This is a discussion across medblogs with my fellow emergency physician: GruntDoc. The discussion centers on the recent California Supreme Court ruling (PDF) in Van Horn (Plaintiff/Appellant) v. Torti (Cross-Defendant/Respondent). The ruling was a reversal of Torti’s summary judgment by the lower court. Torti asserted that she was entitled to the tort immunity granted by California’s Health & Safety Code 1799.102, and any injury Van Horn sustained as a result of her failure to exercise reasonable care was immunized (against liability). The case will now go forward in the lower court because Torti was found not to be entitled to summary judgment. Whether or not Torti’s action were negligent has yet to be determined by a jury.
Statutes Have Text and Context
From the majority opinion (emphasis added):
Our primary duty when interpreting a statute is to “determine and effectuate” the Legislature’s intent…our first task is to examine the words of the statute, giving them a commonsense meaning…[i]f the language is clear and unambiguous, the inquiry ends.
However, a statute’s language must be construed in context, and provisions relating to the same subject matter must be harmonized to the extent possible…[w]ith these principles of statutory construction in mind, we turn to the language of the provision.
California’s EMS Act (emphasis added)
1797.1. The Legislature finds and declares that it is the intent of this act to provide the state with a statewide system for emergency medical services by establishing within the Health and Welfare Agency the Emergency Medical Services Authority, which is responsible for the coordination and integration of all state activities concerning emergency medical services.
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.
The Supreme Court found that a textual and contextual analysis of the State’s EMS Act affords no specific immunity for Torti. Without a specific statutory immunity Torti’s actions are subject to the common law of torts.
Common Law Liability
Restatement (Second) of Torts, § 314 provides that “[t]he fact that the actor realizes or should realize that action on his part is necessary for another’s aid or protection does not of itself impose upon him a duty to take such action.”
Restatement (Second) of Torts, § 315 There is no duty so to control the conduct of a third person as to prevent him from causing physical harm to another” absent a “special relation” between the actor and the third person.
Restatement (Second) of Torts § 324A One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if:
- his failure to exercise reasonable care increases the risk of such harm, or
- he has undertaken to perform a duty owed by the other to the third person, of
- the harm is suffered because of reliance of the other or the third person upon the undertaking.
The Supreme Court found that Torti had, in addition to no specific statutory immunity, no duty to rescue Van Horn, but when she accepted the duty to rescue that she also accepted the obligation to conduct the rescue with reasonable care. This is a trialable fact, and the reason for the Supreme Court’s voiding of the summary judgment from the lower court.
Retort
GruntDoc has adopted the minority opinion, which asserts that the rules of statutory construction are only to be exercised when they result in a finding consistent with one’s presumption. The presumption here is that there exists in the United States a “Good Samaritan” law that covers with immunity the actions of all rescuers. No such law exists! The United States is a common law country. Where there are no constitutional protections, statutory provisions or case law precedents the common law prevails. Statutory provisions are always linked and interpreted in the context of the Legislature’s intent. In this case, statutory immunities were conferred in the context of the State’s EMS Act to its EMS personnel acting within the provisions of the Act.
Should statutory immunity be created for the lay rescuer? Perhaps, but our society has not spoken in the clear language of law to this effect. Our society has not looked at the ramifications of extending immunity to all actions conducted in good faith. The suggested fault in this ruling doesn’t lie with the law, the courts or the lawyers. It lies with the public and the misperception that we have lost something we never had.
A man was going down from Jerusalem to Jericho, when he fell into the hands of robbers. They stripped him of his clothes, beat him and went away, leaving him half dead with no clothes. A priest happened to be going down the same road, and when he saw the man, he passed by on the other side. So too, a Levite, when he came to the place and saw him, passed by on the other side. But a Samaritan, as he traveled, came where the man was; and when he saw him, he took pity on him. He went to him and bandaged his wounds, pouring on oil and wine. Then he put the man on his own donkey, took him to an inn and took care of him. The next day he took out two silver coins and gave them to the innkeeper. “Look after him,” he said, “and when I return, I will reimburse you for any extra expense you may have.” Which of these three do you think was a neighbor to the man who fell into the hands of robbers? The expert in the law replied, “The one who had mercy on him.” Jesus told him, “Go and do likewise.”
Many a sermon has been made on why the priest and the Levite passed the man by. Perhaps, it was because they knew they had no contextual immunity…
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IANAL, IANAP. I’m just a guy that has stopped at the site of accidents in the past and tried to help to the best of my ability and may do so in the future.
The only thing I can say is that if the Court’s interpretation is correct, then the law is wrong and must be changed.
It is also idiotic to think that we would have a law that applies to the most dire emergencies when people must act rather than call their lawyers in their cell phones, and that this law would make hair-splitting distinctions between interventions that could be considered medical in nature and those that may not be.
The dissent talks about the dicotomy of medical vs. non-medical interventions. The justice does not go far enough. The interpretation of the majority is even more perverse because it affects the responder’s judgment about what to do in an emergency.
As a simple example from an area I know a little bit about, imagine one from scuba diving: You rescue a buddy that has had an accident underwater. He’s alive on the surface but as you are swimming him to the boat realize that he’s not breathing. You can can try to resucitate in the water (try it, it’s not easy), or you may decide that you can get him to help in a couple of minutes, but if you stop, put yourself in a position to do mouth-to-mouth, and attempt to do so, thus slowing progress because you are fighting waves, can’t signal the boat to get closer, and can’t even see it most of the time because of the waves, thus risking swimming in circles; let’s say it will take 20-30 minutes. What do you do? Well, obviously, according to the their Honors you start to resucitate, since that’s a medical procedure and you can’t get sued for doing it. Damn the patient, right?
The legislature wrote a law to prevent people from worrying about being sued for trying to help others.
“The presumption here is that there exists in the United States a “Good Samaritan” law that covers with immunity the actions of all rescuers.”
I make no such claim. The law was written specifically to deal with that legal situation. The law does not specify medical emergencies and there is no sound reason to create this arbitrary distinction that the court has pulled out of thin air. Many states do have Good Samaritan laws to prevent the application of common law. If this were an accepted part of common law, there would not be much reason to add this, if the intent is to encourage people to help others. If the intent is not to encourage people to help others, what is the intent?
There is no specification of any level of training.
There is no specification of any type of emergency, such as a medical emergency.
Two restrictions. The omission of emergency medical facilities. The requirement to act in good faith.
As for it being within the EMS act, EMS has been known to move people on occasion. In what way does leaving a person in a hazardous situation promote EMS in California?
If it were written, “in order to increase extrication time, only medical treatment shall be covered,” then there would be some validity to the majority opinion. Oddly, the legislature did not write that.
What good reason would there be to protect incompetence when performing CPR, but not when moving a person from a possible danger?
If you wish to argue whether the legislature should have written a Good Samaritan law, that is a different debate. They did write the law. It probably is too broad, but limiting Good Samaritan coverage to medical treatment, does not make the law better.
The intent of the law is to not discourage a person from acting in an emergency. It is not to have them research any possible related law, consider the placement of the law, and consult with an attorney, before acting.
Simple clear direct language was used to accomplish that goal. Anything other than simple clear direct language would indicate something else.
Rogue
You have basically restated GruntDoc’s argument and the Court’s minority and dissenting opinion — which are textual arguments. The majority opinion follows the rules of statutory construction. The Legislature wrote California’s EMS Act with full knowledge of these rules and with the intent to create limited and special immunity for those serving in the State’s EMS system. Monday morning quarterbacking doesn’t improve with age — especially after 28 years.