Thursday, December 25, 2008

The Good Samaritan Hesitates

Today's Los Angeles Times has an opinion piece by Patt Morrison well-timed for the holiday season: "No Room for a Good Samaritan":

Uh, gentlemen? You three wise men? As your lawyer, I'm advising you not to go there.

No question, the family really needs help, especially with a newborn and all. But why take a chance? And the gifts? Honestly, you might just be opening yourselves up to a lawsuit. Frankincense? Myrrh? Somebody might be allergic. You know what those Roman attorneys say: abundans cautela non nocet -- better safe than sorry.

Crazy notion, isn't it?

Back then, certainly. Maybe not now. The California Supreme Court has given fresh meaning to "no good deed goes unpunished." It ruled last week that a woman who yanked a co-worker from a crashed car four years ago, and may have made her injuries worse, can be sued because what she did wasn't medical care.

The 4-3 decision goes to the heart of another biblical reference: the good Samaritan.

It was Halloween 2004 when several co-workers took two cars to go out for a night on the town. After one car, the second car stopped. Its passenger, Lisa Torti, leaped out to help. Torti, who said she thought the wrecked car was about to catch fire, grabbed Alexandra Van Horn and pulled her out.

Pulling her out "like a rag doll" allegedly made Van Horn's spinal injuries worse. The court's ruling allows Van Horn, now a paraplegic, to sue Torti. It also indicates that the provision that shields good Samaritans from liability, enacted by the Legislature in 1980, applies only to people giving medical care in an emergency.

There's a stink about this, and there should be. The implications for all of us are enormous. It's another chilling effect in a society where we're already freezing each other out.You don't dare hug a hurting child who's not your own -- someone might call you a molester and call the cops. You don't ever apologize for anything, even if it's your fault; you'd be laying the groundwork for a lawsuit.

And now, when you see an accident or a crime, what will pop into your mind? "I have to help"? Or, "Will I get sued for trying to help?" Whatever your inner Samaritan is telling you, your inner Lawyer might be suggesting you just drive on past.

If everyone feels this way, we could be damaging a social compact that's deeply rooted -- the impulse to help others in trouble, even strangers. [....]

The California Supreme Court's ruling (4-3) is here. I'm in accord with the following from Rod Brouhard, which is more or less the position of the dissenting opinion:

California's Good Samaritan Law is part of Division 2.5 of California's Health and Safety Code. Among other things, Division 2.5 covers emergency medical services for the state. Because of that, the appellate court plugged the word "medical" where it doesn't exist.

From Division 2.5 of the California Health and Safety Code:

1799.102. No person who in good faith, and not for compensation, renders emergency 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.

According to the ruling, the existence of the word "medical" in the last sentence, and the statute's location near other sections regarding emergency medical services means that only medical care is covered by the law.

Why is that important? Because of the court's decision that moving a victim to a safer location is not medical care.

From the decision, written by Justice H. Walter Croskey:

"There may be circumstances in which moving someone from their current location is a matter of medical exigency, such as where a carbon monoxide poisoning victim needs to be moved to a source of fresh air. We do not hold that the act of moving a person is never the rendition of emergency medical care, only that it was not in this case."

The problem with this thinking is that untrained rescuers - the very population this law is intended to protect - are supposed to make a determination as to whether the care they are rendering is medical in nature in order to benefit from Good Samaritan protection.

The California Supreme Court heard arguments on this case and agreed with the appellate court -- barely. In a 4 to 3 split decision, the Supreme Court paved the way for Alexandra van Horn, the injured accident victim, to sue her rescuer, Lisa Torti.

An important point: the 3 justices in the minority felt that while Torti may have made mistakes bad enough to be sued, they didn't see any reason to completely reinterpret the law. I agree, and wish at least one more justice had sided with them.

The next time I'm lying in a car, unable to move, I want a Good - nay, Great - Samaritan to pull me free of the burning mass of twisted metal. Even if it turns out, as it may in this case, that the smoke was just from the airbags being deployed.

I teach, and will continue to teach, that positioning and location are part of medical care at the scene of an emergency. I don't know if the defendant in this case jumped the gun, but she - and all the other potential Good Samaritans to come after her - deserve to have this ruling overturned.

For more discussion, see here, here, and here.


Blogger Jim Milles said...

Not a significant point, I suppose, but part of the problem here is the myth we've learned from movies: crashed cars always explode. In fact, they almost never do. So it is very likely correct that the victim would have been better off on the car until emergency assistance arrived.

12/26/2008 4:37 AM  

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