Don't let fear of liability deter you from being a Good Samaritan

March 6, 2009
Lee J. Johnson, JD
Lee J. Johnson, JD

The author is a health care attorney who specializes in risk management issues.

A Good Samaritan will be exonerated as long as he acts in good faith.

Key Points

Let's say you're driving in your car and pass an accident on the side of the road. Or you're in a restaurant when the man at the next table begins to choke. What should you do? Can you be held liable if something goes wrong?

Public policy in every state encourages health professionals to render aid in an emergency situation, and Good Samaritan laws typically apply to physicians who voluntarily provide service outside the routine practice of medicine.

In some states, Good Samaritans are immune from lawsuits; in others, they face liability only for gross negligence. The usual standard of negligence in a malpractice lawsuit is falling short of what a "reasonable" practitioner in the same specialty would have done in similar circumstances at the time of the event.

To qualify for Good Samaritan protection, treatment must be rendered in a true emergency situation, such as the above examples of passing a car wreck or rendering aid to someone in a restaurant; the medical care must be "voluntary"-i.e., the doctor must not seek remuneration; and payment cannot be sought or accepted. If you bill a patient after treatment, you lose the legal protection and would be held to the standard of ordinary negligence, even if the situation was an emergency.

These qualifications are exemplified in one New York case: A doctor was stopped in the lobby of his apartment building by the superintendent's wife, who begged him to look at her husband. After checking the man's pulse and heart rate, the doctor called for an ambulance. Later, the man died at the hospital. The widow sued the physician for wrongful death, but a judge dismissed the case against him. The situation was a true emergency, took place outside a hospital, and the doctor didn't seek payment.

Informed consent conversations are often impossible in emergencies, especially if the patient is unconscious or disoriented, and most state laws allow for this contingency. You aren't required to secure the patient's consent if any delay in treatment would increase the risk to his life or health, but you should document your medical judgments at the earliest possible moment.

Malpractice insurance policies cover medical treatment in Good Samaritan situations. Usually, the defense attorney is able to make a motion to have the doctor-defendant dropped from the case or will argue at trial for the doctor's immunity from liability on the basis of the standard of gross negligence. There's nothing to prevent the patient from suing you, but liability is extremely rare.

So, should you volunteer to help? If you think you can be of assistance and you would likely be covered by the Good Samaritan laws, absolutely. A Good Samaritan will be exonerated as long as he acts in good faith. Fear of liability shouldn't deter you if you want to help out.

The author is a healthcare attorney in Mt. Kisco, New York, specializing in risk-management issues. She can be reached at lj@bestweb.net. Malpractice Consult deals with questions on common professional liability issues. Unfortunately, we cannot offer specific legal advice. If you have a general question or a topic you'd like to see covered here, please send it to memalp@advanstar.com
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