Can you lift the Good Samaritan shield by jennyyingdi


									                                   Reprinted with permission of TRIAL (March 2010)
                                       Copyright American Association for Justice
                               formerly Association of Trial Lawyers of America (ATLA®)

Can you lift the
Good Samaritan
If your client was harmed by someone’s negligence in an
emergency situation, can that person invoke the protection
of a Good Samaritan statute? You need to know what factors
the court will consider in determining exactly what qualifies
for this immunity.

M i a  I.  Fr ieder                                 ntil 40 years ago, the law was   Samaritan law. But their scope varies
                                                    clear: Once someone chose        significantly.
                                                    to assist another person in         If you encounter the Good Samari-
                                          an emergency, he or she was held to        tan defense, your first step is a review
                                          a duty to “exercise reasonable care.”1     of the case law interpreting the appli-
                                          But that changed with passage of           cable statute’s requirements. Still,
                                          the first Good Samaritan statute in        this may not completely clarify the
                                          California. 2 Aimed at encouraging         statute’s scope, because the case law
                                          prompt assistance for emergency vic-       does not establish many bright-line
                                          tims by eliminating the fear of legal      rules. Also, some states may have lim-
                                          liability, these statutes provide vary-    ited case law interpreting the statue
                                          ing levels of immunity to caregivers       at issue. You should be aware of sev-
                                          if the assistance they render causes       eral factors courts have considered
                                          or contributes to the victim’s injury      in deciding whether Good Samari-
                                          or death.                                  tan immunity applies.
                                             Although these statutes serve a            One factor is the class of people
                                          legitimate purpose, they shouldn’t         protected. Who is seeking protec-
                                          be allowed to shield caregivers from       tion, and does he or she have a duty to
                                          liability if the help they render is       render assistance? Not everyone can
                                          grossly negligent or reckless. All
                                          states and the District of Columbia        Mia I. Frieder is a partner in Hilley
                                          have enacted some form of Good             & Frieder in Atlanta.

48    t r i a l   M a r c h   2010
claim immunity. People with a preex-        sarily have to be in a critical or life-   provided.16 This transportation may
isting duty to render assistance, such      threatening condition for the assis-       encompass travel that does not go
as police officers and firefighters, gen-   tance given to be deemed emergency         directly from the scene to a health
erally are protected by statutes sepa-      care.10 Courts may consider expert         care facility but includes a brief stop.17
rate from Good Samaritan laws.3             testimony to determine whether             One court noted that not all accidents
   As an affirmative defense, the bur-      emergency care was rendered in your        are emergencies.18
den of establishing Good Samaritan          client’s case.
immunity is on the person claiming             One court held that a doctor’s affi-    Standard of care
its protection. Immunity generally is       davit created a jury question as to           For someone who gratuitously
limited to emergency care rendered          whether care rendered by an off-duty       stops to render aid at the scene of an
at the scene of an accident or emer-        physician was emergency care under         emergency, Good Samaritan statutes
gency, so you need to determine             circumstances requiring immedi-            generally exonerate negligent con-
whether the situation involved in           ate action.11 Although statutes may        duct. This protection t y pically
your case constituted an “emergency”        require that the emergency care be         extends to ordinary negligence—but
as contemplated by the statute. Rela-       rendered gratuitously, courts gener-       not to gross negligence.
tively few states have defined the term     ally have not considered the expecta-         In Flynn, off-duty National Park
“emergency” in their statutes, unless       tion of payment to be controlling.12       Service employees who arrived at an
the statute is dealing with emergency          Another factor to consider is the       accident scene in which a pedestrian
medical care.                               duration of care. Emergency care           had been struck by another vehicle
   In the absence of statutory guid-        may refer to the initial evaluation        stopped their vehicle on the shoul-
ance, courts have defined “emer-            and immediate assistance given to an       der. They also activated their vehicle’s
gency” consistent with common               injured person before he or she can be     emergency lights and siren. The court
vernacular— an unexpected or                transferred to professional medical        found that these employees were pro-
unforeseen occurrence requiring             personnel.13 This distinction can be       tected by Utah’s Good Samaritan law
immediate action.4 In one case, the         important when lay people provide          when a truck, allegedly distracted
court said a Good Samaritan law             care to someone over time without          by their vehicle, swerved into the
was inapplicable because the repeti-        seeking professional medical assis-        pedestrians who had stopped to help
tive nature of someone’s blood sugar        tance. In such circumstances, after        with the initial accident.19 However,
problems removed the incident from          the initial intervention, emergency        a Good Samaritan statute will not
the penumbra of an emergency. 5             care can become nonemergency care          serve to protect people who create an
   Jurisdictions differ on what degree      that does not invoke Good Samaritan        emergency.20
of physical assistance is required          immunity and may be subject to a neg-         Many courts have recognized that
before a statute’s protection is            ligence suit.                              Good Samaritan statutes expressly do
invoked. In one case, Flynn v. United          In one case, for example, a woman       not extend immunity to acts that con-
States, the court held that stopping at     suffered a serious head injury as the      stitute gross negligence.21 Gross neg-
the scene of an emergency with the          result of an ATV accident, and her         ligence has been defined as “reckless,
intention of rendering assistance,          boyfriend’s parents watched over her       wilful, or wanton misconduct”22 in the
but without physically rendering that       for more than six hours before calling     context of a Good Samaritan statute,
assistance, can constitute rendering        911. The court determined that the         and in other contexts as “failure to
emergency care.6                            parents cared for her longer than nec-     observe even slight care” and “a care-
   Another court held that stopping at      essary to transfer care to professional    lessness or recklessness to a degree
an accident scene and asking whether        medical personnel so as to fall within     that shows utter indifference to the
any assistance is needed can constitute     the purview of the Good Samaritan          consequences that result.” 23 An exam-
rendering aid.7 And another court           statute.14                                 ple of conduct that has been found
held that a physician who arranged             Good Samaritan statutes generally       grossly negligent, removing it from
for a neighbor to be taken to a hos-        require that the care be rendered at       the purview of Good Samaritan pro-
pital rendered emergency treatment          the scene of an accident or emergency.     tection, includes fraternity members’
under the statute.8                         This may include not only the place        inducing a fraternity pledge to drink
   But other courts have adopted a          where the injury occurred but also the     excessively and failing to take him to a
more limited definition. One held           place to which the victim was moved.15     hospital on realizing his perilous con-
that calling for emergency assistance          Some courts have applied a Good         dition (assuming they provided some
at the scene of an accident or emer-        Samaritan law when the injured per-        type of emergency care).24
gency is not “administering emer-           son was transported from the scene            A small minority of jurisdictions
gency care.” 9                              of an emergency to a hospital or other     have held that that a person cannot
   The injured person does not neces-       location where medical care could be       claim Good Samaritan immunity

                                                                                             t r i a l   M a r c h 2 0 1 0   |  49
unless he or she acted with “ordinary     ties.28 At least six have legislation that     Perhaps the cases where the issues
prudence” when exercising emer-           expressly includes hospitals and other       become hardest to contain within
gency care.25 Whether the emergency       health care facilities.29                    the four corners of exact definition
care was rendered “without objection”        Among the jurisdictions whose             present the best issues for a jury or
and in an “ordinary reasonably pru-       Good Samaritan statutes are silent           judge to decide, because these cases
dent fashion,” as required by the stat-   on this issue, courts in four have inter-    involve factual questions that still
ute, are questions of fact.26             preted their statutes as applicable to       need resolution.                    n
   The statute may require that the       a doctor rendering emergency assis-
emergency care be rendered in good        tance in a hospital.30 Courts in at least    Notes
                                                                                            1. Restatement (Second) of Torts §324(a)
faith, and it may take into account       two states without statutory language
the caregiver’s state of mind. This is    have rejected applying Good Samari-               2. Cal. Bus. & Prof. Code §2144 (1959).
an area still open to interpretation;     tan immunity to doctors inside a hos-             3. Lee v. State, 490 P.2d 1206, 1209–10
the degrees of negligence that con-       pital or health care facility. 31 These      (Alaska 1971), overruled on other grounds, Mun-
stitute good or bad faith would be a      courts reason that to do so would            roe v. City Council for Anchorage, 545 P.2d 165
                                                                                       (Alaska 1976); but see Flynn v. U.S., 681 F. Supp.
jury issue.                               not further the legislation’s original
                                                                                       1500, 1505–06 (D. Utah 1988), aff’d in part and
   For example, in a case where the       intent, since doctors already must pro-      remanded, 902 F.2d 1524 (10th Cir. 1990).
defendant stopped his truck to deter-     vide emergency services to patients               4. See e.g. Hirpa v. IHC Hosps., Inc., 948 P.2d
mine whether anyone needed assis-         through their relationship with hos-         785, 788 (Utah 1997); see also Anderson v. Little
tance, but without any other evidence     pitals. Moreover, immunizing doctors         & Davenport Funeral Home, Inc., 251 S.E.2d 250,
                                                                                       252 (Ga. 1978); Swenson v. Waseca Mut. Ins. Co.,
regarding the defendant’s subjective      in the hospital setting might have the
                                                                                       653 N.W.2d 794, 799 (Minn. App. 2002).
intentions or state of mind, a reason-    “adverse effect of lowering the quality           5. See Herrin Bus. Prods., Inc. v. Ergle, 563
able person could draw more than          of medical care in hospitals without         S.E.2d 442, 444–45 (Ga. App. 2002).
one conclusion for the defendant’s        justification.”32                                 6. 681 F. Supp. at 1507.
conduct. The defendant could have            However, even in jurisdictions                 7. See McDowell v. Gillie, 626 N.W.2d 666,
stopped because of traffic or naviga-                                                  674 (N.D. 2001).
                                          where the Good Samaritan statute
                                                                                            8. Rodriguez v. N.Y.C. Health & Hosps. Corp.,
tional issues, or he could have stopped   applies to doctors rendering emer-           505 N.Y.S.2d 345, 347 (N.Y. Sup. 1986).
without any intention to render           gency aid inside a health care facility,          9. Howell v. City Towing Assocs., Inc., 717
assistance. 27 In jurisdictions where     the doctor may not be immune if he or        S.W.2d 729, 731 (Tex. App. 1986).
the person’s state of mind becomes        she already had a duty to respond to the         10. See e.g. Willingham v. Hudson, 617 S.E.2d
                                                                                       192, 196 (Ga. App. 2005); Swenson, 653 N.W.2d
relevant, courts will review parties’     emergency. In determining whether
                                                                                       at 799–800.
and witnesses’ deposition testimony.      the doctor had a duty to respond,                11. See Gilley v. Hudson, 642 S.E.2d 898 (Ga.
                                          courts will consider several factors,        App. 2007).
Medical personnel                         including whether the doctor was “on             12. See e.g. Deal v. Kearney, 851 P.2d 1353,
   Good Samaritan immunity as it          call,”33 whether the emergency care          1358 (Alaska 1993); Clayton v. Kelly, 357 S.E.2d
                                                                                       865, 867 (Ga. App. 1987).
applies to doctors and other medical      involved another doctor’s patient, 34
                                                                                           13. See Mueller v. McMillian Warner Ins. Co.,
personnel rendering emergency med-        and, if so, whether there was a referral     714 N.W.2d 183, 186 (Wis. 2006).
ical care gives rise to another set of    relationship between the doctors.35              14. Id. at 193.
issues. In your case, be sure to exam-       The fact that the exigency lies               15. See e.g. id.; see also McCain v. Batson, 760
ine the applicable state statutes—        within the doctor’s area of expertise        P.2d 725 (Mont. 1988).
                                                                                           16. See e.g. Swenson, 653 N.W.2d 794; Camp-
some limit immunity to specific medi-     is generally not dispositive.36 Because
                                                                                       bell v. Schwartz, 712 N.E.2d 1196, 1200 (Mass.
cal personnel.                            courts may consider contracts that           App. 1999); Youngblood v. Schireman, 765 P.2d
   In the absence of specific statutory   detail duties of the doctor’s employ-        1312, 1319 (Wash. App. 1988); but see Dahl v.
immunity, doctors rendering emer-         ment or association at a hospital,           Turner, 458 P.2d 816, 824 (N.M. App. 1969)
gency medical assistance can raise the    including hospital rules, regulations,       (holding that a defendant who transported
                                                                                       an injured plaintiff with confusion and a lac-
Good Samaritan defense. In deciding       and bylaws pertaining to emergency
                                                                                       erated arm did not provide emergency care,
whether the Good Samaritan statute        coverage, as evidence of a doctor’s          since no facts indicated a pressing necessity for
applies to a doctor rendering emer-       preexisting duty, 37 you should include      such transportation).
gency assistance, one compelling fac-     requests for these and similar docu-             17. See e.g. Swenson, 653 N.W.2d 794.
tor is whether the emergency aid was      ments in discovery.                              18. See Beckerman v. Gordon, 614 N.E.2d 610,
                                                                                       613 (Ind. App. 1993) (holding that “accident”
administered in a hospital or other          Good Samaritan laws provide a
                                                                                       under Indiana law means a “type of sudden
health care facility.                     valuable function by insulating vol-         calamitous event, and not all situations that
   At least 11 jurisdictions have Good    unteers from legal liability, but, like      might require immediate action”).
Samaritan statutes that explicitly        all legislation, there is a danger in            19. Flynn, 681 F. Supp. at 1508.
exclude emergency care provided in        applying them too broadly to protect             20. Id. The court noted that, if the employ-
hospitals or other health care facili-                                                 ees had caused the second accident, the Utah
                                          questionable conduct.

50    t r i a l   M a r c h   2010
Good Samaritan statute would not exonerate            2003 & Supp. 2009); Colo. Rev. Stat. §13-21-
any negligent conduct by them in assisting the        108-1 (Lexis 2005 & Supp. 2009); Ga. Code
victims of the second accident. See also Mark-        Ann. §51-1-29.5 (2005 & Supp. 2009); La. Stat.
man v. Kotler, 382 N.Y.S.2d 522, 523 (N.Y. App.       Ann. §37:1731A (2007); Mich. Comp. Laws
1976).                                                §691.1502(2)(1) (2000).
   21. See e.g. Bunting v. U.S., 662 F. Supp. 971,        30. The four are Georgia (Clayton, 357 S.E.
973 (D. Alaska 1987); McCain, 760 P.2d at 727–        2d at 868); Illinois ( Johnson v. Matviuw, 531
31; Youngblood, 765 P.2d at 1319.                     N.E. 2d 970, 975–77 (Ill. App. 1988)); Okla-
   22. Lee, 490 P.2d at 1208 (citing Alaska Stat.     homa (Jackson v. Mercy Health Ctr., Inc., 864 P.2d
§09.65.090(b)).                                       839, 844 (Okla. 1993)); and Utah (Hirpa, 948
   23. Flynn, 681 F. Supp. at 1508 (quoting           P.2d at 788).
Atkin Weight & Miles v. Mt. Sts. Tel. & Telegraph         31. See e.g. Guerrero v. Copper Queen Hosp., 537
Co., 709 P.2d 330, 335 (Utah 1985)).                  P.2d 1329, 1331 (Ariz. 1975); Velazquez ex rel.
   24. See e.g. Ballou v. Sigma Nu Gen. Fraternity,   Velazquez v. Jiminez, 763 A.2d 753, 774–76 (N.J.
                                                      Super. App. Div. 2000), aff’d, 798 A.2d 51 (N.J.
352 S.E.2d 488, 497–98 (S.C. App. 1986).
   25. See e.g. Botte v. Pomeroy, 438 So. 2d 544,
                                                          32. See Stewart R. Reuter, Physicians as
545 (Fla. App. 1983); McDowell, 626 N.W.2d at
                                                      Good Samaritans: Should They Receive Immunity
674; Alston v. Blythe, 943 P. 2d 692, 698 (Wash.
                                                      for Their Negligence When Responding to Hospital
App. 1997).
                                                      Emergencies?, 20 J. Leg. Med. 157, 189 (1999).
   26. See Botte v. Pomeroy, 497 So. 2d 1275, 1277
                                                          33. See Henry v. Barfield, 367 S.E.2d 289, 291
(Fla. App. 1986).
                                                      (Ga. App. 1988); see also Colby v. Schwartz, 144
   27. McDowell, 626 N.W.2d at 674–75.                Cal. Rptr. 624, 628 (App. 1978).
   28. See D.C. Code §2-1344(a) (West 2009);              34. See McKenna v. Cedars of Lebanon Hosp.,
Fla. Stat. §768.13(2)(a) (2009); Idaho Code           155 Cal. Rptr. 631, 635 (App. 1979).
Ann. §5-330 (Lexis 2009); Ind. Code §34-30-               35. See Burciaga v. St. John’s Hosp., 232 Cal.
12-1(a) (1999); Ky. Rev. Stat. Ann. §411.148(1)       Rptr. 75 (App. 1986).
(West 2009); 14 Me. Rev. Stat. Ann. §164                  36. See Colby, 144 Cal. Rptr. at 628 (finding
(2003); Minn. Stat. §604A.01(2)(b) (2000);            that Good Samaritan statutes are directed
N.Y. Educ. Law §6527(2) (McKinney 2001);              at persons, including physicians, “who, by
Ohio Rev. Code Ann. §2305.23 (Lexis 2009);            chance and on an irregular basis, come upon
R.I. Gen. Laws §5-37-14 (2009); Wis. Stat.            or are called to render emergency care to
§895.48(1) (2006).                                    those in need.”).
   29. See Alaska Stat. §09.65.090(a) (Lexis              37. See e.g. Clayton, 357 S.E.2d at 868.
2009); Cal. Bus. & Prof. Code §2395 (West

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