The Good Samaritan

Jonathan M. Hoffman

MB Law Group LLPOHSU

Context

• Claims uncommon on aircraft

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Things DO Happen

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• Good Samaritan NOT liable UNLESS--

• Detrimental Reliance or

• Negligent “Help” Makes it Worse

Traditional GOOD SAMARITAN Rule

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Aviation Medical Assistance Act of 1998

•SEC. 5. LIMITATIONS ON LIABILITY.

•(a) LIABILITY OF AIR CARRIERS.-An air carrier shall not be liable for damages in any action brought in a Federal or State court arising out of the performance of the air carrier in obtaining or attempting to obtain the assistance of a passenger in an in-flight medical emergency, or out of the acts or omissions of the passenger rendering the assistance, if the passenger is not an employee or agent of the carrier and the carrier in good faith believes that the passenger is a medically qualified individual.

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Aviation Medical Assistance Act of 1998

•SEC. 5 (cont’d)•(b) An individual shall not be liable for damages in any action brought in a Federal or State court arising out of the acts or omissions of the individual in providing or attempting to provide assistance in the case of an in-flight medical emergency unless the individual, while rendering such assistance, is guilty of gross negligence or willful misconduct.

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Good Samaritan State Statutes

•ORS 30.800:

•Voluntary

•No Expectation of Compensation

•Acts or omissions while rendering emergency medical assistance

•No liability unless “grossly negligent in rendering the emergency assistance.

This Photo by Unknown Author is licensed under CC BY-SA

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Also. . .

•ORS 30.803

•A person may not maintain a cause of action for injury, death or loss against a licensed emergency medical services provider who acts as a volunteer without expectation of compensation, based on a claim of negligence unless the person shows that the injury, death or loss resulted from willful and wanton misconduct or intentional act or omission of the emergency medical services provider.

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Who Is Protected?

•Licensed

•Physician

•PA

•NP

•Clinical Nurse Specialist

•Naturopath

This Photo by Unknown Author is licensed under CC BY-SA

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GREAT, BUT. . . .

•Preemption•The Airline’s liability

•EASY: Airline Deregulation Act

•Preempts state law

•NO LIABILITY FOR CLAIMS RELATING TO

•RATES

•ROUTES

•SERVICES

YOUR liability. . . .⁇

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CONFLICT OF LAWS• What law applies?

• States with relevant contact with the dispute• Where suit was filed• Plaintiff’s residence or place of business• Defendant’s residence or place of business• Where incident occurred• Chosen in the underlying contract

• POLICIES of the laws of each state• Encouraging responsible conduct

• Deterring injurious conduct

• Providing adequate remedies for the conduct

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R.M. v. Am. Airlines, Inc., 338 F.Supp.3d (D. Or. 2018)

• 338 F. Supp. 3d 1203 (D. Or. 2018)

•Oregon Law vs. Texas law

• If both the injured party and the injury-causing party are domiciled in the same state, the law of that state governs.

•Where the parties are domiciled in different states, the applicable law depends on the locations of the injury and the injurious conduct.

• If both the injury and the injurious conduct occur in the same state and one of the parties is domiciled in that state, the law of that state governs.

• If both the injury and the injurious conduct occurred in a state in which neither party is domiciled, the law of the state of injury and conduct governs unless either party demonstrates that the objectives of the law of that state on the disputed issue will not be served by its application.

• Finally, where neither party is domiciled in the same state and the injurious conduct and injury occurred in different states, the law of the state of conduct governs unless it was both (1) foreseeable that the conduct would cause an injury in the state of injury and (2) “the injured person formally requests the application of that state's law in a pleading.”

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Bunting v United States, 662 F Supp 971 (D. Alaska 1987)

•Allegedly negligent rescue by a Coast Guard helicopter of a pilot involved in a plane crash, the Coast Guard had no legal obligation to aid the pilot, concluding, under Alaska law, that the immunity granted by the Good Samaritan statute applied and protected the Coast Guard from liability for all but gross negligence or reckless or intentional misconduct.

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The bad news:

Gross negligence

Willful and wanton misconduct

Intentional act or omission

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Defibrillator (AED)

•ORS 30.802:

•Same list of medical professionals:

•No liability if professional uses or attempts to use it

•EXCEPT:

•The person against whom the action is brought acted with gross negligence or with reckless, wanton or intentional misconduct; or

•The use, attempted use or nonuse of an automated external defibrillator occurred at a location where emergency medical care is regularly available.

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But. . .

•Does language of ORS 30.800 also apply to use of defibrillator?

•Voluntary

•No compensation

• E.g. flight attendant uses it?

• “the protections in NRS 41.500(1) do not apply when the defendant had a preexisting duty to help the plaintiff. Accordingly, because Charleston Station was under a duty to “take reasonable affirmative steps to aid”

•Charleston Station, LLC v. Stephens, No. 63943, 2015 WL 9480322, at *5 (Nev. Dec. 23, 2015)

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This Photo by Unknown Author is licensed under CC BY-SA

Compensation or Payment

•Home Star Bank & Fin. Servs. v. Emergency Care & Health Org., Ltd., 2014 IL 115526, 6 N.E.3d 128 (Ill. 2014)

• ER Doc in hospital, employed as contractor

•Didn’t bill for his time/work

•Was paid for his work that day

• Job required ER Doc to respond

•Hospital billed for supplies used for the Code Blue

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Example

•Tobin v. AMR Corp., 637 F. Supp. 2d 406 (N.D. Tex. 2009).

•On-duty flight attendants not Good Samaritans

•Paid

•Required to receive training in emergency services as part of their job duties and

•Acting as professionals performing those services, not as volunteers, when they attempted CPR

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Elsewhere?State statutes vary.

This Photo by Unknown Author is licensed under CC BY-NC-ND

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Baillie v. MedaireIncorporated

•2015 WL 8139397

•2017 WL 6550589

•Reversed & Remanded, Baillie v. MedAire, Inc., 9th Cir.(Ariz.), March 20, 2019

OTHER POTENTIAL LIABILITIES

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International Flights

•Warsaw Convention

•Montreal Protocol

•Different rulesOHSU