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

How the Good Samaritan Act Can Minimize the Potential for Claims in the Emergency Room

By Francys C. Martin, Esq.
Claims and Litigation Coordinator UF HSC Self-Insurance Program
9-3-2 In order to recover damages against a healthcare provider for actionable negligence, a plaintiff must establish that the healthcare provider had a legal duty to provide care and breached that duty. The plaintiff must further prove that their injury was proximately caused by the healthcare provider’s breach and that they suffered damages as a result of that breach. That negligence is often defined as a failure to use reasonable care. “Reasonable care on the part of a health care provider is that level of care, skill and treatment which, in light of all relevant surrounding circumstances, is recognized as acceptable and appropriate by similar and reasonably careful health care providers.”  Florida Standard Jury Instructions 402.4(a)   In an action for recovery of damages based on the alleged negligence of a healthcare provider, the plaintiff has the burden of proving by the greater weight of evidence1   that the alleged actions of the health care provider represented a breach of the prevailing professional standard of care for that health care provider. “The prevailing professional standard of care for a given health care provider shall be that level of care, skill, and treatment which, in light of all relevant surrounding circumstances, is recognized as acceptable and appropriate by reasonably prudent similar health care providers.”  Florida Statute 766.102.   All 50 states have passed some variation of the “Good Samaritan Act” but most of these laws are intended to protect the actions of private citizens assisting others in emergency circumstances where some other injury is inadvertently caused.   Unlike many other states, Florida healthcare providers’ are fortunate to have additional protections when rendering emergency medical treatment under the Good Samaritan Act.   Florida legislators recognized that extending protection to healthcare providers rendering care under emergency circumstances would encourage the treatment of emergency patients. Subparagraph 2(c) (3) of Florida Statute 786.13 specifically states that “the Legislature’s intent is to encourage healthcare practitioners to provide necessary emergency care to all persons without fear of litigation…” In fact, the statute provides for protection of “healthcare practitioners” and does not specify that these be only practitioners of emergency medicine. Therefore, this may extend to physician assistants, nurses, and all other extenders providing emergent care.  It is also noteworthy that a previous version of the Good Samaritan Act extended only to patients who entered the facility through the emergency room or trauma center. Since an amendment of the Good Samaritan Act in 2003, that is no longer the case.   Under the Good Samaritan Act, (Florida Statute 768.13(2) (a), a healthcare practitioner providing emergency services, “shall not be held liable for any civil damages as a result of such care or treatment or as a result of any act or failure to act in providing or arranging further medical treatment where the person acts as an ordinary reasonably prudent person would have acted under the same or similar circumstances.” The Good Samaritan Act also requires a higher burden of proof and the Plaintiff must show that the healthcare provider acted with “reckless disregard for the consequences so as to affect the life or health of another” (Florida Statute 768.13(2) (b).) The Good Samaritan Act defines reckless disregard as, “conduct that a health care provider knew or should have known, at the time such services were rendered, created an unreasonable risk of injury so as to affect the life or health of another, and such risk was substantially greater than that which is necessary to make the conduct negligent.” Florida Statute 768.13(2) (b) (3).   The immunity provided by the Good Samaritan Act extends to any act or omission of providing medical care or treatment, including diagnosis. This immunity includes care or Treatment rendered before the patient is stabilized and capable of receiving care as a non-emergency patient.  In fact, if surgery is required as a result of the condition with which the patient presented, then the immunity extends up through and including the care provided until the patient is stabilized following the surgery. Florida Statute 768.13(2) (b) 2.a.   Whether or not the Good Samaritan Act applies to a given situation can be a matter of law, but often times it is a question of fact. These questions of fact are often left to the jury and there are specific jury instructions that may assist the jury in its determination. One of the many potential factual disputes is whether the patient was actually receiving emergency medical treatment.  In Florida, a jury may be instructed to view emergency circumstances as care provided pursuant to a sudden event resulting in a condition demanding immediate medical attention, for which the plaintiff initially entered the hospital through the emergency department, before they were medically stabilized and capable of receiving care as a nonemergency patient.” Supreme Court of Florida Standard Jury Instruction, 658 So. 2d 97. These jury instructions also elaborate upon the definition of “reckless disregard” and appear to provide a greater appreciation for the emergency setting and all the considerations made by the healthcare provider. These jury instructions provide that reckless disregard will be found where the healthcare provider knew or should have known their action would result in injury or death, “considering the seriousness of the situation, the lack of a prior physician patient relationship, time constraints due to other emergencies requiring care/treatment at the same time, the lack of time or ability to obtain appropriate medical consultation, and the inability to obtain an appropriate medical history of the patient.” 658 So. 2d 97. This definition very clearly takes into account the emergency department environment, the patient population and the need to triage patients.   Another facet of the Good Samaritan Act for which the jury may be utilized is determining when a patient is stabilized and capable of receiving medical treatment as a nonemergency patient. Similar   to the Federal EMTALA law,  Florida Statute § 395.002(29) defines “stabilized” by stating that, “with respect to an emergency medical condition, that no material deterioration of the condition is likely, within reasonable medical probability, to result from the transfer of the patient from a hospital.”  In conjunction with Florida Statute 768.13(2) (b)2.a., one may argue that if the patient was never deemed to be stable prior to a surgery, undergoes that surgery and is still not stabilized, then the protections of the Good Samaritan Act extend past the care provided in the emergency department, the operating room and the unit, until the patient is stabilized, if ever.  If the patient is stabilized prior to surgery, these protections may still be extended through and including the surgery, if that surgery occurs within a reasonable time after the stabilization.   Despite its importance and its ability to completely eliminate liability for a healthcare provider, there is little case law interpreting its application.   In one recent Florida case2 , an anesthesiologist was called into his facility for an obstetric procedure. While there, the anesthesiologist received another call seeking his assistance in the emergency room, though he did not provide on-call services to the emergency room. When the anesthesiologist arrived in the emergency room, he found the patient presented with tongue and throat swelling. The anesthesiologist refused to perform an oral or nasal intubation because the patient was on blood thinning medications that could have caused additional care issues. While waiting to be airlifted to another hospital, the patient died.  The patient’s estate filed a wrongful death suit against the doctor. The District Court of Appeal found that there was no patient/physician relationship and even though he had volunteered to assist, the Plaintiff failed to demonstrate the anesthesiologist had a responsibility to patients in the emergency room. In this case, the anesthesiologist had no relationship with the patient, failed to act and was not an emergency room physician, but the Good Samaritan Act was found to be applicable. There is no requirement that there be a physician/patient relationship to be protected under the Good Samaritan Act.   Most recently, Florida’s First District Court of Appeal undertook the task of interpreting the Good Samaritan Act and notably, acknowledged that there is little case law interpreting the Good Samaritan Act but proceeded to provide a very thorough analysis of the legislative history and intent of the Good Samaritan Act. 3 In this action, the patient presented to the ED with severe stomach pain and vomiting. He was evaluated there and deemed to require surgical intervention at another facility and transfer was arranged. Before the transfer was completed, the accepting facility requested a CT scan and the patient was diagnosed with gastric outlet obstruction. Shortly thereafter, he was transferred via ambulance to the accepting facility. He was admitted to the medical/surgical unit of the hospital and a surgical consultation was ordered for the following morning. That evening, the patient arrested and was transferred to the ICU.  He arrested again the following morning and expired.   In this case, the parties disagreed as to whether “emergency services” were being provided under the terms of the Good Samaritan Act. Appellant University of Florida Board of Trustees argued that the Good Samaritan Act should apply because the patient was suffering from an emergency medical condition when he arrived to the accepting facility. Appellee Stone argued that the patient was stable when he was transferred. The trial court ruled that the Good Samaritan Act did not apply as a matter of law and did not allow the question of its application to be presented to the jury for determination.  The First DCA concluded that emergency services are “those provided for the diagnosis or treatment of an emergency medical condition prior to the time the patient is stabilized and capable of receiving treatment as a nonemergency patient.” They also found that there were a number of factual disputes as to whether the patient was stabilized and able to receive non-emergent care.  Because of these questions of fact, the trial court erred in granting Appellee Stone’s Motion for Directed Verdict as to whether the Good Samaritan Act applied.  The First DCA reversed and remanded for a new trial.  To read the entire opinion follow this link: http:// opinions.1dca.org/written/opinions2012/06‐21‐ 2012/11‐1951.pdf   Florida’s Good Samaritan Act allows healthcare providers to render care in high tension situations without the fear of litigation looming over their heads.   Another benefit of the Good Samaritan Act and Florida Statute § 766.118(4) is the limitation on the award of noneconomic damages actions for injuries caused by the negligence of a practitioner while providing emergency care and services. Under Florida Statute  § 766.118(4), regardless of the number of practitioners found liable, each claimant is entitled to an award of no more than $150,000 for noneconomic damages, and the total award recoverable by all claimants is limited to no more than $300,000 for noneconomic damages. Where the provision of emergency medical services is not involved, noneconomic damages may be limited to between $500,000 and $1 million.   The protection from liability and high damage awards that the Good Samaritan Act provides makes it more likely that healthcare providers will help even when they have no obligation to do so and therefore, positively impact the lives and wellbeing of patients.   References: 1The greater weight of the evidence is defined as the more persuasive and convincing force and effect of the entire evidence in the case. Florida Standard Jury Instructions 401.3. 2Harris v. Soha, 15 So.3d 767 (Fla. 1st DCA 2009) 3 University of Florida Board of Trustees v. Stone ex rel.Stone, 2012 WL 2345115 (Fla.App.1 Dist.), 37 Fla.L. Weekley D1476.