Malpractice Consult

Lee J. Johnson, JD

Answers to your questions

Will the Good Samaritan law protect you?

Q: I'm a retired family practitioner. My homeowners association recently purchased two automatic external defibrillators (AEDs) and asked if I'd join a squad to respond to emergencies in our development. A few RNs, some retired and some still working, would also be on the squad. I no longer carry malpractice insurance. Would my state's Good Samaritan law protect me from liability?

A: Most likely. Although there are some exceptions, it's rare for a volunteer to lose a malpractice suit for providing emergency assistance. There's nothing in our legal system to prevent a patient from suing, of course, but it's likely the case would be dismissed as a matter of law before a trial.

Many states now have laws facilitating the widespread availability and use of automatic external defibrillators. The laws set forth a framework to ensure that AED users receive appropriate training and that the devices are maintained and operated within guidelines.

Basic risk management principles should apply in setting up the program. Establish a protocol for proper use. Document how you and other regular volunteers are instructed on the proper use of the equipment. Make sure there is a program for continuing education.

Inspect the equipment regularly to certify that it's in good working order, and keep a log of the inspections. If any potential defect is noted, sequester the equipment until testing by an independent biotechnical engineer can be accomplished and documented.

Most Good Samaritan laws shield physicians only against liability for mere negligence, not for gross negligence. Juries are most likely to find gross negligence when a patient is left in worse condition than when he was found.

For instance, if a doctor who didn't know how to use a defibrillator were to injure the patient with the equipment, a jury might find him liable. (If you've never used an AED, it would be better to allow a trained technician to do so.) A suit might also result if a doctor were to use the AED on a patient who had a stroke or a fainting spell, and the patient's condition worsened as a result of the treatment. But it's unlikely that a jury would find there was gross negligence in such a case.

If you're worried about your lack of malpractice insurance, it's possible that the homeowners association's insurance might cover you. The association may have real estate liability insurance that could be extended by rider, for example. So, ask about it before you start with the program. The association may try to meet your demands for coverage since it could face liability for failure to have an AED and since medical supervision is often a state legal requirement. Some AED manufacturers also provide insurance coverage if certain conditions are met.

The retired RNs might be covered under the association's policy, too. Those who are still working should make sure they have adequate malpractice coverage. If they are hospital employees, they will need to have their own personal insurance because actions for the homeowners association would not be "within the scope of their employment." Even so, Good Samaritan laws usually protect nurses as well.

The author, who can be contacted at 2402 Regent Drive, Mount Kisco, NY 10549, or at lj@bestweb.net, is a health care attorney who specializes in risk management issues. This department answers common professional-liability questions. It isn't intended to provide specific legal advice. If you have a question, please submit it to Malpractice Consult, Medical Economics magazine, 5 Paragon Drive, Montvale, NJ 07645-1742. You may also fax your question to 201-722-2688 or send it via e-mail to memalp@medec.com.

 

Lee Johnson. Malpractice Consult. Medical Economics 2002;6:95.