By Kevin Klauer, DO, EJD, Chief Medical Officer, Emergency Medicine Physicians, Canton, OH
Health care providers are very fortunate to be compensated while performing a vital public service. However, most are honored to provide volunteer service, giving selflessly to their friends, communities, and often strangers. What could be more rewarding than serving mankind? What are the downsides?
Medical volunteerism may put you at risk for professional liability. That’s right; no good deed goes unpunished. Many providers assume that if they act as a "good samaritan," they’ll be protected as one. Common misconceptions about "good samaritan" statutes, and the protections they provide, can have disastrous consequences. You simply cannot assume that if you are being altruistic, others won’t pursue a claim if they believe you were negligent. Before considering whether or not your state offers "good samaritan" protection, it is of primary and critical importance to recognize whether or not a provider is actually a "good samaritan."
Establishing Duty
The pivotal question to determine whether or not a provider acted as a "good samaritan" is whether or not they owed a duty to the patient. In other words, did they have a duty to act? This is often where legal assumptions are made by those not legally trained. Altruism, in and of itself, does not qualify a provider as a "good samaritan." If a patient-physician relationship is established, duty is established. Although accepting payment for services is the most common way to establish a patient-physician relationship, there are many others. Therefore, you can volunteer (e.g., provide services without compensation) and still establish duty.
In Velazquez v. Jiminez,1 Mrs. Velasquez was an obstetrical patient under the care of Dr. Jiminez. Dr. Jiminez was struggling with the delivery, as the baby had bilateral shoulder dystocia. A page for assistance was made and Dr. Ranzini responded to the request. Dr. Ranzini’s efforts to delivery the baby were also unsuccessful. Thus, Dr. Ranzini proceeded to an emergency C-section. The baby was severely brain damaged, presumed due to hypoxemia, and died of pneumonia when he was 2 years old. A lawsuit was filed and the jury returned a verdict for the plaintiffs, apportioning 3% of the liability to Dr. Ranzini. Dr. Ranzini claimed she was a "good samaritan," since she had no prior relationship with the patient. Needless to say, her defense strategy failed.
The following definition is offered in explanation of the verdict.
"In sum, good samaritan immunity … encompasses only those situations in which a physician (or other volunteer) comes, by chance, upon a victim who requires immediate emergency medical care, at a location compromised by lack of adequate facilities, equipment, expertise, sanitation and staff. A hospital or medical center does not qualify under the terms of the Good Samaritan Act in its present form."2
It is interesting to note that prior to 1959, no physician had ever been sued for negligent acts while providing care at the scene of an emergency. Following this time, states began drafting "good samaritan" statutes.
Currently, all jurisdictions in the United States have some form of "good samaritan" legislation. However, the scope and content varies from state to state. With respect to coverage within hospitals, some explicitly exclude hospital care, some explicitly include it, and others are silent on this issue. The majority of states fall into this final category, while approximately 11 jurisdictions exclude immunity for hospital care and approximately seven explicitly include it.
Ramirez v. McIntyre, ruled on by the Texas Court of Appeals, stated that Dr. McIntyre, who answered a distress call that a delivery was imminent without a physician present. The baby had shoulder dystocia and was delivered with what was most likely a brachial plexus injury. Dr. McIntyre was sued, but claimed "good samaritan" status due to the fact that he never billed Ms. Ramirez. The court found that "good samaritan" status, and the physician-patient relationship, are not established by actually billing a patient for services rendered, but by the physician’s ability to do so. In other words, if a billable service is provided, the Texas Court of Appeals ruled that whether or not the patient is actually billed, immunity couldn’t be provided via their "good samaritan" statute.
The few judicial decisions interpreting the category of statutes that neither expressly excludes nor expressly includes in-hospital emergency medical care are in equipoise. On the one hand, cases from Arizona, Indiana and Oklahoma support the proposition that Good Samaritan statutes do not immunize emergency care provided in a hospital to a patient. In Guerrero v. Copper Queen Hosp., Steffey v. King, and Jackson v. Mercy Health Ctr., Inc. (Georgia, Illinois, and Utah, respectively), the courts have interpreted their state’s good samaritan statutes as protecting physicians who render emergency medical care in a hospital setting.3,4,5 In Clayton v. Kelly, Johnson v. Matviuw, and Hirpa v. IHC Hosps., Inc., the difference in outcome between the cases is based, in great measure, on whether the statutes were broadly or narrowly interpreted.6,7,8
Despite the former Illinois decisions in favor of protecting physicians who provide emergency care in the hospital setting, a recent Supreme Court ruling has lessened those protections, especially for emergency physicians.
On March 30, 2014, the Illinois Supreme Court ruled against an emergency physician who claimed the "good samaritan" defense. The patient was admitted to the intensive care unit (ICU) with a diagnosis of epiglottitis. The patient experienced a cardiopulmonary arrest. The emergency physician was called to the ICU. Subsequently, he was accused of negligence due to airway management issues and the patient experiencing brain damage. Although his contract stated that he was not to care for non-emergency department patients and he and his group did not bill for the service rendered, his contract also stated that he could provide care to inpatients experiencing "dire emergencies." Thus, the Illinois Supreme Court ruled the physician’s response to the in-house emergency was part of his expected duties, and thus, a duty existed.9
So what can we take away from this case? Many emergency physicians have contemplated this exact scenario. If you don’t bill for services rendered by responding to in-house emergencies, can you be immunized as a "good samaritan?" This case, at least in Illinois, is precedent setting and will make future "good samaritan" claims for services rendered by emergency physicians in the hospital, but outside of the emergency department, ineffectual. Although not binding, other states will likely consider this case when faced with similar facts and asked to contemplate similar questions.
I suspect that many physicians may have already assumed their sense of duty while in the hospital. However, where more confusion exists is what duty exists outside of the hospital. If you volunteer at a first aid station for a marathon, you are the team physician for a high school football team, are asked by a colleague, nurse, or neighbor to "take a look at my child," or answer a call for an in-flight emergency at 30,000 feet, is a duty established? The answer is unequivocally … maybe.
The first step is to reflect on the definition previously provided in the discussion about Velaquez v. Jiminez, "In sum, good samaritan immunity … encompasses only those situations in which a physician (or other volunteer) comes, by chance, upon a victim who requires immediate emergency medical care, at a location compromised by lack of adequate facilities, equipment, expertise, sanitation and staff…"1
If you apply this definition to the above scenarios, you can see where well-intentioned volunteers establish a duty without realizing they have done so.
In general, there is no duty to rescue a stranger, and the courts favor the approach of preserving autonomous decision and personal liberty over imposing a duty to rescue. In Buch v. Amory Manufacturing Co.,10 a distinction was drawn between a duty to do no wrong is a legal duty, but a duty to prevent wrong is a moral obligation and unenforceable by law.
However, there is clear legal distinction drawn between a responsibility not to make things worse, as opposed to a responsibility to make things better. The former exists and the latter does not. In other words, if you choose to rescue or intervene as a "good samaritan," you are under no obligation to make things better, but you cannot worsen the situation. In Zelenko v. Gimbel,11 the defendant intervened and placed the plaintiff, who was ill, in an infirmary. However, no care was provided for hours. He subsequently died. The court ruled that in assuming the responsibility for the rescue, the defendant failed to do what a reasonable and prudent person would have done.
For example, if you choose to jump into a lake to save someone and then change your mind and swim back to shore before reaching them, there is no obligation or liability. However, if you attempted to help and made the situation worse, and your actions were not what a reasonable and prudent person would do, liability may be imposed. Trying to help and failing is not what the courts are referring to. In general, if you act in good faith as a reasonable and prudent person, immunity will be preserved. However, if you act recklessly or wantonly, then you are no longer afforded the protections of a "good samaritan." Most statutes reflect this in their language.
For example, Hawaii’s "Good Samaritan" statute is noted below.
"Any person who in good faith renders emergency care, without remuneration or expectation of remuneration, at the scene of an accident or emergency to the victim of the accident or emergency shall not be liable for any civil damages resulting from the person’s acts or omission, except for such damages as may result from the person’s gross negligence or wanton acts or omissions." 12
For historical purposes, the good samaritan doctrine is included below.
Good samaritan doctrine is a common law doctrine whereby: "a person who voluntarily assumes a duty owed by another and then breaches that duty becomes liable to one who is injured as a result of the breach." The general maritime law requires that the voluntary conduct must be reckless and wanton.12
In-flight Emergencies
What are your obligations and protections as a "good samaritan" while on an aircraft? Although beyond the scope of this article, different international jurisdictions may impose different standards. However, in general, and certainly for U.S. carriers departing from and traveling to U.S. destinations, the answers are fairly clear. First, not withstanding any moral obligations to render aid, you have no legal obligation and no duty, unless a prior patient-physician relationship had been established. As an emergency physician, this is a moot point. However, primary care physicians could find themselves in a situation in which they have a duty to aid one of their established patients. However, they would be under no obligation to check the manifest to know such patients may be traveling on the same flight.
With respect to immunity from negligence, great latitude will likely be given in these circumstances. However, there are limits. "Under English law, the standard of care required by a doctor is that set out in the Bolam Test,’ which is whether in all the circumstances the person acted with the skill and competence ordinarily to be expected from a person undertaking his particular role and professing to have his particular skills — in other words, the skill expected of a reasonable professional."13
Ordinary negligence is not the standard in the context of "good samaritan" statues. Thus, errors, in and of themselves, should not constitute negligence while assisting on a flight.
The question of duty often arises in the context of airline generosity. It is not uncommon for an airline to express their gratitude to a "good samaritan" passenger by offering a bottle of champagne or a free upgrade of some kind. So, does this constitute a form of payment and establish duty? Each case would be adjudicated on the individual facts and circumstances of that given case. However, in general, such courtesies do not establish duty. First, the airline, and not the patient, provides the generosity, and second, the "good samaritan" is not usually aware of the generosity extended to him or her until after the services have been rendered. Now, if the bottle of champagne was bartered for, or actual payment for services requested of the patient or the airline prior to or after treatment, this certainly may change the duty required and convert the standard of care to ordinary negligence.
Community and Athletic Events
Where do providers stand with regard to community and athletic events? Although state statues vary, please recall the general premise and intent of "good samaritan" protections, which is the provision of emergency care. "The volunteer event physician who provides non-emergent treatment, such as laceration repair, sprain and strains, or simple fractures, is often not protected by the legislation. Additionally, sports physicals, medical evaluations, or release/return-to-play examinations are not considered emergency care and do not exempt the provider from liability."14
Event liability coverage is for general liability for the event holder and does not cover medical liability. However, physicians may purchase such a policy and may seek reimbursement for the expense. In addition, assisting at such events may be covered under a physician’s current professional liability policy, but this must be verified in advance of participation.
With respect to waivers of liability, we all have signed them, but they are largely unenforceable. In general, a general liability waiver notes the individual assumes the risk by choosing to participate in an activity, but cannot waive future liability of a tortfeasor. Let’s take bungee cord jumping as an example. Everyone is required to sign a waiver. However, no waiver is allowed to waive the person’s right to a claim of negligence against the other party. So, in other words, you cannot construct a waiver insulating you from your negligence. If the bungee cord is faulty and the proprietor should have checked it, the waiver will not and cannot absolve them from their liability. The same is true for events and sports medicine.14
Will you be traveling with a youth sports team? You should be cautious, as per a survey performed in 1999, 19 states (AK, CA, HI, IA, IN, ME, MN, ND, NH, NV, NY, OH, OK, OR, SC, SD, VA, WI, and WY) did not allow out of state physicians to practice without a license for the state in which the event would be conducted.15
An additional consideration is scope of practice. Physicians considering participating in events should make certain that the anticipated activities will be in the scope of the training and special and current practice. This will reduce the likelihood of an allegation of gross negligence.
For instance, if a pulmonologist, without proper training for trauma, serves as a team physician and does not perform as a reasonable provider would for the care of a spinal injury, recklessness or gross negligence may be alleged. Remember, the care provided would not fall under "good samaritan" protections, as this is a planned event and you accepted responsibility, which may in fact establish a duty to all of those who may be injured.
Imagine compounding this with the assumption that the physician is indemnified by the event planner or professional liability insurance is provided or the physician is covered with his or her own policy. Health care providers are altruistic by nature. However, blind altruism can result in walking into a medical-legal wall. Experience conveys the following observation. People are very appreciative of a physician’s willingness to donate their time and expertise. However, if there is a bad outcome, patients often suffer from short-term memory loss, which turns them into plaintiffs.
Be cautious regarding your willingness to help. There is plenty of case law to support a cautious approach with colleagues, neighbors, and friends. When someone asks you for assistance, understand that in the absence of a true emergency, acceptance of the request may be enough to establish duty and a patient-physician relationship. In the absence of usual care, record keeping, and insurance coverage, it may be best to decline. Being a "good person" does not make you a "good samaritan."
References
- Velazquez v. Jiminez 172 N.J. 240, 798 A.2d 51 (2002)
- Dobbs D, Hayden P. Torts and Compensation. St. Paul: Thomson/West, 2005.
- Guerrero v. Copper Queen Hosp., 112 Ariz. 104, 537 P.2d 1329, 1331 (1975).
- Steffey v. King, 614 N.E.2d 615, 617 (Ind.Ct.App.1993).
- Jackson v. Mercy Health Ctr., Inc., 864 P.2d 839, 844 (Okla.1993).
- Clayton v. Kelly, 183 Ga.App. 45, 357 S.E.2d 865, 868 (1987).
- Johnson v. Matviuw, 176 Ill.App.3d 907, 126 Ill.Dec. 343, 531 N.E.2d 970, 972, 975-76 (1988), appeal denied, 125 Ill.2d 566, 130 Ill.Dec. 481, 537 N.E.2d 810 (1989).
- Hirpa v. IHC Hosps., Inc., 948 P.2d 785, 788 (Utah 1997).
- Home Star v. Emergency Care and Health Organization, et. al. Docket No. 115526.
- Buch v. Amory Manufacturing Co. 69 N.H. 257, 44 A. 809 (1987).
- Zelenko v. Gimbel Bros. Inc., 287 N.Y.S. 134 (NY. 1935 90 (Good Samaritans Law & Legal Definition. USLegal.com. Accessed October 9, 2014.)
- Good Samaritans Law & Legal Definition. USLegal.com. Accessed October 9, 2014.
- Shepherd B, Macpherson D, Edwards CMB. In-flight emergencies: Playing the good samaritan. J R Soc Med 2006;99:628–631.
- Ross, et al. Action in the event tent! Medical-legal issues facing the volunteer event physician. Sports Health 2013;5:4.
- Mitten M. Emerging legal issues in sports medicine: Summary and analysis. St John’s Law Rev. 2002;76:1.
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