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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.
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.
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:
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:
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:
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:
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:
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:
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:
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
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.
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.