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GOOD SAMARITAN IMMUNITY: WHAT DOCTORS SHOULD KNOW
by Ann Whitehead, Esq.
CAP Risk Management Representative

As you enter the nurse's station, a colleague asks for your help to deal with an emergency (e.g., placement of a central venous line or endotracheal tube, or assistance with a Code). You do your best, but the patient dies, nonetheless. The family is distraught and seeks the advice of an attorney. They bring a lawsuit against you, as one of the healthcare providers identified in the medical record. Are you immune from liability for the patient's death? Maybe, if you were acting as a Good Samaritan.

A Good Samaritan is a licensed medical professional who volunteers to help someone in an emergency situation. The help must be provided:

Consider the common sense angle first. What explains the significant difference in prices -- domestic compared to foreign sources? Can safe and effective drugs and devices be marketed in Canada or Mexico at much lower prices than those in the U.S.? Do pharmaceutical manufacturers and device-sellers care less about making a profit in Canada or Mexico? Probably not!

(1) absent any professional duty or responsibility to care for the patient (i.e., a patient-physician relationship),

(2) voluntarily, without any expectation of compensation,

and

(3) in a good-faith effort to help.

How does Good Samaritan immunity apply to everyday life? A common example of a Good Samaritan is a physician who comes upon the scene of a car accident and renders aid to a victim. However, if the physician later bills the patient for his emergency services, he waives Good Samaritan immunity and may be held liable for emergency services that caused harm to the victim. Thus, the physician must truly be a "volunteer" to qualify for the immunity.

In California, the Good Samaritan statutes' provide liability protection to licensed individuals who render emergency medical aid to one who might not receive it otherwise. The statutes provide immunity against liability for injury caused as a result of the emergency treatment. The public policy goal of these statutes is to encourage emergency aid. The test for determining the existence of an emergency is objective: whether the undisputed facts establish an exigency serious enough that some action must be taken. However, this immunity from liability does not apply to acts or omissions constituting gross negligence. (Gross negligence is heedless, reprehensible conduct, not a mere failure to meet the standard of care, and punishable by punitive damages.)

What is not a Good Samaritan act? It is not a Good Samaritan act to take care of one's own patient. The physician-patient relationship is "24 / 7." For example, a physician attending an awards banquet, where his diabetic patient consumes multiple desserts and drinks a bottle of wine, will likely be held responsible for seeing to the patient's medical needs for the ensuing diabetic coma. The fact that the coma was unexpected and the physician is not on-call does not affect the physician's duty to render medical care to his patient.

How does Good Samaritan immunity apply to hospital emergencies? As described in the first example, Good Samaritan immunity may protect physicians who volunteer in an emergency, even in the hospital. Other examples include the following: (1) an obstetrician enters the LDR where a patient requires an emergent delivery (i.e., delivery is imminent and there are FHT abnormalities), but her attending physician is not readily available. The obstetrician's voluntarily services may be protected by Good Samaritan immunity. (2) A pediatrician is called to the operating room to see a premature infant with poor Apgars. Later, a neonatologist relieves the pediatrician. In an actual case, the pediatrician was found to be a Good Samaritan for the care provided prior to the arrival of the neonatologist. (3) An anesthesiologist is summoned to the ICU, or to the OR, to assist another anesthesiologist with an emergency intubation. If the family sues after the patient dies, the volunteer anesthesiologist may qualify as a Good Samaritan.

How does the Good Samaritan Law Apply to Athletic Events? A physician who volunteers emergency medical aid at a high school or community college athletic event may qualify as a Good Samaritan. This immunity applies both to the care provided at the site of the event for injuries suffered in the course of such event, and also to care provided during transportation of the injured person to a health care facility. In addition to the above conditions (e.g., voluntary acts, no compensation, good-faith, etc.) the physician must employ conservative care, using only resources available at the site of the accident (i.e., no experimental device or therapy), and the accident victim must not object to being helped.

Other things to remember! Begin emergency medical services as soon as possible. After initiating "voluntary" care, a physician should not leave the scene unless care can be turned over to a competent professional. This might mean accompanying the patient to a hospital emergency room before relinquishing the duty of care.

Civil Code § 1714.2; Business & Professions Code § 2395-2398; Education Code § 49409; Health & Safety Code § 1317

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