Are you legally required to provide care in emergency situations in public and, if you do, could complications that occur as a result of your care make you liable for negligence?
A pivotal case in 1979 — which raised questions about what constitutes emergency care — touched on these issues, and the implications still affect neurologists today.
In that case, the patient C. A. Gragg, sued neuroradiologist William Spenser, MD, for malpractice for damages that allegedly occurred when he had a stroke 15 minutes after an angiogram was done. He also alleged “battery” (“unauthorized touching”) charges because he had not consented to be treated by Dr. Spenser.
Gragg had gone to neurosurgeon Peter Riett, MD, at Crawford Long Hospital in Atlanta for an angiogram after having severe headaches, difficulty walking, and a seizure. In the process of a carotid arteriogram Dr. Reitt had difficulty maneuvering the catheter from the left to the right carotid artery, and called in Dr. Spenser, a specialist in angiograms, to assist.
Dr. Spenser inserted the catheter and then left the room; he did not examine or monitor Gragg's condition before, during, or after the procedure. Fifteen minutes later, Gragg had a stroke and serious permanent injuries.
The lawyers invoked the Good Samaritan statute in Dr. Spenser's case successfully. The court found that Dr. Spenser was immune from liability because he had rendered emergency care in good faith.
The Graggs appealed the decision — and the court of appeals ruled that the statute did not apply. They claimed that the physician (Dr. Reitt) was highly experienced in performing angiograms and in dealing with the type of complications that arose with Gragg, and since Dr. Reitt could have proceeded alone or stopped, without grave danger to the patient, there was no emergency situation.
Ultimately Dr. Spenser won the case without using the Good Samaritan statute, with the jury finding that the malpractice and battery claims were without merit.
WHEN TO APPLY IMMUNITY
The case illustrates the inherent difficulty in knowing when the Good Samaritan immunity will apply and determining when a true emergency exists. In Gragg vs. Spenser, these complexities resulted in the adoption of several additional Good Samaritan statutes in that state — including one that deals with emergency care provided in the hospital setting, according to Robert N. Berg, an attorney in the Atlanta office of Epstein Becker & Green, who has represented neurology groups in similar cases.
In Georgia, for example, a new Good Samaritan law enacted in 2005 provides immunity for emergency services provided in a hospital setting, such as an emergency room. “This was enacted specifically by the Georgia General Assembly to deal with the crisis experienced by hospitals that couldn't get liability coverage for emergency services, and, I suspect, would have changed the result in the Gragg case if it had been around back then,” Berg said. The original 1962 Good Samaritan statute did not necessarily intend to deal with situations where one physician assisted another in a hospital setting.
The 2005 statute described the immunity in a different way, putting an extremely heavy burden on a plaintiff to get a verdict against the physician providing the emergency medical care. It essentially says that if medical care problems occur following treatment in a hospital emergency department, no physician will be held liable unless it is clearly proven that the physician's actions showed gross negligence.
Good Samaritan statutes vary from state to state, although the basic premise — immunity for those providing medical care in emergency situations — is consistent, said Berg. And the statutes have been expanded to provide greater protection to physicians and others providing emergency care in and out of hospitals.
APPLYING THE ETHICAL STANDARD
Berg said that he suspects most states view the AMA code of medical ethics as the “ethical standard” for these cases. Part of the code says that while physicians are free to choose whom they will serve, they “should respond to the best of their ability in emergencies where first aid treatment is essential,” he said, and that after that treatment, the patient should not be neglected.
“While failure to comply with ethical standards does not give rise to liability in a private right of action,” he said, “it absolutely can be grounds for disciplinary action by the appropriate state licensing body (such as the composite state board of medical examiners), up to and including revocation of license.”
There is no common law duty (tort law) that binds a neurologist to provide medical care for an individual in an emergency situation at a public place, said Murray Sagsveen, AAN legal counsel. Some state statutes, however, create a “limited duty to assist,” meaning individuals are required to assist to a certain extent.” For example, Vermont and Rhode Island require individuals to perform non-risky rescues; Minnesota requires individuals to either perform the non-risky rescue or provide notice of the problem to police or rescue personnel.
In the Minnesota statute, any person (including doctors) has a limited legal duty to assist another person exposed to or who has suffered grave physical harm at the scene of an emergency — without endangering himself or others. The care provider will not receive immunity from liability under the statute if (1) the person acts in a willful and wanton or reckless manner in providing care, advice, or assistance; or (2) the person provides emergency care during the course of his or her regular employment, and receives, or expects to receive, compensation,” Sagsveen explained.
For a neurologist to be protected under the Good Samaritan law, the care must be voluntary and without any expectation or receipt of compensation. So charging for services rendered in good faith in an emergency situation is out of the question, Berg explained. That said, if the physician-patient relationship is subsequently established for subsequent care and treatment, the neurologist can bill for all services (other than the specific ones provided during the emergency).
In summary, Berg said neurologists (and other physicians) facing these types of emergency situations should remember that they have an ethical duty to provide emergency care where appropriate; provide that care in good faith and to the best to their ability; identify themselves as a physician when possible; not charge for those services; and, anticipate being able to rely on the provisions of state law to protect them, should things not turn out well.
Sagsveen said that the AAN General Counsel's Office is not aware of any neurologists who have been involved in Good Samaritan lawsuits recently, and that the Academy does not have a position statement or guideline on this issue. Because there is no “overall” federal law regarding Good Samaritan laws, Sagsveen noted that it is critical for neurologists to check with their attorney concerning the specific protections under their own state law.
Good Samaritan Laws: By State
Visit www.ama-assn.org/ama/pub/category/18209.html for a link to a document with information on the Good Samaritan laws and charitable care statutes of the 50 states and the District of Columbia.