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#108056 - 12/18/08 08:28 PM CA Supreme Court allows good Samaritans to be sued
Amtrak Offline
member

Registered: 01/08/02
Posts: 140
Looks like you need lots of insurance if you try and help someone in California.
Link - LA Times
Surely the legislature will override this. Yes?

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#108057 - 12/19/08 06:16 AM Re: CA Supreme Court allows good Samaritans to be sued [Re: Amtrak]
Pika Online   content
member

Registered: 12/08/05
Posts: 1735
Loc: Rural Southeast Arizona
If the newspaper article is at all accurate, the decision will certainly make me think twice before I offer assistance. Prior experience will support my decision.

Forty years ago, I was named in a lawsuit for going to the assistance of a young man who had slid over 1000' down a steep snow slope into a pile of avalanche debris. He was jammed and contorted into a hole in a mess of broken trees and snow, head down and bleeding. I sent his hysterical girl friend to get help with a note describing the situation. I chose to move him, carefully and with her help, because in my opinion he was near death where he was. When Mountain Rescue arrived, the guy was still alive though badly injured. He survived his injuries though he suffered permanent mobility loss and had a long slow recovery from brain damage.

Five months later, an attorney brought suit, proposing that my moving him was reckless and that my action worsened his injuries. Of course, the attorney was not there so his opinion was considerably strengthened by his ignorance. At any rate, I gave a deposition about what I had done and described the emergency medical training I had received as a medic with the 6th SF when I was in the Army. A judge dismissed the suit as having no merit and also cited the Washington State Good Samaritan law. It still cost me over $500 in attorneys fees at a time when I was a poor graduate student and $500 was a lot more than it is now. It also soured me considerably on lawyers even though my brother was one.

Now, knowing of the decision recently rendered in California, if I encountered a similar situation I would have just gone for help myself. Of course, if the situation was like the one in the example above, the guy would likely have died before help arrived but we'll just chalk that up to legal progress.
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#108058 - 12/19/08 07:45 AM Re: CA Supreme Court allows good Samaritans to be sued [Re: Pika]
phat Offline
Moderator

Registered: 06/24/07
Posts: 4107
Loc: Alberta, Canada
I've always been suspect of the good samaritan laws: It's interesting up here, because every province has it's own good samaritan law, Alberta's reads:
Quote:

2 If, in respect of a person who is ill, injured or unconscious as the result of an accident or other emergency,

(a) a physician, registered health discipline member, or registered nurse voluntarily and >without expectation of compensation or reward renders emergency medical services or first aid assistance >and the services or assistance are not rendered at a hospital or other place having adequate medical facilities and equipment, or

(b) a person other than a person mentioned in clause (a) voluntarily renders emergency first aid assistance and that assistance is rendered at the immediate scene of the accident or emergency,

the physician, registered health discipline member, registered nurse or other person is not liable for damages for injuries to or the death of that person alleged to have been caused by an act or omission on his or her part in rendering the medical services or first aid assistance, unless it is established that the injuries or death were caused by gross negligence on his or her part.


The scary part about that is that

a) it specifically says only first aid assistance - which isn't defined. If I find you having fallen down a cliff and
move you rather than treat you in place, is that still first aid? Is pulling you out of a crevasse first aid, or
should I instead be trying to merely keep you warm futilely instead of pulling you out.

b) has that caveat of "gross negligence"

So in spite of it all you can get drawn into a costly legal battle just as pika was.

It gets more interesting in Quebec, which has french Napoleanic code instead of english common law as the
basis for civil stuff - in Quebec you have duty to rescue - in other words you are required to render assistance
to the best of your ability.

While It would all make no difference in how I'd act in helping someone, it still disturbs me - I don't have things like former army medic training to fall back on if it came to that in court.


Edited by phat (12/20/08 03:20 PM)
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#108084 - 12/20/08 09:13 AM Re: CA Supreme Court allows good Samaritans to be sued [Re: Amtrak]
scottyb Offline
member

Registered: 05/28/08
Posts: 278
Loc: Texas Hill Country
Quote:
Surely the legislature will override this. Yes?


We are talking about California here. This is a very slippery slope and sets the tone for others to follow suit.

As a rescue diver for a powerboat racing association, I have witnessed 1st hand (on the stand), their very liberal interpretaions of issues such as "waivers of liability". Now, I have to worry about being sued for pulling a crash victim out of a sunken boat before he drowns, for fear of causing other injuries.
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Just because you don't take an interest in politics doesn't mean politics won't take an interest in you.... Pericles (430 B.C)

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#108104 - 12/20/08 03:19 PM Re: CA Supreme Court allows good Samaritans to be sued [Re: scottyb]
Rick_D Offline
member

Registered: 01/06/02
Posts: 2802
Loc: NorCal
I'm in Calif and have taken ARC first aid many times. We're always told to first announce to the victim we've had first aid or CPR training and would they permit us to render assistance, before providing any aid.

If they refuse, then don't aid. If they accept you should be okay so long as you operate within guidelines--follow your training. And a guideline is to not move somebody suspected of having a spinal injury unless there's a more imminent threat, e.g., fire. The assumption is that paralysis is preferable to burning to death.

There's also implied consent. An unconscious adult or any minor is presumed by law to have provided implied consent. Again, any aid provided needs to be prudent--within training guidelines. Interestingly, if a conscious person refuses help and then passes out, implied consent is thereby given.

I don't find myself the least concerned by this recent ruling, as it doesn't seem as though the person assisting was trained. I won't worry about assisting anybody, so long as I follow the ARC training.

Legislation can address this in the future, but I'm not convinced it's needed based on this case.

My $0.02

Originally Posted By scottyb
Quote:
Surely the legislature will override this. Yes?


We are talking about California here. This is a very slippery slope and sets the tone for others to follow suit.

As a rescue diver for a powerboat racing association, I have witnessed 1st hand (on the stand), their very liberal interpretaions of issues such as "waivers of liability". Now, I have to worry about being sued for pulling a crash victim out of a sunken boat before he drowns, for fear of causing other injuries.


Edited by Rick_D (12/20/08 03:23 PM)
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#108123 - 12/20/08 08:28 PM Re: CA Supreme Court allows good Samaritans to be sued [Re: Rick_D]
scottyb Offline
member

Registered: 05/28/08
Posts: 278
Loc: Texas Hill Country
I agree with everything you said. I am trained as a rescue diver to perform an underwater rescue and have done so on 4 occasions, with mixed outcomes. However, my point is, this is a typical case where a CA judge, or in this case, State Supreme Court, obscures and twists the intent. This type of bench legislation follows true with the states color, red or blue, and opens the door for ambulance chasers.

My dealings were in San Diego. I was not a party in the suit but it still forced me to acquire an umbrella policy to protect my ass(ets), to be able to volunteer as a recue diver.

_________________________
Just because you don't take an interest in politics doesn't mean politics won't take an interest in you.... Pericles (430 B.C)

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#108126 - 12/21/08 01:20 AM Re: CA Supreme Court allows good Samaritans to be sued [Re: Amtrak]
AussieBushwalker Offline
member

Registered: 08/24/08
Posts: 45
Loc: Sydney, Australia
Decisions like this are very concerning. As a human I feel compelled to aid someone in distress from an accident. Having to think twice before rendering assistance in a life threatening situation is not a decision I would like to make.

Down on this side of the globe we don't have a "Good Samaritan" law as such. Our laws are based (like Canada) on English common law but after a couple of ridiculous lawsuits (a burglar sued a home owner for injuries suffered while robbing their house) the Commonwealth and State government got together and came up with the Civil Liabilities Act (the name varies from state to state). Or as it has been nick named by some the "common sense law" (I know, I know, common sense and law in the same sentence is an oxymoron). At the core of the legislation is the concept that all activities have inherent risks that people have to accept when undertaking certain activities and those risks don't have to be obvious:
Section 5F.4
Meaning of “obvious risk”

(1) For the purposes of this Division, an obvious risk to a person who suffers harm is a risk that, in the circumstances, would have been obvious to a reasonable person in the position of that person.

(2) Obvious risks include risks that are patent or a matter of common knowledge.

(3) A risk of something occurring can be an obvious risk even though it has a low probability of occurring.

(4) A risk can be an obvious risk even if the risk (or a condition or circumstance that gives rise to the risk) is not prominent, conspicuous or physically observable.


From a hiking perspective the Civil Liabilities Act has been very useful as it significantly limits the liability of walk leaders and their clubs as long as they follow a few simple steps. To the best of my knowledge the few cases where legal action has been taken against leaders/clubs (which actually means against the insurance companies) the action has failed.

Interstingly, when I did my first aid certificate we were advised that if we did render assistance we are required to continue to provide assistance until a rescue/paramedic arrived to take over patient care. If we failed to provide continuing care then we are negligent. Someone mentioned before about if someone refuses treatment. We down here are in a similar boat, if the patient refuses care then we cannot proceed. The only exclusion is if the person is unconscious. Our first aid trainer joked that legally we were better off if the patient was unconscious.

Interseting point by one the dissenting judges:
"One who dives into swirling waters to retrieve a drowning swimmer can be sued for incidental injury he or she causes while bringing the victim to shore, but is immune for harm he or she produces while thereafter trying to revive the victim," Baxter wrote for the dissenters.
I agree with this judge it just doesn't make sense.

I say again I would not like to have to stop and think will I get sued for helping, very scary.

Cheers,
Michael.

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