Monday, December 22, 2008

Good Samaritan - or reckless fool?


I'm obliged to Curtis F. for e-mailing me the link to this story.

The California Supreme Court has recently ruled on one aspect of an issue that's of very real importance to all of us - whether or not we should render assistance to an injured person, or one apparently in danger, in an emergency. I've highlighted the relevant paragraph in bold print.


No good deed goes unpunished, or so goes the saying.

Such was the case with Lisa Torti, who is being sued for pulling a now-paralyzed friend from the wreckage of a Los Angeles car accident in 2004.

The victim's lawyers claim the Good Samaritan bumbled the rescue and caused injury by yanking her friend "like a rag doll" to safety.

But Torti -- now a 30-year-old interior designer from Las Vegas -- said she thought she had seen smoke and feared the car would explode. She claims she was only trying to help her friend, Alexandra Van Horn, and her own life has been adversely affected by the incident.

. . .

The California Supreme Court ruled this week that Van Horn may sue Torti for allegedly causing her friend's paralysis. The case -- the first of its kind -- challenges the state's liability shield law that protects people who give emergency assistance.

The court ruled 4-3 that only those administering medical care have legal immunity, but not those like Torti, who merely take rescue action. The justices said that the perceived danger to Van Horn in the wrecked car was not "medical."

The court majority said the 1980 Emergency Medical Service Act, which Torti's lawyers cited for protection, was intended only to encourage people to learn first aid and use it in emergencies, not to give Good Samaritans blanket immunity when they act negligently.

Van Horn's lawsuit will go on to trial court to determine if Torti is to blame for Van Horn's paralysis.

But some legal experts say the ruling may discourage people from trying to save lives.

. . .

Peter Keane, a dean emeritus and professor of law at Golden Gate Law School, said the impact of the court ruling will "be a bad one" and have repercussions in about a dozen other states that have Good Samaritan laws.

He said the ruling will force ordinary people to be "reflective" before coming to the aid of a person in an emergency.

"It's much too literal an interpretation of the immunity law for Good Samaritans," he told ABCNews.com. "Now it puts the onus on the lay person in an emergency situation to try to figure out the nuances of what medical care means, something that could subject them to liability later on."


There's a lot more to this story than I've published above - you can read all the details at the link - but the 'meat' of it is in these paragraphs.

I trained as a first aid practitioner with St. John Ambulance in South Africa during my teenage years. As an adult I've had to assist at more than a few scenes of injury, and found my training very useful. However, all of those occasions were outside the USA, where this country's tort-crazy legal system didn't apply.

I can see two sides to this dilemma. On the one hand, I'm genuinely outraged that any person trying to help another, in good faith, should be subject to legal proceedings like this. In an emergency, there's simply no time for long-winded, well-reasoned debate about whether or not to do something. I've been there, done that, and got the T-shirt to prove it. I've stood alongside smoking vehicles in the aftermath of an accident, and been all too aware that if any leaking gasoline comes into contact with a spark - or even a hot metal surface, like an exhaust - an explosion and/or fire could result. Under those circumstances, I've twice helped to remove injured people from a motor vehicle. Sure, there was a risk of exacerbating their existing injuries, and having been trained in first aid, I knew that - but what of the greater danger of incineration in a gasoline fire?

Sometimes one has to gamble on which is the greater risk. In the heat of the moment, there's no choice.

On the other hand, I can see where the court is coming from on this one. If the danger proves to have been negligible, or even non-existent, despite the impressions of those on the scene at the time that it was very real, what then? If a bystander causes further injury, or makes an existing injury worse, by getting someone out of a vehicle, when it was later determined that there was no need to do so, what's their liability? This question is particularly important if they're not medically trained and able to assess the injury(ies) concerned.

Trouble is, when one's on the scene, one doesn't have the benefit of 20/20 hindsight. After the fact, when the smoke has cleared and everyone's safe, an accident investigator can check out the scene at his/her leisure and make an informed judgment. However, just after things went pear-shaped, with all the noise and confusion and chaos, that sort of rational, reasoned approach isn't always possible. Sometimes one has to act in the heat of the moment, for fear that something worse may happen if one doesn't.

There was a case in South Africa where a driver was trapped in a burning car. No emergency vehicles had yet arrived, and he was screaming in agony as he was being burned alive. A bystander snatched a gun from the holster of another person and emptied it at the driver, trying to put him out of his agony. He waited for the police, handed over the gun, and openly stated what he'd done, and why. He was arrested and charged with murder: but an autopsy revealed that no bullets had struck the driver, who'd died of burns and smoke inhalation, so the charge was dropped.

There was widespread shock and horror at what the bystander had done . . . but let me assure you, readers, if you've ever had to watch (and even worse, hear, and smell) a person burn to death (and I have, on three occasions), you'd be sorely tempted to do likewise, as the most merciful thing possible under the circumstances. Believe it. It's true. The prosecuting authority in South Africa publicly acknowledged, in withdrawing the case, that the circumstances were 'extraordinary', and indicated that if the case had gone to trial, the charge would probably have been dropped to culpable homicide rather than murder, on those grounds.

That was an extreme incident, of course, but what about more normal circumstances, such as those described in the news report above? What's the answer? Should those trying to help, in good faith, be legally shielded from any negative consequences of their actions? Part of me says, "Not just 'Yes', but 'Hell, yes'!" - because if they're not, who's going to try to help at all? Won't it be 'safer' to leave someone to potentially die, rather than expose oneself to the risk of a lawsuit?

On the other hand, what if their good-faith efforts make things worse? What if their assessment of the risk was seriously out of whack? What if they'd been drinking, and in their less-than-fully-competent mental state, made an error of judgment?

I honestly don't know the answer. Readers, I'd love to hear your take on this in Comments, particularly those who are police, fire or EMS personnel.

Peter

13 comments:

Brad J (Kazrak) said...

Maybe she should have sued Hollywood studios for encouraging the belief that cars explode on impact.

I think that either the court or the legislature messed up here, to be honest. I'm tempted to say that it's the legislature, given that California's is less competent than most, and that's truly saying something. But I think the courts are splitting unnecessary hairs here. The law doesn't clearly specify whether non-medical care is covered under the shield law; the courts are saying that, because that clause is filed under "Emergency Medical Services" in the Health and Safety Code (it's 1799.102 if you want to look it up) it only applies to emergency medical care.

Were our legislature worth a tinker's damn, I'd expect them to fix this forthwith.

Carteach0 said...

I recall an accident I was on scene for. A girl rear ended another car, pretty badly.

I was first to the girls drivers door, and she was pretty badly shook. Probably in shock, or headed that way.

Another person wanted to pull her out, but I refused to allow it. Instead, I just stabilized her head through the shattered window and talked to her to calm her, until the pros arrived. I knew we were less than a mile from the nearest paramedic station.

She wasn't bleeding badly, and the vehicle was not in danger of catching fire and 'exploding'. Moving her was the worst thing we could have done, until it was sure she had no neck/back injuries.

The medics and fire people? They took over what I was doing.. held her head still while evaluating her. They cut off the roof and slid her straight to a board.

I have no idea what happened after that.

For some reason, I have been 'lucky' enough to be first on scene over a dozen times. Compound fractures, burning vehicles, severe inebriation, thrown from a rolling vehicle.... just lucky like that I guess. I've had a chance to use those boy scout first aid skills.

Murphy said...

I'd like to come upon a lawyer at risk of burning before I make my decision...

Brian Dale said...

Peter, you posted the following quote:
The court ruled 4-3 that only those administering medical care have legal immunity, but not those like Torti, who merely take rescue action. The justices said that the perceived danger to Van Horn in the wrecked car was not "medical."

So if you're not an expert, licensed to practice medicine, they're writing that it's not safe for you to make that decision, either. If you let your fellow Californian die in the car, then trial lawyers can't come after you. If you act like a good human being and try to help, all bets are now off.

Six years as a volunteer firefighter showed me that the effects of (for example) a car crash are outside the realm of a normal person's everyday experience. My impression is that California's judicial authority has effectively voided their Good Samaritan law. This ruling will refresh and renew the fear of personal, legal consequences that these laws were passed to remove from people's minds at the scene of an emergency.

I suppose that there will be at least a few cases in which bystanders who would previously have been inclined to act will instead wait for fire, police and EMTs to arrive and haul off the bodies.

{I won't annoy your other readers by typing out the foul language that goes here}

Anonymous said...

Just one more reason to avoid even visiting the People's Republic of Kalifornia. What a bunch of maroons.

chicopanther

Anonymous said...

The last time I hear statistics, 76 out of 100 auto accidents in CA end up in a personal injury suit. In Central PA the number is 16 out of 100. The is just another case of lawyers and their clients milking the system.

With this logic I can't defend myself because the robber might be a terrible shot and the lawyers will determine I really wasn't in danger after the fact.

Gerry

Simeron Steelhammer said...

I'm trained in first aid and CPR though I am nothing but a private citizen.

The issue I see here is straigthforward to me.

In the "heat of the moment" I have to choose between two real possibilities...

1) The person I see in trouble is going to die if nothing is done.

2) The person I see in trouble might suffer life changing trauma if I do something.


Given these two option, I face a real quandry...

1) If I do nothing, I am safe from any charges (most likely, see below) but, I may watch someone die before my eyes.

2) If I do something, I open myself up to lawsuits and possible charges but, I can for sure save the person's life.

To me, its a no brainer...you save the life. The fact that afterward you find there is no danger is irrelevant to me because, at the moment of decision, there WAS apparent danger.

Saying otherwise is like saying "Well, its the victim's fault. If they hadn't been in that bank that day the robber wouldn't have been able to shoot them."

There is no way to know at the time what the future is going to hold.

But, there have been cases where INACTION by bystanders have gotten them charged and sued also.

So go figure that one out...if you do nothing, you can be sued also for NOT giving aid...

Like you Bayou...I see no simple answer but, I feel in my heart that when all is said and done, my upbringing and belief is that you don't leave someone in danger if you can avoid doing so...whatever happens after.

One thing that I see missed here is the fact this lady that is being sued put HER life in danger by trying to save her friend. She didn't know WHEN or IF that car was going to burst into flames after all...

Sam said...

"Don't get involved" was the standard not so long ago. That stupid thought caused many to simply keep going rather than risk having to choose.
Lawyers and judges destroyed many Good Samaritan lives and warped a generation.
It appears we are headed backwards, again.

Ambulance Driver said...

Early in the 1800s, the Earth titled slightly on its axis, and all the fruits and nuts rolled to California.

Those of them with heads filled with a lighter-than-air substance quickly rose to the upper echelons of government.

And apparently, the California Supreme Court as well.

The court's decision is idiotic. It tries to insert nuance where the drafters intended none, ie, by differentiating between "medical" care by professional EMTs and such, and rescue performed by bystanders.

It's all the same thing. Doesn't matter if you're a neurosurgeon, if you are acting as a concerned bystander and not in your professional medical capacity, you are, by definition, a Good Samaritan, and as such can only be held to a "prudent layperson" standard.

Good Samaritan legislation was intended for exactly this kind of situation, and now the courts, in their own craniorectally inverted way, have succeeded in rendering in meaningless.

Professional medical responders have always been covered under other laws that define professional negligence.

Still, this decision only means that the rescuer can be sued. It probably won't be successful, in that it should be very difficult to prove the four necessary elements of negligence:

1. Duty to act. There was none.

2. Proximate cause. Can she prove she wasn't paralyzed before he pulled her from the wreck?

3. Willful deviation from the standard of care. Was pulling her from the wreck the wrong thing to do, given the circumstances as he understood them?

4. An injury occurred. That's about the only thing that can be proven, and you need to prove all four

However, this is California we're talking about, and the jury pool will be made up of Californians.

All bets are off.

William the Coroner said...

Speaking as a person with a medical license, this is why I will NEVER stop to render aid. Several malpractice carriers have made it clear that I am not an emergency medical provider, and doing anything more than calling 911 on my cell phone would void my liability coverage, and that could put me out of work.

I'm not willing to fight this battle.

raven said...

some years ago two men were trapped in a burning vehicle near where i live. Screaming in mortal agony, they begged bystanders to kill them.
No such luck. They burned. I have often wondered what I would have done, as a CCW holder, armed most of the time.

Stephen Andert said...

A similar discussion comes up in the use of deadly force for self defense.

The comment I have heard often is "I'd rather be judged by 12 (jurors) than carried by 6 (pallbearers)"

I think the same applies here, or at least will be my driving force. If I am ever in need of aid, I pray the same is true for a good samaritan that happens upon me.

Mister Medic said...

I agree with Ambulance Driver. There are too many things to prove in negligence and it looks like they only have one locked up. Personally, if someone is hurt, I will stop and help. Like most people in EMS, we got into it to help people, DEFINATELY not for the money! I have been doing this for 28 years and I have stopped lots of times to help others. Lawyers will sue you for anything, so if I have to be sued, let it be for helping someone.