Protecting those who help - and those who don't


By Steve Thorpe
Legal News

Imagine this: On an ordinary day, you suddenly find yourself surrounded by smoke and screams and people covered in blood. Instinctively, you begin to help the injured by pressing on spurting arteries and applying tourniquets on severed limbs until trained medical personnel arrive on the scene.

Imagine this: You get sued.

After explosions caused deaths and injuries in Boston and Texas recently, Americans were deluged with images of ordinary citizens pitching in to assist emergency personnel, and their efforts probably prevented the death toll from being even higher.

When a citizen tries to stop bleeding, get a piece of debris off someone, or simply keep a victim warm, what possible liability do they face if something goes wrong? And what sorts of duties and responsibilities do we have legally when an opportunity to help presents itself?

“Good Samaritan” laws are intended to protect those who assist a victim during a medical emergency. Most of the laws deal with the general public and assume that medical personnel are unavailable or have not yet arrived. The laws get their name from the “Parable of the Good Samaritan” in the New Testament, which describes assistance by a traveler from Samaria to another traveler who has been beaten and robbed by bandits.

“If something happened like, say, the marathon bombings, and someone on the street who saw the explosion immediately responded and tried to stop the bleeding of someone who had been injured by applying a tourniquet and did it incorrectly because they didn’t have medical expertise and the victim ends up dying or being harmed as a consequence of that intervention, I think most courts are going to consider that to be ordinary care,” says Prof. Lance Gable of Wayne State University Law School. “They did the best that they could under the circumstances. It’s very unlikely that a court is going to find that person negligent.”

In Michigan, on the other hand, no legal requirement exists that you provide assistance and you are protected if you don’t.

“Under common law liability provisions, you don’t have a responsibility to help anyone,” says Gable. “There’s a general ‘no duty’ rule. If you see someone injured, you don’t have to help, even if you easily could. If you stood there and watched and did nothing, you wouldn’t be liable. That’s the common law rule, as calloused as it sounds.”

There is a rainbow of laws in Michigan that provide limited protections to individuals as varied as health club personnel, “block parent volunteers,” members of the national ski patrol, and “good faith volunteers,” as long as gross negligence was not involved. Even physicians or their assistants who perform physicals for those who engage in competitive sports have some form of liability protection.

All 50 states have the laws, but they vary widely from state to state and the international variations can be even more dramatic. Some also emphasize the responsibility of the bystander, as well as offering protections. The principles contained in Good Samaritan laws are prevalent in countries where the legal system is based on English Common Law. In countries where civil law is the foundation for the legal system, there is often a “duty” to act as a rescuer.

That duty becomes even more pressing in countries like Argentina, where the law on “abandonment of persons” says that “a person who endangers the life or health of another, either by putting a person in jeopardy or abandoning to their fate a person unable to cope alone who must be cared for ... will be imprisoned for between 2 and 6 years.”

One statute gives immunity from liability to a variety of medical personnel and first responders “unless an act or omission is the result of gross negligence or willful misconduct,” has occurred, but is silent on average citizens.

“As far as I know, the statute itself only covers medical personnel,” Gable says. “That doesn’t necessarily mean that other individuals who respond are going to be subjected to extensive liability because they helped.”

Gilda Jacobs, now president and CEO of Michigan League for Public Policy but a former state senator, was instrumental in sponsoring and helping pass bills that mandated automated external defibrillators in health clubs and helped protect individuals who used them to try and save lives.

“The genesis of the defibrillator bills was when a gentleman who lived in my district had a heart attack at a local YMCA,” Jacobs said. “There was not a defibrillator close by and he ended up dying.” 

Although requiring the devices was the primary thrust of the measure, she said that the goal was also to protect the rescuer.

“We wanted to be sure that, at a minimum, we had some broader bills that defibrillators would be available at health clubs because they’re very simple to use and any individual who can read can figure out what to do to save a life,” Jacobs said.  “The liability issue came up and it was my feeling that I wanted to have the Good Samaritan law protect that individual who would step up and try to save somebody’s life. They should not be worried about liability.”

Jacobs said that the state is unlikely to embrace a “duty to act” requiring bystanders to get involved.

“That doesn’t exist in Michigan and, quite honestly, would be harder to sell to the legislature,” she said.

Experts are not totally in agreement on what constitutes safe behavior for a rescuer, but certain basics become apparent:

• Be “reasonable.” If something you do is what a reasonable person would do, your protection is stronger.

• Don’t try to do things you’re not trained for or are not knowledgeable about.

• Try to summon professional medical help and, as soon as they arrive, turn the situation over to them.

• Do not accept gifts or rewards from anyone for your actions.

That “reasonableness” and knowing your limitations are the most important mental components.

“Usually the laws are not descriptive in terms of what ‘reasonableness’ would require in any situation,” said Prof. Mark Dotson of Cooley Law School. “The situation dictates what reasonable people should do. Those recommendations would go to toward someone being reasonable. Don’t do anything that you’re ill qualified to do.”

When bystanders act in the heat of the moment and their intentions are good, courts are more likely to accept that behavior.