How Much Protection Do ‘Good Samaritan’ Laws Really Offer EPs?

If a well-intentioned EP rushes to a person’s aid, but harms that person, who then sues the EP for malpractice, is the EP protected by the “Good Samaritan” law? The answer depends on where the care took place, if the EP received compensation, and in what state the EP is located, among other factors, according to legal experts interviewed by ED Legal Letter.

“Without Good Samaritan statutes, many health professionals might be hesitant to provide help for fear of being sued,” says William Sullivan, DO, JD, FACEP, an emergency physician at the University of Illinois in Chicago and a practicing attorney in Frankfort, IL.

William M. McDonnell, MD, JD, clinical service chief of pediatric emergency medicine and medical director of the ED at Children’s Hospital & Medical Center in Omaha, NE, says, “Good Samaritan laws are a fairly recent legal principle, established to overcome certain undesired effects of the previous legal structure.”

Under the pre-existing common law rule of negligence, if a bystander volunteer provided help to the victim of an emergent injury or illness, and that help was not what a “reasonable person” would have done under the circumstances, then the victim could sue the volunteer for injuries that were caused by the “help.”

This rule was intended to discourage unqualified bystanders from causing more injury.

“However, it also had the unfortunate effect of discouraging helpful volunteers from offering assistance,” McDonnell notes.

In response, all 50 states enacted so-called “Good Samaritan” laws.

“These provide certain legal protections for good faith attempts to help, even if the assistance is technically ‘negligent,’” McDonnell explains.

Richard Cahill, Esq., vice president and associate general counsel at The Doctors Company in Napa, CA, says that to minimize the potential for civil actions alleging professional negligence, EPs should understand:

• the circumstances in which the Good Samaritan immunity applies;
• the situations in which it is specifically excluded by statute;
• those events in which the immunity may be lost inadvertently.

“What a practitioner fails to appreciate may lead to otherwise avoidable litigation,” Cahill warns.

States Vary Significantly

Although Good Samaritan statutes exist, Sullivan says, “the content and protections provided in those statutes can vary considerably.” He gives these three examples:

• The Illinois Good Samaritan statute (745 ILCS 49/25) immunizes physicians who “in good faith, provide emergency care without fee to a person [except willful or wanton misconduct].”
• Florida’s Good Samaritan statute (Florida Statute 768.13(2)) covers care that is rendered outside a hospital without objection of the injured victims when the provider “acts as an ordinary reasonably prudent person would have acted under the same or similar circumstances.”

The Florida statute also covers all EMTALA-related care within the hospital, unless the treatment demonstrates “a reckless disregard for the consequences so as to affect the life or health of another.”

• Georgia’s Good Samaritan statute (OCGA 51-1-29) protects any person who “in good faith renders emergency care at the scene of an accident or emergency to the victim or victims thereof without making any charge therefor.”

Georgia’s statute also protects any emergency medical care that was provided unless “it is proven by clear and convincing evidence that the physician or healthcare provider’s actions showed gross negligence.”

“Just in these few examples, you can see that the statutory language differs significantly,” Sullivan says, suggesting EPs perform a Google search on the Good Samaritan statutes in their own states to be familiar with what actions are and are not covered.

Defining Reasonable Care

Sullivan says that, generally speaking, “reasonable care” under the statutes would include basic first aid, basic life support, and Advanced Cardiovascular Life Support (ACLS) — if the EP was trained in ACLS.

“The further one strays outside of these guidelines, the more likely it is that Good Samaritan statutes might not apply,” Sullivan cautions.

Here, Cahill reviews some important differences in state statutes:

• Some jurisdictions require that the physician render medical attention in accordance with what is reasonable or prudent under the circumstances consistent with the limitations specified within the statute.

“Other states provide immunity unless the practitioner committed conduct variously expressed as gross negligence, willful acts, or misconduct,” Cahill says.

• In some states, the scene of an emergency may include a healthcare institution, or as in Florida, where the statutory definition extends the protection to physicians’ offices or other locations having “proper medical equipment.”
• Many states, including California, Indiana, and Minnesota, specifically exclude Good Samaritan immunity for emergencies occurring in a healthcare facility such as a hospital ED, or even places where medical care usually is offered.
• Some states extend Good Samaritan immunity to individuals other than licensed physicians.

“For example, Arizona authorizes immunity for ambulance attendants, drivers, or pilots providing services at the scene of an emergency,” Cahill notes.

In addition to physicians and surgeons, Connecticut provides statutory protection for dentists, registered nurses, and individuals certified as licensed practical nurses.

Other jurisdictions, including Michigan, grant immunity to certain allied health professionals, such as registered professional nurses, physician assistants, and licensed practical nurses, as well as licensed EMS providers.

• Some state statutes mandate that the practitioner act in good faith and without receiving any compensation.

“Depending upon the legislative language and intent, the immunity extended to physicians generally includes both acts of omission and commission,” Cahill says.

The laws try to strike the right balance between reducing liability risk enough to motivate volunteers to act, while preserving enough liability risk to prevent harmful interventions, McDonnell says.

“Good Samaritan laws have definite limitations,” he cautions. Here are some examples:

• The protections afforded by Good Samaritan statutes usually do not apply if care is deemed grossly negligent or constitutes “willful and wanton misconduct.”

Even if the care is “negligent,” the EP is protected. However, if the EP goes beyond “negligent” and acts with “gross negligence” or “willful and wanton misconduct,” the protection disappears, McDonnell says.

A recent Texas case illustrates the issue.¹ The court concluded that failing to recognize “telltale signs” of rhabdomyolysis on a urinalysis did not rise to the level of “gross negligence” where the doctors “knew about the peril of [the patient’s] medical condition, or that … they proceeded with a conscious indifference to the [patient’s] rights, safety, or welfare.”

“Because the plaintiff could only prove ordinary negligence and not gross negligence, the court dismissed the malpractice suit,” Sullivan says.

• The laws apply only to emergency situations.

Providing care to an unconscious patient or rescuing someone from a burning car would obviously be covered under the Good Samaritan umbrella.

“Giving offhand medical advice to someone at a dinner party likely would not,” Sullivan says.

The Oklahoma Supreme Court stated that “keeping in mind that the Act’s purpose is to invite medical providers to intervene, the term ‘emergency’ must be given the broadest sense possible.”²

“Although this decision is only binding on Oklahoma cases, the sentiment behind this holding is similar in other cases when the definition of the term ‘emergency’ has been at issue,” Sullivan explains.

Most courts use the “reasonably prudent person” rule to determine whether the circumstances were sufficiently “emergent” to justify Good Samaritan protections. “So the question will be: Would a reasonable person have thought that this was an ‘emergency’ situation?” McDonnell says.

• In general, the statutes are intended to apply only to care that is rendered outside of the hospital.

A 2002 New Jersey Court decision on whether Good Samaritan immunity should apply to in-hospital emergencies found that at the time, 11 state Good Samaritan statutes excluded emergency care provided in a hospital setting.³

“Seven statutes included emergency care provided within a hospital setting. The other states had made no determination,” Sullivan notes.

The court held that the act was created to encourage people to aid those who might otherwise lack care without the Good Samaritan immunity. “Since hospitals are where people typically go for care, the court held that the act should not apply to in-hospital emergencies,” Sullivan says.

• The laws don’t apply if there is an expectation of compensation.

“Unfortunately, there is no bright line rule about what constitutes ‘compensation’ sufficient to void the Good Samaritan protection,” McDonnell says.

Clearly, if the volunteer physician sends the patient a bill, the care is not “voluntary.” Thus, no Good Samaritan protection will apply.

“A token of gratitude from a shopping mall or airline after the physician assists one of their customers generally will not be considered compensation — but a large gift might,” McDonnell warns.

In one case, a patient in a radiology suite went into cardiac arrest and was transferred to the ED, where “any available cardiologist” was paged over the intercom.⁴

A staff cardiologist responded, inserted a central line, performed a bedside echocardiogram, and made several attempts at a pericardiocentesis. Despite this, the patient died.

“The cardiologist argued that the Good Samaritan statute should apply because he had no pre-existing duty to the patient, and he did not bill for his medical care,” Sullivan says.

However, the cardiologist also was unable to show any other time in his career that he had not submitted a bill for services provided to a patient.

The Illinois appellate court noted that refraining from charging a fee simply to invoke the protection of the Good Samaritan Act seemed to violate the statutory requirement that the doctor’s actions be made in good faith.³

The court indicated this was particularly relevant, Sullivan notes, if the decision not to charge a fee was made following treatment that could potentially expose a doctor to liability.

McDonnell says, “Courts have ruled that even if there was no expectation of compensation at the time of care, if the doctor subsequently receives compensation, the protection disappears.”

• The statutes probably will not apply if there is a pre-existing duty to provide care.

An EP probably would not be able to use the Good Samaritan defense for allegations of negligence regarding medical care provided to ED patients.

“The laws apply when the volunteer is not otherwise obliged to provide assistance, such as an existing physician-patient relationship,” McDonnell explains.

The Good Samaritan defense might be more applicable to emergency care provided to a coding patient on the medical floor, provided that the EP typically does not bill patients for such care.

“Unless there is statutory language to the contrary, an expectation of compensation would likely negate this defense,” Sullivan cautions.

For true volunteer emergency assistance outside the medical workplace, Good Samaritan laws generally are effective in supporting dismissal of any resulting negligence claims.

“However, location matters,” McDonnell notes.

Good Samaritan laws generally do not apply to medical professionals while “on the job.”

“This is because those professionals are not considered volunteers, but rather have an obligation to the victim,” McDonnell says.

In some states, Good Samaritan laws extend protection to physicians in the hospital or medical workplace, but only to those who provide volunteer emergency services beyond the scope of their work duties.⁵

“However, in other states, Good Samaritan laws provide no protection to any physician providing volunteer assistance in healthcare settings,” McDonnell says.⁶

This is a common misunderstanding held by EPs.

“Because this varies from state to state, it is important for physicians to investigate their own state laws,” McDonnell urges.

REFERENCES

1. Ho v. Johnson, No. 09-15-00077-CV, Texas Court of Appeals, 9th District, 2016.
2. Jackson v. Mercy Health Center, Inc., 864 P.2d 839, Oklahoma,1993.
3. Velazquez v. Jiminez, 798 A. 2d 51, New Jersey Supreme Court, 2002.
4. Hernandez v. Alexian Brothers Health System, 893 N.E.2d 934, Illinois Appellate, 2008.
5. Hirpa v. IHC Hospitals, 948 P. 2d 785, Utah Supreme Court, 1997.
6. Velazquez v. Jiminez, 2002.

SOURCES

• Richard F. Cahill, Esq., Vice President & Associate General Counsel, The Doctors Company, Napa, CA. Phone: (800) 421-2368 ext. 4202. Fax: (707) 226-0370. Email: [email protected].
• William M. McDonnell, MD, JD, Clinical Service Chief, Pediatric Emergency Medicine/Medical Director, Emergency Department, Children’s Hospital & Medical Center, Omaha, NE. Phone: (402) 955-5142. Email: [email protected].
• William Sullivan, DO, JD, FACEP, Emergency Physician, University of Illinois, Chicago; Practicing Attorney, Frankfort, IL. Phone: (708) 323-1015. Email: [email protected].