South-Western Legal Studies in Business

Surgeon Who Helped with Failed Surgery Is Not Protected by Good Samaritan Act

North Dakota high court held that a surgeon who was called in to assist with an emergency surgery that failed, and the patient died, was not immune from being sued for malpractice by the state’s Good Samaritan Act since he was an employee of the hospital who expected compensation for services.

Topic Torts
Key Words

Wrongful Death; Malpractice; Emergency Room; Surgeon; Good Samaritan

C A S E   S U M M A R Y

Rosie Chamley was admitted to Mercy Medical for surgery to remove kidney stones. The surgery was performed by her urologist, who had surgery privileges at Mercy. After the surgery, Chamley experienced major bleeding that threatened her life. Her doctor determined that her kidney must be removed to try to save her life. He was not confident in doing the surgery alone and requested Dr. Khokha, a Mercy surgeon who was in the hospital, to help him, which he did. Chamley died the next day. Her son sued, contending that Khokha and Mercy were liable for wrongful death (the urologist had settled a suit against him). The district court dismissed the suit against Khokha, holding that he was a Good Samaritan as defined by chapter 32 of the North Dakota Code (NDCC). That made him, and therefore, Mercy, immune from liability. Chamley appealed.


Reversed and remanded. The Good Samaritan rule is in North Dakota law. When the court looks at the legislative intent of a statute, it looks to the statute as a whole and construes the words in their ordinary and commonly understood sense. Khokha, in performing the surgery, expected payment. He was a salaried employee of Mercy. Hence, he was precluded from claiming immunity under the Good Samaritan Act.


Chamley v. Khokha, 730 N.W.2d 864 (Sup. Ct., N.D., 2007)

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