Good Samaritan laws: Are you protected when you render aid in a crisis?
By Jay C. Weaver, ALB, JD, EMT-P, Attorney, Adjunct Faculty, Northeastern University Institute for Emergency Medical Services, Boston, MA.
Throughout history, society has looked favorably upon those who willingly assist others in times of crisis.1 Yet, ironically, the common law did not insulate from civil liability those who rendered emergency assistance to strangers.2
To the contrary, an individual who rendered aid voluntarily incurred liability for any physical harm that resulted from the rescuer’s failure to exercise reasonable care.3 And since bystanders had no duty under common law to offer assistance to an injured party,4 would-be rescuers tended to look the other way when confronted with a dangerous situation.5
Beginning in 1959, states passed legislation, now known collectively as "Good Samaritan" laws, that conferred civil immunity on voluntary rescuers, thereby encouraging the rendering of aid.6 Named for the biblical passerby who stopped to render assistance while others went "on their cheerful way rejoicing,"7 these laws were designed to increase the likelihood of bystander involvement by alleviating public fear that an ungrateful victim later would initiate a lawsuit.8
Today, every American jurisdiction has some form of Good Samaritan legislation.9 Not all Good Samaritan laws confer identical immunity, however. Statutory language varies widely from one jurisdiction to the next with regard to the class of rescuer protected, the level of care required, and even the circumstances that trigger immunity.
Courts, too, have created varying levels of immunity by interpreting the terminology of Good Samaritan statutes in different ways. Practitioners must remember that Good Samaritan statutes are state laws, and as such, confer immunity against state causes of action. They do not protect Good Samaritans from Federal causes of action, such as civil rights violations.
Thus, while Good Samaritan protection is available in every state, not every rescuer is immune from civil liability in every crisis.
Class of Rescuer
While most Good Samaritan statutes extend immunity to virtually anyone who voluntarily renders aid,10 many immunize only a select class of trained rescuers, such as doctors, nurses, or emergency medical technicians.11 Some state legislatures have enacted a number of Good Samaritan statutes, each extending immunity to a different class of rescuer.12 In Massachusetts, for example, separate Good Samaritan laws exist for physicians, physician assistants, and nurses;13 emergency medical technicians, police officers, and firefighters;14 prehospital medical control physicians;15 and anyone trained by the American Heart Association or American Red Cross in cardiopulmonary resuscitation or the use of an external defibrillator.16 California has enacted such statutes more than any other state.17
The legislature of Texas has adopted a Good Samaritan statute of particular interest to emergency department physicians. As is true in many jurisdictions, physicians there enjoy statutory immunity for the voluntary, good-faith administration of medical care at the scene of an emergency.18 The Texas Good Samaritan statute goes farther than most, however, in that it specifically covers emergencies that occur within the confines of a hospital.19 At the same time, though, this statute specifically excludes from Good Samaritan protection "anyone who regularly administers care in a hospital emergency room."20 The Texas Good Samaritan statute is unique, then, in that it divides the state’s physicians into two categories — those who perform most of their work in emergency departments (and are therefore subject to rescue liability); and all other physicians, who enjoy immunity for the rendering of emergency care under the Good Samaritan law.
The Court of Appeals of Texas has interpreted this statute to mean that a pediatrician, visiting a hospitalized acquaintance and summoned to the emergency department after a newborn went into cardiac arrest, enjoyed immunity from malpractice liability in his treatment of the child, notwithstanding the fact that the pediatrician was on staff at that hospital, since the pediatrician did not "regularly administer care in a hospital emergency room."21
This case highlights not only the unique nature of the Texas Good Samaritan statute, but also the unique nature of Good Samaritan laws in general. Because the language of these statutes varies so widely, a rescuer covered by Good Samaritan immunity in one state does not necessarily enjoy the same immunity in any other jurisdiction. Health care providers — particularly those who practice in the field of emergency medicine — should therefore familiarize themselves with the provisions of their state’s Good Samaritan laws to determine whether they fall within the protected class of rescuers.
Effect of Pre-existing Duty
Good Samaritan statutes generally do not confer immunity upon rescuers who have a pre-existing duty to act.22 The purpose of these statutes is to encourage bystander participation, and an offer of immunity would do nothing to induce the involvement of an individual already compelled to render aid.23 In fact, as the Georgia Court of Appeals observed in Clayton v. Kelly, public policy would be "ill served" by extending immunity to such individuals.24
Some legislatures have excluded rescuers with a pre-existing duty from the protection of Good Samaritan statutes by requiring that the assistance be rendered voluntarily.25 More commonly, however, Good Samaritan statutes require that the aid be given "gratuitously"26 or "without compensation or expectation of compensation."27 The theory behind this approach, of course, is that an individual who renders assistance without payment does so voluntarily, and therefore has no obligation to act. One state — Pennsylvania — has broken with the "voluntary" approach entirely, conferring immunity instead upon any physician or nurse who "happens by chance upon the scene of an emergency."28 Mississippi’s Good Samaritan statute, by its language, does not require voluntariness at all.29 Instead, the state’s high court has interpreted the Mississippi Good Samaritan law as conferring immunity upon every physician who provides emergency treatment, whether he receives payment for his assistance or not.30
Certain rescuers owe a pre-existing duty to emergency victims simply by virtue of their training or professional affiliation. Police officers, for example, in most instances have a duty to act when confronted by an emergency.31 The same holds true for firefighters.32 These rescuers, therefore, may subject themselves to negligence liability for botched rescue attempts, notwithstanding the existence of an otherwise applicable Good Samaritan statute. Physicians and nurses generally owe no such duty to strangers, however, and courts have held that a physician does not have a pre-existing duty to render care simply because the emergency happens to fall within his area of expertise.33
The existence of a duty to act by a physician or nurse depends, in many cases, on the relationship shared with the victim of the emergency. A physician who commits negligence in the context of a doctor-patient relationship, for example, virtually always owes the patient a pre-existing duty of care; as a result, Good Samaritan immunity almost never exists in such a situation. 34 In fact, some Good Samaritan statutes specifically exclude negligence committed in the presence of a doctor-patient relationship.35 A Michigan Good Samaritan law, for example, expressly provides that "[t]he exemption from liability . . . shall not apply to a physician when a physician-patient relationship existed prior to the advent of the emergency, nor to a licensed nurse when a nurse-patient relationship existed prior to the advent of the emergency."36 As the Supreme Court of Oklahoma observed in Jackson v. Mercy Health Care, Inc., "[N]o hospital is ever a Good Samaritan vis-à-vis its own patient."37
This does not mean that the patient must be a total stranger, however. To the contrary, at least one court has held that a physician is entitled to Good Samaritan immunity when rendering emergency aid to an individual he previously knew.38 But as the following case illustrates, a physician’s interest in the patient’s outcome may negate Good Samaritan immunity.
Street vs. Superior Court of Orange County 39
On Oct. 22, 1986, Marlene Street went to a physician’s office for a routine pyelogram. When a radiologist injected Mrs. Street with intravenous dye, the 35-year-old patient developed an immediate and severe allergic reaction. The radiologist called for assistance, and Dr. Norman Chang rushed into the room. Recognizing that Mrs. Street needed oxygen, Dr. Chang instructed the clinic staff to summon paramedics.40
The paramedics arrived to find Mrs. Street unconscious, cyanotic, and vomiting. Despite these ominous signs, Dr. Chang refused to allow the paramedics to administer oxygen or to intubate the patient. Instead he remarked tersely, "I will control the patient . . . I just want you to transport her to the hospital across the street." As a result of Dr. Chang’s orders, the paramedics estimated that Mrs. Street went without oxygen for 8-10 minutes. This oxygen deprivation led to grand mal seizures, and Mrs. Street died within hours.41
Mrs. Street’s husband and son sued the radiology clinic, the radiologist, and Dr. Chang for wrongful death, alleging medical malpractice. In response, Dr. Chang claimed immunity under one of California’s numerous Good Samaritan statutes. To support this claim, he testified that Mrs. Street was not one of his regular patients and that his actions were therefore voluntary, as required for immunity under the statute.42
The court determined that the level of negligence demonstrated by Dr. Street was immaterial because the relevant Good Samaritan statute shielded tortfeasors even from claims of gross negligence. More importantly, the court held that the doctor was not entitled to Good Samaritan protection because Dr. Chang, as co-owner of the clinic where the patient was to receive scheduled care, owed a pre-existing duty to Mrs. Street, despite the fact that he had neither performed the pyelogram nor participated directly in her care prior to the emergency.
In reaching this decision, the court acknowledged that a doctor does not assume a duty to act simply because he happens to work within the medical facility at which the emergency occurs. Clearly, Dr. Chang did not share a classic doctor-patient relationship with Mrs. Street. Here, though, the emergency occurred as the patient underwent a routine diagnostic test in the defendant’s own clinic, and Dr. Chang therefore had a professional, ethical, and pecuniary interest in her care. His actions in responding to the emergency were therefore not voluntary, and as a result, he did not qualify for Good Samaritan immunity under the California statute.43
Just as a doctor-patient relationship may create a pre-existing duty to act, so may the express or customary duties of the physician. In Colby v. Schwartz, the California Court of Appeal denied Good Samaritan immunity to a group of physicians who had performed an operation on an accident victim in an emergency department.44 The defendants argued that they were entitled to immunity because they had responded to the emergency department only as part of an "emergency call panel," and did not regularly work there.
The court disagreed, noting instead that the defendants, by their own admission, had operated on the patient in the emergency department as "part of their normal course of practice," and therefore owed a pre-existing duty of care to the patient, which, in turn, rendered them ineligible for Good Samaritan protection.45
A physician’s title or position does not, by itself, establish a pre-existing duty of care, however. In McKenna v. Cedars of Lebanon Hospital, Inc., the Court of Appeal of California held that the chief resident of a hospital does not automatically have a pre-existing duty of care to all patients within that hospital.46
The patient in that case, who had undergone a therapeutic abortion and tubal ligation, suffered a seizure and went into respiratory arrest. A nurse paged the defendant, an anesthesiologist named Dr. Warner, who responded to the emergency within one minute.47 In the malpractice action that followed, the plaintiffs, relying on Colby, argued that California’s Good Samaritan statute does not apply to emergency care rendered by a physician within a hospital.
Dr. Warner responded that the victim of the emergency was not his patient; that, as chief resident, he had no legal duty to respond to the page; and that his employment contract with the hospital did not create a legal duty to render emergency treatment.48 The court agreed, holding that Dr. Warner was "in essence, a medical volunteer."49 "The fact that Dr. Warner was chief resident," the court held, "does not necessarily, or as a matter of law, make him an ex-officio member of an emergency team, which might be expected to deal with emergencies as its normal function . . ."50
Since Dr. Warner had rendered emergency care voluntarily, with no pre-existing duty to do so,74 the court concluded that he was entitled to immunity under the Good Samaritan statute.51 Seven years later, the California Court of Appeal, in a factually similar case, held that this reasoning applies even when the nature of the emergency falls squarely within the specialty of the defendant physician.52
While only one high court has considered the issue, hospitals and their staffs so far have enjoyed Good Samaritan immunity when rescuing visitors who are not patients.53 In Jackson v. Mercy Health Center, Inc., the Oklahoma Supreme Court held that a visitor who had fainted and sustained injury while watching his baby’s delivery was barred from suing the hospital by the state’s Good Samaritan Act.54
The plaintiff alleged that the hospital staff’s rescue during his dizzy spell — which consisted of guiding the visitor to a seat from which he later fell — constituted an inadequate rescue during an emergency.55 The court held that a hospital owes no pre-existing duty of rescue to a visitor, and that "statutory immunity stands extended whenever a contractual stranger — such as a visitor, whether an invitee, licensee, or trespasser — is assisted in an emergency."56
Existence of "Emergency"
Good Samaritan laws, by their nature, confer immunity only for emergency rescues. The definition applied to the word "emergency," therefore, may prove crucial in determining whether a rescuer qualifies for immunity. Some legislatures have simplified matters by including in Good Samaritan statutory language a more precise, or more complete, definition of the term. A Michigan Good Samaritan statute, for example, provides immunity to doctors who respond in good faith to "life-threatening emergencies."57 Most, however, have left interpretation to the courts.58
The courts of many jurisdictions have equated "emergency" with a life-threatening situation.59 Others have defined "emergency" as an "unexpected situation or occurrence that defines immediate attention"60; as an "unforeseen, unexpected combination of circumstances which require the need for immediate action, assistance, or relief;"61 or as "an urgent medical circumstance of so pressing a character that some kind of action must be taken."62
Reasoning that the purpose of a Good Samaritan statute is to induce action, and that this goal will best be achieved by interpreting the term "emergency" in the broadest sense possible, the Supreme Court of Oklahoma held in Jackson v. Mercy Health Center that for Good Samaritan purposes an emergency "occurs whenever a stranger appears (or may be perceived to be) ill or in need of succor."63
A situation does not automatically constitute an emergency, however, merely because it occurs unexpectedly. In Bryant v. Bakshandeh, the California Court of Appeal held that an elective urinary catheterization did not rise to the level of an emergency, even though it was performed by a urologist pursuant to a "stat"64 page by another physician.65
The point at which an emergency ceases to exist is not always easily determinable. This may prove to be an issue of critical importance during a malpractice trial, in which the availability of Good Samaritan immunity may turn entirely on the continued existence of such an emergency. A 1991 California Court of Appeal case, Breazeal v. Henry Mayo Newhall Memorial Hospital, illustrates this point.66
Breazeal v. Newhall Memorial Hospital 66
Eight-year-old Matthew Breazeal awoke on the morning of Feb. 12, 1983, with a fever and headache. By evening his parents noticed that he was experiencing difficulty breathing. Matthew’s mother took him to the emergency department at the Henry Mayo Newhall Memorial Hospital, where she asked the staff to call Dr. Krishan Vashistha, a pediatrician who had once treated Matthew’s younger brother.68
Though he had no obligation to do so, Dr. Vashistha responded to the hospital from a family gathering. He examined Matthew and diagnosed epiglottitis, an acute bacterial infection that, if not treated promptly and correctly, often results in fatal airway swelling. Recognizing the importance of maintaining a patent airway, Dr. Vashistha called for the assistance of an otolaryngology resident, Dr. Roger Haring.69
At approximately 9 p.m., the hospital staff moved Matthew to the operating room. An anesthesiologist inserted an endotracheal tube into Matthew’s throat, even though, in the words of Dr. Haring, Matthew was "breathing freely at this point." An expert witness later opined that the danger of Matthew dying from epiglottitis at the time of intubation was "very small," but admitted as well that Matthew’s condition was still "volatile," and that there existed a potential for "immediate demise."70
With Matthew’s airway secured, the physicians had two alternatives: They could transfer Matthew to a specialty hospital, where doctors and nurses experienced in pediatric illnesses would care for Matthew in a pediatric intensive care unit, or they could perform an emergency tracheostomy at Mayo Hospital. Both options entailed risks. If Matthew’s condition suddenly deteriorated between hospitals, optimal resuscitation equipment and personnel would not be immediately available. On the other hand, Mayo Hospital had no pediatric unit of any kind, and none of the doctors or nurses on duty that night had ever cared for an epiglottitis patient before.71
Dr. Haring elected to perform the tracheostomy at Mayo Hospital. At approximately 9:55 p.m., the anesthesiologist, having accompanied Matthew to the recovery room, deemed the patient "stable." Dr. Haring told Matthew’s mother at this time that "the emergency was over, but Matthew was not yet out of the woods and would have to be watched very carefully."72
Dr. Haring returned to the recovery room, where he discovered that Matthew’s tracheostomy tube had become dislodged. He repositioned the tube, took measures to ensure that it remained in position, and left instructions for the nurse to call him and Dr. Vashistha if it became dislodged again. Dr. Vashistha told the nurse and anesthesiologist to page him if Matthew’s condition changed even slightly.73
At 10:45 p.m., the tracheostomy tube again became dislodged. The anesthesiologist replaced the tracheostomy tube with an endotracheal tube, and he attempted to ventilate Matthew for approximately five minutes before concluding that the tube was occluded. The anesthesiologist replaced the original endotracheal tube with another one, but he still met resistance when forcing oxygen into Matthew’s lungs. This time the anesthesiologist concluded that Matthew had suffered a bilateral pneumothorax. Dr. Vashistha returned to the hospital, followed by Dr. Haring, but by then Matthew had an extremely slow heartbeat. Shortly thereafter he went into cardiac arrest. Mayo Hospital’s "code blue" team initiated cardiopulmonary resuscitation, and a special team transferred Matthew to Children’s Hospital of Los Angeles by helicopter. A nuclear brain scan later confirmed brain death. The staff of Children’s Hospital removed Matthew from life support, and a physician pronounced Matthew dead the next afternoon.74
Matthew’s mother brought action against Dr. Haring, Dr. Vashistha, and others for wrongful death, professional negligence, and negligent infliction of emotional distress.75 The trial court dismissed the emotional distress claim before trial because the plaintiff produced no evidence establishing contemporaneous knowledge of any event causing injury to her son. The court granted summary judgment to all defendants on the remaining causes of action on grounds that the physicians were at all times rendering emergency care to Matthew, and that California’s Good Samaritan statutes conferred immunity for acts and omissions committed in the rendering of such care.76
Matthew’s mother did not deny that the physicians initially rendered good faith emergency care to Matthew, as required for immunity under California Business and Professions Code sections 2395 and 2396.77 She argued on appeal, however, that the emergency ended with the successful performance of the tracheostomy, because the defendants from that point forward did nothing more than maintain an emergency patient’s "stabilized" condition. Accordingly, she urged that Good Samaritan immunity did not apply.78
The appellate court disagreed. Noting that Matthew’s stability depended entirely upon an artificial airway that required constant monitoring, and that the plaintiff’s own expert witness had characterized Matthew’s post-tracheotomy condition as "highly volatile" with a potential for "immediate demise," the court held that an emergency continued to exist throughout the time of the allegedly negligent acts. In light of this "continuing emergency," the court held that the defendants were entitled to Good Samaritan immunity under California law, and that the trial court properly had granted summary judgment.79
The California Court of Appeal was not the first court to recognize the existence of a "continuing emergency." Ten years earlier, the Michigan Court of Appeals held in Matts v. Homsi that a physician who voluntarily performed emergency surgery was entitled to Good Samaritan immunity, even though some of his allegedly negligent acts didn’t take place until long after the patient left the emergency department.80 The defendant physician, Dr. R.K. Homsi, responded from home at the request of an emergency department physician who was treating a car accident victim. When he arrived at the hospital, Dr. Homsi discovered that the patient was bleeding internally, and was suffering from severe shock. Dr. Homsi operated on the patient, but after some initial improvement, the patient’s condition deteriorated the next day. Dr. Homsi transferred the patient to another hospital, where another doctor performed additional surgery. This second operation disclosed several unrepaired holes in the patient’s abdominal tissues, and the patient subsequently died.81
The patient’s mother brought a medical malpractice action against Dr. Homsi.82 The trial court granted a directed verdict for Dr. Homsi, but the plaintiff contended on appeal that Dr. Homsi was not entitled to immunity because he had not responded to a "life-threatening emergency" as required by the Good Samaritan statute.83 The appellate court affirmed the summary judgment, on grounds that a "continuing emergency" existed from the time of the accident until the surgery was completed.84
A few jurisdictions have enacted Good Samaritan statutes that confer immunity not for care rendered in "emergencies," but rather for care rendered at "accidents."85 This distinction, while subtle, can be a crucial one. As the following case illustrates, courts do not view these terms as synonymous, and care rendered at the scene of an emergency does not necessarily qualify for immunity under a statute that extends immunity only for care rendered at the scene of an accident.
Case No. 3. Beckerman v. Gordon 88
During the early morning hours of Jan. 15, 1987, Robert Gordon woke to discover that his wife, Mary Ann, was experiencing chest pain, an upset stomach, and a fever. Rather than taking her to a hospital, Mr. Gordon called Dr. Mark Beckerman, a physician who practiced with Mrs. Gordon’s regular doctor and who lived only a few blocks away. Dr. Beckerman came to examine Mrs. Gordon, and diagnosed her condition as pleurisy. He reassured the Gordons that the situation was not serious, and gave Mrs. Gordon a sample of an anti-nausea drug from his bag. Dr. Beckerman then instructed the Gordons to call him if the symptoms did not improve within an hour, and left.87
Approximately one hour later, Mrs. Gordon began gasping for air. Mr. Gordon again called Dr. Beckerman, who returned within a few minutes. This time Dr. Beckerman found Mrs. Gordon in cardiac arrest. He initiated cardiopulmonary resuscitation, and an ambulance transported Mrs. Gordon to the nearest hospital. Medical personnel eventually restarted Mrs. Gordon’s heart, but she never regained consciousness, and subsequently died. An autopsy revealed myocardial infarction as the cause of death.88
Mr. Gordon brought a medical malpractice action against Dr. Beckerman. The trial court denied Dr. Beckerman’s motion for summary judgment based on immunity under Indiana’s Good Samaritan law. On interlocutory appeal, Dr. Beckerman contended that he provided emergency care to Mrs. Gordon at the scene of an emergency, and was therefore entitled to the protection of the state’s Good Samaritan law.89
Mr. Gordon argued in response that the statute provided immunity only for emergency care rendered "at the scene of an accident or emergency care to the victim thereof,"92 and that Dr. Beckerman’s conduct therefore fell outside the scope of the statute.91
The appeals court agreed with Mr. Gordon. An "accident," the court held, is a "single discreet event causing unexpected consequences."92 An "emergency," on the other hand, is "an unexpected condition or set of circumstances requiring immediate attention."93 Noting that the language employed by the General Assembly differed from the language used in other jurisdictions, the court concluded that the legislature intentionally had drafted the statute narrowly to protect only those individuals who had rendered assistance to accident victims.94
Since Mrs. Gordon had experienced an emergency, but was not an accident victim, the court held that Dr. Beckerman was not entitled to Good Samaritan immunity, and it affirmed the trial court’s decision.95
Location of the Emergency
Location, too, can prove instrumental for determining the existence of Good Samaritan immunity.96 While most Good Samaritan statutes require only that treatment be rendered "at the scene of an emergency,"97 some of these laws apply exclusively to emergency care rendered within a particular setting.98 A Michigan statute, for example, extends immunity only to nurses and doctors who provide emergency care "within a hospital or other licensed medical care facility."99 Conversely, a Good Samaritan statute enacted by the Florida legislature specifically excludes from coverage emergency care provided in a hospital, doctor’s office, or "other place having proper medical equipment."100
In recent years, physicians and nurses have begun to provide emergency care without actually responding to the scene. They accomplish this task through intermediaries such as paramedics and emergency medical technicians.
In recognition of these developments, many states have enacted Good Samaritan statutes that specifically protect physicians and nurses when they are conducting activities associated with medical direction. In Massachusetts, for example, physicians and hospitals enjoy immunity from civil liability when providing "advice, orders, or consultation" to ambulance operators and attendants via "radio, telephone, or other remote means of communication."101 Similarly, in North Dakota, physicians hold statutory immunity while providing voluntary medical direction within the state’s trauma system.102
"Emergency Aid" Rescuer Requirements
A health care provider does not qualify for Good Samaritan immunity simply by observing an emergency. Rather, under every Good Samaritan statute, the party claiming immunity must actually administer some form of emergency aid.103 In most states, the rescuer must provide "emergency care."104 Other jurisdictions confer immunity as long as the rescuer provides "care, advice, or assistance;"105 "emergency care or treatment;"106 or "emergency medical services."107
Assistance need not be sophisticated to constitute emergency aid. In Rodriguez v. New York City Health & Hospitals Corp., the defendant physician was asked to "look in" on an ailing neighbor as he was leaving his apartment.108 The defendant checked the man’s pulse, determined that the man was gravely ill, and called for an ambulance.109 In the medical malpractice trial that followed, the New York Supreme Court held that these acts constituted the rendering of emergency care, and that the defendant therefore qualified for Good Samaritan immunity.110 Similarly, the Court of Appeals of Ohio held that an off-duty firefighter rendered emergency aid simply by pulling a bystander at a fire scene out of a stream of rushing water.111
Not every action associated with an emergency constitutes emergency aid, however. In situations in which the victim does not require emergency care, the court invariably holds that the defendant does not qualify for Good Samaritan immunity. In Dahl v. Turner, for example, an emergency occurred, yet the defendant did not render emergency aid so as to qualify for Good Samaritan immunity.112 The defendant in that case was the driver of a car whose vehicle collided with that of the plaintiff.113 The plaintiff sustained an arm laceration, and for a time appeared somewhat dazed, but otherwise was not injured. He refused to go to a hospital, but did accept the defendant’s offer to drive him to a nearby motel.114 The defendant later urged the New Mexico Court of Appeals to consider this act a form of "emergency care" for the purpose of establishing Good Samaritan immunity. Observing that there existed "no facts indicating a pressing need for such transportation," the court declined to accept the defendant’s argument.115
Courts occasionally have held that Good Samaritan immunity does not exist when the victim objects to the emergency care.116 A Florida District Court of Appeal case, Botte v. Pomeroy, Id., illustrates this principle.
Botte v. Pomeroy 117
At approximately 5 a.m.118 on July 27, 1978, 18-year-old Robert Botte suffered a drug- and alcohol-induced fall.119 He yelled for assistance until the an employee of the apartment complex, Jack Edwards, got out of bed and went outside to help.120 Believing that Mr. Botte had overdosed, and unaware that Mr. Botte had sustained a neck fracture,121 Mr. Edwards decided to move him to a lighted area about 15 feet away.122 Mr. Botte later alleged that he pleaded with Mr. Edwards to call an ambulance, but not to move him, because he had lost the feeling in his arms and legs.123 According to Mr. Botte, Mr. Edwards ignored his pleas and moved him anyway, rendering him a quadriplegic.124
Mr. Botte brought a negligence action against the owner of the apartment complex, alleging that the defendant’s employee, Mr. Edwards, had proximately caused his paralysis by moving him.125 The defendant raised several defenses, including a claim of immunity under the Florida Good Samaritan Act.126
The trial court granted the defendant’s motion for summary judgment, but the appellate court reversed.127 In so doing, the court expressed extreme displeasure with the language of Florida’s Good Samaritan statute:
". . .The statute is rendered impotent under the facts of this incident because of the included statutory language that the assistance rendered must be accomplished "without objection." Here the injured party’s testimony was that he insisted that he not be moved and that rescue operations be restricted to calling an ambulance.
". . .The statute has been watered down by the inclusion of without objection’ language. . . . As we see it, the employment of this language permits the injured party to, in effect, control the rescue operations so that the immunity envisaged is obviated.
"As if the foregoing were not enough, there is another portion of the statute that completes its emasculation, because the Good Samaritan is required to render his assistance like an ordinary reasonably prudent man.’ Obviously, any sensible plaintiff’s lawyer can plead around a statute such as this and get to a jury. As it now stands, it does not appear to be a very good idea to render assistance to an accident victim."128
Standard of Care
Modern Good Samaritans generally are held to a "gross negligence" standard.129 In other words, most Good Samaritan statutes confer immunity for ordinary negligence, but not for gross negligence or for intentional wrongdoing.130 Today, the standard of care for Good Samaritans nearly always is defined by statutory language. A Michigan statute, for example, provides that nurses and doctors who render emergency care under certain circumstances shall not be liable for civil damages as a result of acts or omissions "except acts or omissions amounting to gross negligence or willful and wanton misconduct."131 A comparable Indiana statute imposes a gross negligence standard through nearly identical wording.132
Courts frequently must decide, then, whether the conduct of an emergency care provider falls above or below the level of "gross negligence." This is no easy task, given that no two jurisdictions define this term in precisely the same way. With no set of rules applicable to all jurisdictions, the courts must classify the alleged misconduct of defendants on a case-by-case basis.
In Higgins v. Detroit Osteopathic Hospital Corp., for example, the Michigan Court of Appeals held that a pediatrician had committed ordinary negligence, rather than gross negligence, in misreading the x-ray of a neonate and performing an unnecessary lumbar puncture, and that the defendant was therefore entitled to immunity under the state’s Good Samaritan law.133 Similarly, in Rodriguez v. New York City Department of Health & Hospitals, the Supreme Court of New York found that a physician had committed no more than ordinary negligence when he called for an ambulance, as opposed to rendering hands-on care.134
Not every jurisdiction adheres to the gross negligence standard, however. The Ohio Good Samaritan statute confers immunity for ordinary and gross negligence, but not for "willful or wanton misconduct."135 Florida requires its Good Samaritans to act "as an ordinary reasonably prudent person would have acted under the same or similar circumstances."136 A few states, such as Georgia and California, have enacted statutes requiring only that the rescuer provide emergency care in good faith.137
Institutional Immunity
Good Samaritan statutes generally do not insulate hospitals from civil liability. These statutes were developed as a means of inducing volunteers to render medical care in the event of an emergency, but since hospitals exist for this very purpose, they need no such inducement.138
The language of Good Samaritan statutes often signals legislative intent to exclude health care institutions from coverage.139 A Florida Good Samaritan statute, for example, confers immunity upon "any person" who renders care under defined circumstances.140 The use of the word "person" in this statute — as opposed to a more ambiguous term, such as "health care provider" — suggests that the legislature meant to exclude institutions from coverage. Further evidence of this intent exists in the fact that the Florida legislature has conferred Good Samaritan immunity on hospitals and hospital employees through a separate statute.141
The issue of institutional Good Samaritan immunity has only rarely reached the courts. In Hamburger v. Henry Ford Hospital, a stroke victim brought a negligence action against a hospital and its employees after he sustained a head injury during a transfer onto a stretcher.142 In response, the hospital contended that its employees were immune from liability under Michigan’s Good Samaritan statutes, and that the hospital therefore also was immune.143
Observing that the language of the Good Samaritan statute expressly excluded situations in which a professional relationship existed between victim and rescuer, the court found it unreasonable to conclude that the legislature intended to protect a hospital from vicarious liability in situations in which a hospital-patient relationship existed at the time of the negligent act.144 Accordingly, the court held that ordinary negligence, rather than gross negligence, was sufficient to establish hospital liability.145
Conclusion
Intended originally as a means of encouraging the involvement of bystanders at emergency scenes, Good Samaritan statutes today represent a potent shield against medical malpractice claims. By their very terms, however, these statutes apply only to limited circumstances. In most states, Good Samaritan statutes confer immunity only to those who voluntarily render emergency care in good faith to victims of an emergency. Health care providers must not mistakenly assume that these statutes will protect them from liability for all forms of care.
Health care providers should remember as well that while every state has enacted some form of Good Samaritan legislation, the language of these statutes varies considerably from one jurisdiction to the next.
Those who elect to utilize their skills in times of unexpected crisis should bear in mind that competent care provides the best defense to a medical malpractice claim. Rather than seeking statutory immunity after the fact, Good Samaritans should endeavor to avoid liability entirely.
Endnotes
1. See, e.g., Luke 10:30-37.
2. Flynn v. United States, 681 F.Supp. 1500, 1506 (D.Utah 1988), modified in part, 902 F.2d 1524 (10th Cir. 1990); McDowell v. Gillie, No. 20000269 (N.D. May 22, 2001); Alston v. Blythe, 943 P.2d 692, 698 (Wash. App. 1997); Jackson v. Mercy Health Center, Inc., 864 P.2d 839, 842 (Okla. 1993); Sims v. Gen. Tel. & Elecs., 815 P.2d 151, 157 (Nev. 1991); W. Page Keeton et al., Prosser and Keeton on the Law of Torts, § 56, at 375 (5th ed. 1984); Restatement (Second) of Torts § 323 (1965).
3. Flynn, 681 F.Supp. at 1506, modified in part, 902 F.2d at 1524; McDowell v. Gillie, No. 20000269; Alston, 943 P.2d at 698; Jackson, 864 P.2d at 842; Sims, 815 P.2d at 157; Keeton, supra note 2; Restatement (Second) of Torts § 323 (1965).
4. Osterlind v. Hill, 160 N.E. 301, 301 (1928).
5. Sims, 815 P.2d at 157.
6. Eric A. Brandt, Good Samaritan Laws—The Legal Placebo: A Current Analysis, 17 Akron L.Rev. 303, 303-304 (1983).
7. Beckerman v. Gordon, 614 N.E.2d 610, 612 n.4 (Ind. Ct. App. 1993)(referring to Luke 10:30-37); Clayton v. Kelly 357 S.E.2d 865, 868 (Ga. Ct. App. 1987).
8. Sims, 815 P.2d at 157; 61 Am. Jur. 2d Physicians, Surgeons, and Other Healers § 306 (1981); Danny R. Veilleux, Annotation, Construction and Application of "Good Samaritan" Statutes, 68 A.L.R. 4th 294, 299-300 (1989).
9. Brandt, supra note 6, at 303; Veilleux, supra note 8, at 299-300; Beckerman, 614 N.E.2d at 612.
10. E.g., N.C. Stat. sec. 90-21.14 (a) (2001) (providing immunity to "[a]ny personwho renders first aid or emergency health care treatment"). See, generally, Brandt, supra note 6 at 309; Veilleux, supra note 8 at 299-300.
11. E.g., Mo. Rev. Stat. § 537.037 (2001) (providing Good Samaritan immunity only to physicians, surgeons, registered and practical nurses, and mobile emergency medical technicians).
12. Brandt, supra note 6, at 310-18; Veilleux, supra note 8, at 299-300.
13. Mass. Gen. L. ch. 112 § 12B (2001).
14. Mass. Gen. L. ch. 111C § 14 (2001).
15. Mass. Gen. L. ch. 111C § 13 (2001).
16. Mass. Gen. L. ch. 112 § 12V (2001).
17. See Cal. Bus. & Prof. Code §§ 2395, 2396 (2001) (physicians and podiatrists); Cal. Bus. & Prof. Code § 2398 (2001) (physicians and podiatrists attending certain athletic events); Cal. Bus. & Prof. Code § 1627.5 (2001) (dentists); Cal. Bus. & Prof. Code § 2727.5 (2001) (registered nurses); Cal. Bus. & Prof. Code § 2861.5 (2001) (licensed vocational nurses); Cal. Health & Safety Code § 1799.104 (2001) (physicians and nurses providing prehospital medical direction); Cal. Health & Safety Code § 1799.102 (2001) (anyone); Cal. Health & Safety Code § 1799.105 (2001) (poison control centers); Cal. Health & Safety Code § 1799.106 (2001) (firefighters, police officers, emergency medical technicians); Cal. Health & Safety Code § 1799.108 (2001) (anyone certified in prehospital field treatment; Cal. Health & Safety Code § 1799.111 (2001) (hospitals detaining dangerous patients); Cal. Health & Safety Code § 27637 (2001) (anyone rendering aid to a choking victim); Cal. Veh. Code § 165.5 (2001) (rescue team with emergency vehicle); Cal. Civ. Code § 1714.2 (2001) (anyone trained in cardiopulmonary resuscitation); Cal. Gov’t. Code § 50086 (2001) (anyone asked by governmental authorities to assist in a search and rescue operation); Harb. & Nav. Code § 656 (2001) (anyone rendering aid at a boating accident).
18. Tex. Civ. Prac. & Rem. Code Ann. § 74.001(West 1994).
19. Tex. Civ. Prac. & Rem. Code Ann. § 74.001(a) (West 1994).
20. Tex. Civ. Prac. & Rem. Code Ann. § 74.001(b)(3) (West 1994).
21. Hernandez v. Lukefahr, 879 S.W.2d 137, 137 (Tex. Ct. App. 1994).
22. Lindsey v. Miami Development Corp., 689 S.W.2d 856, 856 (Tenn. 1985).
23. Clayton v. Kelly, 357 S.E.2d 865, 865 (Ga. Ct. App. 1987).
24. Id.
25. E.g., Ind. Code § 34-30-13-1(2) (2001); Mass. Gen. L. ch. 112 § 12B (2001).
26. E.g., Fla. Stat. ch. 768.13 (2001).
27. E.g., Minn. Stat. § 604A.01(a)(2) (2001).
28. 83 Pa. Cons. Stat. § 8331(a) (2001).
29. Miss. Code Ann. § 73-25-37 (2001).
30. Lewis v. Soriano, 374 So.2d 829, 831 (Miss. 1979).
31. E.g., Lee v. State, 490 P.2d 1206, 1206 (Alaska 1971); Praet v. Sayreville, 527 A.2d 486, 486 (N.J. Super. 1978).
32. E.g., Held v. City of Rocky River, 34 Ohio App. 3d 35, 35 (1986).
33. Clayton, 357 S.E.2d at 865 (Ga. Ct. App. 1987); Burciaga v. St. John’s Hospital, 232 Cal. Rptr. 75, 75 (Cal. Ct. App. 1986).
34. Clayton, 357 S.E.2d at 865.
35. E.g., Mich. Comp. Laws § 691.1502 (2001).
36. Mich. Comp. Laws § 691.1502 (2001). See Higgins v. Detroit Osteopathic Hosp. Corp., 398 N.W.2d 520, 520 (1986).
37. Jackson, 864 P.2d at 844 (Okla. 1993).
38. Markman v. Kotler, 382 N.Y.S.2d 522, 522 (N.Y. App. Div. 1976).
39. 274 Cal. Rptr. 595, 595 (Ca. Ct. App. 1990).
40. Street v. Superior Court, 274 Cal. Rptr. 595, 596 (Cal. Ct. App. 1990).
41. Id.
42. Id., at 596-97.
43. Id., at 599.
44. Colby v. Schwartz, 144 Cal. Reptr. 624, 629 (Cal. Ct. App. 1978).
45. Id. at 627-28.
46. McKenna v. Cedars of Lebanon Hosp., Inc., 155 Cal. Rptr. 631, 635 (Cal. Ct. App. 1979).
47. Id., at 632.
48. Id., at 633.
49. Id.
50. Id. at 635.
51. Id., at 635.
52. Burciaga, 232 Cal. Rptr. at 75.
53. Jackson, 864 P.2d at 845.
54. Id., at 845.
55. Id., at 841.
56. Id., at 844.
57. Mich. Comp. Laws § 691.1502 (2001).
58. E.g., Rivera v. Arana, No. 1-00-1530 (Ill. App. Ct. 2001); Hirpa v. IHC Hosps., Inc., No. 960180 (Utah 1997); Higgins, 398 N.W.2d at 520.
59. Matts v. Homsi, 308 N.W.2d 284, 286-87 (Mich. Ct. App. 1981); Higgins, 398 N.W.2d at 524.
60. Hirpa, No. 960180.
61. Rivera, No. 1-00-1530.
62. Kearns v. Superior Court, 252 Cal. Rptr. 4, 6 (Cal. Ct. App. 1988).
63. Jackson, 864 P.2d at 845.
64. See Burciaga v. St. John’s Hospital, 232 Cal. Rptr. 75, 77, fn. 2 (from the Latin "statim," meaning "immediately").
65. Bryant v. Bakshandeh, 277 Cal. Rptr. 379, 379 (Cal. Ct. App. 1991).
66. Breazeal v. Henry Mayo Newhall Memorial Hosp., 286 Cal. Rptr. 207, 207 (Cal. Ct. App. 1991).
67. 286 Cal. Rptr. 207, 207 (Cal. Ct. App. 1991).
68. Id., at 210.
69. Id.
70. Id., at 210-11.
71. Id., at 211.
72. Id.
73. Id.
74. Id., at 212.
75. Id., at 209.
76. Id., at 209-10.
77. Id., at 212.
78. Id., at 212-13.
79. Id., at 214-16.
80. Matts, 308 N.W.2d at 285.
81. Id., at 285-86.
82. Id., at 285.
83. Id., at 286.
84. Id., at 287.
85. E.g., Ind. Code § 34-4-12-1 (2001). See, e.g., Beckerman v. Gordon, 614 N.E.2d 610, 612 (Ind. Ct. App. 1993); Steffey v. King, 614 N.E.2d 615, 615 (Ind. Ct. App. 1993).
86. 614 N.E.2d 610, 610 (Ind. Ct. App. 1993).
87. Beckerman v. Gordon, 614 N.E.2d 610, 610-11, (Ind. Ct. App. 1993).
88. Id., at 611.
89. Id.
90. See Ind. Code § 34-4-12-1 (2001).
91. Beckerman, 614 N.E.2d at 611.
92. Id., at 613.
93. Id.
94. Id., at 612-13.
95. Id., at 613.
96. See, e.g., Beckerman, 614 N.E.2d at 610; Burciaga, 232 Cal. Rptr. at 75; Matts, 308 N.W.2d at 284; McKenna, 155 Cal. Rptr. at 633-34; Guerrero v. Copper Queen Hosp., 537 P.2d 1329, 1329 (1975).
97. See, e.g., Cal. Bus. & Prof. Code § 2395 (2001); Miss. Code Ann. § 73-25-37 (2001).
98. E.g., Mich. Comp. Laws § 691.1502 (2001). See, e.g., Hirpa, No. 960180; Matts, 308 N.W.2d at 284.
99. Mich. Comp. Laws § 691.1502 (2001). See also Matts, 308 N.W.2d at 284.
100. Fla. Stat. ch. 768.13 (2001).
101. Mass. Gen. L. ch. 111C sec. 13. (2001).
102. N.D. Cent. Code § 23-01.2-01 (2001). See also Ga. Code Ann. § 31-11-8 (2001) (conferring statutory immunity upon physicians acting as medical advisors to ambulance services); Del. Code Ann. tit. 16 § 9813 (2001) (conferring immunity upon emergency physicians who provide instructions to paramedics).
103. See Howell v. City Towing Assocs., Inc. 717 S.W.2d 729, 729 (Tex. Ct. App. 1986).
104. E.g., Ind. Code § 34-4-12-1 (2001); Mich. Comp. Laws § 691.1501 (2001); Cal. Bus. & Prof. Code § 2395 (2001).
105. Minn. Stat. § 604A.01 (2001).
106. Fla. Stat. ch. 768.13 (2001).
107. Alaska Stat. § 18.08.086 (2001).
108. Rodriguez v. New York City Health & Hosps. Corp., 505 NYS2d 345, 346 (N.Y. Sup. Ct. 1986).
109. Id.
110. Id., at 347-48.
111. Held, 34 Ohio App. 3d at 35.
112. Dahl v. Turner, 458 P.2d 816, 816 (N.M. Ct. App. 1969).
113. Id., at 817.
114. Id., at 818.
115. Id., at 824.
116. E.g., Botte v. Pomeroy, 438 So.2d 544, 544 (Fla. Dist. Ct. App. 1983); Botte v. Pomeroy, 497 So.2d 1275, 1275 (Fla. Dist. Ct. App. 1986).
117. 438 So.2d 544, 544 (Fla. Dist. Ct. App. 1983); 497 So.2d 1275, 1275 (Fla. Dist. Ct. App. 1986)
118. Botte, 438 So.2d at 544.
119. Id., at 544.
120. Botte, 438 So.2d at 544-545.
121. Botte, 497 So.2d at 1276.
122. Id.
123. Botte, 438 So.2d at 545.
124. Id., at 545.
125. Botte, 497 So.2d at 1276.
126. Id., at 1276-77. See also Fla. Stat. ch. 768.13 (1981).
127. Botte, 497 So.2d at 1277.
128. Botte, 438 So.2d at 545.
129. See, e.g., Higgins, 398 N.W.2d at 524.
130. E.g., Mich. Comp. Laws § 691.1501 (2001); Ind. Code § 34-4-12-1 (2001); See also Tatum v. Gigliotti, 565 A.2d 354 (Md. Sp. App. 1989).
131. Mich. Comp. Laws § 691.150 (2001).
132. Ind. Code § 34-4-12-1 (2001).
133. Higgins, 398 N.W.2d at 524.
134. Rodriguez, 505 N.Y.S.2d at 347.
135. Ohio Rev. Code § 2305.23 (2001). See also Held, 34 Ohio App. 3d at 35.
136. Fla. Stat. ch. 768.13 (2001). See also Botte, 4438 So.2d at 545.
137. E.g., Ga. Code Ann. § 51-1-29 (2001); Cal. Bus. & Prof. Code § 2144.5 (2001).
138. See Mendez v. Community Hospital, 225 Cal. Rptr. 24, 24 (1986).
139. E.g., Fla. Stat. ch. 768.13(2)(a) (2001).
140. Id.
141. Fla. Stat. ch. 768.13(2)(b) (2001). But see Gordon v. Athens Convalescent Ctr., Inc., 245 S.E.2d 484, 484 (Ga. Ct. App. 1978) (holding that a nursing home fell "within the protective ambit" of Georgia’s Good Samaritan statute for the vicarious negligence liability of its employees).
142. Hamburger v. Henry Ford Hosp., 284 N.W.2d 155, 156 (Mich. Ct. App. 1979).
143. Id.
144. Id., at 158.
145. Id., at 159. But see Thornhill v. Detroit, 369 N.W.2d, 871, 871 (Mich. Ct. App. 1985) (holding that a different Michigan Good Samaritan statute, which expressly granted Good Samaritan immunity to emergency medical technicians, ambulance attendants, other enumerated personnel, "the ambulance operation" and "the hospital," conferred Good Samaritan liability on a municipal hospital for the liability of prehospital personnel).
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