Saturday, October 8, 2011

Happenings in Little Italy: nurses and litigation risk

This evening I was in a restaurant in Little Italy New York. Fine place too.

The maître d’ asks loudly if there is a doctor in the restaurant. Nobody responds. He asks again. Nobody responds.

I have a surf-lifesaving first aid certificate and volunteer at Bronte Beach. (I have previously blogged about that.) In the absence of anyone else I volunteer.

The victim has fallen over (his wife later tells me he was drunk) and he has hit his head - but for all I can tell he had a seizure. Whatever: he was barely conscious and was not answering his name or details.

Still he has landed in a recovery type position or moved to a recovery type position. His mouth is pointing down. 

I checked that he was breathing - and he was - his chest was moving up and down.

I checked what was coming out of his airway - and it was weak - and there was some blood coming out of his mouth - maybe consistent with biting his tongue really hard or maybe consistent with something really nasty. There was quite a lot of blood coming from his head but there was nothing I could do about that without moving him (and I was not prepared to move him). I checked his pulse and it was weak. (I did not expect otherwise - he was breathing...)

I asked him a few questions and I got no answer but he said he hated this and then said nothing sensible again. I did not get a name.

I did not see any upside in moving or treating him so I just chatted to him (without response), monitored his breathing and waited for the ambulance.

In the midst of this I worked out that two women sitting at a nearby table were nurses. I can't tell you how inappropriate it was that I was doing this and the nurses were sitting there. They are well trained - I did a 40 hours course 5 years ago. If it were me lying there unconscious and bleeding I would want the nurses looking after me... 

But they would not - even with pleading - take over. They were scared of litigation risk and they said they could not touch him. I did not move him and ultimately he was neither better nor worse off for the fact I was there. (Moving him when he was still breathing is beyond my pay grade. But I would still have preferred not be involved...)

I am an Australian who loves America. Many things are better than Australia. Many things however are worse.

Litigation risk that means a nurse would rather sit there watching an unconscious person bleeding rather than help them - that is something that is worse about America.



John


Post Script:

I do not doubt there are Good Samaritan laws that apply. There are specific ones in NSW for volunteer surf lifesavers. However it was commented later that if the request had been for a lawyer in the restaurant the hands would have all gone up. And the nurses were genuinely scared of litigation...

J

31 comments:

Anonymous said...

Only in New York...

This would not happen in many parts of America, but your point is taken.

JS said...

I'm no lawyer, but most states have provisions for exactly this sort of thing (Good Samaritan laws and such).

As far as NY goes,

http://www.health.state.ny.us/nysdoh/ems/art30.htm#BM3000a

Relevantly:

"any person who voluntarily and without expectation of monetary compensation renders first aid or emergency treatment at the scene of an accident or other emergency outside a hospital, doctor's office or any other place having proper and necessary medical equipment, to a person who is unconscious, ill, or injured, shall not be liable for damages for injuries alleged to have been sustained by such person or for damages for the death of such person alleged to have occurred by reason of an act or omission in the rendering of such emergency treatment unless it is established that such injuries were or such death was caused by gross negligence on the part of such person."

I'll concede that the cultural pervasiveness of litigation risk in the US has a valid basis, but in this case at least, those nurses were (hopefully not tragically) misinformed.

Anonymous said...

Those nurses were definitely in the wrong..

Good Samaritan laws exist for a reason, especially in our litigious society.

For New York and I quote:

The law applies in the following circumstances:
—It applies to ANY person (and NOT just medical personnel)
—The person must act without any expectation of monetary compensation
—The act must take place outside a hospital or other medical facility

Under those circumstances, the person rendering the aid will not be held liable for either injuries or death allegedly caused by any act of that “Good Samaritan” while rendering aid, UNLESS it is determined that the “Good Samaritan” was “grossly negligent” in performing his acts.

Anonymous said...

Good for you John. Many people are too scared to get involved. I'm not sure if it's an American thing or a universal thing but most people are apathetic. But there is a reason a guy like you is successful - you are a "doer".

doer [ˈduːə]
1. a person or thing that does something or acts in a specified manner a doer of goodorse

Anonymous said...

The nurses probably knew that they were not covered by New York's "good samaritan law" whereas physicians are. Also I believe that nurses in the US medical system have less autonomy than nurses in other systems, which could be because they can't afford the kind of liability insurance that doctors have.

Anonymous said...

Sorry, what exactly IS better in the US than Australia?

John Hempton said...

To anonymous: try Silicon Valley - for a piece of wild-and-highly-innovative capitalism that develops neat products.

But hey - I live in Australia for a reason. But I do envy Silicon Valley.

--

Also - and just whilst I am there - the radio stations in California include a blues station - that is way better than any equivalent in Australia...

The Mexican food is better in Texas than anywhere in Australia too.

I could go on. And on. And on.

But the beaches are better. And the health care system is better and the Asian fusion restaurants and a bunch of other things are better in Australia.

And the street markets are better in France than in either place. But the beaches in Southern France are made of stones...

Get used to it - we all have our good bits and our bad bits.

Anonymous said...

Let him die.

babar ganesh said...

is this another metaphorical post with a fictional timmy geithner? if so, bravo

James B. Shearer said...

The NY good Samaritan law would not reassure me much at all. Particularly if I had medical training. Gross negligence is something lawyers can argue, I would want something stronger.

Anonymous said...

As always, there is a flip side.
Idk where Good Samaritan laws stand regarding that, but in first aid, too much things could be done wrong or simply unadequate to situation (think broken ribchest on CPR to someone with epileptic seizure or cause of drowning - especially the alcohol own-vomit kind - and stuff like that). Again no idea how american nurses are tranied, but in many parts of the world they are not "doctors" for a reason, some of them anyways. I'm hard-pressed to imagine someone who is confident enough in his basic first aid skills to abandon man in need, and if one is not, I imagine, he could well stay away because we can't readily tell if he's gonna be good or harm.
I understand well enough the whole "first aid is life-decider" routine, but I also seen some... example where patients would've been better off without "help".

Regards,
Dmitry.

Anonymous said...

Then you're clearly not a lawyer, James, because you clearly don't know what gross negligence means in NY law. It's not just negligence, which is failure to use reasonable care to someone you have a duty of care to. It's more akin to recklessness, a willful disregard of the outcome where you have a duty of care. The duty of care in this case is to the injured diner, and it's to not make it worse.

Those nurses were assholes, and it has nothing to do with medical malpractice or tort laws.

John Hempton said...

Dmitry has it more or less right for how I acted.

I decided

(a) he was not dying - pulse, breathing

(b) he was not drowning in his own vomit (breathing, head down, air flowing out with blood but blood pretty thin).

Then I decided to precisely nothing except talk to him and listen to his chest (no bubbles but very wheezy) and take his pulse.

Any decision I could make when he was not in immediate danger was probably a bad decision.

He was bleeding from head - but not enough to kill him. So I left that alone anyway - and if he was bleeding harder I probably would not have known what to do anyway. Not an injury they teach you to treat in a surf lifesaving course.

J

ves said...

John !

you do envy Silicon Valley ??
this is joke !!

don't you know Silicon Valley is very strategical place for Secret Services...??

here is the real story from US:

one of my familiar's kid who was educating in a Kentucky University,do wants to go Silicon Valley after Msc...but oopps one day said to him must first to become a member of "" Icky "" which is a CIA organization to give special educations targeted to some emerging countries at some American Universities...
he doesn't agree this proposal..and after he is prisoned
in short term by a conspiracy of a dog killing trick...finally he is expelled from US....

just an real memory from US...
the end of American dream...

Anonymous said...

In Germany it is law that if you withhold help from someone who has had an accident, you can be criminally liable.

It depends on your skillset and the circumstance what is expected of you, ranging from a simple call for aid to having to assist with first aid or more.

Of course litigation risk here is much more contained and civil suits bring in much less money. Cost of litigation is also negligible compared to the states.

Limey said...

As a volunteer firefighter in neighboring New Jersey with a recently expired Emergency Medical Technician certificate I will say that (a) you did good, and (b) the nurses did not.

This isn't the first case in NYC of something like this happening, sometimes it's the hospital they work at that discourage them, since they will be dragged into any litigation also.

The Good Samaritan laws should apply, but there's still nothing to mandate a doctor or nurse from rendering aid outside their professional setting. As an EMT, however, I have a duty to act when I witness an incident; failure to do so can lead to criminal charges and loss of certificate.

I agree with all your courses of action, and your reasoning. Head injuries can't be treated in a pre-hospital setting, other than controlling the bleeding, which I would not do without rubber gloves on.

Bob Schriver said...

Repeating some of the other comments, that was an anomaly - mother and 2 aunts, a couple of godchildren and half a dozen of my running club friends are nurses - would not have happened with any of them.

That said - fear of malpractice is something of a creation of the media rather than the tort bar.

The web search that I did brought up a per capita per year cost of $16 per person per year for all settlements and litigation nationwide.

One of the highest incidences of claims is for sexual improprieties, oddly enough.

I saw one study on Nevada - haven't pulled it up - that said that 10 doctors comprised some huge percentage of the total claims for that state - and I have no reason to believe that medical licensing boards are much more likely to police their own in other states - so it is pretty much 100% a doctor controllable problem - should they choose to do so.

A good friend of mine is in claims for a specialty malpractice insurer. Extrapolating their phantom stock price to the rest of the market gives me a valuation of something like $50 per capita - I'd look for ways to go long.

Bob

John Hempton said...
This comment has been removed by the author.
John Hempton said...

Bob

That $16 per year is almost certainly flat wrong.

Insurance premium is massively higher as a percent of GDP in America than elsewhere and insurance profitability is not massively higher.

The insurance premium is higher not because of weather or earthquakes - it is higher because insurance premium is what covers all that litgation expense.

We are talking several percentage points of GDP.

The way I think about it is that some countries have welfare systems.

Some countries have tort systems.

In the first you pay through the tax system and the tax system is ultimately financially stretched.

in the second you pay through insurance premium and the insurance system is ultimately financially stretched.

My personal guess is that the welfare system is a more efficient way of delivering than the insurance premium - but I have not done any decent analysis.


John

Jeff Matthews said...

John, this is America. Lawyers have killed it, from top (Washington DC) to bottom (trial lawyers).

An acquaintance was recently telling me why he sold his 20 year old restaurant: he said lawyers were soliciting his employees for slip-and-fall, sexual harassment and other EEOC nonsense lawsuits, the question at the end of the day always being, "How much will you pay to make this go away?"

So he went away.

JM

Tsachy Mishal said...

I was in Tel Aviv when a motorcycle rider fell off his bike into traffic on a busy highway. Almost instantaneously there were dozens of people out of their cars helping this person with traffic still buzzing by. As a New Yorker I was shocked that so many people put their lives in danger to help a stranger without even thinking. It was the complete opposite of what i was accustomed to seeing.

dearieme said...

"some countries have welfare systems.

Some countries have tort systems."

Britain has a huge, if not very competent, welfare system. Mr Blair lumbered it with a newly active tort system too. Mr Blair and his wife fall into the category "greedy lawyers". Whether that is coincidence I don't know.

Anonymous said...

Oh you people with your naive good samaritan law quotations. The standard in NY is "gross negligence." Well, the nurses were probably right under our current wingut system. If that guy dies, or even is brain-damaged, and his wife turns out to be wingnut, she is GONNA sue the nurse (as well as the restaurant). And then the nurse has to prove she wasn't grossly negligent (technically it's the plaintiff's burden, I believe, but the nurse has to do all she can to rebut). And if the nurse is affiliated with a hospital, it's going to get sued, too, and her bosses are not going to be thrilled, whether they win or not. (And god help the nurse and the hospital if the nurse is actually in uniform and is just at the restaurant on her lunch break.) And even if the wife of the guy is not nuts, one or two members of her family or extended family are going to be nuts, and make her go talk to a lawyer, and/or there will be some lawyer on his or her own actively encouraging her to sue, and she'll start seeing dollar signs, particularly if a hospital can be involved. So maybe the chance of all of that nonsense happening is 5% (who knows, really, though). If you're that nurse, are you going to go down there and help that guy for a 5% chance the next year of your life is going to be made hell for your trouble? No, you're going to eat your noodles and pour another glass of cheap chianti.

-- An American Defense Litigator.

ADL said...

First: I hope the guy is okay.

Second: I'd like to say that fear of litigation is the exception in the US, but in my experience, it's not--or, rather, it's hit-or-miss. I've seen people go far out of their way to help, and others hesitant to do anything out of fear. Encapsulating both sides, I think, was the sickness of my car in rural Ohio. A stranger stopped when he saw my hazard lights, got out, and rooted around in my engine for ten minutes. He determined that the serpentine belt (I think) had frayed. All this was above and beyond what I would expect anyone to do. He said I should cut the belt before it could cause any damage, but that he wouldn't do this (he had a knife on him--ah, rural Ohio) because then I could sue him for destroying my property. It took a huge amount of convincing to get him to do it (so, I guess, he didn't stand idly by); he then followed me for 8 miles until my car died before it could get to a rest stop, drove me the rest of the way, refused payment, and shrugged at my effusive thanks. But even after cutting and removing the cable, he was nervous, and said a few times, "Now, just to be clear, you asked me to do that."

Third: And perhaps (unfortunately) dearest to my heart, congratulations on finding a good restaurant in Little Italy. NYC actually has 3 Little Italys--each smaller and less Italian by the year--and in my experience Manhattan's is the least delectable. Bensonhurst in Brooklyn is the best, though few visitors venture out that far.

Anonymous said...

This probably isn't the place to rehash the malpractice debate but three points.

(1) The nurses were probably drunk and if they weren't they are (as someone else pointed out) assholes and a discredit to their profesion.

(2) The great majority of malpractice claims have to do with conduct that most people would agree is actual wrongdoing - like amputating the wrong limb or leaving an instrument in someone's body.

(3) Malpractice premiums are really high for some specialities and very affordable for others. Of course, if some (or a lot) of the actual wrongdoing in (2) were cut down, the premiums would be less.

Of course I understand that a lot of this does not apply to OB-GYN.

Anonymous said...

The nurses were right. This IS the United States for you. Don't make excuses for the execrable way in which America finds itself today by blaming the nurses. The U.S. is a hell-hole. I lived there 22 years and I saw the decay first-hand. Sorry, John, with your "balanced" approach you display your excruciating ignorance of the state of play in the U.S. today. To anyone living there I say, "Leave... as soon as you can". Life will become unbearable in the next few years. Mark my words.

Anonymous said...

Another "Anonymous" mentioned this for Germany, but I'll point out that it applies in Australia, too:

In Oz, the law requires that you act, subject to your ability and proximity.

Anonymous said...

I agree with earlier commenters about Good Samaritan laws but especially about how remarkable it is that you found good Italian food in Little Italy. As far as I was aware, Manhattan's Little Italy is 100% tourist traps at this point, bar for Ferrarra's pastries but even those aren't as good as Veniero's in the East Village or Rocco's in the West Village.

Anonymous said...

1) Pretty much only in NYC. I have lived all over the US - NYC, NE, South, Deep South, Texas, and only in NYC is correct.

2) When the party in power is funded by Trial Lawyers as their #1 donors, these things happen. One side is dying to pass Litigation reform, the other is blocking it with all hands on deck. Shrug.

Anonymous said...

In the US, its litigation risk. its the same in China.

http://www.bloomberg.com/news/2011-09-08/in-china-don-t-dare-help-the-elderly-adam-minter.html

David Oliver said...

Well you don't want to need help in China where good Samaritans are afraid of getting sued. Here is another shocker that happened a few days ago:

http://shanghaiist.com/2011/10/16/watch_toddler_run_over_by_two_vehic.php

People just walked by without helping the toddler.

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