When is A Physician A Good Samaritan?

NEWSLETTER Volume Four Number Eight August, 2008 When is A Physician A Good Samaritan? Although many think that the law is settled on the medical Good Samaritan, cases continue to arise on the topic. Just what is a medical Good Samaritan? What protections do they enjoy for rendering aid to someone in distress? Are there any restrictions on the application of the Good Samaritan concept to medical practitioners? It is helpful to provide a historical context for the Good Samaritan concept. A recent Texas case 1 demonstrates how the courts continue to refine the scope of this principled approach to being a first responder. Indeed, the Texas decision offers some useful risk management lessons for hospitals and physicians alike. The Good Samaritan Concept in Context. Traditionally, the medical Good Samaritan was one who came to the aid of a person in distress. The context might have been at a beach, a theatre, on an airplane, or at the scene of a motor vehicle accident. The highly qualified first responder attended the ailing or injured party without expectation of being paid for services rendered. 2 As the concept evolved, the good Samaritan was extended to other care providers who provided similar aid, and once again, without expectation of remuneration. Whether the aid was rendered by a physician, nurse, or another care provider, the basic legal principles applied. Thus in most instances, the Good Samaritan exception applied if the following conditions were met: The situation involved an emergency. There was no pre-existing relationship between the care provider and the patient. Assistance provided was provided in good faith. Assistance was offered without expectation of payment. RMS NEWSLETTER ALL RIGHTS RESERVED 2008 PAGE 1

The care rendered was free of willful or wanton misconduct or gross negligence. As long as all the elements were present in a case, even if the care provided was culpable or ordinary negligence, a plaintiff would be hard pressed to succeed in a claim against such a Good Samaritan. This would not be the case, however, if the care giver s behavior reflected gross negligence or willful and wanton misconduct. 3 It may be more difficult than thought to determine willful and wanton misconduct or gross negligence. Much depends on the facts of a case. First year law students have studied the concept, often reviewing cases that evoked moral and ethical principles. Consider the following example: A medical Good Samaritan happened upon an unconscious accident victim adjacent to a smoldering car. He saw gasoline leaking from the vehicle s ruptured tank. Concerned that the car would soon be engulfed in flames, the medical Good Samaritan pulled the injured party away from the vehicle. Soon after, a fire truck arrived and fighter fighters used the right technique to eliminate the risk of a fire. However, in the course of moving the injured party, the medical Good Samaritan finished the job done by the accident. By pulling the victim to safety, what had been a bad spinal injury became permanent paralysis from the waist down. Law professors would ask: was it gross negligence to move the victim? Was it willful and wanton conduct to have pulled the person to safety without first doing a physical assessment of the unconscious person? Should the care provider have waited for emergency personnel to arrive to move the individual? Over the years yet another factor entered the picture in the evolution of the Good Samaritan law. So-called con artists staged accidents and attracted wellintentioned individuals to assist them. Many such individuals were medical practitioners who were then sued for causing injury to these victims. The scam artists caused many well-intentioned individuals to think twice about being a Good Samaritan. Many states codified the idea of the Good Samaritan into legislation. For example, the current Good Samaritan law in Arkansas provides: (a) Any health care professional under the law of the State of Arkansas who in good faith lends emergency care or assistance without compensation at the place of any emergency or accident shall not be RMS NEWSLETTER ALL RIGHTS RESERVED 2008 PAGE 2

liable for any civil damages for acts or omissions performed in good faith so long as any act or omission resulting from the rendering of emergency assistance or service was not grossly negligent or willful misconduct. 4 Considering the scope of Good Samaritan laws too restrictive, some states reshaped their legislation to extend to those who responded to emergencies in a healthcare setting, such as a hospital. For example, Colorado legislation exempts from civil liability: Any person licensed as a physician and surgeon under the laws of the state of Colorado who in good faith renders emergency care or emergency assistance to a person not presently his patient without compensation at the place of an emergency or accident, including a health care institution. 5 The Texas Case. In late October, 2001, Dr. J.R. was the on-call anesthesiologist for labor and delivery at a Houston Area hospital. He was called to provide anesthesia to T.C. in an emergency cesarean section. T.C. had been delivered of twins, one of whom, S.D. was not breathing. When the nurses and medical residents in attendance could not resuscitate S.D., T.C. s obstetrician asked Dr. J.R. to intubate the neonate. 6 After he completed the intubation, it was alleged that Dr. J.R. returned to caring for T.C., leaving it up to the nurses and residents responsibility for completing post-intubation checks and to securing the baby s tube. Approximately 12 minutes after the intubation was completed by Dr. J.R., a neonatologist arrived to attend to the infant. It was then that it was determined that the tube had been placed in the baby s esophagus and not his trachea. Once the neonatologist moved the tube to the baby s trachea he started to breathe. However, by the time this step was accomplished, the baby had experienced permanent brain damage. 7 A lawsuit was filed against Dr. J.R. and his professional anesthesiology association claiming that he had been negligent in the insertion of the intubation tube and that as a consequence the baby was deprived of oxygen and sustained permanent brain damage. The defendants made a motion for summary judgment claiming that since J.R. was responding to an emergency the baby being unable to breathe the Texas Good Samaritan law prevented any liability for negligence. 8 The trial court agreed as did an intermediate appellate court. The case then RMS NEWSLETTER ALL RIGHTS RESERVED 2008 PAGE 3

went before the Supreme Court of Texas where it was reversed. In so doing, the high court agreed with the plaintiff that the court of appeals had erred in ruling that Dr. J.R. had established the Good Samaritan defense applied as a matter of law. Indeed, the court said that for the defendant to prevail in his motion for summary judgment, Dr. J.R. had the burden to conclusively establish each of its elements of the Texas Good Samaritan Statute. 9 The Texas Supreme Court quoted at length from expert witness testimony provided on behalf of the plaintiff: If is foreseeable that an anesthesiologist may have to intubate a newborn when called to assist in a cesarean section such as the one in this case. This is because it happens on an anesthesiologist's watch from time to time where there is no neonatologist, where he/she has not yet arrived, or even when the neonatologist is present but requests assistance. By virtue of the fact that a child is about to be delivered, when a neonatologist is not present, the anesthesiologist knows that as part of the labor and delivery team, he may be sharing in the care and responsibility of the mother and child (or children) being delivered. 10 The court determined that this testimony created a question of material fact that precluded the grant of summary judgment on the Good Samaritan defense. As the court stated: Our application of the statute in this case is consistent with the legislative purpose behind extending the Good Samaritan defense to medical professionals in hospital settings. The statute is intended to increase the incentives for physicians to respond voluntarily to medical emergencies, even if they occur in a hospital. 11 Thus the court concluded that the appellate court ruling had to be reversed and the case remanded to that court to determine whether there might be another basis for granting the motion for summary judgment. 12 Lessons Learned from the Texas Decision. The Texas ruling demonstrates that determining whether the Good Samaritan exception applies is very fact-specific. Expert witness testimony offered by the plaintiff helped to convince the court that the defendant was not entitled to a grant of summary judgment on the application of the Good Samaritan law. Although other courts might take a different perspective, the case offers an insight into how some high court judge views the role and responsibilities of care providers operating as a team in the delivery of treatment. That the RMS NEWSLETTER ALL RIGHTS RESERVED 2008 PAGE 4

anesthesiologist was part of the team looking after the mother in the course of an emergency cesarean section was a consideration in the case. Policy Issues and the Good Samaritan Rule. Good Samaritan legislation carves out an exception from the laws dealing with negligence. Both case law and legislation provide a context for when it is appropriate to apply the exception. Nonetheless, the circumstances for applying the Good Samaritan principle are apt to change. Public health emergencies and the use of life-saving technologies in the field, may help reframe the policy framework for Good Samaritan laws. Some states have chosen to expand the scope of Good Samaritan legislation out of concern about the potential for pandemic influenza, bioterrorism, and other mass-casualty scenarios. Such changes reflect a shift in the underlying public policy of Good Samaritan laws. A good example can be found in Virginia where Good Samaritan style legislation law protects not only physicians, but also hospitals in a disaster. 13 Public policy has also served to help expand the reach of Good Samaritan laws in the use of automated external defibrillators or AEDs. Colorado s AED law makes it clear how the state Good Samaritan statute may apply to the use of such a device. 14 The state assembly was quite clear in taking this step, to encourage the use of automated external defibrillators for the purpose of saving the lives of people in cardiac arrest. Public policy may serve as the context for additional changes in Good Samaritan laws. In the interim, it is prudent to becoming knowledgeable with applicable state law on when and how such legislation and case law applies in a specific jurisdiction. Risk Management Strategies. There are a number of practical risk management strategies that help to crystallize the application of the Good Samaritan exception for physicians, other healthcare professionals, and hospitals. These include the following. 1. Identify State Good Samaritan Requirements. Be certain that care providers understand the specifics of applicable state law on the Good Samaritan exception. Do not assume that they understand the scope of the law. RMS NEWSLETTER ALL RIGHTS RESERVED 2008 PAGE 5

2. Education on Appropriate Action in an Emergency. Offer care providers practical educational programs on how to respond in specific emergency settings. What can be done in a field hospital working with mass casualties may be quite different than offering assistance to those who arrive at a healthcare facility after exposure to a potentially toxic substance or at the scene of a train derailment. Consider case scenarios, case studies, and drills for this purpose. 3. Consider the Impact of Federal Emergency Laws. Consider the influence of federal laws designed to create a pool of care providers who are qualified to respond in the event of a disaster. This includes DMATs (Disaster Medical Assistance Team). Note that members of an activated DMAT enjoy liability protection under the Federal Torts Claims Act (FTCA). For those along border states, determine if there are any special mutual aid laws that address the use of cross-border personnel. For example, examine the International Emergency Management Assistance Memorandum of Understanding, passed as a Joint Resolution of the U.S. Senate and the House of Representatives. It applies to the six New England States and the Canadian Provinces of Quebec, New Brunswick, Nova Scotia, Prince Edward Island and Newfoundland. 15 4. Documentation is Important. Recognize that in a disputed Good Samaritan case, concurrent documentation will be important evidentiary information. Consider ways in which care providers may document such events. Take into consideration format, paper and pen versus electronic recording, and including the time, date, and name of the person responding to the event. Important to the process is information that reflects why the event met the Good Samaritan exception. Practical issues should also be addressed, including paper and pen that are resistant to damage by the elements. A similar consideration applies to electronic devices used in the field to record concurrent information. 5. Training and the Use of AEDs. Providing care providers, first responders, and the public with training is an effective community effort to reduce mis-use of automated external defibrillators. Not only would such efforts increase the use of this new technology, it may also avoid injury. Working with public service entities to provide such education is important for those in schools, shopping centers, and other large gathering places. RMS NEWSLETTER ALL RIGHTS RESERVED 2008 PAGE 6

6. Updates from Legal Counsel Recognizing that case law and legislation continues to change on the application of the Good Samaritan exception, encourage legal counsel to provide updates. Consider written information for healthcare providers and for physicians, the use of grand rounds as a vehicle for providing updates. 7. Lessons Learned. Provide summaries and lessons learned to instill the appropriate use of the Good Samaritan exception. Look beyond the confines of the individual hospital or healthcare organization. Consider how external cases may be used as teaching tools locally to hone good skills for the Good Samaritan. Conclusion. Good Samaritans play a key role in the course of serious events. Whether a single-vehicle accident or a mass casualty event, prompt, effective, efficient response is often the difference in containing the scope of injury. As state law has expanded to encompass hospitals as the setting for Good Samaritan laws, the need has grown for a clear understanding of the exception in this context. Through effective education, much can be done to avoid misunderstandings about the Good Samaritan law in the hospital context. Like other aspects of healthcare delivery, documentation is important when evoking a Good Samaritan statute or case law. Done concurrently, the documentation can prove invaluable not only in the defense of a claim, but also as a teaching tool for the future. Because the law is not settled on the Good Samaritan exception, and public policy may serve as the context for further change, it is useful to secure regular updates from legal counsel. Using this information in educational forums can help care providers serve as effective responders in appropriate situations. If you would like assistance with developing practical educational programs on Good Samaritan requirements, please contact us at (860) 242-1302. RMS NEWSLETTER ALL RIGHTS RESERVED 2008 PAGE 7

1 C. v. R., 254 S.W.3d 453 (Tex. 2008). 2 S.R. Reuter, Physicians as Good Samaritans, J of LEGAL MED 20: 157-188, 157, (June, 1999) 3 Id., at 161. 4 Ark. Code 17-95-101 (2007). 5 Colo. Rev. Stat. 13-21-108 (2005). 6 C. v. R., 254 S.W.3d 453. 455 (Tex. 2008). 7 Id. 8 Id., at 456. 9 Id. 10 Id., at 456-457. 11 Id. at 457. 12 Id. 13 The statute provides: A. In the absence of gross negligence or willful misconduct, any health care provider who responds to a disaster by delivering health care to persons injured in such disaster shall be immune from civil liability for any injury or wrongful death arising from abandonment by such health care provider of any person to whom such health care provider owes a duty to provide health care when (i) a state or local emergency has been or is subsequently declared; and (ii) the provider was unable to provide the requisite health care to the person to whom he owed such duty of care as a result of the provider's voluntary or mandatory response to the relevant disaster. B. In the absence of gross negligence or willful misconduct, any hospital or other entity credentialing health care providers to deliver health care in response to a disaster shall be immune from civil liability for any cause of action arising out of such credentialing or granting of practice privileges if (i) a state or local emergency has been or is subsequently declared; and (ii) the hospital has followed procedures for such credentialing and granting of practice privileges that are consistent with the Joint Commission on Accreditation of Healthcare Organizations' standards for granting emergency practice privileges. Va. Code 8.01-225.01 (2008). 14 Colo. Rev. Stat. 13-21-108.1 (2005) referring to Colo. Rev. Stat. 13-21-108 (2005). 15 H.R.J. Res. 59, 110th Cong. (October 17, 2007). RMS NEWSLETTER ALL RIGHTS RESERVED 2008 PAGE 8