During the course of a physician’s career, it is foreseeable that he will be called upon to address a medical emergency outside of his usual practice setting. I have had this experience on three occasions. The first occurred when I was a visiting professor in Greenville, South Carolina and was dining at a fancy local restaurant. During the dinner another patron started choking and I ended up performing a Heimlich maneuver. It worked and everyone went on with their meal.
My wife and I became involved with a motorcycle accident on a highway in Memphis where we were able to stabilize the neck and control hemorrhage until the fire department and Emergency Medical Technicians showed up. The third incident was on a plane going to Colorado Springs when an overhead announcement asked for a physician’s help. I responded. I was surprised to learn that the flight attendants had to see proof that I was a physician before they would open their emergency medical bag so that I could access a stethescope. I happened to have my license in my wallet so I was able to get what I needed. Fortunately, the patient did not have anything serious so I just kept an eye on her until the plane landed about thiry minutes later.
When faced with emergency situations outside of the usual hospital or clinic setting, what should the physician do? If care is rendered, will the provider be liable for the tort of medical malpractice if things do not go well? Since it is strong public policy for care to be given, most states have passed some form of a Good Samaritan law to provide some protections for the professional willing to provide care in an out-of-hospital emergency.
The reason behind the Good Samaritan doctrine is the need for people with the requisite knowledge and training to provide emergency care to a victim in distress. This care may be life-saving. The intent of the doctrine is to take the concern of legal repercussions off of the shoulders of caregivers who are fearful of making a mistake in the often chaotic environment of the medical emergency site.
Providing care under these conditions is stressful for other reasons besides the threat of a malpractice lawsuit. Assisting at an emergency can put the provider at risk from traffic flow if it is on the road. A bleeding victim can put the provider at risk of getting an infectious disease from the blood or other bodily fluids which is even more likely if there are no protective coverings and gloves.
Usually, the Good Samaritan law will grant the health care provider some form of immunity so long as he is not grossly negligent which would imply he was actually trying to hurt the victim. This is an unlikely scenario. In most states, plaintiffs must show “clear and convincing” evidence to prove gross negligence. “Clear and convincing” is a difficult burden of proof to meet, but it can be done.
Most state laws have two conditions that must be met in order to get the immunity provided by the Good Samaritin doctrine. First, the aid must be given at the scene of the emergency. The second requirement is that the provider must not be motivated by the hope of being paid for his services.
What about the situation where the victim has an emergency situation in the hospital or clinic where the provider is working? In this circumstance, the doctrine may not protect the provider giving the care in the course of his regular employment.
When providing emergency care outside of the hospital, the only duty owed to the patient is to be reasonably careful. This is a different standard than what is required in a medical malpractice case; in a malpractice action, the provider will be held to the standard of a reasonable practitioner faced with the same or similar circumstances.
Even though the law will provide the care-giver with some protection, it will not be total protection. If the patient claims that the provider made the condition worse because he acted negligently, then the provider may end up having to defend himself with all the costs of time, money, and energy that the suit will entail. Although most states do not require the provider to stop and give aid, they may consider it to be negligent if the provider fails to call the accident into the 9-1-1 emergency notification system.
If the health care provider does decide to stop and give aid, then he must continue to do so until the victim either recovers, another trained person—an emergency medical technician, for example—takes over, or, he becomes too exhausted to continue, such as by doing cardiopulmonary resuscitation by himself for a prolonged period of time. If the provider stops giving care for any other reason, it could be interpreted as “acting unreasonably” and the protections of the Good Samaritan law would disappear.
Under the law, the provider is not expected to endanger himself or others while treating a victim. For example, if the victim is known to have AIDS and is bleeding, the provider is not expected to put himself at risk without the needed protective clothing and gloves. Also, the provider is not expected to stay with the victim if, for example, the car is about to go up in flames or a train is about to destroy everything at the scene.
Under the Good Samaritan doctrine, the provider must not leave the victim once care has been started unless he must call for help or someone with equal or greater expertise arrives on the scene. Most physicians, emergency medical technicians, or paramedics who are professional first responders will be considered to have greater expertise at a trauma scene but, it can be argued that some trauma surgeons, for example, will have greater expertise in some situations.
Even with the Good Samaritan doctrine, there is nothing to prevent a patient from naming the provider in a medical malpractice lawsuit. Medical malpractice insurance policies should cover any liability emanating from this care. With these circumstances, the defense attorney will probably file a motion to have the suit dismissed; if this fails, he can argue at trial that the standard of gross negligence must be used in deciding the negligence issue. It would be extremely difficult—but not impossible—for the plaintiff to find an expert that would be willing to testify that the provider was grossly negligent in providing the emergency care.
In summary, the health care provider faced with an emergency situation will be protected under the Good Samaritan doctrine if he acts in good faith, the emergency is outside of the medical facility where he usually works, he is not grossly negligent in providing the care, and there is no expectation for compensation for the care provided.
Dr. Weiman is the author of two books; Medical Malpractice and Fundamental Issues In Health Care Law.
Dr. Weiman’s website is www.medicalmalpracticeandthelaw.com