Download a PDF of the Current Issue 2015 Volume 12 Number 3 July- September

Florida’s Good Samaritan Act:A Little Protection is Better Than None.

Susan Collingwood Associate General Counsel University of Florida
3-4-1 Dr. Smith is driving down the road, happily going home from a busy day in the OR. Suddenly, a truck pulls out in front of an on-coming car. While Dr. Smith successfully avoids being in the wreck, and does call 911, does she risk a lawsuit if she stops to render assistance? Jeff Jones, CRNA, is a member of a Community Emergency Response Team that has been activated by his county as a result of an approaching hurricane. What risks does he undertake if his team discovers injured people and renders emergency treatment? Dr. Williams is at the hospital seeing his own patients on the floor, when a Code Blue is called in a nearby location. Dr. Williams responds to the Code, which does not involve one of his patients. What standard of care would apply if the patient sued Dr. Williams? Lawsuits against people who gratuitously stop to help others in an emergency are, fortunately, rare. To encourage assistance in emergencies, most states have “Good Samaritan” laws, whose purpose, generally, is to protect individuals who attempt to help injured persons in an emergency from being sued or bankrupted as a result of their charitable impulse. These laws differ (often radically) from state to state; this article examines the scope of Florida’s Good Samaritan Act and examines what the Act actually accomplishes in terms of protecting individual “Good Samaritans”. When Does Florida’s Good Samaritan Act Apply? First of all, we need to look at exactly when Florida’s Good Samaritan law comes into play. 1. Emergencies outside a hospital or health care facility Florida law applies to any person, including medical professionals, who renders care to victims at the site of an emergency (where proper medical equipment is not available), or in direct response to emergency situations that arise from a public health emergency or from a declared state of emergency. a. Without Objection by the Victim A critical limitation to the Good Samaritan protections is that the injured victim(s) must not object to the care offered or provided. For example, a rescuer was not entitled to the protection of the statute when the injured person insisted that he not be moved and that the only thing he wanted was for an ambulance to be called, but the rescuer moved the victim anyway, allegedly causing injury thereby. Botte v. Pomeroy, 438 So.2d 544 (Fla. 4th DCA 1983), rev.den.450 So.2d 488. RISK MANAGEMENT TIP: When circumstances permit, a person rendering aid should briefly describe their training or qualifications (e.g. “I’m a doctor.” “I’ve taken the state First Responder course.”) and obtain consent of the victim to whatever assistance is offered. 2. Emergencies in a hospital a. Emergency screening, diagnosis and treatment Florida law also protects hospitals and providers who are providing emergency care to patients pursuant to the Federal (EMTALA) and state laws that require hospital emergency departments to provide screening and stabilization of emergency conditions. This protection applies until the patient is stabilized and capable of receiving medical treatment as a non-emergency patient and, if the as follows: At the Scene of an Emergency At the scene of an emergency (or otherwise not in a hospital or patient requires surgery within a reasonable time after being stabilized, the protection lasts until the patient is stabilized following the surgery. b.  Voluntary response by physician In addition, if a health care practitioner is in the hospital and voluntarily responds to provide care or treatment to a patient (not his or her own) who needs care due to “a sudden or unexpected situation or occurrence that demands immediate medical attention”, the practitioner is protected for treatment related to the original situation that demanded the immediate medical attention. 3. Organized Emergency Response activities Lastly, Florida provides some protection for any person who is not otherwise protected by the law, but who is participating in emergency response activities in connection with local emergency management, a community emergency response team, the Division of Emergency Management or FEMA. What Protection Does Florida’s Good Samaritan Act Provide? The Good Samaritan Act provides its protection by setting a legal standard required to hold a “rescuer” liable. Rather confusingly, the Act provides different protections for each situation, doctor s office), if a person behaves “as an ordinary reasonably prudent person would have acted under the same or similar circumstances” the statute provides protection. For a non-health care provider, there is no protection, because persons are only protected if they acted prudently—i.e, they were not negligent. No court has interpreted the Act’s language in terms of the standard of care expected of a health care provider; however, given the purpose of the statute, a court should find that physicians and other trained providers are held to the standard of a layman’s, not another professional. (Almost identical language is used for the protection provided to individuals participating in organized emergency response situations; therefore, the analysis is the same for that situation.) 2.  Emergency Screening, Diagnosis etc. When diagnosing or treating patients in the emergency room, health care providers are protected from suit unless their behavior demonstrates a “reckless disregard” of the consequences of the behavior. The statute then clarifies that “reckless disregard” is conduct that creates a risk of injury that is “substantially greater” than the level of risk that would have made the conduct negligent. Unfortunately, the suggested jury instructions for this provision, although directing the jury to consider “emergency circumstances”, do not contain the clarification about needing more than negligence and a jury might interpret the instructions to mean negligence is enough for liability. 3. In-hospital emergencies When responding to an in-hospital emergency, a health care practitioner is protected unless their behavior amounted to conduct that was “Willful and wonton and would likely result in injury.” There are no cases interpreting this provision and no standard jury instructions Have been drafted to see how it would be defined in practice. What is the Practical Effect of Florida’s Good Samaritan Act? The astute reader of the summary of Florida’s Good Samaritan Act will have noticed that it puts forth different standards for different situations. While the goal of the law was to protect “Good Samaritan’s” from lawsuits brought by the persons they  were trying to assist or save, the Act itself is clearly the result of the legislative (or its close cousin, sausage-making) process. Again, lawsuits against Good Samaritans are quite rare. Nonetheless, although the act may lower the risk of an adverse ve r d ic t being levied against a “Good Samaritan” (whether or not a health care professional), what came out of the legislative process is not quite the effective shield against being sued that one could have hoped for. The standards for protection set by Florida’s Good Samaritan Act all depend on a determination of the reasonableness of the rescuer’s behavior. Determinations of reasonableness are essentially always the province of the jury to decide. Thus, the Act does not pose any substantial bar to the filing or prosecution of a lawsuit. Are University of Florida Faculty Members and Residents Protected by Sovereign Immunity or the Self-Insurance Program When They Provide Services in an Emergency? University of Florida employees are personally immune from being sued in the state of Florida for their actions taken as University employees. The Dean of the College of Medicine has recognized that faculty members may have ethical obligations as professionals to render assistance as Good Samaritans and has indicated he considers such actions as part of the faculty member’s University role. Whether a court would agree that a faculty member should be personally immune for Good Samaritan activities is unknown. In any event, even if personal immunity from suit did not apply, the University’s Self-Insurance Program provides personal coverage to faculty members who act as Good Samaritans or who engage in community service that has been preapproved by the Dean, Vice President for Health Affairs or Shands Hospital CEO. Take Home Risk Management Message: While individuals legitimately worry about being sued if they act as a Good Samaritan, as the law doesn’t provide a lot of safety, claims by persons rescued are extremely rare. Fear of liability should not be the driving factor in an individual deciding whether or not to get involved in providing emergency services. To review the text of the law click on the following link and look under Chapter 768.13:http:// www.flsenate.gov/Statutes/index.cfm