Saint Louis University

School of Nursing
Baguio City

JOURNAL
Your Malpractice Advisor: Avoid Pitfalls
When Being a Good Samaritan

In Partial Fulfilment
Of the Requirements for the Course
Related Learning Experience

SUBMITTED BY:
Bastero, Maricris O.
BSNIV-O1

SUBMITTED TO:
Sir Capuyan
Clinical Instructor

Community

Date:
November 11, 2010
Your Malpractice Advisor: Avoid Pitfalls
When Being a Good Samaritan
Lee J. Johnson, Esq., MA, JD
http://www.medscape.com/viewarticle/731219
Posted: 11/02/2010
Introduction

Physicians are often tempted to help out in an emergency, perhaps to save a life.
Besides coming to the aid of an injured person or person in distress, a number of
doctors -- particularly retired physicians -- volunteer their services at community
clinics.

However, doctors often question whether they're putting themselves at risk for a
malpractice lawsuit, even if they're trying their best to help. In some situations, they
may indeed be putting themselves at risk.

Public policy behind Good Samaritan laws is to encourage health professionals to

render aid in emergencies. All 50 states and the District of Columbia have one. The
federal government has one that covers domestic airplane travel.

Each state law is different. What is common in all states is an attempt to encourage
aid by restricting the liability of those who provide it.

What Constitutes a "Good Samaritan" Act?

There are 3 qualifications: The treatment must be rendered in a true emergency;

usually must be outside of a hospital or other medical facility; and must not be
reimbursed.

Emergency Care

Good Samaritan protections require a true emergency. If a patient walks up to you at

a first-aid booth and asks for advice or treatment for an ongoing condition, you could
be sued and held to the standard of ordinary negligence. If you volunteer at a clinic
or an international aid organization and provide routine care, you are not protected.
Some states are enacting legislation in an effort to encourage volunteerism for the
indigent, but most states do not afford such protection.

One question that arises is whether an accident can be considered a true

emergency. Take the example of 2 similar cases, one finding an emergency and the
other not.
In a New York case, a doctor was protected by the statute. He was stopped in the
lobby of his apartment building by the superintendent's wife, who begged him to
look at her husband. The doctor took the man's pulse and heart rate, then called for
an ambulance. The superintendent died at the hospital. The widow sued the
physician for wrongful death, but a judge dismissed him from the case.

Compare that with an Indiana case in which an appellate court ruled that the
protection applies only to the treatment of accident victims, not to all emergencies.
A physician had been called at home by a neighbor who was having chest pains. The
doctor made a house call, examined the patient, diagnosed pleurisy, prescribed
medication, and asked the patient to call if symptoms didn't improve.

The patient's husband called an hour later reporting a respiratory incident. The
physician returned, found the woman in full cardiac arrest and initiated CPR, but the
patient died. The court ruled that the doctor should be held to the standard of
ordinary negligence.

Outside a Hospital or Medical Facility

Good Samaritan laws typically apply only to physicians who voluntarily provide
service outside the routine practice of medicine. In most states, there is a
requirement that the medical care takes place "outside a hospital, doctor's office, or
any other place having necessary medical equipment."

Another reason why volunteering for community service doesn't guarantee immunity
from liability is that medical equipment is often available at the site of the medical
treatment.

California, Colorado, and some other states provide protections regardless of place
of aid. For example, in this Utah case an internist joined a code team voluntarily and
was allowed protections in the hospital settings. The court ruled that the doctor was
protected as long as the he had no preexisting duty to provide assistance. The court
reasoned that it would be arbitrary to make a volunteer liable merely because the
emergency occurred in a hospital. Therefore, a doctor working in the emergency
department would not be protected, but a cardiologist on rounds who responds to a
code might be.

The more prevalent state laws do not afford Good Samaritan protection in a hospital
setting. An example is this Indiana case: A physician took over a breech delivery
when the original obstetric specialist couldn't be located. The parents sued both
doctors because of their baby's injuries. The court held that the doctor who delivered
the baby wasn't entitled to Good Samaritan protection because it didn't take place
"outside a hospital, doctor's office, or any other place having necessary medical
equipment."
No Payment

To qualify for Good Samaritan protections, the medical care must be "voluntary," ie,
the doctor must not seek remuneration. As a Good Samaritan, you can't seek or
accept payment. If you billed a patient after treatment, you could lose the legal
protection. Then if something goes wrong, you could be held to the standard of
ordinary negligence. Patients who receive emergency aid may offer you a gift in
appreciation. If you graciously accept, you must make it clear that the gift should not
be considered remuneration.

What's the Standard of Care?

The usual standard of care in a malpractice lawsuit is what a "reasonable"

practitioner in the same specialty would have done in similar circumstances at the
time of the event. Some states, including California, provide Good Samaritan
protection if the doctor is acting in "good faith." Most states simply reduce the
standard of care to "gross negligence," which can be defined as reckless disregard of
the consequences of one's actions in affecting someone else's life.

Usually gross negligence is found only in a situation in which the doctor's action
leaves the patient in dire straits, perhaps in worse condition. An example would be
initiating first aid and then walking away from the scene before the arrival of
emergency medical services.

Once you begin to render aid, you must not leave the scene of the accident unless
you need to go call for help or someone arrives and takes over who has equal or
greater expertise. Also, you would not be expected to endanger yourself as in
treating a bleeding patient with AIDS without gloves or staying in a car that is about
to be engulfed in flames.

Are You Required to Help?

Some doctors think that the Good Samaritan laws create a duty to rescue. Some
states, including Vermont, Minnesota, and Louisiana, attempt to mandate aid. Some
state courts seem to imply a greater responsibility when there is a prior treatment
relationship. However, the laws generally encourage rather than mandate aid by
providing protections from liability.

Other Considerations: Consent and Coverage

Although informed consent is a strict requirement for most medical care, it's often
impossible to obtain in emergencies. If the patient is an adult with capacity, you
must seek informed consent before you can render emergency aid. If the patient is a
minor, then you must seek consent from the parent or legal guardian.
Conversations about informed consent will not be possible if the patient is
unconscious or disoriented.

State informed consent laws typically do not require informed consent if obtaining it
would mean a delay in treatment that could endanger the victim's life or health. You
should document your medical judgment about the need for immediate treatment as
soon as possible.

Coverage and Defense

Malpractice insurance policies cover medical malpractice liability in Good Samaritan

situations. Usually the defense attorney will be 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. Of course,
nothing prevents the patient from naming you in a lawsuit.

If you think you can help, should you volunteer? For the most part, Good
Samaritan Laws have provided physicians with effective protection. There have been
few lawsuits against doctors rendering emergency aid. In most of those, the
physician was exonerated. Good Samaritans will be protected as long as they act in
good faith, in an emergency outside a medical facility, without compensation, and
don't commit gross negligence.

Reference:

http://www.medscape.com/viewarticle/731219

SUMMARY:
Physicians are often tempted to help out in an emergency, perhaps to save a
life. Besides coming to the aid of an injured person or person in distress, a number of
doctors -- particularly retired physicians -- volunteer their services at community
clinics. However, doctors often question whether they're putting themselves at risk
for a malpractice lawsuit, even if they're trying their best to help. In some situations,
they may indeed be putting themselves at risk. Public policy behind Good Samaritan
laws is to encourage health professionals to render aid in emergencies. Each state
law is different. What is common in all states is an attempt to encourage aid by
restricting the liability of those who provide it. All 50 states and the District of
Columbia have one. The federal government has one that covers domestic airplane
travel. There are 3 qualifications of a Good Samaritan Act: The treatment must be
rendered in a true emergency; usually must be outside of a hospital or other medical
facility; and must not be reimbursed. In the emergency care, Good Samaritan
protections require a true emergency. If a patient walks up to you at a first-aid booth
and asks for advice or treatment for an ongoing condition, you could be sued and
held to the standard of ordinary negligence. If you volunteer at a clinic or an
international aid organization and provide routine care, you
are not protected. Outside a Hospital or Medical Facility, Good Samaritan laws typically
apply only to physicians who voluntarily provide service outside the routine practice
of medicine. In most states, there is a requirement that the medical care takes place
"outside a hospital, doctor's office, or any other place having necessary medical
equipment." Another reason why volunteering for community service doesn't
guarantee immunity from liability that is medical equipment is often available at the
site of the medical treatment. To qualify for Good Samaritan protections, the medical
care must be "voluntary," ie, the doctor must not seek remuneration. As a Good
Samaritan, you can't seek or accept payment. If you billed a patient after treatment,
you could lose the legal protection. Then if something goes wrong, you could be held
to the standard of ordinary negligence. Patients who receive emergency aid may
offer you a gift in appreciation. If you graciously accept, you must make it clear that
the gift should not be considered remuneration.
The usual standard of care in a malpractice lawsuit is what a "reasonable"
practitioner in the same specialty would have done in similar circumstances at the
time of the event. Most states simply reduce the standard of care to "gross
negligence," which can be defined as reckless disregard of the consequences of
one's actions in affecting someone else's life. Usually gross negligence is found only
in a situation in which the doctor's action leaves the patient in dire straits, perhaps in
worse condition. An example would be initiating first aid and then walking away from
the scene before the arrival of emergency medical services. Once you begin to
render aid, you must not leave the scene of the accident unless you need to go call
for help or someone arrives and takes over who has equal or greater expertise. Also,
you would not be expected to endanger yourself as in treating a bleeding patient
with AIDS without gloves or staying in a car that is about to be engulfed in flames.

Some doctors think that the Good Samaritan laws create a duty to rescue.
Some states, including Vermont, Minnesota, and Louisiana, attempt to mandate aid.
Some state courts seem to imply a greater responsibility when there is a prior
treatment relationship. However, the laws generally encourage rather than mandate
aid by providing protections from liability.

Although informed consent is a strict requirement for most medical care, it's often
impossible to obtain in emergencies. If the patient is an adult with capacity, you must seek
informed consent before you can render emergency aid. If the patient is a minor, then you
must seek consent from the parent or legal guardian.

Malpractice insurance policies cover medical malpractice liability in Good

Samaritan situations. Usually the defense attorney will be 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. Of
course, nothing prevents the patient from naming you in a lawsuit.

Good Samaritans will be protected as long as they act in good faith, in an

emergency outside a medical facility, without compensation, and don't commit gross
negligence.

Reference:

http://www.medscape.com/viewarticle/731219

REACTION:
Good Samaritan laws are laws or acts protecting those who choose to serve
and tend to others who are injured or ill. They are intended to reduce bystanders'
hesitation to assist, for fear of being sued or prosecuted for unintentional injury
or wrongful death. Public policy behind Good Samaritan laws is to encourage health
professionals to render aid in emergencies. a legal principle that prevents a rescuer
who has voluntarily helped a victim in distress from being successfully sued for
'wrongdoing'. Its purpose is to keep people from being reluctant to help a stranger in
need for fear of legal repercussions should they make some mistake in treatment.
Good Samaritan laws vary from jurisdiction to jurisdiction, as do their interactions
with various other legal principles, such as consent, parental rights and the right to
refuse treatment. Such laws generally do not apply to medical professionals' or
career emergency responders' on-the-job conduct, but some extend protection to
professional rescuers when they are acting in a volunteer capacity. In this journal,
the concept of the Good Samaritan has been reinforced to be: Good Samaritans will
be protected as long as they act in good faith, in an emergency outside a medical
facility, without compensation, and don't commit gross negligence. The usual
standard of care in a malpractice lawsuit is what a "reasonable" practitioner in the
same specialty would have done in similar circumstances at the time of the event.
Most states simply reduce the standard of care to "gross negligence," which can be
defined as reckless disregard of the consequences of one's actions in affecting
someone else's life. Usually gross negligence is found only in a situation in which the
doctor's action leaves the patient in dire straits, perhaps in worse condition. This
journal says that we sometimes tend to hesitate whether or not we still help or not.
In given situations like an emergency situation and if something goes wrong it is also
our fault. The only point is that we as part of the medical team, only wants to lend a
hand and prolong life. In other 3rd world countries wherein they are aware or the
patient’s are aware of their rights they tend to exaggerate things which they think is
not enough or is wrong so they tend to sue you to let you know that what you did is
wrong. I think the best thing to do is to let them know

Implication to Nursing Practice, Nursing Education and Nursing

Research:

As student nurse I must know the consequences of my actions because in our

profession we are dealing with lives. To start with that I must know whole heartedly the rules
and laws that holds my profession so that I can render service to the human welfare much
better or without any hesitation. As nurses we should always have continuous education to
enhance our patient care. The need to educate them regarding their rights as patients is a
must. For those patients who do know their rights, I think it is also our right for us not to be
afraid of the word SUE because if we do our job well then there is no reason to be afraid. This
journal can be an eye opener for us, especially here in the Philippines in which most of the
patients is not aware of their rights. There is a need for education and information
dissemination also is a must here. The need for further research is a must because of its
incompleteness due to the fact that some ideas are vague.