S.Y. TAN

Question: A 56-year-old man was admitted to the hospital with pneumonia. He had told the triage nurse on initial presentation that he was allergic to penicillin, but the hospitalist subsequently administered ampicillin. Shortly after receiving the first dose, the patient developed progressive respiratory distress and required intubation. At trial, the hospitalist testified that he had misread the triage note because of poor handwriting. Which of the following statements best describes this hypothetical case?

A. The triage nurse, rather than the hospitalist, is negligent; but for her illegible handwriting, there would have been no injury.

B. The hospitalist is negligent because he should have retaken the allergy history.

C. Illegibility is an unimportant source of serious mistakes.

D. This is a case of medical error, which is the same as medical negligence.

E. The man's respiratory distress was most likely antibiotic-induced because of the time sequence of events.

Answer: B. Illegible handwriting can lead to serious mistakes, and although the nurse's poor handwriting may have contributed to the injury, that does not get the hospitalist off the hook, as he should have rechecked the allergy history. The facts in this case do raise the issue of medication error, which often but not always amounts to negligence. However, in order to win a malpractice lawsuit, the plaintiff has to affirmatively prove causation—i.e., that the antibiotic proximately caused respiratory distress—and cannot simply rely on an unsupported assumption. The defendant is likely to argue that the respiratory distress was the result of pneumonia rather than a reaction to the antibiotic.

A tort is a civil wrong affecting private citizens that is not based on a breach of contract. Negligence is a tort that deals with harmful conduct not ordinarily expected of a reasonably prudent person. It has nothing to do with the good or bad intentions of the perpetrator, although there is a separate class of legal wrongs termed intentional torts where the wrongdoing is intentional, such as assault and battery. When professionals such as physicians, dentists, engineers, and lawyers commit negligence, it is called malpractice. Medical malpractice is conduct by a health care provider that breaches the standard of care, resulting in harm to the patient.

Medical malpractice, also called medical negligence, is an act or omission by a health care professional that departs from the defined health care standard. As articulated by the Supreme Court of Nebraska: “In a malpractice action involving professional negligence, the burden of proof is upon the plaintiff to demonstrate the generally recognized medical standard of care, that there was a deviation from that standard by the defendant, and that the deviation was a proximate cause of the plaintiff's alleged injuries” (Hamilton v. Bares, 678 N.W.2d 74, Neb. 2004, citing an earlier Nebraska case).

It is incorrect to say that medical negligence means an adverse outcome, a wrong judgment, or even a medical error. Some authors have defined medical error to denote a preventable adverse event, which in turn is defined as an injury caused by medical management rather than by the underlying condition of the patient. The Institute of Medicine defines error as “the failure of a planned action to be completed as intended (e.g., error of execution) or the use of a wrong plan to achieve an aim (e.g., error of planning)” (Kohn L.T. et al., eds. “To Err Is Human: Building a Safer Health System.” Washington: National Academy Press, 2000, p. 54).

Although a medical error can lead to patient harm, it is not synonymous with negligence. If the error or misjudgment is one that a reasonably competent professional would not commit, the standard of care is breached and there is medical negligence. On the other hand, if a reasonably skilled practitioner could commit such an error or misjudgment, it would not amount to medical negligence. As one court put it: “An honest error of judgment in making a diagnosis is insufficient to support liability unless that mistake constitutes negligence” (Dotson v. Hammerman, 932 S.W.2d 880, Mo. App. 1996). Several courts have cautioned against the use of terms such as “error in judgment” and “best judgment,” as they may confuse the jury (Hirahara v. Tanaka, 959 P.2d 830, Haw. 1998; D'Orazio v. Parlee & Tatem Radiologic Associates, Ltd., 850 A.2d 726, Pa. 2004).

Nor is an adverse outcome necessarily the result of negligence. The Supreme Court of Virginia put it this way: “The mere fact that the physician has failed to effect a cure or that the diagnosis and treatment have been detrimental to the patient's health does not raise a presumption of negligence” (Bryan v. Burt, 486 S.E.2d 536, Va. 1997). Some medical conditions end up with bad results that are wholly independent of the doctor's actions—hence the commonly stated axiom that the doctor is neither an insurer nor a guarantor of the patient's health.

Contact the author at [email protected].

Question: A 56-year-old man was admitted to the hospital with pneumonia. He had told the triage nurse on initial presentation that he was allergic to penicillin, but the hospitalist subsequently administered ampicillin. Shortly after receiving the first dose, the patient developed progressive respiratory distress and required intubation. At trial, the hospitalist testified that he had misread the triage note because of poor handwriting. Which of the following statements best describes this hypothetical case?

A. The triage nurse, rather than the hospitalist, is negligent; but for her illegible handwriting, there would have been no injury.

B. The hospitalist is negligent because he should have retaken the allergy history.

C. Illegibility is an unimportant source of serious mistakes.

D. This is a case of medical error, which is the same as medical negligence.

E. The man's respiratory distress was most likely antibiotic-induced because of the time sequence of events.

Answer: B. Illegible handwriting can lead to serious mistakes, and although the nurse's poor handwriting may have contributed to the injury, that does not get the hospitalist off the hook, as he should have rechecked the allergy history. The facts in this case do raise the issue of medication error, which often but not always amounts to negligence. However, in order to win a malpractice lawsuit, the plaintiff has to affirmatively prove causation—i.e., that the antibiotic proximately caused respiratory distress—and cannot simply rely on an unsupported assumption. The defendant is likely to argue that the respiratory distress was the result of pneumonia rather than a reaction to the antibiotic.

A tort is a civil wrong affecting private citizens that is not based on a breach of contract. Negligence is a tort that deals with harmful conduct not ordinarily expected of a reasonably prudent person. It has nothing to do with the good or bad intentions of the perpetrator, although there is a separate class of legal wrongs termed intentional torts where the wrongdoing is intentional, such as assault and battery. When professionals such as physicians, dentists, engineers, and lawyers commit negligence, it is called malpractice. Medical malpractice is conduct by a health care provider that breaches the standard of care, resulting in harm to the patient.

Medical malpractice, also called medical negligence, is an act or omission by a health care professional that departs from the defined health care standard. As articulated by the Supreme Court of Nebraska: “In a malpractice action involving professional negligence, the burden of proof is upon the plaintiff to demonstrate the generally recognized medical standard of care, that there was a deviation from that standard by the defendant, and that the deviation was a proximate cause of the plaintiff's alleged injuries” (Hamilton v. Bares, 678 N.W.2d 74, Neb. 2004, citing an earlier Nebraska case).

It is incorrect to say that medical negligence means an adverse outcome, a wrong judgment, or even a medical error. Some authors have defined medical error to denote a preventable adverse event, which in turn is defined as an injury caused by medical management rather than by the underlying condition of the patient. The Institute of Medicine defines error as “the failure of a planned action to be completed as intended (e.g., error of execution) or the use of a wrong plan to achieve an aim (e.g., error of planning)” (Kohn L.T. et al., eds. “To Err Is Human: Building a Safer Health System.” Washington: National Academy Press, 2000, p. 54).

Although a medical error can lead to patient harm, it is not synonymous with negligence. If the error or misjudgment is one that a reasonably competent professional would not commit, the standard of care is breached and there is medical negligence. On the other hand, if a reasonably skilled practitioner could commit such an error or misjudgment, it would not amount to medical negligence. As one court put it: “An honest error of judgment in making a diagnosis is insufficient to support liability unless that mistake constitutes negligence” (Dotson v. Hammerman, 932 S.W.2d 880, Mo. App. 1996). Several courts have cautioned against the use of terms such as “error in judgment” and “best judgment,” as they may confuse the jury (Hirahara v. Tanaka, 959 P.2d 830, Haw. 1998; D'Orazio v. Parlee & Tatem Radiologic Associates, Ltd., 850 A.2d 726, Pa. 2004).

Nor is an adverse outcome necessarily the result of negligence. The Supreme Court of Virginia put it this way: “The mere fact that the physician has failed to effect a cure or that the diagnosis and treatment have been detrimental to the patient's health does not raise a presumption of negligence” (Bryan v. Burt, 486 S.E.2d 536, Va. 1997). Some medical conditions end up with bad results that are wholly independent of the doctor's actions—hence the commonly stated axiom that the doctor is neither an insurer nor a guarantor of the patient's health.

Contact the author at [email protected].

Question: A 56-year-old man was admitted to the hospital with pneumonia. He had told the triage nurse on initial presentation that he was allergic to penicillin, but the hospitalist subsequently administered ampicillin. Shortly after receiving the first dose, the patient developed progressive respiratory distress and required intubation. At trial, the hospitalist testified that he had misread the triage note because of poor handwriting. Which of the following statements best describes this hypothetical case?

A. The triage nurse, rather than the hospitalist, is negligent; but for her illegible handwriting, there would have been no injury.

B. The hospitalist is negligent because he should have retaken the allergy history.

C. Illegibility is an unimportant source of serious mistakes.

D. This is a case of medical error, which is the same as medical negligence.

E. The man's respiratory distress was most likely antibiotic-induced because of the time sequence of events.

Answer: B. Illegible handwriting can lead to serious mistakes, and although the nurse's poor handwriting may have contributed to the injury, that does not get the hospitalist off the hook, as he should have rechecked the allergy history. The facts in this case do raise the issue of medication error, which often but not always amounts to negligence. However, in order to win a malpractice lawsuit, the plaintiff has to affirmatively prove causation—i.e., that the antibiotic proximately caused respiratory distress—and cannot simply rely on an unsupported assumption. The defendant is likely to argue that the respiratory distress was the result of pneumonia rather than a reaction to the antibiotic.

A tort is a civil wrong affecting private citizens that is not based on a breach of contract. Negligence is a tort that deals with harmful conduct not ordinarily expected of a reasonably prudent person. It has nothing to do with the good or bad intentions of the perpetrator, although there is a separate class of legal wrongs termed intentional torts where the wrongdoing is intentional, such as assault and battery. When professionals such as physicians, dentists, engineers, and lawyers commit negligence, it is called malpractice. Medical malpractice is conduct by a health care provider that breaches the standard of care, resulting in harm to the patient.

Medical malpractice, also called medical negligence, is an act or omission by a health care professional that departs from the defined health care standard. As articulated by the Supreme Court of Nebraska: “In a malpractice action involving professional negligence, the burden of proof is upon the plaintiff to demonstrate the generally recognized medical standard of care, that there was a deviation from that standard by the defendant, and that the deviation was a proximate cause of the plaintiff's alleged injuries” (Hamilton v. Bares, 678 N.W.2d 74, Neb. 2004, citing an earlier Nebraska case).

It is incorrect to say that medical negligence means an adverse outcome, a wrong judgment, or even a medical error. Some authors have defined medical error to denote a preventable adverse event, which in turn is defined as an injury caused by medical management rather than by the underlying condition of the patient. The Institute of Medicine defines error as “the failure of a planned action to be completed as intended (e.g., error of execution) or the use of a wrong plan to achieve an aim (e.g., error of planning)” (Kohn L.T. et al., eds. “To Err Is Human: Building a Safer Health System.” Washington: National Academy Press, 2000, p. 54).

Although a medical error can lead to patient harm, it is not synonymous with negligence. If the error or misjudgment is one that a reasonably competent professional would not commit, the standard of care is breached and there is medical negligence. On the other hand, if a reasonably skilled practitioner could commit such an error or misjudgment, it would not amount to medical negligence. As one court put it: “An honest error of judgment in making a diagnosis is insufficient to support liability unless that mistake constitutes negligence” (Dotson v. Hammerman, 932 S.W.2d 880, Mo. App. 1996). Several courts have cautioned against the use of terms such as “error in judgment” and “best judgment,” as they may confuse the jury (Hirahara v. Tanaka, 959 P.2d 830, Haw. 1998; D'Orazio v. Parlee & Tatem Radiologic Associates, Ltd., 850 A.2d 726, Pa. 2004).

Nor is an adverse outcome necessarily the result of negligence. The Supreme Court of Virginia put it this way: “The mere fact that the physician has failed to effect a cure or that the diagnosis and treatment have been detrimental to the patient's health does not raise a presumption of negligence” (Bryan v. Burt, 486 S.E.2d 536, Va. 1997). Some medical conditions end up with bad results that are wholly independent of the doctor's actions—hence the commonly stated axiom that the doctor is neither an insurer nor a guarantor of the patient's health.

Contact the author at [email protected].

Question: During a flight from Los Angeles to Newark, a passenger developed acute chest pain and diaphoresis. A flight attendant put out an emergency call, but Dr. Brown, a general internist nearing retirement, failed to respond because he was concerned about potential litigation. Unfortunately, the passenger sustained a massive MI, and died en route.

Regarding a medical malpractice lawsuit in such a scenario, which of the following is correct?

A. The Good Samaritan statute imposes upon doctors the legal duty to treat.

B. Good Samaritan statutes immunize doctors against all liability.

C. Dr. Brown need not have hesitated, as his attempts, even if negligent, would have been protected by the Aviation Medical Assistance Act.

D. All doctors have taken the Hippocratic oath to treat in an emergency situation.

E. But for Dr. Brown's negligent failure to act, the patient might have survived, so the doctor is at least partly liable.

Answer: C. If Dr. Brown had responded, his effort would not have put him in jeopardy even if his intervention had proved ineffective.

However, there is no legal duty for anyone, even a doctor, to come to the aid of a stranger.

Although doctors are generally thought to have an ethical duty to offer emergency care, the Hippocratic oath is silent on this matter, and the American Medical Association's Code of Medical Ethics states: “Physicians are free to choose whom they will serve. The physician should, however, respond to the best of his or her ability in cases of emergency where first aid treatment is essential” (AMA Code of Medical Ethics §8.11, 2006–2007 edition).

All 50 states have laws on their books called Good Samaritan statutes, whose intent is to encourage people to help those in acute distress. These statutes do not require doctors to come to the aid of strangers, although Vermont is an exception, imposing an affirmative duty to assist a victim in need.

Rather, they protect against liability arising out of negligent rescue, but typically they cover only ordinary, not gross, negligence.

The Aviation Medical Assistance Act, enacted in 1998, is the federal equivalent of the Good Samaritan statute, covering emergency treatment during flights in the United States.

In allegations of medical malpractice, the plaintiff must first show that the doctor owed a duty of due care to the injured victim. This duty arises out of the doctor-patient relationship, that is, whenever a doctor undertakes to evaluate or treat a patient. In the absence of such a relationship, a doctor is not legally obligated to treat, even in an emergency.

However, to encourage aiding strangers in distress, states have enacted so-called Good Samaritan laws to protect rescuers who act in good faith. Popularized in the 1960s in response to the perception that doctors were reluctant to treat strangers for fear of a malpractice lawsuit, these laws immunize the aid giver against allegations of negligent care. Their protective scope varies from state to state, usually offering immunity against simple negligence but not gross misconduct.

Hawaii's Good Samaritan statute is typical. It states: “Any person who in good faith renders emergency care, without remuneration or expectation of remuneration … shall not be liable for any civil damages resulting from the person's acts or omissions, except for such damages as may result from the person's gross negligence or wanton acts or omissions” (Hawaii Revised Statutes §663–1.5 [a]).

California, the first state to enact a Good Samaritan statute in 1959, is an exception, as it may excuse even gross negligence as long as the act was done in good faith. In a litigated case, a California court declared: “The goodness of the Samaritan is a description of the quality of his or her intention, not the quality of the aid delivered” (Perkins v. Howard, 232 Cal.App.3d 708 [1991]).

There is no universal definition of gross negligence, but the term is frequently equated with willful, wanton, or reckless misconduct.

One can think of gross negligence as aggravated negligence, involving more than mere mistake, inadvertence, or inattention, and representing highly unreasonable conduct, or an extreme departure from ordinary care where a high degree of danger is apparent (Prosser, W.L. et al., eds. “Prosser and Keeton on Torts,” 5th ed., St. Paul, Minn.: West Publishing Co., 1984, pp. 211–4).

Statutory protection is generally excluded for Good Samaritan acts performed within a hospital setting under the theory that doctors have an ongoing relationship with the hospital and are already obligated to provide emergency care within its walls.

A minority of states such as California and Colorado do provide immunity irrespective of the location of aid.

Commentators have observed that very few lawsuits have involved Good Samaritan doctors and that such laws are both unnecessary and ineffective.

Those who are averse to helping will remain on the sidelines even with the protection of the law.

In a 1963 survey by the American Medical Association, approximately half of responding physicians said they would render emergency help, and this did not depend on whether there was a Good Samaritan statute in place (Sanders, G.B. First Results: 1963 Professional-Liability Survey. JAMA 1964;189:859–66).

Question: During a flight from Los Angeles to Newark, a passenger developed acute chest pain and diaphoresis. A flight attendant put out an emergency call, but Dr. Brown, a general internist nearing retirement, failed to respond because he was concerned about potential litigation. Unfortunately, the passenger sustained a massive MI, and died en route.

Regarding a medical malpractice lawsuit in such a scenario, which of the following is correct?

A. The Good Samaritan statute imposes upon doctors the legal duty to treat.

B. Good Samaritan statutes immunize doctors against all liability.

C. Dr. Brown need not have hesitated, as his attempts, even if negligent, would have been protected by the Aviation Medical Assistance Act.

D. All doctors have taken the Hippocratic oath to treat in an emergency situation.

E. But for Dr. Brown's negligent failure to act, the patient might have survived, so the doctor is at least partly liable.

Answer: C. If Dr. Brown had responded, his effort would not have put him in jeopardy even if his intervention had proved ineffective.

However, there is no legal duty for anyone, even a doctor, to come to the aid of a stranger.

Although doctors are generally thought to have an ethical duty to offer emergency care, the Hippocratic oath is silent on this matter, and the American Medical Association's Code of Medical Ethics states: “Physicians are free to choose whom they will serve. The physician should, however, respond to the best of his or her ability in cases of emergency where first aid treatment is essential” (AMA Code of Medical Ethics §8.11, 2006–2007 edition).

All 50 states have laws on their books called Good Samaritan statutes, whose intent is to encourage people to help those in acute distress. These statutes do not require doctors to come to the aid of strangers, although Vermont is an exception, imposing an affirmative duty to assist a victim in need.

Rather, they protect against liability arising out of negligent rescue, but typically they cover only ordinary, not gross, negligence.

The Aviation Medical Assistance Act, enacted in 1998, is the federal equivalent of the Good Samaritan statute, covering emergency treatment during flights in the United States.

In allegations of medical malpractice, the plaintiff must first show that the doctor owed a duty of due care to the injured victim. This duty arises out of the doctor-patient relationship, that is, whenever a doctor undertakes to evaluate or treat a patient. In the absence of such a relationship, a doctor is not legally obligated to treat, even in an emergency.

However, to encourage aiding strangers in distress, states have enacted so-called Good Samaritan laws to protect rescuers who act in good faith. Popularized in the 1960s in response to the perception that doctors were reluctant to treat strangers for fear of a malpractice lawsuit, these laws immunize the aid giver against allegations of negligent care. Their protective scope varies from state to state, usually offering immunity against simple negligence but not gross misconduct.

Hawaii's Good Samaritan statute is typical. It states: “Any person who in good faith renders emergency care, without remuneration or expectation of remuneration … shall not be liable for any civil damages resulting from the person's acts or omissions, except for such damages as may result from the person's gross negligence or wanton acts or omissions” (Hawaii Revised Statutes §663–1.5 [a]).

California, the first state to enact a Good Samaritan statute in 1959, is an exception, as it may excuse even gross negligence as long as the act was done in good faith. In a litigated case, a California court declared: “The goodness of the Samaritan is a description of the quality of his or her intention, not the quality of the aid delivered” (Perkins v. Howard, 232 Cal.App.3d 708 [1991]).

There is no universal definition of gross negligence, but the term is frequently equated with willful, wanton, or reckless misconduct.

One can think of gross negligence as aggravated negligence, involving more than mere mistake, inadvertence, or inattention, and representing highly unreasonable conduct, or an extreme departure from ordinary care where a high degree of danger is apparent (Prosser, W.L. et al., eds. “Prosser and Keeton on Torts,” 5th ed., St. Paul, Minn.: West Publishing Co., 1984, pp. 211–4).

Statutory protection is generally excluded for Good Samaritan acts performed within a hospital setting under the theory that doctors have an ongoing relationship with the hospital and are already obligated to provide emergency care within its walls.

A minority of states such as California and Colorado do provide immunity irrespective of the location of aid.

Commentators have observed that very few lawsuits have involved Good Samaritan doctors and that such laws are both unnecessary and ineffective.

Those who are averse to helping will remain on the sidelines even with the protection of the law.

In a 1963 survey by the American Medical Association, approximately half of responding physicians said they would render emergency help, and this did not depend on whether there was a Good Samaritan statute in place (Sanders, G.B. First Results: 1963 Professional-Liability Survey. JAMA 1964;189:859–66).

Question: During a flight from Los Angeles to Newark, a passenger developed acute chest pain and diaphoresis. A flight attendant put out an emergency call, but Dr. Brown, a general internist nearing retirement, failed to respond because he was concerned about potential litigation. Unfortunately, the passenger sustained a massive MI, and died en route.

Regarding a medical malpractice lawsuit in such a scenario, which of the following is correct?

A. The Good Samaritan statute imposes upon doctors the legal duty to treat.

B. Good Samaritan statutes immunize doctors against all liability.

C. Dr. Brown need not have hesitated, as his attempts, even if negligent, would have been protected by the Aviation Medical Assistance Act.

D. All doctors have taken the Hippocratic oath to treat in an emergency situation.

E. But for Dr. Brown's negligent failure to act, the patient might have survived, so the doctor is at least partly liable.

Answer: C. If Dr. Brown had responded, his effort would not have put him in jeopardy even if his intervention had proved ineffective.

However, there is no legal duty for anyone, even a doctor, to come to the aid of a stranger.

Although doctors are generally thought to have an ethical duty to offer emergency care, the Hippocratic oath is silent on this matter, and the American Medical Association's Code of Medical Ethics states: “Physicians are free to choose whom they will serve. The physician should, however, respond to the best of his or her ability in cases of emergency where first aid treatment is essential” (AMA Code of Medical Ethics §8.11, 2006–2007 edition).

All 50 states have laws on their books called Good Samaritan statutes, whose intent is to encourage people to help those in acute distress. These statutes do not require doctors to come to the aid of strangers, although Vermont is an exception, imposing an affirmative duty to assist a victim in need.

Rather, they protect against liability arising out of negligent rescue, but typically they cover only ordinary, not gross, negligence.

The Aviation Medical Assistance Act, enacted in 1998, is the federal equivalent of the Good Samaritan statute, covering emergency treatment during flights in the United States.

In allegations of medical malpractice, the plaintiff must first show that the doctor owed a duty of due care to the injured victim. This duty arises out of the doctor-patient relationship, that is, whenever a doctor undertakes to evaluate or treat a patient. In the absence of such a relationship, a doctor is not legally obligated to treat, even in an emergency.

However, to encourage aiding strangers in distress, states have enacted so-called Good Samaritan laws to protect rescuers who act in good faith. Popularized in the 1960s in response to the perception that doctors were reluctant to treat strangers for fear of a malpractice lawsuit, these laws immunize the aid giver against allegations of negligent care. Their protective scope varies from state to state, usually offering immunity against simple negligence but not gross misconduct.

Hawaii's Good Samaritan statute is typical. It states: “Any person who in good faith renders emergency care, without remuneration or expectation of remuneration … shall not be liable for any civil damages resulting from the person's acts or omissions, except for such damages as may result from the person's gross negligence or wanton acts or omissions” (Hawaii Revised Statutes §663–1.5 [a]).

California, the first state to enact a Good Samaritan statute in 1959, is an exception, as it may excuse even gross negligence as long as the act was done in good faith. In a litigated case, a California court declared: “The goodness of the Samaritan is a description of the quality of his or her intention, not the quality of the aid delivered” (Perkins v. Howard, 232 Cal.App.3d 708 [1991]).

There is no universal definition of gross negligence, but the term is frequently equated with willful, wanton, or reckless misconduct.

One can think of gross negligence as aggravated negligence, involving more than mere mistake, inadvertence, or inattention, and representing highly unreasonable conduct, or an extreme departure from ordinary care where a high degree of danger is apparent (Prosser, W.L. et al., eds. “Prosser and Keeton on Torts,” 5th ed., St. Paul, Minn.: West Publishing Co., 1984, pp. 211–4).

Statutory protection is generally excluded for Good Samaritan acts performed within a hospital setting under the theory that doctors have an ongoing relationship with the hospital and are already obligated to provide emergency care within its walls.

A minority of states such as California and Colorado do provide immunity irrespective of the location of aid.

Commentators have observed that very few lawsuits have involved Good Samaritan doctors and that such laws are both unnecessary and ineffective.

Those who are averse to helping will remain on the sidelines even with the protection of the law.

In a 1963 survey by the American Medical Association, approximately half of responding physicians said they would render emergency help, and this did not depend on whether there was a Good Samaritan statute in place (Sanders, G.B. First Results: 1963 Professional-Liability Survey. JAMA 1964;189:859–66).

Question: On a flight from Los Angeles to Newark, a passenger developed acute chest pain and diaphoresis. A flight attendant put out an emergency call, but Dr. Brown, a general internist nearing retirement, failed to respond because he was concerned about potential litigation. Unfortunately, the passenger sustained a massive MI, and died en route.

Regarding a medical malpractice lawsuit in such a scenario, which of the following is correct?

A. The Good Samaritan statute imposes upon doctors the legal duty to treat.

B. Good Samaritan statutes immunize doctors against all liability.

C. Dr. Brown need not have hesitated, as his attempts, even if negligent, would have been protected by the Aviation Medical Assistance Act.

D. All doctors have taken the Hippocratic Oath to treat in an emergency situation.

E. But for Dr. Brown's negligent failure to act, the patient might have survived, so the doctor is at least partly liable.

Answer: C. If Dr. Brown had responded, his effort would not have put him in jeopardy even if his intervention had proved ineffective. However, there is no legal duty for anyone, even a doctor, to come to the aid of a stranger. Although doctors are generally thought to have an ethical duty to offer emergency care, the Hippocratic Oath is silent on this matter, and the American Medical Association's Code of Medical Ethics states: “Physicians are free to choose whom they will serve. The physician should, however, respond to the best of his or her ability in cases of emergency where first aid treatment is essential” (AMA Code of Medical Ethics §8.11, 2006-2007 edition).

All 50 states have laws on their books called Good Samaritan statutes, whose intent is to encourage people to help those in acute distress. These statutes do not require doctors to come to the aid of strangers. (Vermont is an exception, imposing an affirmative duty to assist a victim in need.) Rather, they protect against liability arising out of negligent rescue, but typically they cover only ordinary, not gross, negligence. The Aviation Medical Assistance Act, enacted in 1998, is the federal equivalent of the Good Samaritan statute, covering emergency treatment during flights in the United States.

In allegations of medical malpractice, the plaintiff must first show that the doctor owed a duty of due care to the injured victim. This duty arises out of the doctor-patient relationship, i.e., whenever a doctor undertakes to evaluate or treat a patient.

In the absence of such a relationship, a doctor is not legally obligated to treat, even in an emergency.

However, to encourage aiding strangers in distress, states have enacted so-called Good Samaritan laws to protect rescuers who act in good faith. Popularized in the 1960s in response to the perception that doctors were reluctant to treat strangers for fear of a malpractice lawsuit, these laws immunize the aid giver against allegations of negligent care. Their protective scope varies from state to state, usually offering immunity against simple negligence but not gross misconduct.

Hawaii's Good Samaritan statute is typical. It states: “Any person who in good faith renders emergency care, without remuneration or expectation of remuneration … shall not be liable for any civil damages resulting from the person's acts or omissions, except for such damages as may result from the person's gross negligence or wanton acts or omissions” (Hawaii Revised Statutes §663-1.5 [a]).

California, the first state to enact a Good Samaritan statute in 1959, is an exception, as it may excuse even gross negligence as long as the act was done in good faith. In a litigated case, a California court declared: “The goodness of the Samaritan is a description of the quality of his or her intention, not the quality of the aid delivered” (Perkins v. Howard, 232 Cal.App.3d 708 [1991]).

There is no universal definition of gross negligence, but the term is frequently equated with willful, wanton, or reckless misconduct.

One can think of gross negligence as aggravated negligence, involving more than mere mistake, inadvertence, or inattention, and representing highly unreasonable conduct, or an extreme departure from ordinary care where a high degree of danger is apparent (Prosser, W.L. et al., eds. “Prosser and Keeton on Torts,” 5th ed., St. Paul, Minn.: West Publishing Co., 1984, pp. 211-4).

Statutory protection is generally excluded for Good Samaritan acts performed within a hospital setting under the theory that doctors have an ongoing relationship with the hospital and are already obligated to provide emergency care within its walls. A minority of states such as California and Colorado do provide immunity irrespective of the location of aid.

Commentators have observed that very few lawsuits have involved Good Samaritan doctors and that such laws are both unnecessary and ineffective. Those who are averse to helping will remain on the sidelines even with the protection of the law.

In a 1963 AMA survey, approximately half of responding physicians said they would render emergency help, and this did not depend on whether there was a Good Samaritan statute in place (Sanders GB. First Results: 1963 Professional-Liability Survey. JAMA 1964;189:859-66).

Contact the author at [email protected].

Question: On a flight from Los Angeles to Newark, a passenger developed acute chest pain and diaphoresis. A flight attendant put out an emergency call, but Dr. Brown, a general internist nearing retirement, failed to respond because he was concerned about potential litigation. Unfortunately, the passenger sustained a massive MI, and died en route.

Regarding a medical malpractice lawsuit in such a scenario, which of the following is correct?

A. The Good Samaritan statute imposes upon doctors the legal duty to treat.

B. Good Samaritan statutes immunize doctors against all liability.

C. Dr. Brown need not have hesitated, as his attempts, even if negligent, would have been protected by the Aviation Medical Assistance Act.

D. All doctors have taken the Hippocratic Oath to treat in an emergency situation.

E. But for Dr. Brown's negligent failure to act, the patient might have survived, so the doctor is at least partly liable.

Answer: C. If Dr. Brown had responded, his effort would not have put him in jeopardy even if his intervention had proved ineffective. However, there is no legal duty for anyone, even a doctor, to come to the aid of a stranger. Although doctors are generally thought to have an ethical duty to offer emergency care, the Hippocratic Oath is silent on this matter, and the American Medical Association's Code of Medical Ethics states: “Physicians are free to choose whom they will serve. The physician should, however, respond to the best of his or her ability in cases of emergency where first aid treatment is essential” (AMA Code of Medical Ethics §8.11, 2006-2007 edition).

All 50 states have laws on their books called Good Samaritan statutes, whose intent is to encourage people to help those in acute distress. These statutes do not require doctors to come to the aid of strangers. (Vermont is an exception, imposing an affirmative duty to assist a victim in need.) Rather, they protect against liability arising out of negligent rescue, but typically they cover only ordinary, not gross, negligence. The Aviation Medical Assistance Act, enacted in 1998, is the federal equivalent of the Good Samaritan statute, covering emergency treatment during flights in the United States.

In allegations of medical malpractice, the plaintiff must first show that the doctor owed a duty of due care to the injured victim. This duty arises out of the doctor-patient relationship, i.e., whenever a doctor undertakes to evaluate or treat a patient.

In the absence of such a relationship, a doctor is not legally obligated to treat, even in an emergency.

However, to encourage aiding strangers in distress, states have enacted so-called Good Samaritan laws to protect rescuers who act in good faith. Popularized in the 1960s in response to the perception that doctors were reluctant to treat strangers for fear of a malpractice lawsuit, these laws immunize the aid giver against allegations of negligent care. Their protective scope varies from state to state, usually offering immunity against simple negligence but not gross misconduct.

Hawaii's Good Samaritan statute is typical. It states: “Any person who in good faith renders emergency care, without remuneration or expectation of remuneration … shall not be liable for any civil damages resulting from the person's acts or omissions, except for such damages as may result from the person's gross negligence or wanton acts or omissions” (Hawaii Revised Statutes §663-1.5 [a]).

California, the first state to enact a Good Samaritan statute in 1959, is an exception, as it may excuse even gross negligence as long as the act was done in good faith. In a litigated case, a California court declared: “The goodness of the Samaritan is a description of the quality of his or her intention, not the quality of the aid delivered” (Perkins v. Howard, 232 Cal.App.3d 708 [1991]).

There is no universal definition of gross negligence, but the term is frequently equated with willful, wanton, or reckless misconduct.

One can think of gross negligence as aggravated negligence, involving more than mere mistake, inadvertence, or inattention, and representing highly unreasonable conduct, or an extreme departure from ordinary care where a high degree of danger is apparent (Prosser, W.L. et al., eds. “Prosser and Keeton on Torts,” 5th ed., St. Paul, Minn.: West Publishing Co., 1984, pp. 211-4).

Statutory protection is generally excluded for Good Samaritan acts performed within a hospital setting under the theory that doctors have an ongoing relationship with the hospital and are already obligated to provide emergency care within its walls. A minority of states such as California and Colorado do provide immunity irrespective of the location of aid.

Commentators have observed that very few lawsuits have involved Good Samaritan doctors and that such laws are both unnecessary and ineffective. Those who are averse to helping will remain on the sidelines even with the protection of the law.

In a 1963 AMA survey, approximately half of responding physicians said they would render emergency help, and this did not depend on whether there was a Good Samaritan statute in place (Sanders GB. First Results: 1963 Professional-Liability Survey. JAMA 1964;189:859-66).

Contact the author at [email protected].

Question: On a flight from Los Angeles to Newark, a passenger developed acute chest pain and diaphoresis. A flight attendant put out an emergency call, but Dr. Brown, a general internist nearing retirement, failed to respond because he was concerned about potential litigation. Unfortunately, the passenger sustained a massive MI, and died en route.

Regarding a medical malpractice lawsuit in such a scenario, which of the following is correct?

A. The Good Samaritan statute imposes upon doctors the legal duty to treat.

B. Good Samaritan statutes immunize doctors against all liability.

C. Dr. Brown need not have hesitated, as his attempts, even if negligent, would have been protected by the Aviation Medical Assistance Act.

D. All doctors have taken the Hippocratic Oath to treat in an emergency situation.

E. But for Dr. Brown's negligent failure to act, the patient might have survived, so the doctor is at least partly liable.

Answer: C. If Dr. Brown had responded, his effort would not have put him in jeopardy even if his intervention had proved ineffective. However, there is no legal duty for anyone, even a doctor, to come to the aid of a stranger. Although doctors are generally thought to have an ethical duty to offer emergency care, the Hippocratic Oath is silent on this matter, and the American Medical Association's Code of Medical Ethics states: “Physicians are free to choose whom they will serve. The physician should, however, respond to the best of his or her ability in cases of emergency where first aid treatment is essential” (AMA Code of Medical Ethics §8.11, 2006-2007 edition).

All 50 states have laws on their books called Good Samaritan statutes, whose intent is to encourage people to help those in acute distress. These statutes do not require doctors to come to the aid of strangers. (Vermont is an exception, imposing an affirmative duty to assist a victim in need.) Rather, they protect against liability arising out of negligent rescue, but typically they cover only ordinary, not gross, negligence. The Aviation Medical Assistance Act, enacted in 1998, is the federal equivalent of the Good Samaritan statute, covering emergency treatment during flights in the United States.

In allegations of medical malpractice, the plaintiff must first show that the doctor owed a duty of due care to the injured victim. This duty arises out of the doctor-patient relationship, i.e., whenever a doctor undertakes to evaluate or treat a patient.

In the absence of such a relationship, a doctor is not legally obligated to treat, even in an emergency.

However, to encourage aiding strangers in distress, states have enacted so-called Good Samaritan laws to protect rescuers who act in good faith. Popularized in the 1960s in response to the perception that doctors were reluctant to treat strangers for fear of a malpractice lawsuit, these laws immunize the aid giver against allegations of negligent care. Their protective scope varies from state to state, usually offering immunity against simple negligence but not gross misconduct.

Hawaii's Good Samaritan statute is typical. It states: “Any person who in good faith renders emergency care, without remuneration or expectation of remuneration … shall not be liable for any civil damages resulting from the person's acts or omissions, except for such damages as may result from the person's gross negligence or wanton acts or omissions” (Hawaii Revised Statutes §663-1.5 [a]).

California, the first state to enact a Good Samaritan statute in 1959, is an exception, as it may excuse even gross negligence as long as the act was done in good faith. In a litigated case, a California court declared: “The goodness of the Samaritan is a description of the quality of his or her intention, not the quality of the aid delivered” (Perkins v. Howard, 232 Cal.App.3d 708 [1991]).

There is no universal definition of gross negligence, but the term is frequently equated with willful, wanton, or reckless misconduct.

One can think of gross negligence as aggravated negligence, involving more than mere mistake, inadvertence, or inattention, and representing highly unreasonable conduct, or an extreme departure from ordinary care where a high degree of danger is apparent (Prosser, W.L. et al., eds. “Prosser and Keeton on Torts,” 5th ed., St. Paul, Minn.: West Publishing Co., 1984, pp. 211-4).

Statutory protection is generally excluded for Good Samaritan acts performed within a hospital setting under the theory that doctors have an ongoing relationship with the hospital and are already obligated to provide emergency care within its walls. A minority of states such as California and Colorado do provide immunity irrespective of the location of aid.

Commentators have observed that very few lawsuits have involved Good Samaritan doctors and that such laws are both unnecessary and ineffective. Those who are averse to helping will remain on the sidelines even with the protection of the law.

In a 1963 AMA survey, approximately half of responding physicians said they would render emergency help, and this did not depend on whether there was a Good Samaritan statute in place (Sanders GB. First Results: 1963 Professional-Liability Survey. JAMA 1964;189:859-66).

Contact the author at [email protected].