In the Aftermath of Katrina

Good Samaritan Law in Louisiana

Louisiana's Good Samaritan law is statutorily set forth in Louisiana Revised Statute ' 9:2793, which provides:

“No person who in good faith gratuitously renders emergency care, first aid, or rescue at the scene of an emergency, or moves a person receiving such care, first aid or rescue to a hospital or other place of medical care shall be liable for any civil damages as a result of any act or omission in rendering the care or services or as a result of any act or failure to act to provide or arrange for further medical treatment or care for the person involved in the said emergency.”

Such protection is limited, however, by the following language, which provides:

“[S]uch care or services or transportation shall not be considered gratuitous, and this Section shall not apply when rendered incidental to a business relationship, including but not limited to that of employer-employee, existing between the person rendering such care or service or transportation and the person receiving the same, or when incidental to a business relationship existing between the employer or principal of the person rendering such care, service or transportation and the employer or principal of the person receiving such care, service or transportation.” La. R.S. 9:2793.

Accordingly, Louisiana's Good Samaritan statute likely offers protection to anyone, including health care professionals, who offer emergency care and treatment outside of a professional setting. This means that, as is common in many states, Good Samaritan protections do not extend to care arising from a contractual relationship (either express or implied) between the caregiver and patient. Therefore, care rendered by ambulance services or in emergency rooms or other established healthcare facilities to which a patient might present for care and treatment likely is not protected under Louisiana's Good Samaritan statute.

The Good Samaritan protection does not exempt from liability individuals who intentionally or by grossly negligent acts or omissions injure a potential plaintiff. Such acts or omissions, therefore, would not be protected by the Good Samaritan law and may result in successful tort actions based on intentional or gross negligence.

La. R.S. 9:2793(B) provides that Good Samaritan immunity is personal to the individual rendering the medical services and therefore does not extend to the individual's employer. The Court of Appeals of Louisiana has held this to mean that a volunteer fire department may not raise Good Samaritan immunity as a defense against tort claims arising from medical or health services provided by that department. Matlock v. Hankel, 707 So.2d 1016 (1998).

While there are limits to Louisiana's Good Samaritan law, the law offers useful protection against lawsuits to individuals offering good faith and gratuitous emergency care to their fellow citizens. An individual rendering such care and treatment could well have a successful defense against a claim arising from that care and treatment based on Good Samaritan immunity.

Good Samaritan Law in Mississippi

Mississippi purports to provide protection to Good Samaritans in two situations under Miss. Code Ann. ' 73-25-37. One section of the statute provides:

“No duly licensed, practicing physician, dentist, registered nurse, licensed practical nurse, certified registered emergency medical technician, or any other person who, in good faith and in the exercise of reasonable care, renders emergency care to any injured person at the scene of an emergency, or in transporting the injured person to a point where medical assistance can be reasonably expected, shall be liable for any civil damages to the injured person as a result of any acts committed in good faith and in the exercise of reasonable care or omissions in good faith and in the exercise of reasonable care by such persons in rendering the emergency care to the injured person.”

This statute was recognized in dicta by the Supreme Court of Mississippi in Lewis v. Soriano, 374 So.2d 829 (1979), as providing protection from liability to care providers acting in good faith. That language, however, fails to take into account the requirement that, as discussed below in Willard v. City of Vicksburg, 571 So.2d 972 (1990), the care and treatment rendered receives protection only when it is reasonable and performed in good faith.

Willard, the only reported Mississippi case to deal with the Good Samaritan law as applied in an emergency situation, involved a man who was seriously injured at the scene of a one-car accident. A passer-by, Dan Hall Jr., was the first to arrive on the scene, and he called the Warren County Sheriff's department and asked that an ambulance be sent out immediately. The Vicksburg-Warren Ambulance Service was notified and came to the scene. The accident victim was alive when the ambulance arrived, but later died. The administratrix of the deceased's estate brought an action for negligence against the municipality. At trial, Hall testified that it was at least 30 minutes, and probably longer, before either the ambulance or the rescue unit arrived on the scene. Two expert witnesses swore in affidavits that 21 minutes is an excessive amount of time for a response to an emergency call.

The lower court summarily dismissed the cause of action, relying on the Mississippi Supreme Court's interpretation of the Good Samaritan law in Lewis in which that court held that the defendant physician was liable for breaching the standard of care required of him since the care was rendered in a hospital. The Lewis decision stated that according to the newly amended Good Samaritan Statute, physicians would not be liable for emergency care rendered at the scene of an emergency.

The Supreme Court of Mississippi reversed and remanded the Willard case because the trial court had mistakenly relied on the dicta in Lewis. Lewis did not involve an emergency situation. The court held that the case should have gone to the jury because there existed under the statute genuine issues of material fact regarding the timeliness and reasonableness of the care the deceased received.

The requirement that emergency care and treatment must be reasonable suggests that Mississippi's “Good Samaritan” statute offers only a codification of a standard negligence defense that no duty was breached because the care or treatment was reasonable, and therefore not negligent. The requirement in Mississippi that care must be reasonable significantly distinguishes its statute from the statute enacted in Louisiana.

Mississippi's “Good Samaritan” law further limits its protections to care provided at the scene of an emergency and to the transportation from such an emergency scene to an established health care facility. Accordingly, “Good Samaritan” protections do not extend to emergency care and treatment rendered once the individual receiving such care and treatment has been transferred to a health care facility for medical treatment.

Further, Miss. Code Ann. '73-25-37(2)(a) provides:

“Any person who in good faith, with our without compensation, renders emergency care or treatment by the use of an automated external defibrillator (AED) . . . shall be immune from any civil liability for any personal injury as a result of that care or treatment, or as a result of any act, or failure to act, in providing or arranging further medical treatment, where the person acts as an ordinary, reasonably prudent person would have acted under the same or similar circumstances and the person's actions or failure to act does not amount to willful or wanton misconduct or gross negligence.”

Miss. Code Ann. ' 73-25-37(2)(a). Again, caregivers in Mississippi receive protections only where their care and treatment is performed in good faith and with reasonable care.

While its scope is limited, this statute does provide some protections to individuals who seek to render emergency medical care and treatment to their fellow citizens in times of crisis.

Conclusion

The Good Samaritan statutes in Louisiana and Mississippi should offer certain legal protection to gratuitous caregivers seeking to provide emergency care and treatment to their fellow citizens in the wake of the tragedy of Hurricane Katrina. As long as such care and treatment is rendered in good faith, and, in Mississippi, is rendered with reasonable care, the caregivers may well have a viable defense against tort claims arising from such care.

In the aftermath of Hurricane Katrina, people from all walks of life and from all corners of the world want to reach out to do what they can to help the victims of this unfathomable disaster. Schoolchildren are raising pennies to help those in need while relief organizations send supplies from all regions of the country. On the ground where this disaster struck in Louisiana and Mississippi, however, thousands of caring individuals have been providing emergency first aid and medical care to their neighbors in need. When licensed health care workers respond to the urgent needs of the hurricane's victims, what kinds of liability might they be opening themselves up to?

Good Samaritan laws are enacted to protect health care professionals and other rescuers who provide reasonable and gratuitous care, usually in an emergency setting, from a lawsuit alleging negligence in the performance of such care. These laws are not designed to prevent a potential plaintiff from filing suit based on alleged negligence, but rather serve in the nature of an affirmative defense to such a suit. The first Good Samaritan law was passed in California in 1959, and since that time, all 50 states have passed some type of similar legislation. Such laws were enacted to remove the common law liability associated with rescue and emergency care so as to encourage people to stop and render aid to their fellow citizens.

Following is a brief summary of the Good Samaritan statutory and case law in Mississippi and Louisiana. It seeks to provide a better understanding to those who may counsel these caregivers of their legal protections should they face a tort claim arising from care rendered in the wake of the unimaginable tragedy left behind Hurricane Katrina.

Good Samaritan Law in Louisiana

Louisiana's Good Samaritan law is statutorily set forth in Louisiana Revised Statute ' 9:2793, which provides:

“No person who in good faith gratuitously renders emergency care, first aid, or rescue at the scene of an emergency, or moves a person receiving such care, first aid or rescue to a hospital or other place of medical care shall be liable for any civil damages as a result of any act or omission in rendering the care or services or as a result of any act or failure to act to provide or arrange for further medical treatment or care for the person involved in the said emergency.”

Such protection is limited, however, by the following language, which provides:

“[S]uch care or services or transportation shall not be considered gratuitous, and this Section shall not apply when rendered incidental to a business relationship, including but not limited to that of employer-employee, existing between the person rendering such care or service or transportation and the person receiving the same, or when incidental to a business relationship existing between the employer or principal of the person rendering such care, service or transportation and the employer or principal of the person receiving such care, service or transportation.” La. R.S. 9:2793.

Accordingly, Louisiana's Good Samaritan statute likely offers protection to anyone, including health care professionals, who offer emergency care and treatment outside of a professional setting. This means that, as is common in many states, Good Samaritan protections do not extend to care arising from a contractual relationship (either express or implied) between the caregiver and patient. Therefore, care rendered by ambulance services or in emergency rooms or other established healthcare facilities to which a patient might present for care and treatment likely is not protected under Louisiana's Good Samaritan statute.

The Good Samaritan protection does not exempt from liability individuals who intentionally or by grossly negligent acts or omissions injure a potential plaintiff. Such acts or omissions, therefore, would not be protected by the Good Samaritan law and may result in successful tort actions based on intentional or gross negligence.

La. R.S. 9:2793(B) provides that Good Samaritan immunity is personal to the individual rendering the medical services and therefore does not extend to the individual's employer. The Court of Appeals of Louisiana has held this to mean that a volunteer fire department may not raise Good Samaritan immunity as a defense against tort claims arising from medical or health services provided by that department. Matlock v. Hankel , 707 So.2d 1016 (1998).

While there are limits to Louisiana's Good Samaritan law, the law offers useful protection against lawsuits to individuals offering good faith and gratuitous emergency care to their fellow citizens. An individual rendering such care and treatment could well have a successful defense against a claim arising from that care and treatment based on Good Samaritan immunity.

Good Samaritan Law in Mississippi

Mississippi purports to provide protection to Good Samaritans in two situations under Miss. Code Ann. ' 73-25-37. One section of the statute provides:

“No duly licensed, practicing physician, dentist, registered nurse, licensed practical nurse, certified registered emergency medical technician, or any other person who, in good faith and in the exercise of reasonable care, renders emergency care to any injured person at the scene of an emergency, or in transporting the injured person to a point where medical assistance can be reasonably expected, shall be liable for any civil damages to the injured person as a result of any acts committed in good faith and in the exercise of reasonable care or omissions in good faith and in the exercise of reasonable care by such persons in rendering the emergency care to the injured person.”

This statute was recognized in dicta by the Supreme Court of Mississippi in Lewis v. Soriano , 374 So.2d 829 (1979), as providing protection from liability to care providers acting in good faith. That language, however, fails to take into account the requirement that, as discussed below in Willard v. City of Vicksburg , 571 So.2d 972 (1990), the care and treatment rendered receives protection only when it is reasonable and performed in good faith.

Willard, the only reported Mississippi case to deal with the Good Samaritan law as applied in an emergency situation, involved a man who was seriously injured at the scene of a one-car accident. A passer-by, Dan Hall Jr., was the first to arrive on the scene, and he called the Warren County Sheriff's department and asked that an ambulance be sent out immediately. The Vicksburg-Warren Ambulance Service was notified and came to the scene. The accident victim was alive when the ambulance arrived, but later died. The administratrix of the deceased's estate brought an action for negligence against the municipality. At trial, Hall testified that it was at least 30 minutes, and probably longer, before either the ambulance or the rescue unit arrived on the scene. Two expert witnesses swore in affidavits that 21 minutes is an excessive amount of time for a response to an emergency call.

The lower court summarily dismissed the cause of action, relying on the Mississippi Supreme Court's interpretation of the Good Samaritan law in Lewis in which that court held that the defendant physician was liable for breaching the standard of care required of him since the care was rendered in a hospital. The Lewis decision stated that according to the newly amended Good Samaritan Statute, physicians would not be liable for emergency care rendered at the scene of an emergency.

The Supreme Court of Mississippi reversed and remanded the Willard case because the trial court had mistakenly relied on the dicta in Lewis. Lewis did not involve an emergency situation. The court held that the case should have gone to the jury because there existed under the statute genuine issues of material fact regarding the timeliness and reasonableness of the care the deceased received.

The requirement that emergency care and treatment must be reasonable suggests that Mississippi's “Good Samaritan” statute offers only a codification of a standard negligence defense that no duty was breached because the care or treatment was reasonable, and therefore not negligent. The requirement in Mississippi that care must be reasonable significantly distinguishes its statute from the statute enacted in Louisiana.

Mississippi's “Good Samaritan” law further limits its protections to care provided at the scene of an emergency and to the transportation from such an emergency scene to an established health care facility. Accordingly, “Good Samaritan” protections do not extend to emergency care and treatment rendered once the individual receiving such care and treatment has been transferred to a health care facility for medical treatment.

Further, Miss. Code Ann. '73-25-37(2)(a) provides:

“Any person who in good faith, with our without compensation, renders emergency care or treatment by the use of an automated external defibrillator (AED) . . . shall be immune from any civil liability for any personal injury as a result of that care or treatment, or as a result of any act, or failure to act, in providing or arranging further medical treatment, where the person acts as an ordinary, reasonably prudent person would have acted under the same or similar circumstances and the person's actions or failure to act does not amount to willful or wanton misconduct or gross negligence.”

Miss. Code Ann. ' 73-25-37(2)(a). Again, caregivers in Mississippi receive protections only where their care and treatment is performed in good faith and with reasonable care.

While its scope is limited, this statute does provide some protections to individuals who seek to render emergency medical care and treatment to their fellow citizens in times of crisis.

Conclusion

The Good Samaritan statutes in Louisiana and Mississippi should offer certain legal protection to gratuitous caregivers seeking to provide emergency care and treatment to their fellow citizens in the wake of the tragedy of Hurricane Katrina. As long as such care and treatment is rendered in good faith, and, in Mississippi, is rendered with reasonable care, the caregivers may well have a viable defense against tort claims arising from such care.