Now if you have been following the dialog across medblogs with GruntDoc, you’ll notice the major theme of whether California’s EMS Act confers certain tort immunity generally or specifically. Generally, in terms of applying to the general population. Specifically, in terms of applying to a specific population (i.e., the EMS practitioners defined in the EMS Act). Granted, what we think and believe in 2008 has merit, but it does not necessarily speak to legislative intent. It has been suggested that “no person who in good faith,” from a textual read, can only mean everyone, generally, in the state. What did the Legislature really say? (emphasis added)
California Health & Safety Code, Division 2.5 Emergency Medical Services, Chapter 9. Liability Limitation
1799.100 In order to encourage local agencies and other organizations to train people in emergency medical services, no local agency, entity of state or local government, or other public or private organization which sponsors, authorizes, supports, finances, or supervises the training of people, or certifies those people, excluding physicians and surgeons, registered nurses, and licensed vocational nurses, as defined, in emergency medical services, shall be liable for any individual damages alleged to result from those training programs.
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.
- No physician or nurse, who in good faith gives emergency instructions to an EMT-II or mobile intensive care paramedic at the scene of an emergency, shall be liable for any civil damages as a result of issuing the instructions.
- No EMT-II or mobile intensive care paramedic rendering care within the scope of his duties who, in good faith and in a nonnegligent manner, follows the instructions of a physician or nurse shall be liable for any civil damages as a result of following such instructions.
1799.105.
- A poison control center which
- meets the minimum standards for designation and established by the authority pursuant to Section 1798.180,
- has been designated a regional poison control center by the authority, and
- provides information and advice for no charge on the management of exposures to poisonous or toxic substances, shall be immune from liability in civil damages with respect to the emergency provision of that information or advice, for acts or omissions by its medical director, poison information specialist, or poison information provider as provided in subdivisions (b) and (c).
- Any poison information specialist or poison information provider who provides emergency information and advice on the management of exposures to poisonous or toxic substances, through, and in accordance with, protocols approved by the medical director of a poison control center specified in subdivision (a), shall only be liable in civil damages, with respect to the emergency provision of that information or advice, for acts or omissions performed in a grossly negligent manner or acts or omissions not performed in good faith. This subdivision shall not be construed to immunize the negligent adoption of a protocol.
- The medical director of a poison control center specified in subdivision (a) who provides emergency information and advice on the management of exposures to poisonous or toxic substances, where the exposure is not covered by an approved protocol, shall be liable only in civil damages, with respect to the emergency provision of that information or advice, for acts or omission performed in a grossly negligent manner or acts or omissions not performed in good faith. This subdivision shall neither be construed to immunize the negligent failure to adopt adequate approved protocols nor to confer liability upon the medical director for failing to develop or approve a protocol when the development of a protocol for a specific situation is not practical or the situation could not have been reasonably foreseen.
1799.106. In addition to the provisions of Section 1799.104 of this code and of Section 1714.2 of the Civil Code and in order to encourage the provision of emergency medical services by firefighters, police officers or other law enforcement officers, EMT-I, EMT-II, or EMT-P, a firefighter, police officer or other law enforcement officer, EMT-I, EMT-II, or EMT-P who renders emergency medical services at the scene of an emergency shall only be liable in civil damages for acts or omissions performed in a grossly negligent manner or acts or omissions not performed in good faith. A public agency employing such a firefighter, police officer or other law enforcement officer, EMT-I, EMT-II, or EMT-P shall not be liable for civil damages if the firefighter, police officer or other law enforcement officer, EMT-I, EMT-II, or EMT-P is not liable.
1799.107.
- The Legislature finds and declares that a threat to the public health and safety exists whenever there is a need for emergency services and that public entities and emergency rescue personnel should be encouraged to provide emergency services. To that end, a qualified immunity from liability shall be provided for public entities and emergency rescue personnel providing emergency services.
- Except as provided in Article 1 (commencing with Section 17000) of Chapter 1 of Division 9 of the Vehicle Code, neither a public entity nor emergency rescue personnel shall be liable for any injury caused by an action taken by the emergency rescue personnel acting within the scope of their employment to provide emergency services, unless the action taken was performed in bad faith or in a grossly negligent manner.
- For purposes of this section, it shall be presumed that the action taken when providing emergency services was performed in good faith and without gross negligence. This presumption shall be one affecting the burden of proof.
- For purposes of this section, “emergency rescue personnel” means any person who is an officer, employee, or member of a fire department or fire protection or firefighting agency of the federal government, the State of California, a city, county, city and county, district, or other public or municipal corporation or political subdivision of this state, or of a private fire department, whether such person is a volunteer or partly paid or fully paid, while he or she is actually engaged in providing emergency services as defined by subdivision (e).
- For purposes of this section, “emergency services” includes, but is not limited to, first aid and medical services, rescue procedures and transportation, or other related activities necessary to insure the health or safety of a person in imminent peril.
1799.108.
Any person who has a certificate issued pursuant to this division from a certifying agency to provide prehospital emergency field care treatment at the scene of an emergency, as defined in Section 1799.102, shall be liable for civil damages only for acts or omissions performed in a grossly negligent manner or acts or omissions not performed in good faith.
California Civil Code
- In order to encourage citizens to participate in emergency medical services training programs and to render emergency medical services to fellow citizens, no person who has completed a basic cardiopulmonary resuscitation course which complies with the standards adopted by the American Heart Association or the American Red Cross for cardiopulmonary resuscitation and emergency cardiac care, and who, in good faith, renders emergency cardiopulmonary resuscitation at the scene of an emergency shall be liable for any civil damages as a result of any acts or omissions by such person rendering the emergency care.
- This section shall not be construed to grant immunity from civil damages to any person whose conduct in rendering such emergency care constitutes gross negligence.
- In order to encourage local agencies and other organizations to train citizens in cardiopulmonary resuscitation techniques, no local agency, entity of state or local government, or other public or private organization which sponsors, authorizes, supports, finances, or supervises the training of citizens in cardiopulmonary resuscitation shall be liable for any civil damages alleged to result from such training programs.
- In order to encourage qualified individuals to instruct citizens in cardiopulmonary resuscitation, no person who is certified to instruct in cardiopulmonary resuscitation by either the American Heart Association or the American Red Cross shall be liable for any civil damages alleged to result from the acts or omissions of an individual who received instruction on cardiopulmonary resuscitation by that certified instructor.
- This section shall not be construed to grant immunity from civil damages to any person who renders such emergency care to an individual with the expectation of receiving compensation from the individual for providing the emergency care.
In context, California’s EMS Act clearly is about the creation of a statewide system for emergency medical services. It is about the amalgamation of 58 counties and well over 1,000 agencies into a systematized response where none previously existed. Qualified immunity (supra), specifically defined, was offered by the Legislature as a quid pro quo for participation in this statewide system. To suggest that these statutes offer general and unqualified immmunity for a lay rescuer 24 years later shreds a literal (textual only) read to nonsense. If you believe that § 1799.102 is generally applicable to all rescuers, then §§ 1799.104-108 are clearly superfluous and begs the question why the Legislature was so sloppy? How did such sloppiness, unnecessary redundancy and potentially ambiguous language pass legislative counsel muster? Perhaps, the majority opinion in Torti (PDF) got it right. And, perhaps this feign at general immunity was just good defense counsel tactics.
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Hm. It looks to me like section 102 is written to apply to off-duty professionals and to nonprofessionals at the scene of an emergency. All the other sections speak to professional rescuers and other elements of the EMS, acting in their professional capacities.
(By ‘professional,’ I mean someone who has accepted a duty to respond to a call for aid, so an unpaid member of a volunteer ambulance squad would be considered a ‘professional’ in this context.)
Viewed through that lens, the superfluity of sections 104 et seq. is explained. And, if my argument holds any water, the recent court decision that sparked this whole kerfuffle is flawed.
I would like to see section 102 amended, however. Forcefully yanking a person with a potential spinal injury out of a vehicle may constitute gross negligence, and should be determined at trial. Section 102, if appllicable, doesn’t include the “gross negligence” exemption from immunity that the sections on professional rescuers all contain. But that’s a legislative problem.
In all other sections, the certification/license level was specified. In 102, it is No person who in good faith, and not for compensation. Apparently, the wording of this chapter means something different from what you think it means, or the wording is just inconsistent with the rest of the Chapter’s wording.
Is there reason to believe that every part of the law required quid pro quo? Hardly.
I was not in California in 1980. I was in San Francisco at the time of the San Francisco earthquake. This was a point of discussion at the time, and later with the riots after the first Rodney King verdict. I do not remember anyone suggesting that this was only applying to EMS.
If someone suggested, as the 4:3 majority has, that this only applied to medical care at medical emergencies, they would have been laughed at, since there is no way to confine the actions of EMS to only medical care or only medical emergencies.
Unrelated to the rest of the chapter? A chapter that deals with encouraging involvement with emergency care? While it does not mention any level of medical training, actually seems to exclude those with medical training, it does encourage involvement.
It could be more specific, but it appears to be very clear. No limitation on the people involved, except that they must be uncompensated and acting in good faith. No limitation on the type of emergency. The only restriction on location of the emergency is emergency departments and other places where medical care is usually offered.
Then there is the constant reference to this as a Good Samaritan law. That is what it was called, when I was in California, so not just a 2008 interpretation. While there are hospitals and EMS organizations named after this parable, the parable had nothing to do with professional EMS.
The Good Samaritan was an parable for everyone.
No compensation
plus
Good faith
plus
Emergency
equals
Good Samaritan.
“Pod Person”
If 102 is to apply to “nonprofessionals,” then it would appear there was no quid pro quo, where participation in the creation of a statewide EMS system was brokered with specific and qualified immunity for those participating. If it is generally applied, as you suggest, there was no value to the Legislature’s offering. Legislation is all about compromises and constituency politics. It is easy to suggest that with 2008-eyes, but not with a 1980-mindset. Besides, your interpretation is inconsistent with the rest of the Chapter’s intent.
Rogue
The purpose of 102 is to describe the basis of immunity: emergency care, emergency scene
“Emergency care” in the context of the EMS Act and this chapter is that care rendered by the participant in the statewide EMS system. The historical situation can not be dismissed. The Legislature wanted to create something from many entities, many of which disliked each other and the State most of all. They wanted something on the table for them to play—immunity was “something.” It it goes to everyone, then it has no value—no value, no play, quid pro quo. If everybody has immunity, then there is no reason to join the statewide system. Same thing with police and firefighting, they are given certain immunities that are part-and-parcel with the job. Off the job, they don’t get those immunities.
This was a case in the news where the media didn’t get it or they just wanted to be sensational. Really no story here (this has been the law for 28 years, albeit, widely misunderstood and misinterpreted). I think it was just the defense counsel doing its job—trying whatever to get their client off. Good lawyering, bad reporting.
I also was in California for the Loma Prieta earthquake. I also was trained as an EMT-I and did my emergency medicine residency in the state. I also served on the State’s EMS Commission for 9 years. I understand what you’re saying—but disagree, the EMS Act is very clear in text and must be interpreted in context (which the majority did).