Should You Stop and Help Someone in an Emergency?
Generally you do not have a duty to stop and help someone in an emergency. The law says
that if you did not cause the problem and if you and the victim have no special relationship
you need not try to rescue a person. But states have passed so-called Good Samaritan laws
that excuse doctors–and sometimes other helpers–from liability for negligence for
coming to the aid of someone in an emergency. In some states, if you injure someone
while driving, you must help that injured person, regardless of who was at fault. Some
courts look at the circumstances of the rescue. They say that if you know someone is in
extreme danger that could be avoided with little inconvenience on your part, you must
provide reasonable care to the victim. Of course, you always are free to go voluntarily to
the aid of someone in trouble. But if you abandon your rescue efforts after starting them,
you may be liable if you leave a victim in worse condition than you found him or her.
Q. I signed a consent form before my doctor performed surgery. What did it
A. It is common practice in hospitals for patients to sign a form giving the doctor
their consent, or approval, to perform surgery. In the form, the patient usually consents to
the specific surgery as well as to any other procedures that might become necessary.
Before you sign it, your doctor should give you a full description of the surgery and the
risks involved, and the ramifications of not getting such treatment. If you can prove that
your physician misrepresented or failed to adequately inform you of the risks and benefits
before surgery, your consent may be invalid. The only time the law excuses doctors from
providing such information is in emergencies or when it would be harmful to a patient.
But even if your doctor should have secured your consent and did not, you still may not
automatically recover. You may still have to prove that, if adequately informed, a
reasonable person would not have consented to the surgery.
Q. If the consent form is considered valid, can I recover any damages in a
malpractice action against my doctor?
A. Yes, you still may be able to recover damages. A consent form does not release
from liability a physician who did not perform the operation following established
procedures or who was otherwise negligent. You may also have a claim that the surgery
the physician performed went beyond the consent you gave. Then the doctor might even
be liable for battery.
Q. What if I’m just not satisfied with the results of my surgery? Do I have a
A. In general, there are no guarantees of medical results. You would have to show
an injury or damages that resulted from the doctor’s deviation from the appropriate
standard of care for your condition.
Q. I got pregnant even though my husband had a vasectomy. Can we recover
A. Yes, you may be able to win a case. A number of negligence cases have been
permitted against physicians for performing unsuccessful vasectomies or other methods of
sterilization that resulted in unwanted children. Courts increasingly allow a suit to be filed
by the parents of a child born as a result of wrongful conception or wrongful pregnancy.
Damages generally are limited to those associated with the pregnancy and birth and do not
extend to support of the child.
Q. I don’t think it was necessary for me to have a cesarean section when Idelivered my daughter. Is there anything I can do about it?
A. Although most malpractice cases involving cesarean sections are brought
against doctors who did not perform them when they should have, with resulting injuries
to the mother or child, it is possible for a woman to win damages against her doctors for
unnecessarily delivering her child by cesarean section. An expert would still be necessary
to state that in doing the cesarean section, the delivering doctor deviated from the
appropriate standard of care.
Q. My doctor prescribed a drug for treatment but failed to tell me it was part
of an experimental program. What can I do?
A. This is quite a rare circumstance, but your physician had a duty to tell you that
the drug was part of an experimental program. You had the right to refuse to participate in
it. You now may have grounds for an action against your doctor.
Q. May I recover medical and hospital bills from someone who caused an
injury to me even though my insurance company has paid the bill?
A. Yes. However, if you do recover payment from the person who injured you for
those bills, some states require you to reimburse your insurance company. In those states,
the law does not allow you to get a double recovery. Often the insurance policy contains a
subrogation clause that does not permit double recovery.
Q. My aunt discovered that a sponge left in her during an operation years ago
was the source of stomach trouble. May she still sue?
A. Like other personal injury cases, medical malpractice lawsuits are subject to
specific statutes of limitations (discussed earlier in this chapter). Until
recently, your aunt’s suit may have been thrown out of court. In many statutes, time limits
on filing began when the injury occurred–on the day of the operation. To alleviate such a
harsh–and final–result, many states today have altered their laws, and the clock for filing
a case does not begin to toll until people discover that they have suffered an injury, or
should have discovered it. Even with the discovery rule, there are time limits, known as
statutes of repose, which limit the time within which to file suit before or after discovery
of the injury.
Q. My father’s job exposed him to asbestos. Now he has lung disease. Is it too
late to file a claim?
A. It may not be too late. Many people who suffered injuries from toxic substances
such as asbestos did not know at the time of exposure that the compounds were harmful.
As a result, some states have enacted laws allowing people to file lawsuits for a certain
amount of time from the date when the lung impairment or cancer begins, rather than from
the date of exposure. A lawyer can tell you whether your father still has time within the
statutes of limitations applicable in your state. In general, the area of workplace illnesses
is covered by workers’ compensation (discussed earlier in this chapter and in
the “Law and the Workplace” chapter).
Q. What about malpractice actions against professionals such as lawyers? I
recently hired a lawyer seemed inexperienced and was unhappy with the outcome of
A. Like doctors, lawyers and other professionals must possess and apply the
knowledge and the skills of other reasonably well qualified professionals. Not only must
they exercise reasonable care in handling your case, they also must possess a minimum
degree of special knowledge and ability. That means that they will be liable to you if their
skills do not meet the accepted standard of practice. You must also prove that the case
your lawyer mishandled was likely to succeed. Lawyer malpractice usually results in
property damage only. You cannot recover for the emotional distress of hiring a negligent
lawyer. In your case, you may have a malpractice action against the attorney if he or she
was negligent in representing you. You’ll have to show more than dissatisfaction with the
outcome of the case. Did he or she fail to meet a deadline for filing for a court proceeding?
Were all the crucial legal elements of the case fully explored? If you are unsure about a
basis for a malpractice case, check with the state agency that regulates lawyers in your
state. Your state bar association will be able to tell you the name of the agency is.