Executive Summary
The appropriate use of the emergency doctrine in medical malpractice cases is being debated by some attorneys. The doctrine states that emergency conditions might warrant holding defendants to a lower standard of care.
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New York appellate judges have disagreed on the use of the doctrine.
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Training can become an issue when determining what response is reasonable in an emergency.
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Plaintiffs’ attorneys reject the idea.
By Greg Freeman, Special to AHC Media
Applying the emergency doctrine to medical malpractice cases has long been considered a long shot at best for the defense, maybe even to the point of being ridiculous. But the idea is getting more serious attention.
It still is considered highly unlikely that a court or jury would accept the idea that the standard of care should be lowered because the situation was emergent. In effect, the defense would be arguing that the defendant healthcare professionals should not be held to the same standard in an emergency as they would be in a calm scenario with plenty of time to draw on their training and education.
This emergency doctrine is commonly used in non-medical lawsuits, such as those arising from a traffic accident, explains John L.A. Lyddane, JD, a senior partner with the law firm of Martin Clearwater & Bell in New York City. Case law has established conclusively that a person confronted with an emergency is not held to the same standard as one who has the opportunity to plan a response to danger, he explains. In a traffic case, for example, a defendant can successfully argue that the collision was unavoidable because an oncoming vehicle suddenly swerved into the lane and there was no time to respond.
Lyddane and his colleague Barbara Goldberg, JD, a partner at the same firm, have argued in the New York Law Journal that the same theory should be applicable in some medical malpractice cases.The doctrine clearly was defined in the 1991 case Rivera v. New York Transit Authority, they note. The court described the emergency doctrine this way: “This doctrine recognizes that when an actor is faced with a sudden and unexpected circumstance which leaves little or no time for thought, deliberation, or consideration, or causes the actor to be reasonably so disturbed that the actor must make a speedy decision without weighing alternative courses of conduct, the actor may not be negligent if the actions taken are reasonable and prudent in the emergency context.”
Furthermore, Pattern Jury Instructions 2:14 include the stipulation that a “mistake in judgment or wrong course of action is not negligence if the person is required to act quickly because of danger.” But because medical care providers are more attuned to medical emergencies than laypeople are, the healthcare legal defense community has assumed that the emergency doctrine is somehow less available in the context of evaluating the response of a nurse or doctor faced with a medical emergency. Not necessarily, say Lyddane and Goldberg.
Plaintiffs’ attorneys, not surprisingly, disagree. A great percentage of medical malpractice cases involve emergencies, so invoking the emergency doctrine would put plaintiffs at a significant disadvantage, says Jeffrey M. Kimmel, JD, a partner with the law firm of Salenger, Sack, Kimmel & Bavaro in New York City. “I don’t see how it has any place in medical malpractice cases,” Kimmel says. “The emergency doctrine would eliminate a great many cases, and I don’t think that would be fair to patients who have a legitimate claim against a doctor or hospital.”
Kimmel argues that standards of care exist to determine what can reasonably be expected of a professional in a given situation, and that situation includes an emergency for medical professionals. He has seen the emergency doctrine used only in other situations such as traffic accidents, in which it can serve as an absolute defense for the defendant driver.
“You can’t have a doctor saying that it was an emergency and so he can’t be held responsible for a mistake,” Kimmel says. “The reality is that that’s what they’re trained for. Maybe you and I aren’t trained to respond the right way in that emergency, but they are.”
The emergency doctrine is distinct from Good Samaritan laws, notes Richard Joslin, JD, an attorney with the law firm of Collins Einhorn Farrell in Southfield, MI. Good Samaritan laws apply when a medical professional renders care outside the scope of his or her duties, such as when encountering a person in need while out shopping. Michigan legislators have attempted to codify the emergency doctrine for medical malpractice cases but failed, Joslin notes. The bills were opposed by trial attorneys but also by some healthcare providers who worried that it could compromise patient care, Joslin says.
“The bills proposed to provide the same type of qualified immunity as the Good Samaritan law — basically a gross negligence standard — for treatment provided to a patient that arises out of the emergency department setting,” Joslin explains. “That would have extended to physicians, surgeons, radiologists, anyone providing care even though the patient was no longer in the emergency setting. That bill has gone nowhere for the past two years.”
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Lyddane JLA, Goldberg BD. Applying the emergency doctrine in medical malpractice cases. NY Law J. Sept. 16, 2014. Accessed at http://bit.ly/1zrD54B.
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Barbara Goldberg, JD, Partner, Martin Clearwater & Bell, New York City. Email: [email protected].
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Richard Joslin, JD, Collins Einhorn Farrell, Southfield, MI. Email:[email protected].
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Jeffrey M. Kimmel, JD, Partner, Salenger, Sack, Kimmel & Bavaro, New York City. Telephone: (212) 267-1950. E-mail: [email protected].
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John L.A. Lyddane, JD, Partner, Martin Clearwater & Bell, New York City. Telephone: (212) 916-0950. Email:[email protected].
