Monday, December 17, 2018

Florida’s Good Samaritan Laws Protect Some Volunteers

LAW MATTERS

 

 

People in Florida generally have no duty to render aid to an injured person. That may not enter the mind of someone who sees an emergency, but what can dissuade assistance is the fear of being sued if something goes wrong. To encourage people to help in an emergency, Florida has adopted good samaritan laws that provide legal protection to volunteers who help anyone that is injured, incapacitated or in peril.

Section 768.13 of Florida Statutes is Florida’s Good Samaritan Act. A big part of the Act addresses provision of emergency services by health care providers, which would not be applicable to others. The Act also provides immunity from civil liability to any person, including those licensed to practice medicine, who gratuitously and in good faith render emergency care or treatment in response to an emergency situation outside of a hospital, doctor’s office or other place having proper medical equipment as long as the injured victim does not object to the assistance. Immunity is for any damage resulting from the care or treatment or failure to arrange further medical treatment when the person acts as an ordinary reasonably prudent person would have acted under the same or similar circumstances.

 

 

The Good Samaritan Act has three criteria. First, the injured person must not object to the assistance or care offered or provided. That was made painfully clear to a good samaritan in the case of Botte v. Pomeroy. In the Botte case, the “victim” had been partying with excessive use of alcohol and drugs. About 5 AM he went outside, fell down and passed out. He later woke up, yelled for help and awoke the good samaritan who came to his assistance. The injured party told the good samaritan not to move him and to only call an ambulance. The good samaritan tried to help nonetheless and was later denied the protection of the statute. The court noted, many victims would quite naturally say “don’t touch me, it hurts,” but that the statute was clear and its immunity unavailing when objection is made by the victim.

The second criteria is that the good samaritan must act like an “ordinary reasonably prudent person.” That requirement is even more troubling. The test for liability in civil cases has long been whether action of a person fell below what would be expected from a hypothetical reasonably prudent person. The answer can depend on the facts and circumstances, placing even the most cautious aid giver at risk of defending a claim for damages.

The third criteria is perhaps most easily met. The statute requires that the good samaritan not receive compensation for the assistance he or she provides.

Some believe that by setting the standard of care as one of a “reasonably prudent person,” the legislature meant physicians or others with advanced skills could not be held to a higher standard. Instead, they would be held to the standard of a layman and not a professional. Florida’s Attorney General appears to have taken an opposite position in issuing a formal opinion under AGL 89-62 in 1989. In that opinion, the Attorney General stated that a good samaritan must “exercise with reasonable care such competence and skill as he possesses…” Although the Good Samaritan Law has been in effect for decades, there is no reported appellate court decision in Florida deciding that issue.

Not content to only exempt good samaritans helping people, the legislature amended the Act in 1997 to include those “who gratuitously and in good faith” render emergency care or treatment to an injured animal at the scene of an emergency on or adjacent to a roadway.

In 2001, the legislature decided it was important to specifically address immunity from civil liability in connection with use of a defibrillator.

Section 768.1325 Florida Statutes is known as the Cardiac Arrest Survival Act. That statute provides immunity from liability to a person using or attempting to use an automated external defibrillator on a victim of a perceived medical emergency, as long as the use is without objection of the victim. It also provides immunity to a person or entity acquiring the defibrillator as long as harm did not result from failure to maintain and test the device or provide appropriate training to an employee or agent who used the device unless the device is equipped with instructions on its use, the employee was not one who would have been reasonably expected to use the device or a relatively new hire. The person using the defibrillator is not immune from civil liability if the harm was caused by willful or criminal misconduct, gross negligence, reckless disregard or misconduct or a conscious, flagrant indifference to the rights or safety of the victim, the person is a licensed or certified health professional or acting within the scope of employment of a health care facility or other manufacturer or supplier of the device for compensation.

No Florida statute mandates action by a good samaritan. But for those who do provide assistance, the statutes are an effort to protect them from a lawsuit. The statutes are far from perfect. They hinge immunity on acting in a reasonable and prudent manner along with a complete absence of objection by the victim. As such, they help but do not eliminate concern for liability by anyone considering assistance in an emergency situation.

William G. Morris is the principal of William G. Morris, P.A. William G. Morris and his firm have represented clients in Collier County for over 30 years. His practice includes litigation and divorce, business law, estate planning, associations and real estate. The information in this column is general in nature and not intended as legal advice.

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