| Representative Arthur J. O'Neill, Chairman
William R. Breetz
Representative Robert Farr
Jon P. Fitzgerald
Robert W. Grant
Representative Michael P. Lawlor
Michael W. Lyons
Mary Anne O'Neill
Joel I. Rudikoff
Edmund F. Schmidt
Joseph J. Selinger, Jr.
Judge Elliot N. Solomon
Professor Colin C. Tait
Professor Terry J. Tondro
I. Milton Widem
Senator Donald E. Williams, Jr.
Jo A. Roberts
Law Revision Commission
GOOD SAMARITAN/FIREFIGHTERS RULE
Report of the Connecticut Law Revision Commission
to the Judiciary Committee
of the Connecticut General Assembly
Prepared by Jo A. Roberts
February 15, 2000
GOOD SAMARITAN/FIREFIGHTER'S RULE
Report of the Law Revision Commission
to the Judiciary Committee
of the Connecticut General Assembly
By request of Senator Donald E. Williams, Jr. and Representative Michael P. Lawlor, Co-Chairmen of the Judiciary Committee of the Connecticut General Assembly, the Law Revision Commission undertook a study of Connecticuts "good samaritan law," section 52-557b of the general statutes, and the common law "firefighters rule." The requests from the Judiciary Chairmen are attached to this report as Attachments A and B. The requests ask the Commission to examine these laws as they pertain to the liability of paramedics and other paid and unpaid emergency medical personnel.
To complete the requested study, the Commission formed a study committee that held two information and discussion sessions with representatives from the Connecticut Defense Lawyers Association, several Connecticut Bar Association sections, the Northwest Emergency Service Council, the Eastern Connecticut Emergency Medical Services Council, the Insurance Association of Connecticut, the Connecticut Police Chiefs Association, the Connecticut State Firefighters Association, American Medical Response of Connecticut and others. A list of participants is attached to this report as Attachment C.
RECOMMENDATIONS OF THE STUDY COMMITTEE:
After lengthy consideration, the study committee is making the following recommendations:
1. For clarity, the present section 52-557b should be separated into two statutes:
a. A statute that provides only traditional "good samaritan" protection for
specified individuals, that is, protection from ordinary negligence only while providing emergency assistance outside the individual's usual employment or practice, and
b. a statute that provides protection from ordinary negligence for specified
individuals while providing emergency assistance, whether during the course of the individual's employment or outside of that employment.
The two new statutes appear in sections 1 and 2 of a proposed bill, attached to this report as Attachment D (showing revisions to present section 52-557b and with commentary) and Attachment E (in bill form).
2. The undefined term "medical technician" in subsection (a) should be deleted.
3. The term "automatic external defibrillator" in subsection (a) should be revised to reflect more accurately the operation of automatic defibrillators currently in use.
4. The term "ambulance personnel" in subsection (b) of section 52-557b should be deleted and the phrase "paramedics, emergency medical technicians and medical response technicians" substituted.
5. Language should be added to subsection (b) to provide immunity to an individual trained in cardiopulmonary resuscitation, or in the use of an automatic external defibrillator, who assists another while the individual is at his employment, where providing such assistance is not an integral part of the individuals employment duties.
6. A cause of action in gross negligence for injuries incurred under these two statutes should be created, in accordance with the intent of the legislature to do so in 1963.
Section 3 of the draft sets forth that cause of action. In conjunction with this addition, the last sentence of subsection (b) of section 1 and the last sentences of subsections (a)-(f) of section 2 have been revised to clearly provide for the limitation of immunity for gross negligence and to include language from case law that recognizes a limitation for "wilful and wanton misconduct."
7. The common law firefighters rule should be codified and extended to include paramedics, emergency medical technicians, medical response technicians and ambulance drivers.
This codification and extension appear in a draft of a proposed bill, attached to this report as Attachment F.
The remainder of the report, after providing some background information about section 52-557b, supports the committees recommendations.
I. LEGISLATIVE HISTORY OF SECTION 52-557b.
A. Public Act 63-205
The origin of the good samaritan law, section 52-557b of the General Statutes, was in HB 2576, AAC Immunity from Civil Liability for Physicians Rendering Emergency Treatment Without Compensation, later Public Act 63-205. The bill was introduced by the General Law Committee in 1963. The transcript of the public hearing on the bill shows testimony only about the necessity of protecting physicians from liability in emergencies and of encouraging physicians to provide care without fear of being sued.
The House debate on the bill included some discussion about expanding the bill's protection to other care-givers, such as nurses, police, ambulance drivers and others trained in first aid. At one point, Representative McLoughlin of Bridgeport asked that the bill be passed retained "with an eye toward an amendment to include nurses, policemen, firemen and other people who render first aid assistance." Representative Boyd of Westport countered that, in a straw poll among physicians, as many as 50% to 60% said that, if faced with an emergency situation, they would not stop to render aid because of their exposure to liability. Mr. Boyd maintained that the immediate problem was in encouraging physicians to provide emergency aid, and that no evidence existed for the same need as to other care providers. In response, Representative Scoville of Glastonbury suggested an alternative to offering good samaritan immunity for the physicians responding to the cited poll:
Hearing the comments of the gentleman from Westport who indicated approximately 60% of the medical profession would not stop and help a needy person along the highway, this strikes me as being deplorable indeed. If this is the problem we face in our society then I think we should have legislation which would make it criminal for the members of the medical profession to refuse to provide to people in need (sic) in emergency situations.
Ultimately, the House seemed to prefer the wisdom of Representative Webber of New Haven on this point:
If we include all the other members of the so-called army of first aid experts, I can foresee some very serious problems. Some of our so-called amateur doctors or some of the people who might have had two weeks of firstaid (sic) training in the army might stop at the scene of an accident might stop (sic) to help a patient and know nothing about what he's doing or in his mind he would think that he's a graduate physician, that could cause very serious harm to the patient and resulting in the permanent injury (sic), I would suggest very strongly for the reason that the billremain (sic) as it's written.
In the Senate, HB 1256 faced different concerns. Senate Amendment A added the provision that the physician be acting "voluntarily and gratuitously and other than in the ordinary course of his employment or practice" to be immune from liability. The amendment was intended to prevent the situation where a doctor making a house call in an emergency (no longer a concern) would be immune from liability simply by asking the patient not to pay him. The amendment also added the limitation on immunity for acts or omissions constituting gross, wilful or wanton negligence. There was no debate on this issue.
There was some debate on the matter of providing immunity to anyone offering first aid assistance in an emergency, not just to physicians or even to other trained medical personnel. The opposing arguments predictably were between those who favored offering protection to anyone who was "just a person of decent instincts who stopped and did what he could," and those who believed this practice to be "extremely dangerous and should not be passed." The latter view prevailed.
Upon return to the House, the bill, as amended by the Senate, won approval without further debate.
B. Public Act 86-237
The addition of subsections (c) and (d) of section 52-557b, immunizing railroads and their employees for providing emergency first aid, came in 1986. HB 6010, later Public Act 86-237, originated in the Transportation Committee. No record of a public hearing on the bill is available at the State Library. Little controversy on the bill is evidenced in the House transcript. What does appear in the Senate transcript is the clear focus of the bill as stated by Senator Morano:
[T]his bill is specifically directed at following (sic) the Metro North's Commuter Railroad to train their employees and conductors in both first aid and cardiopulmonary resuscitation and to allow those employees of the railroad to practice first aid and cardiopulmonary resuscitation on all trains.
Additional legislative history appears in other sections of this report.
II. 1999 RAISED BILL 6630
Raised Bill 6630, AAC the Good Samaritan Law, was introduced by the Judiciary Committee during the 1999 legislative session, but was not reported out of that committee. The proposed bill would have revised section 52-557b of the general statutes to include emergency medical technicians and paramedics within the protection of subsection (a) of the Good Samaritan statute. The result would have been to extend immunity for ordinary negligence to emergency medical technicians and paramedics who render emergency medical services, other than during the ordinary course of their employment or practice. No immunity would apply to acts or omissions resulting from "gross, wilful or wanton negligence." The bill would have also deleted "ambulance personnel" from subsection (b) of the statute, which provides broad immunity for ordinary negligence in rendering any emergency first aid to the persons specified in the subsection.
III. ANALYSIS OF THE CURRENT SECTION 52-557b
A. Paid v. Volunteer Emergency Services Personnel
The language of section 52-557b raises questions about the legislature's policy concerning the liability of emergency services personnel who are generally paid for their services, and those who volunteer their services. Subsection (a) applies to the following persons:
A person licensed to practice medicine and surgery... or members of the same professions licensed to practice in any other state of the United States, a person licensed as a registered nurse... or certified as a licensed practical nurse... a medical technician or any person operating a cardiopulmonary resuscitator or a person trained in cardiopulmonary resuscitation....
The subsection makes no distinction between those paid for their services and those acting voluntarily, although many of the persons enumerated might be expected to receive payment for their services.
The immunity offered by the subsection is for ordinary negligence occurring while rendering emergency medical services "voluntarily and gratuitously and other than in the ordinary course of his employment or practice." (emphasis added) Thus, while the subsection does not distinguish between paid and unpaid persons, it does seem to contemplate certain contexts within which the specified persons will or will not be immunized. Specifically, those persons acting entirely gratuitously and outside of the contexts in which they would normally apply their particular training are immunized from ordinary negligence, while those acting within the usual contexts for their training are not protected. The use of the words "employment or practice" seem to suggest that employment alone does not dictate application of the immunity, but that acting either within or outside of the scope of a "practice" will determine immunity as well. The term "practice" is undefined in the section.
To cloud the issue further, subsection (b) of the statute provides simply that "ambulance personnel" who render emergency first aid are immune from liability for ordinary negligence. Of course, ambulance personnel may include emergency medical technicians and persons trained in cardiopulmonary resuscitation, described in subsection (a). The question then becomes whether these individuals are immune for their negligence under subsection (b), even though they are acting within what could be considered their "practice," and might otherwise not be immune under subsection (a)?
B. Licensed and Certified Emergency Medical Services Providers v. Ambulance Personnel
A crucial issue with which the committee wrestled was whether a grant of immunity should be different for those who have completed special medical services training or who must be licensed or certified to provide such services, and those who receive lower level training for the services they provide. And, if the policy should be to distinguish among different types of medical services training, what is the distinction and how should it affect a grant of immunity?
Subsection (a) of section 52-557b enumerates the following persons: a person licensed to practice medicine and surgery or dentistry, either in Connecticut or in any other state; a person licensed as a registered nurse or certified as a licensed practical nurse; a medical technician ; or any person operating a cardiopulmonary resuscitation or trained in the use of an automatic external defibrillator. These persons are granted immunity from liability for ordinary negligence only if they voluntarily render "emergency medical or professional services" outside of their usual employment or practice.
In subsection (b), the following persons, either paid or volunteer who have completed a first aid course, are immunized from liability for ordinary negligence under all circumstances in which they render "emergency first aid": a fireman or policeman; a teacher or other school personnel on school grounds, in the school building or at a school function; a member of the ski patrol; a lifeguard; a conservation officer; a patrolman or special policeman of the Department of Environmental Protection; or ambulance personnel.
1. Meaning of "Medical Technician" in Subsection (a)
The term "medical technician" in subsection (a) of the statute proved to be especially problematic for the committee. The term is undefined in section 52-557b or elsewhere in the general statutes. However, deciphering the meaning of the term would shed light on whether the legislature intended certain emergency care individuals, other than those already listed, to have immunity limited to traditional good samaritan, as opposed to broader immunity under subsection (b). Unfortunately, the legislative history of the addition of this term to section 52-557b in 1977 is more confusing than helpful. Two relevant additions were made to the general statutes in Public Act 77-349 (formerly SB 1024, An Act Concerning Paramedics). The first was the addition of a definition for "paramedic" in section 19-37u of the general statutes:
"Paramedic" means a person who has been certified by the State Department of Health, pursuant to the regulations adopted by said department, as an emergency medical technician II.
Section 19-37u already contained a definition for "emergency medical technician (EMT)". However, no definition existed, or was added, in the general statutes, for "medical technician".
The second addition was to section 52-557b, which at that time had no subsections. The following language was added to existing language in the section that provides for traditional "good samaritan" immunity for specified individuals only while acting outside the scope of their employment or practice:
... and no medical technician (emphasis added) or any person operating a cardiopulmonary resuscitator or any person trained in cardiopulmonary resuscitation in accordance with the standards of the American Red Cross or American Heart Association....
The addition of this term by PA 77-349 is curious, since the same public act creates a definition for paramedic and contains the definition for emergency medical technician. Arguably, had the legislature intended the above language to cover either paramedics or EMTs, or both, it would have used those precise terms. Instead, it chose to use a new, undefined term. Unfortunately, neither the transcripts of the public hearing before the Public Health and Safety Committee, nor those of the debates before the House and Senate on the underlying bill (SB 1024) shed any light on the meaning of "medical technician," as the term is barely mentioned and never defined.
Staff attempted to discover more about the legislature's intent generally in providing for paramedics and emergency medical technicians by examining several other bills that, along with SB 1024 (later PA 77-349) described above, composed a "package" of bills concerning these professionals.
One bill in the package that proved helpful was HB 5981, An Act Concerning Immunity for Emergency Medical Services Personnel. This bill died after a public hearing in the Public Health and Safety Committee:
Be it enacted by the Senate and House of Representative in General Assembly convened:
That section 52-557b of the general statues be amended to include immunity from liability from ordinary negligence by certified emergency medical services personnel or persons assisting certified rescue personnel, acting under the supervision and control of a licensed physician or nurse, following procedures approved by the appropriate regional emergency medical services councils or performing within the scope of training which they have been certified as having satisfactorily completed; or by physicians, emergency dispatchers or other personnel or other persons supervising certified emergency medical services personnel or persons they reasonably believe to be so certified by electronic communication, following procedure approved by the appropriate regional emergency medical service councils.
The bill seems to contemplate immunity for ordinary negligence liability both for persons certified in providing emergency services and for anyone who may be assisting "certified rescue personnel". The bill does not provide any insight as to whether "rescue personnel" are the same as "emergency medical services personnel," or may include others. The language seems to indicate that the immunity applies during the time the covered individuals are acting under the direction of a physician or nurse, which most likely would be, for certified emergency medical services personnel and certified rescue workers at least, while they are "on duty," whether paid or otherwise. It is unclear whether the requirement that these individuals be "following procedures approved by the appropriate regional emergency medical services councils" applies to emergency medical services personnel, rescue personnel, persons assisting the rescue personnel, or to all of them.
In addition, the bill provides the same broad immunity from liability to "physicians, emergency dispatchers or other persons supervising" emergency medical personnel by electronic communications, so long as they are following approved procedures. The bill does not distinguish between paid and volunteer personnel, and arguably applies to both. Nor does it distinguish between actions taken while on duty and those taken in emergency situations outside the scope of any duty.
Finally, the statement of purpose to the bill creates yet more confusion:
STATEMENT OF PURPOSE: To enable ambulance attendants and their supervisors to act in emergency situations without liability for ordinary negligence.
The term "ambulance attendants" raises the question of whether the bill is intended to apply strictly to ambulance personnel only, or to other emergency services providers as well. Clearly, paramedics and EMTs were known to the legislature at this time, and not all would have been staffing ambulances. Thus, the limitation to ambulance attendants here is troublesome in that it may reasonably be interpreted to reflect the intent of the legislature to immunize only ambulance personnel. However, one might conclude that using "ambulance attendant" was simply a poor choice of words in light of the fact that the body of the bill contains no limitation to ambulance attendants and that, in 1977, the more liberal second part of the section already extended liability protection to "ambulance personnel." Since neither term is anywhere defined, it is difficult to determine whether they have different meanings.
Some interpretive language did appear in the transcript to the public hearing on the bill. The testimony was that of Cressy Goodin, Regional Coordinator for the Northeastern Connecticut Emergency Medical Service. This individual summarized his or her interpretation of the bill as follows:
First, areas of immunity from civil liability is not necessarily related to the good samaritan act. The good samaritan act refers to services rendered without a fee, not as part of the normal job requirement, for which a living wage is earned. The physician stopping at a highway accident on the way home. However this bill, as I interpret it, is related to the on-going daily activity of emergency medical services personnel and would not fall under the good samaritan act and would have to be considered separate from it.
The witness continues with a caution to committee members about the breadth of such immunity:
I feel that there is the need for protection, the immunity, giving this protection of immunity, however I urge one not to go too far overboard because certainly we do not want people lackadaisical about the care they are giving. The idea of liability for civil action is a restraint for negligent performance when it is carried out with moderation. I urge you not to overextend that to all liability for all actions of all personnel. Dealing with the good samaritan act, the issues there are that, perhaps just generally a quick statement, the committee is finding itself with many bills to add EMT's, other persons with training, doctors, dentists, and so forth, perhaps the committee ought to organize a study to report back even in another year, as to an organization of the good samaritan bill which is all encompassing, will not become fragmented.... We certainly will support however any categorical group being added to the good samaritan act understanding that this is a service rendered without a fee being rendered for that service.
In the same vein, HB 6697, AAC Immunity for Emergency Medical Service and Rescue Personnel, provides broad immunity for negligence for the specified persons:
Be it enacted by the Senate and House of Representative in General Assembly convened:
That persons who have been certified by or have satisfactorily completed an emergency medical service training course or first aid training course approved by the office of emergency medical services, persons who have been certified by or who have satisfactorily completed a rescue training course approved by the commission on fire prevention and control and persons assisting such certified or trained persons not be liable for ordinary negligence within the scope of such certification or training.
As with HB 5981, the Public Health and Safety Committee failed to give this bill its favorable report.
One reasonable interpretation of the language of HB 5981 is that the legislature had some inclination to offer broad immunity for ordinary negligence to persons providing emergency medical services, whether paid or volunteer and whether within the scope of their duties or otherwise, so long as they were acting under the direction of a physician or nurse and following approved procedures. This interpretation would tend to support the inclusion of paramedics, EMT's and other certified providers in subsection (b) of the present section 57-557b. HB 6697 provides even broader protection, requiring that the certified or trained persons be acting only within the scope of their certification or training to be relieved of ordinary negligence liability, which similarly argues in favor of including these persons in subsection (b).
Alternatively, one might conclude that, because both bills died in committee after public hearing testimony such as that of Cressy Goodin, this approach was rejected. Instead the only revision to section 57-557b made in 1977 was the addition of "medical technicians" and others in the section of the statute that provides for liability protection only for those acting "voluntarily and gratuitously" in emergency situations outside their regular employment or practice. This view would cut against including paramedics and EMT's in subsection (b) of the statute and for their inclusion in subsection (a) only. Unfortunately, we are still left with the ambiguous meaning of "medical technician."
C. Under What Circumstances Should Immunity be Granted?
Connecticut courts have somewhat limited the seemingly broad immunity under subsection (b) of section 52-557b. The New Haven superior court in Crew v. Yale University, No. CV 970398151, 1999 LOIS 5021 (Conn. Super. 1997) held that the immunity of subsection(b) of the good samaritan statute is limited to the following:
The problem with the defendant's contention is that the statute in question does not provide emergency service providers with blanket immunity from liability for any act of ordinary negligence, but only from liability resulting from acts or omissions in rendering "emergency first aid."
Crew at 5023. The court concluded that, as the complaint was based on the defendant's failure to properly transport the plaintiff's severed finger, and thus on some other aspect of the defendant's performance than rendering first aid to the plaintiff, the statutory immunity did not apply.
Further, in Maderos v. Shelton Police Dept., supra, the plaintiff's complaint against the defendant American Medical Response of Connecticut, Inc. (AMR) was based on the defendant's delay in responding to the call for emergency services. AMR argued that section 52-557b(b) entitled it to immunity. The superior court found that the basis for the plaintiff's allegations did not lie in the care and treatment rendered to the decedent by AMR at the scene of the emergency, as contemplated by the statute, but from a delay in the company's response to the call. Thus, the court held that the allegations against AMR did not involve conduct for which the Good Samaritan law was intended to apply.
Subsection (a) of the statute provides that the immunity applies when a specified person is rendering "emergency medical or professional assistance" that is "outside of the ordinary course of his employment or practice."
D. What Conduct is Excluded From Immunity Protection?
Both subsections (a) and (b) of the statute provide that, under the stated circumstances, the persons listed are immune from ordinary negligence. In addition, the subsections state: "The immunity provided in this subsection does not apply to acts or omissions constituting gross, wilful or wanton negligence." Connecticut case law provides some insight into the effect of this language.
In Shaham v. Wheeler, No. 321879, 1999 LOIS 64 (Conn. Super. 1997), the plaintiffs alleged that the conduct of the police officers and EMT's at the home of the decedent, after he had ingested a large quantity of pills in an attempt to commit suicide, constituted gross negligence to which the immunity under section 52-557b does not apply. In striking the count based on gross negligence, the court adopted a strict reading of the statute, declining to find that the statute creates a cause of action for gross negligence:
In light of the foregoing principles, the court is most reluctant to interpret Sec. 52-557b(b) as creating or permitting a cause of action in gross negligence in derogation of the common law rule prohibiting such a cause of action. In enacting ' 52-557b, it is clear that the legislature intended emergency medical personnel to be immune from suit in ordinary negligence. It is also clear that the legislature intended to provide only partial immunity, and intended to permit injured parties to sue for conduct constituting "gross, wilful or wanton negligence." However, the legislature did not go so far as to expressly create a cause of action in gross negligence, and since the state courts have explicitly declined to recognize one, this court is without authority to permit the plaintiffs to maintain such a cause of action in gross negligence.
Shaham at 69. See Croteau v. American Medical Response, supra and Maderos v. Shelton Police Dept., supra. The Shaham court rejects the plaintiffs assertion that the foregoing interpretation will "deprive injured parties of all recourse against the wrongful conduct of emergency medical personnel," as those parties may still bring suit for conduct constituting wilful or wanton negligence by such personnel.
However, the court in Kowal v. Hofher, 181 Conn. 355 (1980), offers the following, somewhat circular, analysis of what conduct constitutes wanton misconduct and willful misconduct:
Wanton misconduct is more than negligence, more than gross negligence. It is such conduct as indicates a reckless disregard of the just rights or safety of others or of the consequences of action. Willful misconduct is intentional misconduct, and wanton misconduct is reckless misconduct, which is the equivalent of willful misconduct.
Kowal at 362. It seems that, effectively, the only conduct by emergency medical providers that is not protected under the Good Samaritan statute is reckless or intentionally harmful conduct.
Certainly the legislative history of section 52-557b leaves much to be desired. No clear record exists of the legislature's intent as it has assembled this statute over its thirty-six year life. Consequently, much of the discussion among committee members and participants in the information sessions consisted of what individuals believed various terms to mean. In addition, the complexities of the emergency medical response system in Connecticut affect any recommended revisions to the statute.
While the proposed bill, attached to this report as Attachments D and E, includes detailed commentary explaining each revised section of the statute, three issues the committee discussed deserve further exploration. The first is the issue of whether the extent of immunity from liability for different emergency care providers should hinge on whether the individual is a paid or volunteer provider. The second is a twofold issue. First, to which emergency care providers do the terms "medical technician" and "ambulance personnel" refer or, more to the point, to which providers does the statute grant only "good samaritan" immunity and to which is granted immunity from ordinary negligence whether on or off the job? Second, to which providers does good public policy dictate each type of immunity should apply? Last is the issue of the increased availability of training for cardiopulmonary resuscitation and in the use of automatic external defibrillators, and how best both to protect the individuals who receive such training and to encourage them to use their training to assist others.
A. Paid v. Volunteer Provider
Perhaps the only matter of consensus among the participants in the information sessions was that distinguishing emergency care providers between those who are paid for their services and those who volunteer their services is inappropriate for purposes of imposing different levels of liability. First because, as several participants engaged in providing emergency care represented, few, if any, "volunteer" providers are genuinely volunteers. While some individuals might be referred to as "volunteers", they most likely receive some remuneration for their services. Such remuneration might be in the form of "stipends," rather than "salaries," and some municipalities grant property tax relief to individuals who provide services, but are not deemed "employees" of the municipality. However, virtually no providers offer their services without some consideration.
Second, it is apparently common for individuals trained as emergency service providers to work both as paid employees of a public or private employer and as a "volunteer" at times when they are not on duty for their employers. Thus, using employment status as a basis for liability would yield the questionable result that an individual would be subject to one level of liability while working on a shift for his employer, and another level several hours later while performing the same duties as a "volunteer."
Finally, the feeling among those participants who are in the business (whether public or private) of providing emergency care was that the appropriate basis for allocating liability should be the level of training the individual receives. These participants believe strongly that the degree of accountability for each licensed or certified professional should remain constant whether the individual is paid or provides his services under some other arrangement. To hold otherwise would be to create situations where two similarly licensed and trained individuals working next to each other, one paid and the other a volunteer, would have different liability exposures. One possible scenario might be that the two individuals would decide which one should perform a more risky procedure based on that person's likelihood of being held responsible if something went wrong, rather than on the basis of competence or experience.
¡ The committee was persuaded that the level of training, and not whether an emergency care provider is paid or a volunteer, is the appropriate basis for determining the extent of immunity.
B. Which Providers Should be Granted Good Samaritan Immunity? Immunity for Ordinary Negligence Whether On or Off the Job?
Conversely to A. above, this issue was the most contentious among the information session participants. Representatives of both police and firefighter organizations held that the term "ambulance personnel" in subsection (b) of section 52-557b includes even those individuals who have special training and are licensed or certified as paramedics, EMTs and medical response technicians (MRTs). Therefore, those individuals are immune from ordinary negligence liability even during the course of their employment. These participants argued that such extensive protection is necessary because paramedics, EMTs and MRTs work under extreme conditions, which they referred to as "combat conditions." Supporters of this view argued further that such immunity is necessary to encourage individuals to train for these difficult jobs requiring split-second judgment calls about life or death matters. Without immunity for ordinary negligence under all circumstances, i.e., both on and off-duty, many individuals will leave or never enter the field.
Other participants believed that the inclusion of "ambulance personnel" in subsection (b) was appropriate when the statute was drafted in 1963. At that time, most ambulance personnel received little or no training in emergency care, but simply transported injured persons to hospitals. Thus, ambulance attendants who administered some first aid at the scene were entitled to protection from ordinary negligence. The individuals in this camp argued that the provision of emergency medical services has progressed tremendously since then, with most ambulance personnel now required to be either MRTs or EMTs with levels of training that make them more akin to the professionals enumerated in subsection (a). These participants believe that providing these trained individuals with immunity during the course of their regular duties is an aberration under the law and an entitlement not enjoyed by other professions.
Jonathan S. Lillpop, Regional Coordinator/Executive Director of the Eastern Connecticut Emergency Medical Services Council, Inc sent a letter, dated November 4, 1999, to the committee after a meeting at which this issue was discussed:
During the meeting held on October 7, 1999, significant discussion was devoted as to whom is covered -- Volunteer EMT's, Paid EMT's, Off-Duty EMT's. I have asked EMS-Instructors and EMS Personnel their thoughts on that.... The response was unanimous that the Good Samaritan Act should cover only those individuals who come across an accident by random occurrence. It is a widely held belief that EMS personnel responding within the EMS System are not covered by the Good Samaritan Act.
Providing civil immunity to health care professionals while acting as part of their employment provides a benefit that I do not believe any other professional currently enjoys.
Finally, those holding the view that licensed and certified emergency medical services providers should be included only under the limited protection of subsection (a) find persuasive the 1977 addition of the term "medical technician," although admittedly ambiguous, to indicate an attempt by the legislature to include these more highly trained medical providers under the auspices of subsection (a). Thus they argued that the legislature meant to add these individuals to the list of those whom the legislature wanted to encourage to provide assistance in an off-duty emergency, but not to give them the broader immunity of subsection (b).
While some view the immunity of subsection (b) (section 2(a) in the proposed bill) as overly broad, it is important to note that the immunity for ordinary negligence applies only to "emergency first aid," discussed above in section III. C. In addition to the view of Connecticut courts that emergency first aid includes only hands-on treatment of a person, as opposed to other services such as transportation, representatives at the information sessions represented to the committee that first aid does not include such procedures as cardiopulmonary resuscitation or defibrillation. Unfortunately, no court has yet determined what hands-on treatment qualifies as first aid and what treatment goes beyond the scope of first aid. Thus, including paramedics, EMTs and MRTs in subsection (b) would only protect them from ordinary negligence in delivering first aid while on-duty, while subsection (a) would grant them immunity from such negligence while providing emergency medical assistance off the job.
Along with differences in philosophical views about the appropriate immunity to be granted to emergency services providers were differences in expectations of what immunity the statute currently provides. From comments made at the information sessions, it appeared that private, for-profit employers act on the assumption that all of their employees and volunteers are fully liable for negligence while on-duty. Conversely, those representing non-profit and municipal employers seemed to believe that all of their employees and volunteers are immune for all negligence short of gross negligence or wilful and wanton misconduct. While both public and private and for-profit and non-profit employers are required by law to maintain malpractice insurance, the non-profits and municipalities seemed particularly concerned that a change in the statute removing certain emergency services providers from subsection (b) protection would result in increased insurance costs.
Based on the discussions at the information sessions, and on the long-held assumption of municipalities and non-profit employers that their emergency care providers are fully immune from ordinary negligence while on-duty, the committee believes it unlikely that municipalities and non-profits would support a revision to subsection (b) that clearly removes paramedics, EMTs and MRTs from that subsections immunity.
¡ The committee was persuaded that the broader immunity of subsection (b) of section 52-557b is necessary to encourage individuals to enter and remain in the emergency services field. Further, the committee believes it unlikely that non-profit and municipal employers would support any revision that would limit protection for paramedics, emergency medical technicians and medical response technicians under the statute. Thus, the committee recommends including paramedics, emergency medical technicians and medical response technicians in subsection (b) (section 2(a) in Attachment D), and deleting the undefined and ambiguous term "medical technician" in subsection (a) (section 1 of Attachment D).
¡ Alternative: If the Judiciary Committee wishes to limit the immunity of these trained emergency medical care providers to traditional good samaritan immunity, it could include them in proposed section 1, delete the term "ambulance personnel" in section 2(a) and substitute the term "ambulance driver." The broader immunity in section 2 would then apply only to individuals who simply drive the ambulance, occasionally assisting with basic first aid.
C. Individuals Trained in Cardiopulmonary Resuscitation or in the Operation of Automatic External Defibrillators
Several participants in the information sessions informed the committee that some employers now provide training in CPR or in operating an automatic external defibrillator for their employees. The issue then is whether employees who are not hired primarily to provide emergency medical care, but who are trained to do so at their employers expense, and presumably with the expectation that they will provide such care if necessary while at work, are covered under either section of the present statute. Does receiving the training make providing CPR or using a defibrillator part of the employees regular job duties? If so, the employee is not covered under subsection (a), and may not be covered under subsection (b) if his profession is not among those currently listed in the statute. Other individuals, such as security guards, who are trained in these procedures, but who are not hired primarily to give medical aid, are likewise at risk.
¢ The committee believes that the language of present subsection (b) should be revised to provide protection for individuals trained in CPR or in providing defibrillation, other than persons licensed to practice medicine, surgery or dentistry, or as registered or licensed practical nurses, for ordinary negligence in providing those procedures, whether they do so in the course of employment or outside of their employment. The addition, found in section 2(b) of the proposed bill, is intended to encourage these individuals to use their training without fear of possible adverse legal consequences.
V. FIREFIGHTERS RULE
The committee believes, in light of its recommendation that paramedics, EMTs, MRTs and ambulance drivers should remain protected by the immunity of subsection (b) of section 52-557b, it also must recommend that the limitation on liability for property owners that exists in common law as the "firefighters rule" should likewise pertain to these emergency care professionals as well as to police officers and firefighters. The firefighters rule presently limits a property owners duty of care to police officers and firefighters who enter the property in performance of their duties to that of a licensee, rather than imposing the higher standard owed to an invitee. See Roberts v. Rosenblatt, 146 Conn. 110 (1959) and Furstein v. Hill, 218 Conn. 610 (1991).
Courts upholding the rule for police officers and firefighters have maintained that, given that these individuals enter property under unexpected circumstances, holding the property owner to a higher level care for the condition of the premises would be overly burdensome. The committee recommends including emergency medical providers in recognition of the inherently unpredictable nature of their work, similar to that of police officers and firefighters, for which they are trained.
The rule as stated would apply to the emergency services providers specified, whether they are employed or are volunteers, and whether they are affiliated with either a private provider (such as an ambulance company), or a public provider.
While the common law rule does not now extend to private providers, that is most likely because the rule presently applies only to police officers and firefighters, who are public servants. Including emergency medical care personnel under the rule by necessity requires covering both public and private providers, since these professionals perform their duties in either or both the public and private sectors.
One traditional rationale for the "firefighters rule" is that allowing police officers and firefighters to recover from property owners would impose a double economic burden on taxpayers. The taxpayer pays first for workers compensation insurance for the officer through taxes, and then would pay again through tort recovery. The courts have held that the better result is for society as a whole to bear the burden of compensating public officers for their losses while on-duty.
This rationale is less clear when applied to private emergency care providers. However one may argue that injured workers from the private sector are better compensated through private workers compensation insurance, the cost of which is passed along to consumers in the form of higher costs for services, than through tort recovery against individual property owners. In this case, society as a whole is compensating injured providers so as to encourage sick or injured individuals to call for emergency medical assistance, rather than discouraging such calls out of fear of personal liability if a provider is injured while responding to the call. Further, the court in Roberts at 113 adopted the following principle from the Restatement (Second) of Torts, § 345(1), pp. 226-27: "[T]he liability of a possessor of land to one who enters the land only in the exercise of a privilege, for either a public or a private purpose (emphasis added), and irrespective of the possessors consent, is the same as the liability to a licensee."
¢ The committee recommends extending the common law "firefighters rule," that limits a property owners duty of care to police officers and firefighters entering the property in performance of their duties to that of a licensee, to paramedics, EMTs, MRTs and ambulance drivers.
VI. ADDITIONAL ISSUE THE JUDICIARY COMMITTEE MIGHT WISH TO CONSIDER
In addition to the revisions to section 52-557b recommended by the committee, another issue concerning the statute was raised during the information sessions. The committee believes the issue to be outside the scope of this study, but notes it for the Judiciary Committee, which might wish to address it at another time:
Both sections of the present statute limit the immunity of the specified emergency service providers to actions brought in ordinary negligence by the person receiving the assistance. The Judiciary Committee might wish to determine whether the immunity should instead apply simply to the negligent acts or omissions of the provider in providing the services. Thus, the provider would be protected against the claims of all individuals asserting injury from the provision of the services; e.g., a mother who suffers emotional distress while watching her child being assisted or a family member who brings a wrongful death action.
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