Case law on the use of the emergency doctrine in medical malpractice cases varies from state to state, but New York experience shows that the theory is at least considered worthy of debate.
Judges in New York have disagreed on whether juries should be given the option to consider the emergency doctrine, explain John L.A. Lyddane, JD, and Barbara Goldberg, JD, attorneys with the law firm of Martin Clearwater & Bell in New York City. They have published articles on the topic and suggest the emergency doctrine does have a place in malpractice cases.
They note that in the 1984 case Mertsaris v. 73rd Corporation, New York Appellate Court judges came to different conclusions on the applicability of the doctrine to a case involving the resuscitation by the anesthesiologist of an infant who already had been damaged at birth.
In concurring opinion, one judge argued that the jury should have been told to consider the fact that the anesthesiologist had no time to adequately consider his response before acting. The emergency doctrine “is plainly applicable to medical malpractice actions,” Justice Vito Titone, JD, wrote in his opinion.
He went on to explain that the physician’s decision making “must be viewed in the context of the circumstances then faced by the physician. A ‘careful examination’ conducted in the jury room with the benefit of hindsight, cannot approximate a split-second decision in the face of an emergency.”
Other New York medical malpractice cases have included debate over whether what might be an unforeseen emergency to others, shoulder dystocia for example, is not so for a professional trained to anticipate and react appropriately to that situation. Noting that first responders have been given leeway by the emergency doctrine when encountering an unusually serious situation, Lyddane and Goldberg say training should not always exclude use of the doctrine.
“Although it is conceivable that a doctor could be trained and experienced to the point where circumstances no longer present an emergency, a careful reading of the case precedent in New York as well as other states fails to support the position that because a medical practitioner is trained to deal with an emergency, she should not be allowed the same relaxation of the standard of care provided to trained first responders and others who routinely train for and face emergencies,” they write.
Lyddane and Goldberg argue that the emergency doctrine can help prevent a jury from requiring malpractice defendants to perform at unrealistic levels of near-perfection, no matter the circumstances.
“Where a jury has spent several weeks analyzing a split-second decision made by a trained medical professional, whose patient faced serious consequences if action was not promptly taken, it is entirely appropriate for the trial court to allow the jury to determine whether the circumstances justify a modification of the standard to which the actor is held,” they write. “Since the standard would only be relaxed to the point where the defendant is held to the standard expected of a similarly trained and experienced actor in the same circumstances, there could be little chance for prejudice to other parties.”