Don't believe the hype when folks tell you as a nurse you will not be used if you act as a Good Samaritan, the law is on your side in these cases, and the case if you are sued will be easily dismissed.
This case is all the more reason to consider having your own professional liability insurance that will provide coverage for reckless or gross negligence conduct that is held to be outside and beyond the ordinary care standards used in Good Samaritan statutes. Gross negligence or reckless conduct is a question for the jury or a judge in a bench trial and the case will proceed pass the preliminary motions.
You cannot always anticipate situations and settings where you will provide nursing care.
See this article that appears on www.law.com at http://www.law.com/jsp/article.jsp?id=1202427227499.
Here is the cut and paste:
'Good Samaritan' Defense Fails to Win Dismissal of Med-Mal Suit
Citing deposition testimony of the parties involved in the July 2004 birth, Supreme Court Justice William R. LaMarca held in Lacy v. My Midwife, P.C., 1719/06, that there was sufficient evidence to raise a question of fact as to Julia Chachere's "claim of lack of involvement, i.e. that there is no medical malpractice on her part."
In January 2004, Tiffany Lacy discovered she was carrying twins after a sonogram, according to the decision. Ms. Lacy and her husband, James, were seeking a home birth and were under the care of Janet L. Titmus-Delettera, a midwife who is another defendant in the case.
In June 2004, Titmus-Delettera diagnosed one of the twins with a decelerated heart rate. The heart rate was re-checked at a local hospital and found to have stabilized. The couple then sought to have the birth at Nassau University Medical Center but Titmus-Delettera lacked birthing privileges there and she also was not credentialed for multiple births, according to the decision.
The hospital offered to admit Ms. Lacy under a physician's care, but the offer was allegedly refused. Ms. Lacy gave birth at home on July 1, 2004. The cause of death of the stillborn infant was listed as "undetermined."
The couple then sued for medical malpractice.
Chachere, a registered nurse, argued that she was simply a "lay student observer" who was invited to the birth by Titmus-Delettera. She claimed she observed, took pictures and entered information on a chart. After the delivery, Chachere injected Ms. Lacy, at Titmus-Delettera's direction, with an anti-hemorrhaging agent, according to the decision.
Chachere offered the affidavit of Dr. Stephen Chasen, a board-certified physician who noted that Chachere was not involved with any prenatal or postnatal care of Ms. Lacy. Chasen stated that the childbirth complications stemmed from "inappropriate documentation of the fetal heart rate in a house delivery setting," for which Chachere was not responsible.
However, at a deposition, Ms. Lacy testified that Chachere became "actively involved" in the delivery procedures. Another midwife present at the birth, Louisa Walker, testified that Chachere "did resuscitation efforts" on the stillborn infant.
Walker, a named defendant who co-owned the midwife business with Titmus-Delettera, testified that Chachere expressed concern about the birth because Ms. Lacy was past her due date and the delivery of the twins was taking place in a home.
"Clearly, the ... deposition testimony reflects that Ms. Chachere was present for more than to only observe and take pictures," Justice LaMarca wrote.
The judge then analyzed the burden-shifting framework of a medical malpractice summary judgment motion. Noting that Chachere had met her burden of submitting evidence indicating she did not "depart from good and accepted medical practice or that the plaintiff was not injured thereby," he said the burden then shifted to the Lacys to show proof of a triable issue of fact.
Dr. Martin Gubernick, an expert witness for the Lacys, submitted an affidavit alleging that Chachere, who "became an integral part of the birthing team," should have taken "action and affirmative steps" in providing Ms. Lacy with emergency medical treatment.
LaMarca credited Gubernick's affidavit, along with the deposition testimony of the other parties involved, as evidence that Chachere played a larger role in the delivery. Thus, he concluded, issues of fact remained.
"The credibility of the witnesses, the reconciliation of conflicting statements, a determination of which should be accepted and which rejected, the truthfulness and accuracy of the testimony, whether contradicted or not, are issues for the trier of facts," the judge wrote, citing Lelekakis v. Kamamis, 41 AD3d 662, among others rulings.
GOOD SAMARITAN DEFENSE
Further, LaMarca held, Chachere could not rely on §690 of the Education Law, commonly known as the "Good Samaritan" provision, as a defense.
That section provides that "any licensed registered professional nurse ... who voluntarily ... renders first aid or emergency treatment ... shall not be liable for damages for injuries" unless it is established that injuries or death were caused "by gross negligence" on the part of the nurse rendering treatment.
Here, the judge wrote, "the issue of whether gross negligence occurred is an issue for the trier of facts to determine." Additionally, he held, an issue of fact remained as to whether Chachere's status at the birth would fall under the Good Samaritan law.
Neil Ptashnik, whose firm represents Chachere, called the ruling "absurd." He said Chachere was studying to become a midwife. To become a licensed midwife in New York, one must complete both clinical courses and go through supervised practical training.
It was unclear if Chachere had since completed the necessary requirements.
Ptashnik said Chachere was not involved with the decision to go ahead with a "high-risk birth" outside of a hospital.
"My client did not in any way participate in the actual delivery," said Ptashnik, of Ptashnik & Associates in Manhattan. Asked about the alleged resuscitation efforts undertaken by Chachere, he added, "Even if that were the case, if someone is stillborn the negligence is not in failing to resuscitate."
A decision on whether to appeal has not been made, according to Ptashnik.
The ruling also surprised Patchogue, N.Y., attorney Benjamin L. Herzweig, who previously represented Titmus-Delettera in the case.
"No good deed goes unpunished," he said, adding that Chachere remained an observer throughout the birth and did not become involved until after delivery and then only to administer an injection to stop hemorrhaging.
Nitkewicz & McMahon of Commack, N.Y., represent the Lacys.
Vardaro & Helwig of Smithtown, N.Y., represent Walker.