Medical Malpractice Litigation and the New Hampshire Good Samaritan Statute

By Mark A. Abramson and Jared R. Green

I. Introduction:

Like most states, New Hampshire has a statute that immunizes physicians from liability for acts or omissions in the course of emergency care. The vast majority of states with similar statutes have construed them to be inapplicable where the physician has a preexisting duty to provide emergency care. The rationale for this is that immunity should only apply where the physician’s act is totally voluntary. Our Supreme Court has never had an opportunity to interpret the New Hampshire statute but it is likely to follow the majority rule.

II. New Hampshire's Good Samaritan Statute:

New Hampshire's Good Samaritan statute applicable to doctors, R.S.A. 329:25, immunizes from civil liability any licensed physician "who, in good faith, renders emergency care at the scene of an emergency without making any charge therefor . . ."

It appears that the New Hampshire Supreme Court has never interpreted R.S.A. 329:25, or any other Good Samaritan statute for that matter.

III. Interpretation of Good Samaritan Statutes in Other States:

In spite of broad language similar to that found in R.S.A. 329:25, "[c]ourts have generally held that Good Samaritan statutes do not apply to persons having a pre-existing duty to render aid, often reasoning that the added inducement of statutory immunity is not necessary to encourage them to provide the emergency care."

The first court to consider whether a Good Samaritan statute applied to one with a preexisting duty of care was the Alaska Supreme Court in Lee v. State. In that case, the court was faced with the question whether a police officer who came to the aid of a woman who was attacked by a lion at an amusement park was entitled to immunity under the Alaska Good Samaritan statute, which is very similar to New Hampshire’s act.

The court began its analysis by identifying the legislative intent in enacting Good Samaritan immunity. According to the court, the purpose of such statutes "is to induce voluntary rescue by removing the fear of potential liability which acts as an impediment to such rescue. Thus they are directed at persons who are not under some pre-existing duty to rescue." The court then recognized that "[a] rescuer under a pre-existing duty to rescue would not need the added inducement of immunity from civil liability for his ordinary negligence." Accordingly, the court held that the applicability of the Good Samaritan statute to the police officer “depends upon whether or not he was under a duty to rescue the plaintiff. If he was, then he was not a member of that group of persons to whom the statute is directed and he should be denied its protection.” After reviewing the evidence and the applicable law, the court determined that the officer had a duty to rescue the plaintiff and was not entitled to immunity.

The first case to specifically recognize that a Good Samaritan statute does not apply to a medical care provider attending an emergency in a hospital was Guerrero v. Copper Queen Hospital. Like the court in Lee, the Arizona Supreme Court focused on the legislative intent and determined that its statute was not intended to apply to medical care providers in a hospital setting:

  1. The apparent purpose of this statute is to relieve the burden of liability on individuals who choose to or not to render aid to others in emergency situations. We are not dealing with the same problem in this instance. An individual may in good faith help another in a crisis with untoward results for which he should not be penalized or the same person may not help, perhaps knowing that he lacks the necessary expertise to be of aid. The medical expertise of a hospital staff is assumed. The statute is not applicable to emergency medical treatment in a hospital.

The California Court of Appeal issued the first comprehensive analysis of Good Samaritan immunity applicable to medical care providers in Colby v. Schwartz. As with Lee and Guerrero, the California court concluded that the intent behind such immunity would not be served by applying it to one with a preexisting duty.

The court noted that the legislative purpose underlying its Good Samaritan statutes "is to induce physicians to render medical aid to individuals who, though in need of such care, were not receiving it." More specifically, the court explained that "[t]ypically, it was the roadside accident victim who, as a result of the strictures of the common law malpractice doctrines, was left uncared for. However, hospital patients, such as the decedent have historically enjoyed the benefits of full medical attention. There is no need for special legislation to encourage physicians to treat this class of individuals."

After considering the arguments and case law, the court construed the applicable statutes to apply to “physicians who, by chance and on an irregular basis, come upon or are called to render emergency medical care.” The court felt that this construction was supported by the following considerations:

  1. Physicians, like defendants, who treat patients requiring immediate medical care as part of their normal course of practice do not need the added inducement that immunity from civil liability would provide. Moreover, excusing such physicians of their negligence could have the adverse effect of lowering the quality of their medical care without justification. And further, to extend immunity to such physicians would deny an overly broad spectrum of malpractice victims of their legal remedies.

The Tennessee Supreme Court joined the Alaska, Arizona, and California courts in Lindsey v. Miami Development Corp and held that its Good Samaritan statute offered no protection for one who has a preexisting duty of care. Citing Lee, the court wrote "[t]he purpose of Good Samaritan statutes is to induce voluntary aid by removing the fear of potential liability which acts as an impediment to that conduct. Thus Good Samaritan statutes are directed toward persons who are not under some pre-existing duty to remedy aid."

A year later, the California Court of Appeal, citing its earlier decisions including Colby, flatly stated that "[t]he heart of the application of the Good Samaritan statutes is the inquiry whether a duty of professional care preexisted the emergency."

A New Jersey appellate court agreed with this view in Praet v. Borough of Sayreville. Construing a statute similar to ours , the court began by going beyond the formal legislative history to identify the legislative intent:

  1. Although the Legislative statement does not expressly so state, it is clear that the purpose of the Act was to respond to the common-law rule that while one is under no obligation to volunteer emergency assistance to another, he is nevertheless liable if he chooses to but does so negligently.

Accordingly, the court emphasized that "the grant of legislative immunity to a volunteer was designed, simply and obviously, to encourage gratuitous assistance by those who have no legal obligation to render it." The court continued by explaining that "[i]f one already has such a duty, it is that duty which impels him to act. He therefore does not require and is not entitled to an immunity which is designed only to encourage action by one who has no preexisting legal duty to act."

The court also felt that "by its use of the term 'good faith' in describing the immune action of the rescuer, the Legislature intended to impart the notion of one who voluntarily assumes an obligation since one acting under a duty is compelled to act not only in good faith but also reasonably."

Citing cases like Lee and Lindsey, the court ultimately held that "the threshold question in determining the applicability of the Good Samaritan Act is whether the person claiming its immunity had a preexisting duty." The court emphasized that it was "persuaded by the legislative history of the Good Samaritan Act and the public policy underlying its enactment that it does not and never was intended to confer an immunity on one, who, whether a public employee or a private person, has a preexisting duty under the controlling circumstances to render emergency assistance."

A federal district court in James v. Rowe accepted the reasoning of the foregoing cases in construing the Kansas statute and added the comment that "[t]here is certainly no indication that medical personnel in the ordinary course of their duties were refusing to treat patients in emergency situations for fear of later being sued. Such an assumption would border on absurdity."

In Clayton v. Kelly, the Georgia Court of Appeals interpreted a Good Samaritan statute virtually identical to ours. Relying primarily on Colby, the court wrote:

  1. If the doctor had a particular employment duty to aid the patient at the hospital or had a pre-existing doctor-patient relationship to the patient he aided, then he had a duty to the patient to begin with; and in such a case he does not need a special inducement to offer aid, the aid he offers is not “voluntary” in the sense of a Good Samaritan, and public policy would be ill-served if he were relieved of the usual physician's duty of care and given immunity in such a case.

The court emphasized that "the occurrence of an 'emergency' will not invoke the immunity, if it was the doctor's duty to respond to the emergency." It specifically rejected the doctor's argument that he was entitled to immunity under the plain language of the statute because he was not paid for the care he provided:

  1. [W]e think it is too plain to debate that this immunity, granted in derogation of common law, was not meant to be conditioned upon the sagacity of a particular physician in not making a monetary charge, after the fact, for a service which, for whatever reason, was not followed by the happy recovery of the patient. To hold otherwise would sanction a construction not possibly intended by the legislature. The expectation of payment is not to be regarded as superficially controlling in a case; it refers mainly to situations distinguishing the true wayside volunteer. If the facts show a duty to respond by virtue of a person's particular employment, his state of mind as to payment will not thwart that duty.

In conclusion, the court held that "the Good Samaritan statute immunity is intended to facilitate good medical care by professionals as well as the assistance of wayside travelers; therefore, it is not available to insulate from liability for failure to exercise their duty of care those persons whose express or customary employment duties require them to administer aid."

The Minnesota Court of Appeals adopted the reasoning of Lee, Praet, and Lindsey in Tiedeman v. Morgan. The court rejected the argument that the plain language of the Good Samaritan statute, purporting to extend immunity to "any person" rendering emergency care, did not allow for an exception for those with a preexisting duty of care. Despite acknowledging the broad language in the statute, the court said "it is evident that the rendering of care which is addressed by the statute is that course of conduct which has not historically involved a recognized legal duty."

The federal district court in Clarken v. U.S. held that New York's Good Samaritan statute did not apply to those who already owed an independent duty of care. Reviewing the case law, the court agreed that "the policy [behind Good Samaritan immunity] is not served where there exists a pre-existing duty to render aid."

In 1993, the Alaska Supreme Court was asked to revisit the Lee decision in light of changes that had been made to Alaska’s Good Samaritan statute. In Deal v. Kearney the court rejected the argument that the statutory changes required it to overrule Lee and concluded that its reasoning remained sound. Accordingly, it ruled that "[t]he trial court was correct in holding that the Alaska Good Samaritan statute does not extend immunity to physicians who have a pre-existing duty to render emergency care."

The Utah Supreme Court took up the issue in Hirpa v. IHC Hospitals, Inc. The court was asked to interpret a statute immunizing licensed medical care providers "who in good faith renders emergency care at the scene of the emergency" from civil liability.

The court carefully reviewed the national case law and recognized that "[c]ourts in other states have uniformly held that the law is not meant to exempt all medical personnel in every emergency situation, but only those personnel who happen across an emergency outside the normal course of their work and who otherwise have no duty to assist."

The court agreed and held that, despite the breadth of its plain language, its Good Samaritan statute "does not apply in a situation involving a preexisting duty to render aid. In that case, no additional encouragement to the provider is needed because he already has a duty to respond to the emergency situation. The purpose of encouraging volunteerism would not be furthered as the responding provider could not be considered a volunteer. Rather, he would be compelled by a legal duty to act." Accordingly, "a court's primary inquiry in deciding whether to apply the Utah Act to a given set of facts should be whether there was a preexisting duty to render aid. If a preexisting duty is found, whatever its source, the act cannot apply to immunize the provider." Simply put, "[i]f a duty to treat exists, [the statute] does not apply."

More recently, the North Dakota Supreme Court stated that "[t]he obvious purpose of the Good Samaritan Act is to encourage those who do not have a preexisting duty to voluntarily act in times of emergency by limiting the threat of civil liability for the actions taken."

In Velazquez v. Jiminez, the New Jersey Supreme Court held that its Good Samaritan statute, which immunizes "[a]ny individual . . . who in good faith renders emergency care at the scene of an accident or emergency to the victim or victims thereof, or while transporting the victim or victims thereof to a hospital or other facility where treatment or care is to be rendered," does not apply to any care provided in a hospital.

The court first explained that:

  1. Good Samaritan legislation has, at its core, the goal of encouraging the rendering of medical care to those who need it but otherwise might not receive it (ordinarily roadside accident victims), by persons who come upon such victims by chance, without the accoutrements provided in a medical facility, including expertise, assistance, sanitation or equipment.

After exhaustively categorizing and reviewing the Good Samaritan statutes across the country, the court determined that New Jersey (like New Hampshire) has a “general language” statute that does not explicitly address whether in-hospital care can be shielded from liability.

The court then considered what the legislature knew when it passed this general language statute:

  1. Obviously, in enacting our Good Samaritan law, the Legislature was aware that a hospital patient is present in that venue for the very purpose of receiving medical care and is not a person who ordinarily would lack care in the absence of Good Samaritan immunity. Further, physicians in a hospital ordinarily do not come upon a hospital patient “by chance” as would be the case if an accident or emergency occurred on a roadway. Most importantly, our Legislature knew that the fundamental problem facing a Good Samaritan on the street (the ability to do little more than render first aid under less than optimal circumstances) is not present in a fully staffed and equipped facility like a hospital, whose very purpose is to make available the human skill and physical materiel of medical science to the end that the patient's health be restored.

In light of this, the court wrote that "the ‘scene of an accident or emergency’ reasonably should be understood to incorporate only those locations at which the provision of adequate and necessary medical care is compromised by the existing conditions." Thus, "in-hospital emergency care is not within the contemplation of a general language Good Samaritan act." The court expressly agreed with the intermediate appellate court decision in Praet that "the absence of a pre-existing duty is one element that volunteers must establish to qualify for Good Samaritan immunity," however, the court went further and held that

  1. Good Samaritan immunity . . . encompasses only those situations in which a physician (or other volunteer) comes, by chance, upon a victim who requires immediate emergency medical care, at a location compromised by lack of adequate facilities, equipment, expertise, sanitation and staff. A hospital or medical center does not qualify under the terms of the Good Samaritan Act in its present form.

Most recently, in Chau v. Riddle the Texas Supreme Court reversed the entry of summary judgment in favor of an anesthesiologist who participated in the resuscitation of a newborn child. The lower courts had ruled that the anesthesiologist was entitled to immunity under the Good Samaritan act because he was attending to the mother during her cesarean section and assisted in the newborn’s resuscitation only in response to an emergency that developed in the course of his delivery. In reversing summary judgment, the court emphasized that "medical professionals are only entitled to [immunity] if their actions are truly voluntary, not simply part of the professional’s ordinary duties."

In contrast to the twelve states that have held that their Good Samaritan statutes do not apply to anyone who has a preexisting duty of care, it appears that courts in only two states have squarely held to the contrary.

IV. Conclusion:

R.S.A. 329:25 is not materially different than the statutes construed by the courts that have adopted the majority view that, despite plain language suggesting a broad application, Good Samaritan statutes do not apply to those with a preexisting duty of care. Our statute should be applied the same way.

Endnotes

  1. R.S.A. 329:25.
  2. Id.
  3. Danny R. Veilleux, Annotation, Construction and Application of “Good Samaritan” Statutes, 68 A.L.R.4th 294, 302 (1989)
  4. 490 P.2d 1206 (Alaska 1971), overruled on other grounds, Munroe v. City Council for City of Anchorage, 545 P.2d 165 (Alaska 1976).
  5. "AS 09.65.090 reads as follows: (a) A person who, without expecting compensation, renders care to an injured or sick person, who appears to be in immediate need of aid is not liable for civil damages as a result of an act or omission in rendering emergency care, or as a result of an act or failure to act to provide or arrange for further medical treatment or care for the injured person. (b) This section shall not preclude liability for civil damages as a result of gross negligence or intentional misconduct. Gross negligence means reckless, wilful, or wanton misconduct." Id., 490 P.2d at 1208.
  6. Id., 490 P.2d at 1209.

  7. Id., 490 P.2d at 1209, fn 7.
  8. Id., 490 P.2d at 1209.
  9. 537 P.2d 1329 (Ariz. 1975).
  10. A.R.S. § 32-1471 (1976): "A physician or surgeon, or a registered nurse, graduate nurse, or a professional nurse as defined in § 32-1601, licensed to practice as such in this state or elsewhere, or a licensed ambulance attendant, driver or pilot as defined in § 41-1831, or any other person who renders emergency care at a public gathering or at the scene of an emergency occurrence gratuitously and in good faith shall not be liable for any civil or other damages as the result of any act or omission by such person rendering the emergency care, or as the result of any act or failure to act to provide or arrange for further medical treatment or care for the injured persons, unless such person, while rendering such emergency care, is guilty of gross negligence."
  11. Id., 537 P.2d at 1331.
  12. 144 Cal.Rptr. 624 (Cal.App. 1978).
  13. Id., 144 Cal.Rptr. at 627.
  14. Id., 144 Cal.Rptr. at 628.
  15. Id.
  16. Id.
  17. 689 S.W.2d 856 (Tenn. 1985).
  18. Id., 689 S.W.2d at 860.
  19. Burciaga v. St. John’s Hospital, 232 Cal.Rptr. 75, 78 (Cal.App. 1986).
  20. 527 A.2d 486 (N.J.App. 1987), certif. denied, 532 A.2d 253 (1987).
  21. "The Good Samaritan Act provides that ‘Any individual, including a person licensed to practice any method of treatment of human ailments, disease, pain, injury, deformity, mental or physical *223 condition, or licensed to render services ancillary thereto, who in good faith renders emergency care at the scene of an accident or emergency to the victim or victims thereof, shall not be liable for any civil damages as a result of any acts or omissions by such person in rendering the emergency care’” Id., 527 A.2d at 488.
  22. Id., 527 A.2d at 489.
  23. Id.
  24. Id.
  25. Id.
  26. Id.
  27. Id., 527 A.2d at 488.
  28. 674 F.Supp. 332 (D.Kan. 1987).
  29. Id., 674 F.Supp. at 333.
  30. 357 S.E.2d 865 (Ga.App. 1987).
  31. "Any person, including any person licensed to practice medicine and surgery pursuant to Article 2 of Chapter 34 of Title 43 and including any person licensed to render services ancillary thereto, who in good faith renders emergency care at the scene of an accident or emergency to the victim or victims thereof without making any charge therefor shall not be liable for any civil damages as a result of any act or omission by such person in rendering emergency care or as a result of any act or failure to act to provide or arrange for further medical treatment or care for the injured person." Id., 357 S.E.2d at 867.
  32. Id., 357 S.E.2d at 868 (citing Colby, 144 Cal.Rptr. at 628).
  33. Id.
  34. Id., 357 S.E.2d at 867.
  35. Id., 357 S.E.2d at 868.
  36. 435 N.W.2d 86 (Minn.App.1989), review denied (March 29, 1989).
  37. Id., 435 N.W.2d at 89.
  38. 791 F.Supp. 1029 (D.N.J. 1991).
  39. Id., 791 F.Supp. at 1033.
  40. 851 P.2d 1353 (Alaska 1993).
  41. Id., 851 P.2d at 1358 (citation omitted).
  42. 948 P.2d 785 (Utah 1997).
  43. Id., 948 P.2d at 788.
  44. Id., 948 P.2d at 790 (quotation omitted, emphasis in original).
  45. Id.
  46. Id. (emphasis added).
  47. Id., 948 P.2d at 792.
  48. McDowell v. Gillie, 626 N.W.2d 666, 671 (N.D. 2001).
  49. 798 A.2d 51 (N.J. 2002).
  50. Id., 798 A.2d at 57.
  51. See id., 798 A.2d at 253-54.
  52. Id., 798 A.2d at 63 (quotations omitted).
  53. Id., 798 A.2d at 64.
  54. Id.
  55. Id.
  56. Id., 798 A.2d at 65 (emphasis added).
  57. S.W.3d , 2008 WL 400399 (Tex. 2008).
  58. Id., S.W.3d at , 2008 WL 400399 at *2 (emphasis in original).
  59. See Tatum v. Gigliotti, 583 A.2d 1062 (Md. 1991); Neal v. Yang, 816 N.E.2d 853 (Ill.App.