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It was shocking and painful to listen to. A 911 operator in California pleads with a caller to administer CPR to an elderly woman who had collapsed to the floor. The caller, a nurse by profession if not compassion, refuses to render aid citing company policy at the independent living center. The elderly woman died.
There was a good chance she would have died anyway, since only about one in four CPR recipients survive, but the incident has sparked a firestorm of concern and condemnation as well as calls for legislation requiring we render assistance to a fellow citizen in need. While many of us remember how the final episode of “Seinfeld” illustrated the penal consequences of refusing to aid an endangered neighbor under a fictional statute, the fact is that few laws exist which actually require you to be a good Samaritan.
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“Conscience is man’s moral medicine chest.” - Mark Twain (1835-1910) |
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New Mexico requires a citizen to assist a peace officer when requested to do so, and makes it a misdemeanor crime to refuse, but I could locate nothing that creates an affirmative general duty to help a distressed neighbor. California’s nursing licensing board has expressed concern that their licensee may have failed to react properly in the recent incident, and certainly there may be civil law consequences – claims for damages – from her refusal to render aid while paramedics were on the way, but it does not appear that any criminal offense occurred. The employer has defended its policy to call 911 and wait, pointing out that all residents of the independent living center in question were informed of and agreed to this policy.
Some have defended the nurse’s inaction, and the employer’s policy in general on the grounds that active intervention might have resulted in civil liability. While few jurisdictions have laws requiring one to render aid in an emergency, most have enacted laws which limit or exclude liability in damages for those who choose to be good Samaritans. New Mexico has two statutes which address rescuers or good Samaritans. The first is titled “Persons coming to aid or rescue of another” which was enacted in the early 1960s and the much more recent Cardiac Arrest Response Act created in 1999.
As the titles might suggest, the first is a more general good Samaritan law while the second applies to more limited circumstances involving heart attacks. In emergency circumstances – defined as motor-vehicle collisions, acts of God, or other accidents or events – a person who renders assistance to the victim in good faith and at or near the scene is immune from anything less than gross negligence. This immunity does not apply where the circumstances call for payment to be made to the rescuer for services rendered, so professional responders must still adhere to professional standards.
In an apparent legal conundrum, it should be noted that New Mexico has substantially narrowed the concept of gross negligence generally, raising the question of what type of conduct by a rescuer might override this immunity. I suspect that, at least, it would have to be reckless, willful or wanton evidencing a serious disregard for the victim, to surpass the statutory immunity protection.
The Cardiac Arrest Response Act, in contrast, is much narrower and applies specifically to use of defibrillator machines in emergency response to a heart attack.
Over the last decade or so, technological advances have made defibrillators smaller than a briefcase. They are quickly becoming available in public buildings, airplanes, businesses, and even private homes. The act requires that the owner of a defibrillator machine and anyone who may use the machine must be trained under a physician’s supervision in accord with a nationally recognized training plan, and that the machine must be properly maintained.
Further, the defibrillator must be registered with the Department of Health and local 911 authorities. The 911 system must be immediately notified if the machine is activated. If the conditions of the act are met, the owners of both the machine and the property it is used on, the training physician, and the actual rescuer are immune from a claim for civil damages so long as they behaved in good faith.
Most jurisdictions have enacted laws such as New Mexico’s which essentially immunize those who choose to render aid in an emergency. One could ask if, given legal immunity from damages, there is any good reason a licensed health-care provider would refuse to assist the victim of an emergency. The answer lies in each individual’s conscience. But, should society take the next step of requiring us to stop and help our neighbors at the risk of civil or criminal penalties?
Many say we cannot legislate morality or conscience, but that 911 call sure is painful to listen to. You can “Judge for Yourself.”
Alan M. Malott is a judge of the 2nd Judicial District Court. Before joining the court, he practiced law throughout New Mexico for 30 years and was a nationally certified civil trial specialist. If you have questions, send them to Judge Malott, P.O. Box 8305, Albuquerque, NM 87198 or email to: alan@malottlaw.com. Opinions expressed here are solely those of Judge Malott individually and not those of the court.
— This article appeared on page 15 of the Albuquerque Journal
