Good Samaritan law

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A statue by François-Léon Sicard representing the Good Samaritan's rescue of an injured traveler

Good Samaritan laws are laws or acts in some cases obliging people to give reasonable assistance to those who are injured, ill, in peril, or otherwise incapacitated (duty to rescue),[1] and in all cases protecting people who do so against legal action.[1] The protection is intended to reduce bystanders' hesitation to assist, for fear of being sued or prosecuted for unintentional injury or wrongful death.

An example of the obligation to help a person is the Argentina law on "abandonment of persons", Articles 106-108 of the Argentine Penal Code, which include the provision in Article 106 "a person who endangers the life or health of another, either by putting a person in jeopardy or abandoning to their fate a person unable to cope alone who must be cared for ... will be imprisoned for between 2 and 6 years".[2]

An example of legal protection without obligation to act: in common-law areas of Canada a good Samaritan doctrine is a legal principle that prevents a rescuer who has voluntarily helped a victim in distress from being successfully sued for 'wrongdoing'. Its purpose is to keep people from being reluctant to help a stranger in need for fear of legal repercussions should they make some mistake in treatment.[3]

Good Samaritan laws vary from jurisdiction to jurisdiction, as do their interactions with various other legal principles, such as consent, parental rights and the right to refuse treatment. Most such laws do not apply to medical professionals' or career emergency responders' on-the-job conduct, but some extend protection to professional rescuers when they are acting in a volunteer capacity.

The principles contained in good Samaritan laws more typically operate in countries in which the foundation of the legal system is English Common Law, such as Australia.[4] In many countries that use civil law as the foundation for their legal systems, the same legal effect is more typically achieved using a principle of duty to rescue.

Good Samaritan laws take their name from a parable found in the Bible, attributed to Jesus, commonly referred to as the Parable of the Good Samaritan which is contained in Luke 10:25-37. It recounts the aid given by a traveler from the area known as Samaria to another traveler of a conflicting religious and ethnic background who had been beaten and robbed by bandits.[5]

Contents

United States

The details of good Samaritan laws/acts in various jurisdictions vary, including who is protected from liability and in what circumstances.[6] Not all jurisdictions provide protection to laypersons, in those cases only protecting trained personnel, such as doctors or nurses.[7]

Common features

In some jurisdictions, unless a caretaker relationship (such as a parent-child or doctor-patient relationship) exists prior to the illness or injury, or the "good Samaritan" is responsible for the existence of the illness or injury, no person is required to give aid of any sort to a victim. Good Samaritan statutes in the states of Minnesota and Vermont do require a person at the scene of an emergency to provide reasonable assistance to a person in need.[8] This assistance may be to call 9-1-1. Violation of the duty-to-assist subdivision is a petty misdemeanor in Minnesota and may warrant a fine of up to $100 in Vermont. At least five other states, including California and Nevada, have seriously considered adding duty-to-assist subdivisions to their good Samaritan statutes.[9] New York's law provides for immunity for those who assist in an emergency.[10] The public policy behind the law is:

The furnishing of medical assistance in an emergency is a matter of vital concern affecting the public health, safety and welfare. Prehospital emergency medical care, the provision of prompt and effective communication among ambulances and hospitals[,] and safe and effective care and transportation of the sick and injured are essential public health services.
—N.Y. Public Health L. § 3000.[11]

Good Samaritan provisions are not universal in application. The legal principle of imminent peril may also apply.[12] In the absence of imminent peril, the actions of a rescuer may be perceived by the courts to be reckless and not worthy of protection. To illustrate, a motor vehicle collision occurs, but there is no fire, no immediate life threat from injuries and no danger of a second collision. If someone, with good intentions, causes injury by pulling the victim from the wreckage, a court may rule that good Samaritan laws do not apply because the victim was not in imminent peril and hold the actions of the rescuer to be unnecessary and reckless.[13][14]

Only first aid provided without intention of reward or financial compensation is covered. Medical professionals are typically not protected by good Samaritan laws when performing first aid in connection with their employment.[15] Some states make specific provisions for trained medical professionals acting as volunteers and for members of volunteer rescue squads acting without expectation of remuneration.[10][16] In Texas, a physician who voluntarily assisted in the delivery of an infant, and who proved that he had "no expectation of remuneration", had no liability for the infant's injuries due to allegedly ordinary negligence; there was "uncontroverted testimony that neither he nor any doctor in Travis County would have charged a fee to [the mother] or any other person under the circumstances of this case."[17] It was significant that the doctor was not an employee of the attending physician, but was only visiting the hospital and had responded to a "Dr. Stork" page, and had not asked or expected to be paid.[17]

If a responder begins rendering aid, he must not leave the scene until it is necessary to call for needed medical assistance, a rescuer of equal or higher ability takes over, or continuing to give aid is unsafe.[18] The responder is not legally liable for any harm to the person assisted, as long as the responder acted rationally, in good faith and in accordance with their level of training.[19]

Consent

The responder must obtain the consent of the patient, or of the legal guardian of a patient who is a minor, unless this is not possible; failing to do so may attract a charge of assault or battery. All "Good Samaritans" must state their level of training if previously trained.[citation needed]

Implied consent

Consent may be implied if an unattended patient is unconscious, delusional, intoxicated or deemed mentally unfit to make decisions regarding their safety, or if the responder has a reasonable belief that this was so; courts tend to be very forgiving in adjudicating this, under the legal fiction that "peril invites rescue" (as in the rescue doctrine).[20] The test in most jurisdictions is that of the 'average, reasonable person'. To illustrate, would the average, reasonable person in any of the states described above consent to receiving assistance in these circumstances if able to make a decision?

Consent may also be implied if the legal parent or guardian is not immediately reachable and the patient is not considered an adult.

Parental consent

If the victim is a minor, consent must come from a parent or guardian. However, if the legal parent or guardian is absent, unconscious, delusional or intoxicated, consent is implied. A responder is not required to withhold life-saving treatment (e.g., CPR or the Heimlich maneuver) from a minor if the parent or guardian will not consent. The parent or guardian is then considered neglecting, and consent for treatment is implied by default because neglect has been committed. Special circumstances may exist if child abuse is suspected (the courts will usually give immunity to those first responders who report what they reasonably consider to be evidence of child abuse or neglect, similar to that given to those who have an actual duty to report such abuse, such as teachers or counselors).[21]

Laws for first responders only

In some jurisdictions,[which?] good Samaritan laws only protect those who have completed basic first aid training and are certified by health organizations, such as the American Heart Association, or American Red Cross, provided that they have acted within the scope of their training.[22] In these jurisdictions, a person who is neither trained in first aid nor certified, and who performs first aid incorrectly, can be held legally liable for errors made. In other jurisdictions any rescuer is protected from liability so long as the responder acted rationally.[citation needed] In Florida, paramedics and EMTs are protected statutorily from liability, unless they were reckless.

Canada

In Canada, good Samaritan acts are a provincial power. Each province has its own act, such as Ontario[23] and British Columbia's[24] respective good Samaritan acts; Alberta's Emergency Medical Aid Act;[25] and Nova Scotia's Volunteer Services Act[26] Only in Quebec, a civil law jurisdiction, does a person have a general duty to respond, as written in the Quebec Charter of Human Rights and Freedoms.[27][28]

An example of a typical Canadian law is provided here, from Ontario's Good Samaritan Act, 2001, section 2:

Protection from liability 2. (1) Despite the rules of common law, a person described in subsection (2) who voluntarily and without reasonable expectation of compensation or reward provides the services described in that subsection is not liable for damages that result from the person's negligence in acting or failing to act while providing the services, unless it is established that the damages were caused by the gross negligence of the person. 2001, c. 2, s. 2 (1).[29]

Manitoba, New Brunswick, and Nunavut do not have Good Samaritan laws.

Europe

Laws in North America mainly shield from liability those who choose to help in a situation they did not cause; laws in much of Europe and other countries criminalize failure to help in such a situation:[30] people in such countries who do not help someone in peril may be prosecuted.[31][32]

Comparison with duty to rescue

Good Samaritan laws may be confused with the duty to rescue, as described above. U.S. and Canadian approaches to this issue differ. Under the common law, good Samaritan laws provide a defence against torts arising from the attempted rescue. Such laws do not constitute a duty to rescue, such as exists in some civil law countries,[33] and in the common law under certain circumstances. However, the duty to rescue where it exists may itself imply a shield from liability; for example, under the German law of "Unterlassene Hilfeleistung" (an offense not to provide first aid when necessary), a citizen is obliged to provide first aid when necessary and is immune from prosecution if assistance given in good faith turns out to be harmful. In Canada, all provinces with the exception of Quebec operate on the basis of English Common Law. Quebec operates a civil law system, based in part on the Napoleonic Code, and the principle of duty to rescue does apply.[34]

To illustrate a variation in the concept of duty to rescue, in the Canadian province of Ontario, the Occupational Health and Safety Act provides all workers with the right to refuse to perform unsafe work. There are, however, specific exceptions to this right. When the "life, health or safety of another person is at risk," then specific groups, including "police officers, firefighters, or employees of a hospital, clinic or other type of medical worker (including EMS)" are specifically excluded from the right to refuse unsafe work.[35]

In popular culture

A Good Samaritan law was featured in the May 1998 series finale of the popular NBC situation comedy Seinfeld, in which the show's four main characters were all prosecuted and sentenced to one year in jail for making fun of (rather than helping) a fat man who was getting robbed at gunpoint.[36] In reality, while Massachusetts (where the fictional crime was committed) does have a law requiring passersby to report a crime in progress, the most stringent punishment the characters could have suffered under those circumstances would have been a $500–2,500 fine (assuming they were prosecuted under state law); in addition, the phrase "good Samaritan law," when used in Massachusetts, refers only to the civil law definition and does not have any actual relevance to the law under which Jerry Seinfeld and his friends were prosecuted (which would be considered a duty to rescue).[37]

See also

References and notes

  1. ^ a b DAN Legal Network: The Good Samaritan Law across Europe
  2. ^ Argentine Penal Code laws regarding crimes against the person (Spanish) Original of text translated in the article: "el que pusiere en peligro la vida o la salud de otro, sea colocándolo en situación de desamparo, sea abandonando a su suerte a una persona incapaz de valerse y a la que deba mantener o cuidar o a la que el mismo autor haya incapacitado, será reprimido con prisión de 2 a 6 años".
  3. ^ "Canadian Law website 1". http://www.canadianlawsite.ca/goodsamaritan.htm. Retrieved 2008-10-16. 
  4. ^ Gulam H, Devereaux J (2007). "A brief primer on Good Samaritan Law for health care professionals". Aust Health Rev (31): 478–482. http://www.aushealthreview.com.au/publications/articles/issues/ahr_31_3_0807/ahr_31_3_478.asp. 
  5. ^ Good Samaritan. (n.d.). Merriam-Webster's Dictionary of Law. Retrieved January 09, 2010, from Dictionary.com website: http://dictionary.reference.com/browse/Good+Samaritan
  6. ^ The laws include: Maryland Courts and Judicial Proceedings Code § 5-603; Virginia Code § 8.01-225.
  7. ^ "Good Samaritan Statutes (Medi-smart website)". http://www.medi-smart.com/gslaw.htm. Retrieved 2008-10-17. 
  8. ^ "Vermont Good Samaritan Law". http://www.cprinstructor.com/VT-GS.htm. Retrieved 2008-10-17. 
  9. ^ Lyons, Donna (1999-03-01). "Help Your Neighbor—It’s the Law". State Legislatures. Archived from the original on September 7, 2007. http://web.archive.org/web/20070907234121/http://www.ncsl.org/programs/pubs/399HELP.HTM. Retrieved 2008-10-20. 
  10. ^ a b N.Y. Public Health L. §§ 3000-a, 3000-b, 3013 (McKinney 2000); see also NY State Assembly website database of law. Accessed April 8, 2009; last accessed July 25, 2011.
  11. ^ N.Y. Public Health L. § 3000 (McKinney 2000); see also NY State Assembly website database of law. Accessed July 25, 2011.
  12. ^ "What is the Good Samaritan Law? (essortment website)". http://www.essortment.com/all/goodsamaritanl_redg.htm. Retrieved 2008-10-16. 
  13. ^ "Good samaritan law may not apply (USA Today)". 2007-03-23. http://www.usatoday.com/news/nation/2007-03-23-samaritan-accident_N.htm. Retrieved 2008-10-17. 
  14. ^ See also, California Supreme Court decision in Van Horn vs. Torti, December 18, 2008, with a similar fact pattern and limitation of protection to medical personnel rendering medical aid.
  15. ^ "RCW 4.24.300 Immunity from liability for certain types of medical care (Washington State Legislature website)". http://apps.leg.wa.gov/RCW/default.aspx?Cite=4.24.300. Retrieved 2008-10-17. 
  16. ^ "Colorado Good Samaritan Law". http://home.mesastate.edu/~jerry/gmnc/Colorado%20Good%20Samaritan%20Law.htm. Retrieved 2008-10-17. 
  17. ^ a b McIntyre v. Ramirez, 109 S.W.3d 741 (Tex. Sup. Ct. 2003), overturning 59 S.W.3d 821 (Tex. Ct. of Appeals) and citing Tex. Civ. Prac. & Rem. Code § 74.001 (effective in 1998, and since amended), found at Texas Courts website. Accessed July 25, 2011.
  18. ^ This can be as simple as a lack of adequate protection against potential diseases, such as vinyl, latex, or nitrile gloves to protect against blood-borne pathogens. A responder is never legally compelled to take risks to aid another person.
  19. ^ Rolfsen ML (2007). "Medical care provided during a disaster should be immune from liability or criminal prosecution". The Journal of the Louisiana State Medical Society : official organ of the Louisiana State Medical Society 159 (4): 224–5, 227–9. PMID 17987961. 
  20. ^ "Implied Consent (Lawdictionary.com website)". http://dictionary.law.com/default2.asp?selected=904&bold=. Retrieved 2008-10-17. 
  21. ^ Foltin GL, Lucky C, Portelli I, et al. (June 2008). "Overcoming legal obstacles involving the voluntary care of children who are separated from their legal guardians during a disaster". Pediatric emergency care 24 (6): 392–8. doi:10.1097/PEC.0b013e318178c05d. PMID 18562886. 
  22. ^ "Good Samaritan/Fireman's Rule (Connecticut State Legislature website)". http://www.cga.ct.gov/lrc/recommendations/GoodSamaritanFiremansRuleFinalRpt.htm. Retrieved 2008-10-17. 
  23. ^ "Good Samaritan Act, S.O., 2001 (Ontario E-laws website)". http://www.search.e-laws.gov.on.ca/en/isysquery/d9dc707e-281a-473f-af21-6a407eb94c43/1/frame/?search=browseStatutes&context=. Retrieved 2008-10-10. 
  24. ^ "Good Samaritan Act [RSBC 1996 CHAPTER 172 (British Columbia Queen's Printer website)"]. http://www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/00_96172_01. Retrieved 2008-10-10. 
  25. ^ "Emergency Medical Aid Act (Alberta Queen's Printer website". http://www.qp.gov.ab.ca/Documents/acts/E07.CFM. Retrieved 2008-10-10. 
  26. ^ "Volunteer Services Act 'Good Samaritan' RSNS 1989 (amend. 1992) (Nova Scotia Legislature website)". http://www.gov.ns.ca/legislature/legc/statutes/volnteer.htm. Retrieved 2008-10-10. 
  27. ^ "Quebec Charter of Rights and Freedom". Éditeur officiel du Québec. http://www2.publicationsduquebec.gouv.qc.ca/dynamicSearch/telecharge.php?type=2&file=/C_12/C12_A.HTM. Retrieved 2012-07-18. 
  28. ^ "Good Samaritan Law from The Canadian Association of Food Banks". Canadian Association of Food Banks (via Internet Archive). Archived from the original on 2007-12-17. http://web.archive.org/web/20071217050919/http://www.cafb-acba.ca/english/GetInvolved-GoodSamaritanLaw.html. Retrieved 2008-10-20. 
  29. ^ "Good Samaritan Act, 2001 ©Queen's Printer for Ontario, 2005". http://www.canlii.org/on/laws/sta/2001c.2/20051114/whole.html. Retrieved December 26, 2005. 
  30. ^ Benac, Nancy (1997-09-05). ""Good Samaritan Laws" Common in Europe but Rare in America". Wisconsin State Journal: p. 7.A. ISSN 0749405X. http://proquest.umi.com/pqdweb?did=55007354&sid=3&Fmt=3&clientId=20886&RQT=309&VName=PQD. Retrieved 2010-01-07.  (Registration Required)
  31. ^ http://www.pbs.org/newshour/bb/law/july-dec97/french_9-3.html
  32. ^ http://www.gesetze-im-internet.de/stgb/__323c.html
  33. ^ Higuchi N (March 2008). "[Good Samaritan Act and physicians' duty to rescue"] (in Japanese). Nippon Hoshasen Gijutsu Gakkai zasshi 64 (3): 382–4. PMID 18434681. http://joi.jlc.jst.go.jp/JST.JSTAGE/jjrt/64.382?from=PubMed. [dead link]
  34. ^ "Canadian Law website 2". http://www.canadianlawsite.ca/goodsamaritan.htm. Retrieved 2008-10-16. 
  35. ^ "Occupational Health and Safety Act, R.S.O. (1990) (Ontario E-laws website)". http://www.search.e-laws.gov.on.ca/en/isysquery/1b20e47b-33e4-49e7-a525-b268f053d236/4/frame/?search=browseStatutes&context=. Retrieved 2008-10-10. 
  36. ^ James, Caryn (1998-05-15). "'Seinfeld' Goes Out in Self-Referential Style". New York Times. pp. B1. http://www.nytimes.com/1998/05/15/arts/television-review-seinfeld-goes-out-in-self-referential-style.html. Retrieved 2008-10-20. 
  37. ^ "Footnote TV's Mirror Law analysis of the Seinfeld finale and Massachusetts' Good Samaritan Law". http://www.footnotetv.com/ftvseinfeldindex.html#goodsamaritan. Retrieved August 12, 2009. 

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