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Good Samaritan Article 2

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					                     Good Samaritans U.S.A. Are Afraid to Act
                             from The Virginian-Pilot, September 15, 1997
                                           Ann Sjoerdsma

On the streets of Paris and other European cities, as we’ve learned since Princess Diana’s fatal
crash on August 31, passersby—even pursuing paparazzi—are required by law to assist victims of
accidents. To be “Good Samaritans.”

On the streets of most-towns, U.S.A., passersby who happen upon an accident—even
physicians—can look the other way, ignore the victims. We have no legal obligation to assist.
Thanks to our English common-law origins, Americans have a legal system strong on individualism,
whereas Europeans, whose “civil law” is Roman, prize social solidarity.

Increasingly, however, in reaction to cases of callous indifference, states such as Minnesota and
Wisconsin are mandating citizen help in emergencies. They are imposing on us a duty to assist,
provided we don’t put ourselves at risk.

As much as I’d like to encourage compassion and community, I think it’s too late to legislate such
morality. It’s too late because it’s too dangerous. This isn’t France.
The Good Samaritan of Biblical parable didn’t have to fear that the man he found beaten and
robbed in the road was feigning injury and might ambush him. He also didn’t have to worry about
being sued. Today’s Good Samaritan U.S.A. does.

Instead of compelling reluctant or even incompetent people to intervene, we should concentrate
on protecting Good Samaritans who act now, without force of law.

 All states have “Good-Sam” statutes, but “they’re all over the place,” says Ken King of the Dallas-
based American College of Emergency Physicians.
In general, if a Good Samaritan does what a “reasonable person”—in France, he’s called a bon
père de famille—would do under the circumstances, he won’t be held liable in negligence for any
harm he may cause the accident victim.

But he still might get sued.
Let me back up a bit….
At common law there was no duty to render aid to a person in an emergency. A man could sit on a
dock, smoke a cigar, and watch a person drown without risking any civil or criminal liability.

But there were exceptions.
A key one was a “special relationship” between the victim and the would-be rescuer. Certain
people have a duty of care toward others because of their relationship, usually one of
dependency: the physician toward his patient, the shopkeeper toward his customer, the employer-
employee, parent-child.

If that man on the dock were a lifeguard, he’d have to dive in. Duty would call.
But suppose the man on the dock—or a passerby on the road—attempts to rescue the victim,
does a poor job of it, and actually worsens the situation? Can he just quit? Others may have held up
their rescues in reliance on his efforts.

No, a non-duty can become an affirmative duty after a person chooses to intervene. At common
law, interfering had its price. Which is why we have “Good Samaritan” statutes—to make it clear
that good-faith efforts voluntarily undertaken by would-be rescuers, especially physicians, who
lobbied for these laws, are protected and encouraged.

California passed the first Good Samaritan law in 1959.
Ironically, however, these statutes, which typically do not grant absolute immunity, have confused
the issue. Why? Because they have to be construed, and when lawyers are around, interpretations
of seemingly clear terms multiply. North California law shields from civil liability “any person who
renders first aid or emergency assistance” at a motor-vehicle accident unless the person’s actions
amount to “wanton conduct or intentional wrongdoing.”

Though it may seem unlikely that Good Samaritans would act wantonly, the term is subject to a
lawyer’s spin. And what exactly are the limits of “first aid” and “emergency assistance”?
Virginia, which has exemplary Good-Sam laws covering a variety of personnel and crises,
indemnifies “any person who, in good faith, renders emergency care or assistance, without
compensation” to injured people at an accident, fire, or other “life-threatening emergency.”

Does this law safeguard doctors? Though physicians without “a duty to treat” (based on an
existing doctor-patient relationship) rarely get sued for their emergency treatment, lawyers can be
creative about arguing that such a duty has arisen.

I wish we could do as the French do. But our nation is much too litigious8 and dangerous. The
“duty to assist” criminal laws that Minnesota and Wisconsin have enacted are largely symbolic,
and likely to be selectively enforced.

For Americans, moral conscience, not legal duty, remains the best guide to emergency aid. But if
ever there were an argument for a cellular phone, the plight of the Good Samaritan is it.

				
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