The California Supreme Court Holds that Good Samaritans Providing Nonmedical Aid Can Be Held Liable If They Act Negligently
By ANTHONY J. SEBOK
|Tuesday, Jan. 13, 2009|
The California Supreme Court recently held that a person rendering nonmedical aid is not immune from liability in tort under the state's "Good Samaritan" law, which the Court held applies only to persons providing medical aid. The decision has garnered a significant amount of commentary, most of it negative. In this column, I will defend the policies that lay behind the Court's decision.
On one level, the decision in Watson v. Torti is simply a matter of statutory interpretation. But on another level, the California Supreme Court made a decision about the incentives that tort law can and should provide.
The Facts, the Lawsuit, and the Statute at Issue
The case arose from a car accident. Lisa Torti, Alexandra Van Horn, and three other friends spent Halloween evening smoking marijuana and drinking. At 1:30, their group left a bar in two cars. The car in which Van Horn was a passenger struck a light pole at 45 mph. The car in which Torti was a passenger stopped. Torti got out, and removed Van Horn from the car in which Van Horn still sat. Torti claimed later that she did so because she believed that Van Horn's car would catch fire or explode.
Van Horn suffered permanent paralysis. She brought a suit alleging negligence on the part of both the driver of the car in which she was a passenger, and Torti. Specifically, Van Horn claimed that Torti dragged her out of the car "like a rag doll" and exacerbated the back injuries the accident had caused.
The trial judge dismissed the suit against Torti, on the grounds that California's "Good Samaritan" law immunized her from suit. That law – codified as California's Health and Safety Code section 1799.102 -- "immunizes any "person who . . . renders emergency care at the scene of an emergency . . ." from liability for civil damages. The trial judge, applying the plain language of the statute, noted that Torti had indeed rendered care in an emergency, and held that therefore, Van Horn could not sue her.
The California Supreme Court's Decision
The California Supreme Court, in a 4-3 decision, reversed the trial judge's decision. Justice Moreno, writing for the majority, held that the Good Samaritan law implicitly referred to emergency medical care, not all emergency care. He thus reasoned that, since Torti was not providing medical care (but was just removing her friend Van Horn from a car), she ought to be required to respond to Van Horn's suit.
Of course, the California state legislature could have made things simpler for everyone if it had used the word "medical" (assuming that is really what the legislature meant). However, but Justice Moreno was confident that the placement of the Good Samaritan law in a section of the California Code that concerned emergency medical services was sufficient evidence of the legislature's tacit intent to restrict the law's application to the context of emergency medical services.
In partial dissent, Justice Baxter and two other justices argued that there was no justification for the majority's choice to insert language into the statute that was not there.
That is a pretty good argument, but Justice Baxter's stronger argument in support of his dissent is prudential, not linguistic. He pointed out that the majority's interpretation of the Good Samaritan law made no sense. It meant, in effect, that California was dividing failed rescues into two types: incompetent medical rescues and incompetent nonmedical rescues. Under that division, if Torti had killed Van Horn by botching CPR or attempting a well-intentioned but disastrous "do it yourself" tracheotomy, she could not be sued – despite the fact that she is not a doctor or nurse. In contrast, she could be sued for breaking Van Horn's arm while dragging her out of a car, even if that car really was on fire. In other words, under the majority's approach, certain extremely careless—even reckless--conduct would be immunized, while certain borderline negligent lifesaving conduct would not.
Justice Baxter makes a good point, but it points in the direction precisely opposite to the one he intended. Justice Baxter thinks that the inconsistency he identified points towards immunizing all well-intentioned rescuers, regardless of whether they were providing medical aid or not, to incentivize rescues like pulling someone out of a burning car. However, I think his observation raises a serious question about why any Good Samaritan should be immunized—for example, even my colorful (and unlikely) example of a rescuer performing a well-intentioned but disastrous "do it yourself" tracheotomy--especially when the rescuer has no medical training.
The Risk The Majority's Approach Raises – and the Reason Blanket Tort Immunity for Rescuers May Be a Bad Idea
Moreover, the facts of the Watson case reinforce my point. Both Justices Moreno and Baxter ignore the events leading up to Van Horn's injuries, which is appropriate given the posture of the appeal. But a moment's reflection reveals the potential of mischief in cases exactly like Watson.
According to the record, Torti and her friends had spent the hours before her attempted rescue effort getting high and drinking. Frankly, even if Torti were a board-certified neurosurgeon, I am not sure that I would have wanted her to provide medical care to Van Horn in her intoxicated state. Given that she was not, in fact, a medical professional, I don't think we would want to encourage her to attempt medical procedures on Van Horn no matter how well-intentioned she was, or how much she loved her friend, if indeed she was high or drunk. Finally, if she were high or drunk, I would not want to encourage her to attempt any non-medical rescues either, especially if her friend's back was injured. Torti's judgment that the car in which Van Horn sat was about to explode may have been sincere, but if she was not completely sober, how reliable was it?
From a prudential perspective, based on concerns like these, I am inclined to think that California should be wary of providing blanket tort immunity to rescuers attempting either medical or non-medical aid. But, as Justice Baxter argues, that is just what the Good Samaritan law does. So what is the prudential argument for limiting its scope, if the prudential argument for eliminating the law entirely is a dead end, given the law currently on the books?
The Argument for Differentiating Between Medical and Non-medical Rescuers
There is an argument for limiting the statute's scope – and it is based on the fact that the common law provides non-medical rescuers with an extra level of protection that it does not provide to medical rescuers.
On one hand, it is hornbook negligence law that, without the kind of immunity sought under California's Good Samaritan law, a jury would be instructed to evaluate Torti's conduct under the emergency circumstances in which she found herself. A driver who rear-ends another car in heavy fog is judged "under the circumstances" of heavy fog. Similarly, a person attempting to remove another while smoke is billowing from a car is judged "under the circumstances" of an emergency. On the other hand, a person who falsely believes that he or she is acting under the circumstances of an emergency because he or she is drunk or high could not—and should not—be evaluated under that more lenient standard.
On the other hand, it is much more difficult to imagine a jury to evaluate a medical procedure "under the circumstances" of an emergency. Medical professionals are trained to take into account the pressures that accompany emergencies when they evaluate and select among treatment options. I am not sure what it would mean to instruct a jury to evaluate a defendant's effort at CPR "under the circumstances" of an emergency. In addition, I am not sure that such an instruction would add anything to the jury's procedures. And I know for certain that I have never seen a case or treatise discuss the possibility of weakening the standard of care against which medical professionals are evaluated given the circumstance of an emergency.
If I am right about the foregoing, it might make sense to offer medical professionals immunity for their medical efforts in a rescue, since most, if not all gratuitous medical services offered by Good Samaritans arise during emergencies. The California legislature could have made the judgment that, absent this additional promise of protection, medical professionals simply would not provide gratuitous emergency care.
But I am still disturbed by a point raised by Justice Baxter, albeit inadvertently. As the Watson case notes, the standard of care under which emergency medical care is evaluated is identical for both medical professionals and amateurs. Do we really want to encourage amateurs to provide medical services in emergencies?
Even if amateurs are not intoxicated, they may simply be out of their league. And, worse, it is in emergency circumstances when they may be least able to make the judgment that they are, in fact, out of their league. They may want to urgently to help a friend, and in the confusion of the moment, may misjudge their own abilities to do so.
Granted, I am not sure that limiting the immunity in the Good Samaritan law to only medical professionals (or persons with medical training) would ultimately dissuade well-intentioned but incompetent Good Samaritans from attempting botched medical aid. In an emergency, the law may also be far from anyone's mind. However, it seems to me that giving laypersons immunity is taking a step in the wrong direction. Instead, I think it would make more sense to place nonmedical professionals providing gratuitous medical aid in the same category the California Supreme Court placed Torti, which is to allow them to be sued, and then to defend their acts by saying that they acted reasonably "under the circumstances" of a genuine emergency.