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Emergency care in obstetric practice is fraught with medico-legal risk. This is especially true when the practitioner has no established relationship with the parturient and either mother or child sustains serious or permanent injury during the birth process. Although reform efforts have been proposed expanding limits to liability in certain settings where emergency care is provided, currently, obstetricians often must rely on the protection afforded by their respective state’s Good Samaritan statute.
Emergency care in obstetric practice is fraught with medico-legal risk. This is especially true when the practitioner has no established relationship with the parturient and either mother or child sustains serious or permanent injury during the birth process. Although reform efforts have been proposed expanding limits to liability in certain settings where emergency care is provided, currently, obstetricians often must rely on the protection afforded by their respective state’s Good Samaritan statute. Whatever legal protection is provided depends on the provisions of the particular statute and any interpretations developed by the individual state’s courts.
In discussing the effectiveness of such laws and the appropriateness of additional reforms, important questions of fairness and public policy must be taken into consideration, as the review of several examples will show. The first is a composite and hypothetical case that takes place in Massachusetts; the other cases are from legal review.
Case: Dr RB
Dr RB is stopped in the corridor and is requested to assist Ms VE, who is in second-stage labor. Dr IL, the attending of record, is delayed at another institution. Ms VE is a morbidly obese multiparous Caucasian woman at 41-weeks’ gestation with a rapidly progressing labor. At delivery, there was immediate cranial recoil. McRoberts maneuver was performed and downward cranial traction applied, to no avail. Due to obesity, the suprapubic region was palpated only with difficulty. Thus, the nurse was next instructed to apply fundal pressure and did so. Traction was again attempted without cranial advance. After 4 minutes of difficult manipulations, the posterior arm was delivered with a palpable snap. With rotation, the fetal body rapidly followed. The infant, an otherwise normal male, sustained a humeral fracture and soft tissue injury to the head, neck, and both upper arms. Also, a left-sided Erb-Duchenne palsy was present. The mother sustained a partial third-degree perineal laceration and other, minor tears. She developed uterine atony and a hemorrhage postpartum that was ultimately responsive to massage, oxytocin, and parenteral ergonovine.
Some 18 months later, the palsy was unresolved and a lawsuit was filed. At the time of their depositions, Dr RB claimed that he was acting as a Good Samaritan under the state’s Good Samaritan statute and thus was free from liability. Dr IL denied responsibility because she did not conduct the actual delivery. For their part, the hospital nurses also denied any responsibility since a properly credentialed doctor had been called and all requested nursing assistance had been provided and appropriately documented. Both doctors blamed the nurses for not informing the attending physician earlier about the patient’s rapid progress in labor.
From a legal perspective, all the major participants in our first dystocia case have medical-legal risk. Many aspects of brachial plexus palsy lawsuits remain controversial, including whether the injury itself results from the delivery process and not from any act of the practitioner, negligent or otherwise. However, in this case, there are aspects of the care that can legitimately be critiqued, detracting from any available defenses. First, the delivery manipulations could easily be criticized. The application of fundal pressure by the nurse even at a physician’s immediate direction is problematic. Second, Dr IL's wisdom can be questioned for leaving a multipara in labor with no arranged coverage while she was away from the hospital. In many institutions, Dr IL’s action alone could be considered a hospital bylaw violation and could potentially be construed as evidence of negligent practice. If this behavior was permitted by the institution, then that is also a good subject for consideration, and is perhaps an area of potential institutional liability, although in Massachusetts damages would be significantly limited if the hospital is legally considered a charitable institution.
In addition, further concerns with this case were raised because, on review, the antenatal chart was found to be incompletely documented. There were no notations regarding fetal size, discussion of the mode of delivery, or discussion of possible complications. This limited or absent documentation could also be used to question Dr IL’s apparent failure to develop a treatment plan and conduct proper prelabor evaluations.
Not only do the facts create issues to which each defendant must respond, but they also create problems among the defendants. Potentially, in order to defend herself, Dr IL may necessarily be forced to claim that the delivery maneuvers employed by Dr RB were improper. So, even if she were reluctant to “point the finger” at her colleague, Dr IL may need to raise the defense that if the baby’s injury was due to negligence, it was the negligence of Dr RB as the delivering physician. But therein lies the rub: If Dr IL is correct, the child may go uncompensated. Dr RB will deny liability by saying he was thrust into a situation and acting as a volunteer, so regardless of whether he complied with the applicable standard of care, he was a Good Samaritan and that this status should make him immune from responsibility under the state’s applicable statute.
The situation is now quite complex. Although Dr IL’s actions were problematic, are they truly the cause of any injury to the neonate? Although her overall obstetric management was questionable, this doctor did not conduct the delivery. Dr RB’s care is questionable, but if he was acting as a Good Samaritan, then he may have immunity for any negligenct acts. The hospital is not a “deep pocket” since in Massachusetts, charitable institutions have limited liability, restricting damages to $20,000. However, since there is no limit on damage awards against its employees, any liability may fall on the nurses.
Without exposure to liability of the institution or the nurses, and given the physicians’ respective positions, is there risk that this child, with a permanent neurologic injury, could go uncompensated?
What about the defense raised by Dr RB? Can he be exempt from responsibility because he claims that in essence he was a mere bystander, volunteering to respond to an emergency that occurred in the hospital? Generally speaking, the law does not impose a duty to rescue or even to act in the case of an emergency. This is true even if the required assistance would take little effort or even if the needed help could be provided by merely giving a warning. In medicine, it is most often the physician-patient relationship that creates duty or, in the case of an emergency department physician or an on-call doctor, the physician’s relationship with the hospital and its ultimate responsibility to the public. The Emergency Medical Treatment and Active Labor Act (EMTALA) does not impose a duty on an individual physician per se if he or she does not have any other preexisting duty. Consequently, without some established relationship or existing duty, a physician who is casually present on the labor and delivery floor may not have any direct legal duty to provide care when happening upon an emergency.
Of course, there are other important constraints to a physician’s actions in emergencies. These include but are not limited to medical ethics, societal expectations, and, possibly, hospital bylaws. Certainly, all of us trust and anticipate that physicians will always respond when acute difficulties arise, even if they do not have a distinct legal “duty” to do so. But, in the absence of any direct legal obligation to provide emergency services, what is the liability of a physician who does undertake to provide assistance, and does so negligently?
Historically, a physician’s liability was encompassed in the common law governing individuals who rendered aid in an emergency setting. Rather than leaving the issue to judicial interpretation and state legislatures acting on the desire to limit or restrict liability in certain settings, states began enacting Good Samaritan laws. There are many variations on the theme; however, for the most part, each state has conveyed some limitation that encompasses physicians who render emergency care outside the hospital at an accident scene. Significant differences do exist as to whether a physician who provides emergency care within the confines of a hospital as a volunteer, as in our case, does so with the same level of immunity. Ultimately, the resolution of that issue depends on the provisions of the particular state statute involved as well as the interpretation given to any ambiguous language by a court called on to review the law. Two cases, one from Texas and one from New Jersey, exemplify the possible approaches taken by states. Both reach quite different results and are worthy of review.
Case 2: "In God We Trust, All Others Pay Cash”
Some legislatures have adopted Good Samaritan laws that protect the physician regardless of where care is provided. As an example, since its original enactment in 1985, Texas law has provided that nontreating physicians who respond to an emergency in a hospital can claim the Good Samaritan defense so long as they were not acting for, or in expectation of, remuneration. Therefore, under Texas law, the physical location where the emergency care is provided is irrelevant. The legal challenges against physicians raising this defense have focused more on the status of the physician as a volunteer.
Volunteer status under the Good Samaritan law was the central issue in McIntyre v Ramirez,1 another shoulder dystocia problem where the medical facts were quite similar to those in our first case. In McIntyre, a woman was in labor, with delivery imminent, and her obstetrician had not arrived. Another physician responded to an emergency page and conducted a vaginal delivery, during which a shoulder dystocia occurred. The baby sustained a permanent Erb-Duchenne palsy. A lawsuit followed. The delivering physician claimed exemption from liability as he was a Good Samaritan under the existing Texas law. He sought to have the plaintiff’s lawsuit dismissed, premised on uncontroverted evidence that he did not act with any expectation of being compensated for his care.
In interpreting the statute, the Texas Supreme Court reasoned that the determination of whether he was a volunteer was not dependent on the physician establishing that he was not legally entitled to be compensated under any conceivable circumstance. Instead, it centered more on whether the physician could establish that he did not bill for his service, nor would he or a similarly situated physician customarily receive remuneration for the services he performed.
Case 3: Location, Location, Location
Unlike states that afford protection for emergency care rendered voluntarily, irrespective of location, other states constrain liability exemptions for Good Samaritan physicians to care provided outside the hospital setting only. This constraint can arise either from the explicit language of the statute or, if that statute is silent on the issue, from judicial interpretation of legislative intent. An example of the latter is Velazquez v. Jiminez,2 a New Jersey case that involved yet another delivery complicated by shoulder dystocia.
After delivering the baby’s head, the treating obstetrician was unable to extract the body and summoned assistance. The defendant physician, a maternal-fetal medicine (MFM) specialist, responded, although the patient involved was neither identified as high risk nor was she a clinic patient for whom he provided coverage.
As the case unfolded, the MFM consultant first attempted to complete the delivery vaginally by performing several manipulations. When those efforts ultimately proved unsuccessful, an emergency cesarean followed. The baby was born with severe neurologic injury and spent his brief life in a dependent state, dying of pneumonia before reaching his third birthday. A suit for damages was subsequently filed.
As expected, the MFM physician claimed protection under the state’s Good Samaritan law. The New Jersey statute did not explicitly address protection for physicians acting within the hospital but merely referenced “emergency care at the scene of an accident or in an emergency.”3 Since the law did not specifically include or exclude care provided within the hospital, the court was required to attempt to construe legislative intent. In so doing, it concluded that the legislature’s intent was to afford protection against liability only in those situations in which a physician or other volunteer comes, by chance, upon a victim who requires immediate emergency medical care, at a location compromised by lack of adequate facilities, equipment, expertise, sanitation, or staff.
Addressing the issue that the defendant was a bystander, the court stated that the Defendant’s “suggestion that she qualifies as a Good Samaritan because she had no prior duty to [the plaintiff] misconceives the Good Samaritan Act entirely. Although the absence of a preexisting duty is one element that volunteers must establish to qualify for Good Samaritan immunity . . . it does not satisfy the statute.”2 The court reasoned that physicians who care for patients in hospitals are not volunteers in the same sense as are persons who by chance come upon the scene of an accident. Rather, physicians who provide emergency care in hospitals have access to diagnostic and therapeutic equipment not available in other settings.
General Issues With Good Samaritan Statutes
Prior to any legislative enactments, common law imposed a general duty that once a bystander endeavored to provide assistance, that person had a duty to do so “reasonably.” However, as all states have now passed Good Samaritan statutes, these legislative rules supersede common law, and in so doing, have created differing results. Some states, like the Texas statute exemplified in McIntyre,1 contain specific provisions encompassing emergency care provided in a hospital setting (although often exclude care provided in the emergency department). Other states have enacted statutes with language that expressly excludes its application to health care providers rendering emergency care to patients in a hospital. Still other statutes use language equivalent to “at the scene of an accident” for which there is no universal court interpretation. In sum, the outcome of any claim under a Good Samaritan statute is largely dependent on expressed statutory language and judicial interpretation where there is any ambiguity.
In our original hypothetical case, under Texas law that was in existence at the time, Dr RB most likely would have fit the criteria for a volunteer, and therefore, would have no liability so long as his actions were rendered in good faith and not in willful or wanton disregard of the patient’s safety. Therefore, the minor’s ability to recover will depend on whatever success Dr RB had in prosecuting his claims against Dr IL and the nursing staff. Conversely, if our case was governed by a New Jersey–type statute, then Dr RB would be responsible for his actions if the plaintiff could establish both departure from the standard of care and a causal relationship between the negligence and the baby’s injuries.
New Reforms, Bigger Questions
Interestingly, recent legislative reforms have been aimed at curbing liability for physicians by expanding immunity to those who provide care in emergency situations as part of their professional responsibilities. Primarily through the efforts of the American College of Emergency Physicians, some state legislatures have begun adopting protections for emergency department physicians and on-call specialists rendered either for the duration of a patient's prestabilization care or within a set time limit (such as 24 hours) after a patient presents with an emergency medical condition. These laws arise from a concern that there are federal and state statutory requirements (ie, EMTALA and others) that necessitate treatment and on-call specialists to provide care to anyone who presents with an emergency. These special liability protections fall within two basic categories: (1) stricter standards that limit liability for ordinary negligence, and (2) limits to the amount of potentially recoverable damages (ie, a cap).
Certainly, protecting physicians from frivolous lawsuits is a worthy and necessary goal. Further, holding a physician liable for causing injury when happening on the scene of an emergency makes questionable sense if failing to act creates no liability. On the other hand, injuries that result from negligent care arising out of emergent situations can be devastating to patients and their families. For instance, in the case of a permanent Erb-Duchenne palsy, the child’s ability to engage in normal activities or to choose certain career paths is either limited or completely precluded. Financially, the loss of earning capacity and attendant medical expenses are additional important injuries.
If we view this issue from a public policy perspective, where should the burden to absorb the harm that results from negligent emergency care be placed? Any legislative enactments that provide or expand the protections for physicians providing care in emergency settings is good news for practitioners in terms of reducing risk against litigation in high-risk cases. But, at the same time, the progressive expansion of exemptions limiting liability may leave the injured individual a significantly reduced possibility of legal recourse, or even no recourse, if the original care was provided negligently.
Many events in obstetrics do not proceed according to a formal schedule; the unanticipated arrival at the hospital of a woman in advanced labor or with an acute obstetric complication (eg, cord prolapse, eclampsia, abnormal heart rate, crowning breech) is always a possibility that no advance planning can avoid. Even events that play out once a patient has been admitted cannot always be foreseen. Thus, obstetricians may find themselves either seeking to avoid or decline requests for emergency assistance or accepting the responsibility. The usual adherence to evidence-based medicine, training, and experience, sangfroid, are the doctor’s best defense.
But, even the most well-intentioned, experienced physician cannot necessarily avoid all medical-legal claims when a maternal or fetal outcome is poor. Insofar as it is possible, obstetric medical records should include treatment plans, reviewed with the patient and family, that reflect issues noted during the clinical course.
Remember, the best way to avoid a bad legal outcome is to avoid a bad medical outcome. Nothing in obstetrics can be confidently forecast to progress according to schedule. Therefore, anticipation is key. Both physicians and midwives should remember that assignments potentially requiring a clinician’s simultaneous appearance at two different locales are fraught with peril for both the birth attendant and patient. Especially when multiparas are in labor, the attending physician must have some arrangement for delivery coverage if clinical responsibilities require their presence outside the hospital. In the very large percentage of cases, the cogitation concerning the potential complications of a pregnancy are never realized, and the prospective management plans developed by clinicians are likewise never required. Yet, paradoxically, the essential safety of what obstetricians do is in fact dependent on just these meticulous and thoughtful preparations because, especially in obstetric management, the seemingly unlikely has the unfortunate propensity of suddenly becoming the reality.
1. McIntyre v. Ramirez, 109 SW.3d 741, 742, 748 (Tex.2003).
2. Velazquex v Jiminez, 172 N.J. 240, 798 A.2d 51 (2002).
3. New Jersey’s Good Samaritan Act, N.J.S.A. 2A:62A-1.