available cardiologist” was paged over the intercom to come and render care. A staff cardiologist responded and arrived to find the patient intubated and asystolic. He inserted a femoral central line, performed a bedside echocardiogram, and made several attempts at a pericardiocentisis. The patient ultimately died.

The cardiologist and hospital were sued. In response, the cardiologist alleged that the Good Samaritan statute should apply because he had no pre-existing duty to care for the patient, because the patient was in the midst of a medical emergency, and because he did not bill for his medical care.

The plaintiff’s family alleged that the cardiologist’s failure to bill for his medical care was not made in good faith. During discovery, the cardiologist was asked to identify all of the patients that he had not billed in the prior five years. The chief financial officer for the cardiologist’s corporation stated that she was “unaware of any other time” that the cardiologist had not submitted a bill for services he had provided to a patient.

In rejecting the Good Samaritan argument, the Illinois appellate court noted that Illinois’ Good Samaritan Act immunized the acts of a physician “who, in good faith, provides emergency care without fee.” According to the court, refraining from charging a fee simply to invoke Good Samaritan protection seemed to violate the “good faith” requirement, particularly if the decision not to charge a fee was made following treatment that could potentially expose a doctor to liability.
 
read more about being a Good Samaritan…