19 February 2012

Liability Shield Laws - The Consequences of Mixed Intentions," published 19 Feb. 2012

Jonathan C. Goldfield, EMARI Legal Advisor
Attorney at Law (Massachusetts)
Twitter @JCGAtty
Jon is an alpine patroller at SkiBradford.

Law Note: Shield Law Variations
Published in: the EMARI Newsletter February 4,2012  at page 21

Introduction. There are unsettled variations of Good Samaritan Acts -- also called “liability shield laws." Despite national and local efforts to standardize volunteer and governmental protection through federal and state legislation, the emerging legal gray area appears due to an unplanned intersection of the traditional liability shield law and a hybrid class of business-oriented immunity statutes for non-professional rescuers. A third tier of shield laws emerged after the Emergency Medical Services Systems Act passed in 1973 when Congress committed funds to create regional EMS systems. Specialized shield laws were enacted over time to protect EMS and other rescue workers.

To frame the current issue, it is a fair observation that technology often develops faster than our social and legal systems. Consider e-mail. We eventually learned that it is better to sleep on a hot “Reply all” e-mail rather than instantly flame a colleague (well, usually). Likewise, the Good Samaritan Laws have a history and function of protecting volunteers. The Good Samaritan was the accidental rescuer who had no duty to act, but nonetheless reacted to an emergent situation on a moral imperative. Courts are now reading the liability shield laws together with other shield statutes passed to save lives and promote the use of new technologies, AED’s for example. Unfortunately, there are inherent conflicts among those two sets of laws.

 Level of protection. Civil liability shield laws vary in degree of protection because each may have a combination of elements, including special exemptions or requirements uniquely perceived by the constituencies in each state. As a general framework, review several typical elements: Emergency (medical) care is provided, in good faith, for which there is no compensation, and for which there is the absence of gross negligence, willful misconduct (intentional harm), or wanton (reckless) misconduct. (See, OEC 5th Ed., pp. 15-17 for further explanation.[1] http://www.bradybooks.com/store/product.aspx?isbn=0135074800)

Legislative Intent.  Congress and state legislatures may include several types of legal tools in a shield law to protect rescuers. The law may have clauses that stop a lawsuit from being filed in the first place by eliminating the basis for the suit (the “cause of action”) as a matter of law, or creating an “affirmative defense” that gives the rescuer a legal basis to argue why the lawsuit should be dismissed based on a retroactive view of the facts as applied to that rescuer. The typical Good Samaritan Law is a retroactive affirmative defense. Other legislative mechanisms include allowing classes of rescuers to have limited governmental immunity and capping damages.

Congress and some forward-thinking states have enacted laws that seek to avoid the chilling effect that the concern for potential litigation and damage awards can have on rescuers. A 2011 study, Emergency Response: Civil Liability of Volunteer Health Professionals by the Congressional Research Service gives a history and status of the “patchwork” of volunteer liability shield and related laws across the country.[2] Response: Civil Liability of Volunteer Health Professionals

Analysis. What are some examples of the inconsistencies that exist regarding a non-Emergency Medical Services (EMS) worker’s legal duty to apply an AED? What protection do ski patrollers have?

1. Massachusetts.
Massachusetts has several liability shield statutes. The waters get murky when the non-EMS rescuer has legal protections built into a law defining the operation of a business, such as those governing the provision of AED’s in gyms and health clubs; both Massachusetts and Rhode Island (comprising our EMARI Region) have such AED statutes.

Discussion: In September 2011, a Massachusetts, a trial court considered two statute sections that go to the root of volunteer rescuer protection versus professional rescuer shield statutes:  Mass. Gen. Laws, ch. 93, § 86 [3] "Actions for damages or other relief; actions involving use or non-use of defibrillator." conditionally bars causes of action against health clubs and its employees for AED use or non-use in health clubs, and Mass. Gen. Laws, ch. 112, § 12V [4] "Exemption of certain individuals rendering emergency cardiopulmonary resuscitation from civil liability" is the Massachusetts volunteer Good Samaritan Law.

The health club/AED scenario is a now somewhat infamous due to the number of suits filed across the country, and the issue turns on whether the trained and certified employee had a duty of care to use an AED in addition to CPR. In the Massachusetts suit, Strong v. Noel Management Corp. [5],the club’s trained AED agent started immediate treatment of a racquetball player who suffered a heart attack. The employee ordered others to call 9-1-1 and watch for arrival of the ambulance, he administered CPR, but did not employ an available AED. The patient died six days later.

The trial court concluded that under the case facts and the statutes presented,

“there is no duty imposed upon non-emergency medical care ('EMS') third party interveners to utilize an AED. While it may be most prudent to have such devices readily available and to have non EMS personnel trained in how to use such devices, the law does not affix liability upon such persons for not using the same.”

The court finds its basis for dismissal in the “No Duty” clauses of the two statute sections. It does not grapple with the logic in another section of the health club/AED law requiring AED equipment and trained personnel in one section, and no duty to use the AED in another: Ch. 93 §78A: “A health club shall have on the premises at least 1 AED… and shall have in attendance during staffed business hours at least 1 employee or authorized volunteer as an AED provider…”[6] "Health clubs to have AED and AED provider on premises"  We will see what happens when a similar clause is addressed in two New York cases below.

The Massachusetts trial judge’s explanation of 'non emergency medical care’ from the volunteer Good Samaritan law[7] id. fn 4. raises issues relevant to ski patrollers. As patrollers, we are not generally EMS personnel [8] "EMS Personnel; good faith performance of duties; limitation on personal liability". The volunteer Good Samaritan law applies to an individual whose “usual and regular duties do not include the provision of emergency medical care,” where conversely, a ski patrol member’s usual and regular duties may.

Enter Massachusetts patroller shield statute – Mass. General Laws, ch. 231, § 85I,[9] "Emergency care, etc. of injured persons by members of ski patrols; exemption from civil liability" which specifically provides a civil liability defense for National Ski Patrol System (NSP) registered patrollers acting in good faith. Because ski patrollers may be compensated, and emergency medical care is considered part of a patroller’s “usual and regular” job duties, the gross negligence and other related liability clauses present in volunteer shield laws are absent. Short answer: The Massachusetts Good Samaritan Law doesn’t really help us, but the patroller shield statute does provide a specific, affirmative defense. The legislature could make it stronger by barring certain causes of action without condition.

Example #2: Contrast the Massachusetts health club case with two different New York State Appellate Court cases. The facts are similar, but the decisions are not. In December 2011, a ruling held that a health club employee had an obligation to use an AED, and could be held liable for a patron’s death. The Court agreed that New York State General Business Law § 627-a [10] "New York General Business - Article 30 - § 627-A Automated External Defibrillator Requirements" referenced in the case applied. That law requires that AED’s and trained personnel be on-site, but it is silent whether agents or employees must use them. The Court decided that it was "illogical to conclude that no such duty exists."

Consider the Massachusetts Strong case referenced above, where a similar business law requires trained staff and equipment on-premises, but not the equipment’s use.

Because the New York Good Samaritan Laws do not exempt “emergency health care providers” i.e., trained AED operators in health clubs from “their own ordinary negligence, gross negligence, or intentional misconduct”, there was no shield from liability. (Miglino v. Bally Total Fitness of Greater New York, 2011 NY Slip Op 09603, New York Appellate Division, Second Department. Dec. 27, 2011. [11] NY Case Law: Miglino v. Bally).

Yet, one year prior in another region of New York, a different Appellate Division Court dismissed another suit where the AED was not accessed. This decision ruled that the employee's actions did not rise to the level of gross negligence, and rejected the General Business Law argument obligating the club to use the AED. Thus, the gym and employee were shielded by New York’s Good Samaritan statutes (NY State Public Health Law §§ 3000-a [12] 2010 New York Code PBH - Public Health Article 30 - (3000 - 3032) EMERGENCY MEDICAL SERVICES 3000-A - Emergency medical treatment. and 3000-b [13] 2010 New York Code PBH - Public Health Article 30 - (3000 - 3032) EMERGENCY MEDICAL SERVICES 3000-B - Automated external defibrillators: Public access providers.). In other words, there was no common-law duty to use the AED. The deceased “assumed the inherent risk of a heart attack that attends intense exercise.” (DiGiulio v. Gran Inc. d/b/a New York Health & Racquet Club, 74 AD3d 450, 453 New York Appellate Division, First Department. August 25, 2010.), and on appeal, the New York Court of Appeals agreed. (DiGiulio v Gran, Inc., 17 NY3d 765, 767 (Decided June 14, 2011).

Discussion. What shield statutes apply in your state?
Rhode Island’s Good Samaritan law [14] RI: "Good Samaritan – Immunity from liability." conditionally protects volunteers who render emergency assistance, and its CPR and AED “immunity from liability” law conditionally covers persons functioning in an official capacity or as a private volunteer [15] RI: "Administering cardiopulmonary resuscitation or automated external defibrillation – Immunity from liability.", but the business law covering health clubs conditionally bars causes of action. [16] RI: "Defibrillators." Consider reviewing the laws for each state in which you may patrol, as you can see the clauses are subtle and may have important implications for professional and volunteer patrollers.
 * Disclaimer. Standards of care and duties to act are guided by local statutes, regulations, policies, and protocols combined with standards provided through your official training. This article offers opinions of the writer, but it is not legal advice nor does it represent the opinion of EMARI, Eastern Division or the National Ski Patrol. Attorney Goldfield is licensed to practice law in Massachusetts; citations to laws in other jurisdictions are for purposes of comparison, background and discussion.
[1] Outdoor Emergency Care 5th Edition, National Ski Patrol System, Inc., 
Warren D. Bowman, Edward C. McNamara, David H. Johe, and Deborah A. Endley. Prentice Hall, ©2011.

[2]“Emergency Response: Civil Liability of Volunteer Health Professionals”, Vivian S. Chu, Legislative Attorney, Congressional Research Service, www.crs.gov R40176 Jan.19, 2011 http://www.fas.org/sgp/crs/misc/R40176.pdf
[5]  Strong v. Noel Management Corporation, Commonwealth of Massachusetts, Salem Superior Court, Essex County, Docket No. ESCV2010-00534, decided September 30, 2011.