A divided North Dakota Supreme Court has found that the state's Good Samaritan law does not apply to a medical malpractice case against a surgeon who volunteered to assist a colleague in an emergency procedure.

Dr. Inder Khokha, a general surgeon at Mercy Medical Center in Williston, assisted in the removal of a kidney from Rosie Chamley in February 2004. During the operation, Chamley's vena cava was damaged and she died five days later at another hospital.

“We are of the opinion that Dr. Khokha, as a matter of law, had an expectation of remuneration ... and is precluded from claiming immunity under the Good Samaritan Act,” a 3-2 majority of the Supreme Court ruled in reinstating the wrongful-death claim of Chamley's husband.

But Justice Daniel J. Crothers warned in a dissent that the majority's ruling would discourage surgeons from offering help in an emergency and “reduces the chance the next patient in Rosie Chamley's situation will survive the operating room.”

Chamley was originally admitted to Mercy Medical Center for the removal of kidney stones. The emergency arose after she suffered excessive bleeding and her urologist, Dr. Salem Shahin, concluded that she required a kidney removal.

Khokha was waiting in the doctors' lounge to operate on another patient when Shahin requested his assistance.

North Dakota's Good Samaritan law protects a person from liability “for acts or omissions arising out of a situation in which emergency aid or assistance is rendered,” but does not cover “Any person rendering aid or assistance with an expectation of remuneration.”

The trial court found the immunity applied to Khokha and summarily dismissed William Chamley's case against him. Khokha testified that at the time of the surgery on Rosie Chamley he was “trying to save the patient's life ... and wasn't thinking of anything else.”

But District Judge Steven L. Marquart, sitting by designation, wrote for the Supreme Court majority that

the combination of Dr. Khokha's being a salaried employee of the hospital and performing the procedure in the hospital ... caused him to have an expectation of remuneration when he was rendering the aid.

Crothers accused the majority of “going outside the [Good Samaritan] statute and adding a test for the physical location where Dr. Khokha rendered services.”

“I cannot agree with my colleagues that Dr. Khokha should be stripped of immunity as a matter of law because he received the same pay for trying to save the life of another physician's patient as he would have, had he done nothing,” he concluded.

In a concurring opinion, Justice Mary Muehlen Maring urged the Legislature to amend the law “to define 'with an expectation of remuneration' such that the immunity defense is not available to persons who 'ordinarily receive remuneration' for rendering care to a patient in a hospital setting.”

By Matthew Heller
5/13/07