In late February 2013, Lorraine Bayless, 87, collapsed to the floor of her Bakersfield nursing home. Facility staff immediately dialed 911. Staff nurse, Colleen, was on the phone with EMS operators while Bayless lay dying on the floor. But despite passionate pleas and even a direct order from the operator, Colleen refused to even attempt CPR; her excuse, corporate policy did not permit staff to perform medical care on residents. Shocking? Absolutely! Without precedent? Not necessarily…
On November 1, 2004, Lisa Torti and her friend Alexandra Van Horn were involved in a car accident. Torti, apparently trying to help, dragged Van Horn from the car. Unfortunately, Van Horn’s injuries were exacerbated as a result of being moved and she ended up a paraplegic. Despite California’s long standing Good Samaritan law, Van Horn sued Torti for civil damages, and the California Supreme Court ruled that Torti was not acting within the scope of the Good Samaritan law as it was then written because she had not been administering medical care.
As these two examples demonstrate, the legal ramifications of administering emergency care aren’t always as obvious as we might think. To better understand what you should and shouldn’t do at the scene of an emergency, let’s take a closer look at the law.
Good Samaritan Legal Protection
First passed in 1980, section 1799.102(a) of California’s Health and Safety Code states that:
No person who in good faith, and not for compensation, renders emergency medical or nonmedical care at the scene of an emergency shall be liable for any civil damages resulting from any act or omission. The scene of an emergency shall not include emergency departments and other places where medical care is usually offered. This subdivision applies only to the medical, law enforcement, and emergency personnel specified in this chapter.
This was the code as considered by the Court in Torti’s case and it is not hard to understand why the Court, though sharply divided 4 to 3, would hold that Torti’s actions were not protected by the law; by its own wording, this section is directed at qualified professional Good Samaritans. However, there is more. Almost immediately after Torti lost her case, the California Legislature got to work on a revision to undo the Court’s ruling.
Expanding Coverage
Shortly after the Torti case, the Legislature added sections (b), (c), and (d) to the act which read:
(b)(1) It is the intent of the Legislature to encourage other individuals to volunteer, without compensation, to assist others in need during an emergency, while ensuring that those volunteers who provide care or assistance act responsibly.
(2) Except for those persons specified in subdivision (a), no person who in good faith, and not for compensation, renders emergency medical or nonmedical care or assistance at the scene of an emergency shall be liable for civil damages resulting from any act or omission other than an act or omission constituting gross negligence or willful or wanton misconduct. The scene of an emergency shall not include emergency departments and other places where medical care is usually offered. This subdivision shall not be construed to alter existing protections from liability for licensed medical or other personnel specified in subdivision (a) or any other law.
(c) Nothing in this section shall be construed to change any existing legal duties or obligations, nor does anything in this section in any way affect the provisions in Section 1714.5 of the Civil Code, as proposed to be amended by Senate Bill 39 of the 2009-10 Regular Session of the Legislature.
(d) The amendments to this section made by the act adding subdivisions (b) and (c) shall apply exclusively to any legal action filed on or after the effective date of that act.
While this language is somewhat convoluted, it seems clear that the legislative intent was to provide protection against civil liability for individuals in Torti’s situation; that is, legal protection for people who provide care at the scene of an emergency, even if they are not as careful in providing that care as they perhaps should be. So long as the Good Samaritan’s actions do not constitute gross negligence or willful or wanton misconduct, they should be shielded from civil liability. The scope of this protection depends on its application by the courts in individual fact situations.
What About Calling 911?
It’s important to note, that while the law discussed above seems likely to protect individuals from civil liability for providing care at the scene of an emergency, Section 1799 is completely silent on the question of criminal liability. In other words, just because you cannot be successfully sued for calling for or providing emergency help, doesn’t mean you can’t be arrested for criminal activity. If you’re struggling to think of a case in which a person might be arrested as a result of providing or seeking emergency care, think of a drug overdose situation.
Worse than Car Accidents
According to 2009 statistics, drug overdoses are responsible for a larger number of unintentional deaths in California each year then car accidents. Part of the problem is the aversion many drug users have to calling for help during an overdose. Imagine that someone you know is part of a group getting high at a friend’s house over the weekend. Suddenly Johnny goes into convulsions. Struggling to think through the haze, your friend runs for the phone and starts dialing for help. Then he remembers, calling 911 won’t just bring an ambulance, it’ll bring the cops too.
911 Good Samaritan
Put into effect in January of 2013, Section 11376.5 of California’s Health and Safety Code provides protection for just this kind of scenario by giving limited immunity against criminal prosecution for individuals who call 911 seeking help for an overdose emergency. People who fall under the law, which has a number of restrictions, such as the requirement that the individual is only protected from criminal liability for personal drug use, not drug distribution, will not be arrested or charged as a result of their intoxication or as a result of the presence of drugs or paraphernalia discovered only because they called 911 to help themselves or a friend.
The Bottom Line
Ultimately, whether or not you provide assistance at the scene of an emergency is up to you; at least in California, there is no law compelling individuals to help each other. There are some exceptions for certain professionals who are “on duty” and for certain medical facilities or business operations, but no general duty to help exists. However, most of us feel a moral obligation to do whatever we can at the scene of an accident or other emergency. The laws described above are designed to protect individuals from legal liability for actions taken under this moral obligation; even actions which, in hindsight, ultimately made things worse.
That being said, it’s a good idea not to act outside the scope of your training or experience unless there are no other options. If you’re not trained to administer emergency care, let someone who is take the lead. When the assistance of trained professionals is not available, leaving the immediate care of the injured party up to you, try to think through your actions and gauge whether what you’re planning to do actually makes sense. Just because an emergency is afoot doesn’t mean you can act with total impunity but the law will support your good faith effort to provide needed emergency help.