Surgeon not protected by Good Samaritan law

A column analyzing the impact of recent court decisions on physicians

By Bonnie Boothis a longtime staffer and former editor of the Professional Issues section, left the paper to study law. She wrote the "In the Courts" column during 2005-08. Posted June 11, 2007.

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If you happen upon someone injured after a car crash or a person having a heart attack in a restaurant and decide to use your skills as a physician to help that person out, you do it secure in the knowledge that your state's Good Samaritan law will protect you.

All 50 states have some form of a law designed to shield physicians from liability when they come to a person's aid in an emergency situation.

But from there, state laws diverge. Some expressly include hospital care, some expressly exclude hospital care and some contain no explicit provision one way or the other.

North Dakota and 28 other states fall into the last category. So a closely divided North Dakota Supreme Court was left to decide whether the state's Good Samaritan law protected a surgeon who was a salaried hospital staff physician from a medical malpractice lawsuit filed after a woman in whose surgery he had assisted died.

In a 3-2 ruling, the justices said vascular surgeon Inder Khokha, MD, was not protected.

In a decision issued in early May, the majority ruled that because the physician "had an expectation of remuneration," he was precluded from claiming immunity under the state's Good Samaritan Act.

The ruling stems from the February 2004 death of Rosie Chamley, who was admitted to Mercy Medical Center in Williston, N.D., to have kidney stones removed.

Salem S. Shahin, MD, Chamley's urologist, performed the surgery. After the procedure, Chamley began to bleed excessively, and her condition became life-threatening. She went back to the operating room, where Dr. Shahin conducted renal exploration to determine what was causing the bleeding. He decided that her kidney would have to be removed. When he had trouble visualizing the blood vessels to and from the kidney, he decided he needed help, according to court documents.

Dr. Khokha was in the doctors' lounge waiting to perform surgery on his patient. When he was told that Dr. Shahin needed his help, he went to the operating room. At some point during the kidney removal, Chamley's vena cava was damaged and had to be repaired. According to court documents, the two physicians disagree as to who caused the tear, with each stating in their depositions that the other physically removed the kidney when the tear to the blood vessel occurred. The tear was repaired, which stopped Chamley's bleeding, but on the following day she was transferred to a Bismarck, N.D., hospital, where she later died.

Chamley's son, William, filed a wrongful death lawsuit against Dr. Shahin, Dr. Khokha and Mercy Medical Center. Dr. Shahin is not an employee of Mercy Medical Center but has privileges to perform surgeries there. At the time of the incident, Dr. Khokha was a salaried hospital employee and staff physician. Dr. Shahin has since settled and is no longer a defendant. He denied wrongdoing.

Good Samaritan test

According to legal experts, most courts, including North Dakota's, agree that there are two essential elements to Good Samaritan immunity -- absence of a preexisting duty and the presence of an emergency. State statues usually define these elements.

The District Court, Northwestern Judicial District, Williams County, dismissed William Chamley's lawsuit against Dr. Khokha and Mercy Medical Center with prejudice after finding that Dr. Khokha had no preexisting duty to Rosie Chamley. When the trial court found Dr. Khokha immune, the lawsuit against the hospital also was dismissed, because if he was immune, so was his employer. William Chamley appealed.

In a brief filed with the North Dakota Supreme Court, he argued that Dr. Khokha was employed to provide patients with his skills, including during emergency situations. Because Dr. Khokha was paid for those services, William Chamley argued, the doctor had an "expectation of remuneration," which exempted him from civil immunity under North Dakota statutes.

He also argued that physicians in hospitals are not volunteers in the same sense as the physician who by chance comes upon the scene of a car crash. Indeed, he argued, the state Legislature never intended to immunize hospitals and their employees in situations where a "hospital-patient relationship" existed at the time of the alleged negligent act.

Dr. Khokha argued that he had no duty to care for Rosie Chamley, who was not his patient, and on whom he operated only because he was asked to help in an "emergent, life-threatening situation." He argued that his reimbursement for surgical services does not open him to a lawsuit because doctors are entitled to receive payment under the statute for professional services given in an emergency. In addition, he argued that he was not an emergency department physician and therefore not required to assist Dr. Shahin.

The Supreme Court disagreed.

The majority of justices did not disagree that Dr. Khokha was not prevented from recovering a reasonable fee for services he rendered in an emergency. However, they said, the question is whether he can have protection under the act because he expected payment when he provided his services.

The court found that the terms of Dr. Khokha's contract -- under which he was required to have 36 hours of patient contact a week and was compensated both by salary and on an incentive basis -- combined with the fact that he billed Rosie Chamley for his services indicated that he had expected to be paid.

"A physician who encounters an emergency outside the hospital setting could volunteer his or her services with no expectation at the time to collect the fee," wrote District Judge Steven L. Marquart, who was sitting by assignment after one of the justices recused herself. "Later, on reflection, the physician could send a bill for services and still benefit from the immunity."

In dissent, Justice Daniel J. Crothers disagreed. He wrote that Dr. Khokha had no doctor-patient relationship with Rosie Chamley before voluntarily entering the operating room to help Dr. Shahin. Crothers also said that neither Dr. Khokha nor Dr. Shahin thought Dr. Khokha had a duty to treat Chamley and that another surgeon employed by Mercy had refused to join in the efforts to save her. These facts suggested to him that Dr. Khokha was among those the Legislature was trying to induce to act without fear of liability.

"The result reached by the majority removes that inducement and reduces the chance the next patient in Rosie Chamley's situation will survive the operating room," he wrote. "This can hardly be the result envisioned by Legislature when adopting the Good Samaritan Act."

Dr. Khokha's attorney, Tracy Kolb of Zuger Kermis & Smith in Bismarck, said she filed a petition for rehearing with the Supreme Court on Dr. Khokha's behalf. In late May, she was waiting to hear whether the petition would be granted. But she acknowledged that very few are granted. She said that Dr. Khokha is prepared to go to trial.

Kolb said that she believes William Chamley will have trouble proving at trial that Dr. Khokha was in any way responsible for Rosie Chamley's death.

Bonnie Booth is a longtime staffer and former editor of the Professional Issues section, left the paper to study law. She wrote the "In the Courts" column during 2005-08.

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