Scenario #1: Providing Emergency Treatment at an MVA “I was driving on a stormy New England afternoon when I came upon a car on its roof in a ditch, the driver’s body lying half in and half out of his window. I called 9-1-1 then went to see if I could help. The man was trapped under the dash with an obvious head injury, a GCS that I had calculated to be 5 with a blown pupil on the left. I thought something needed to be done immediately so I sterilized a ¼ inch drill bit and used the 18 volt DeWalt I had in my tool box to drill through his skull on the appropriate side, placing a sterilized Bic pen case through the hole. The fire department arrived and I rode to the hospital with the patient. He survived but is talking about suing me for his subsequent osteomyelitis in his skull. Am I covered by Good Samaritan statutes?” -Evan Weinstein, MD The simple answer is “it depends.” Once someone decides to assist a third party in an emergency, that person’s actions must be within certain bounds.Good Samaritan statutes generally immunize actions taken by the rescuer to help someone in an emergency, but most statutes do not cover acts of “gross negligence” or “willful misconduct.”
“Gross negligence” is generally taken to mean a reckless action that is taken without regard for the safety of others while “willful misconduct” is generally considered to be an action that is reasonably likely to cause an injury to another person. Not all Good Samaritan statutes are created equal. For example, Florida only immunizes some providers if they behave “as an ordinary reasonably prudent person would have acted under the same or similar circumstances” (Florida Statute 768.13(2)(a)). In Florida, simply negligent emergency care can be actionable and the Good Samaritan statute provides no extra protection for rescuers under most circumstances. However, Florida statutes immunize EMTALA-related emergency care as long as that care does not demonstrate “a reckless disregard for the consequences so as to affect the life or health of another” (Florida Statute 768.13(2)(b)). Some statutes provide an even greater amount of protection than a “gross negligence” standard. Georgia statute § 51-1-29 immunizes any emergency care provided in “good faith” to victims at the scene of an accident or an emergency. In this case, even a grossly negligent act taken in good faith would still be immunized. Applying these concepts to your case, while it is possible that you saved the patient’s life by drilling the burr hole with a carpenter’s drill, the applicability of the Good Samaritan statute will depend on what standard is established by the Good Samaritan statutes in the state where you provided the care. In Georgia, it is likely that Good Samaritan statute would immunize your care. In Florida, your care would probably not be immunized under ordinary negligence standards. In most other states, your actions would be judged using a “gross negligence” standard. Expert witness testimony is used to guide the jury on determining whether medical gross negligence existed, so the determination in your case would likely amount to a “battle of the experts.” The caveat that I use in my risk management lectures regarding Good Samaritan statutes is that the further you stray from BLS and ACLS guidelines, the more likely it is that Good Samaritan statutes may not apply to your actions.
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