Court
limits Good Samaritan immunity
By
David Ziemer
Wisconsin Law Journal
May
31, 2006
| What
the court held Case:
Mueller v. McMillian Warner Ins. Co., No. 2005AP121 Issue:
Does the Good Samaritan Law immunize care provided over a six to seven hour period? Holding:
No. The law is limited to care provided during the period until care can be transferred
to professional medical personnel. Counsel:
For Appellant: Golla, Russell T., Stevens Point; Ricciardi, Carl, Tomahawk
For Respondent: Kramer, John A., Wausau; Roman, Michael J., Wausau |
Wisconsin’s
Good Samaritan Law only gives immunity to those providing emergency care “until
professional medical attention is available.”
The
Wisconsin Supreme Court on May 25, affirming a published decision of the court
of appeals, Mueller v. Mc-Millian Warner Ins. Co., 2005 WI App 210, 704 N.W.2d
613, held that, where the defendant merely monitored an injured person for six
or seven hours, without making any attempt to obtain professional care, the defendant
did not render “emergency care” and is not immune from suit alleging
negligence.
Merlin
and Stephani Switlick are the parents of Apollo Switlick. The Switlicks were hosting
a party on property they owned in Lincoln County, when Apollo and his girlfriend,
Lina M. Mueller, were injured in an ATV accident around 11 p.m.
Both
were bleeding and both vomited. Mueller went inside the house and wanted to lie
down on the bathroom floor. Ms. Switlick persuaded her to lie down on a bed in
one of the bedrooms instead. Ms. Switlick testified she awoke her approximately
every hour to check on her.
Throughout
the night, Mueller was able to respond coherently to Ms. Switlick’s questions,
but in the morning, after she had been in bed for approximately six to seven hours,
Mueller was disoriented and responded to Ms. Switlick’s questions by addressing
her as “mom.”
As
a result of Mueller’s confusion, Ms. Switlick called for an ambulance. Mueller
suffered serious, continuing injuries.
Mueller
sued the Switlicks, alleging they were negligent in providing alcohol to their
minor son, in failing to convey her to a hospital, in preventing her from obtaining
medical treatment, and in failing to seek help for her.
Marathon
County Circuit Court Judge Vincent K. Howard entered judgment in favor of the
defendants, ruling that the Good Samaritan Law, sec. 895.48(1), confers immunity
on them for their actions.
Mueller
appealed, and the court of appeals reversed. The Supreme Court granted review,
and affirmed the court of appeals in a decision by Chief Justice Shirley S. Abrahamson.
Sec.
895.48(1)
The
statute provides in relevant part: “Any person who renders emergency care
at the scene of any emergency or accident in good faith shall be immune from civil
liability for his or her acts or omissions in rendering such emergency care.”
The
three elements of the defense are:
(1)
Emergency care must be rendered at the scene of the emergency;
(2)
The care rendered must be emergency care; and
(3)
Any emergency care must be rendered in good faith.
The
court concluded that the first element was met, but the second was not, and thus,
did not address the third.
Scene
of Emergency
Neither
the statute nor any prior cases define, “scene of any emergency or accident,”
and the court declined to define it precisely, but the court held that the term
is broad enough to include the Switlicks’ house.
The
court found that the term cannot be limited to the scene of an accident, lest
the inclusion of the word, “emergency” would be superfluous.
The
court wrote, “whatever the precise scope of ‘scene of any emergency
or accident,’ the phrase ‘scene of any emergency’ is sufficiently
broad to include the Switlicks’ home where the injured, bleeding plaintiff
arrived after the ATV incident.”
Accordingly,
the court held that the Switlicks’ actions occurred at the scene of an emergency.
Emergency
Care
Like
“scene of any emergency or accident,” the term “emergency care”
is not defined in the statute either.
Just
as with the former term, the court declined to adopt a bright-line rule. Instead,
the court adopted what it called a “flexible, broad working definition.”
The
definition the court adopted for “emergency care” is as follows: “care
rendered by a layperson in a sudden, unexpected happening, occurrence or situation
that demands immediate action until professional medical attention is available.
‘Care’ includes the evaluation, intervention, assistance, and treatment
of, or intervention on behalf of the injured person, or response to medical conditions
caused by an accident, trauma, or sudden illness.”
Reviewing
legislative history and commentary, the court concluded that this definition serves
the purpose of the statute, observing, “The decision to extend Good Samaritan
immunity beyond medical professionals reflects the legislative determination that
the removal of potential tort liability would encourage more individuals to provide
immediate assistance when professional medical assistance is not available. This
emphasis on immunity for initial and immediate care reflects the legislative purpose
to encourage such services as are necessary to stabilize an injured individual’s
health or impede an impending tragedy during the period before care can be transferred
to professional medical personnel.”
Application
Applying
the definition, the court held that it did not extend to the Switlicks’ conduct,
other than possibly, their immediate assistance, treatment, and intervention.
Because
the Switlicks did not summon professional assistance, and instead provided ongoing
care themselves, the court concluded that their actions changed from emergency
care to non-emergency care, and they are therefore subject to a negligence action.
The
court explained, “the legislature has balanced the public policy of encouraging
individuals to provide assistance to those in need of immediate help with the
competing public policy of encouraging caregivers to seek professional medical
assistance.
Accordingly,
the court affirmed the court of appeals, concluding, “When the Switlicks
did not seek professional medical assistance after the initial evaluation and
immediate evaluation, assistance, treatment, and intervention, emergency care
ceased and non-emergency care began. The Switlicks have not asserted a valid Good
Samaritan defense to the plaintiff’s negligence claims against them for non-emergency
care.”
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here for Case Analysis.
David
Ziemer can be reached by email.
