In this Column . . .

Who Are the Lawyers on Sawyer?
(contact information and email links)

And. . .Did You Know
- About the American Rule on Attorneys Fees?
- About the Unconstitutional and Unnecessary Proposed Special Events Permit for the City of Oshkosh?
- How Mediation and Arbitration Help and Hurt the Legal Process
- About Easements?

-$8,000 First Time Homebuyer's Tax Credit
-What To Do First When A Loved One Dies
-Home Improvement Laws

FYI - We will post relevant comments & corrections after reviewing them. Just click on the comment link.

Who Are the Lawyers on Sawyer?

Kindt Phillips Friedman & Fremgen, SC
141 N. Sawyer St.
Oshkosh, Wisconsin 54902


Email a Lawyer on Sawyer

Chris Kindt
Andy Phillips
Ken Friedman

Saturday, February 7, 2009

Did you Know: In Wisconsin, a Good Samaritan Must Call for Help & Stick Around.

A Good Samaritan volunteers help to those in need. I was surprised to learn that the California Supreme Court decided that Good Samaritans are liable for negligent care given in an emergency. The case was Van Horn v. Watson, S152360. Van Horn, a Good Samaritan, pulled a friend, Torti, out of a car after an accident. Torti became paralyzed, she sued Van Horn. Like many states, California has a Good Samaritan statute. In a divided opinion, the court held that the statute protected only persons giving emergency medical care. While this may have been a "good decision" to a legal scholar it leaves California with a bad law.

What about Wisconsin? The good news is that Wisconsin's Good Samaritan law applies to ANYONE who provides emergency care in an emergency. The good samaritan law - Wis. Stats. 895.48(1) - says, in 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 bad news is that not everyone knows what emergency care is and which acts are covered?

The most recent case is Mueller v. McMillian Warner Ins. Co., 2008 WI 54. In Mueller, a teenager suffered a head injury near a north Wisconsin cottage owned by the family of a friend. The owner, Mrs. Switlick decided to monitor the teenager's symptoms before calling for help. She let the teenager sleep, but woke her every hour to see how she was doing. Six hours later, when the teenager showed signs of confusion, she was taken to the hospital and diagnosed with a skull fracture.

The Wisconsin Supreme Court considered how the law applied to a situation where a Good Samaritan provided care for six hours after becoming aware of the injury. The court ruled that "emergency care" means care rendered by a layperson in a sudden, unexpected happening, occurrence, or situation that demands immediate action until professional medical attention is available.

Then the court took two more steps. First, the court found that "emergency care" given by a layperson consists of "initial evaluation and immediate assistance, treatment, and intervention rendered to the plaintiff during the period before care could be transferred to professional medical personnel."

Then the court found a duty to call for medical help. Since the Switlicks waited for six hours to get medical help, the court found immunity did not apply. Writing a unanimous court, Chief Justice Shirley Abrahamson held that "[t]he care rendered by the Switlicks after the initial evaluation and immediate assistance, treatment, and intervention for longer than the period necessary to transfer care to professional medical personnel does not constitute "emergency care."

In other words, a Good Samaritan only has immunity if they call for medical help as soon as possible. Why? In the court's mind, this solution reflected the “legislative intent” of balancing two public policies. The legislature wanted to encourage bystanders to help those in need. And the legislature wanted to encourage laypersons acting as Good Samaritans to seek professional medical treatment.

The Wisconsin Legislature was apparently satisfied with this result. It revised the statute in 2007 without making any changes in the Good Samaritan Law, Wis. Stats. 895.48(1).

The decision leaves at least two (and probably more) questions unanswered. First, the decision may not be logical. It is said that bad facts make bad law. In this case, the Court was faced with an injured teenager under care of an adult who knew medical help might be required. One question that the court did not explicitly consider is whether a state of emergency is objective (the court decides what a reasonable person would think) or subjective (the Good Samaritan decides).it is easy to think of situations in which a person is not aware of the need for medical attention. One could argue that Mrs. Switlock’s decision not to seek assistance was part of her initial evaluation? On the face of the statute, shouldn’t an inaccurate (negligent) evaluation of when an emergency exists be protected by the same law that would protect negligent treatment?

Second, does a good Samaritan take on any other obligations besides calling for help? The court defined emergency care as care rendered until professional medical help is available. If a Good Samaritan leaves the scene after starting to help, would he or she be liable for injuries that might have been prevented? What if the Good Samaritan leaves the scene to call for help?

The Supreme Court has not yet answered these questions.

Meanwhile, play it safe. Call for help. And don't leave until help arrives.

For more information, email Ken Friedman, call him at 920-231-1500 or post a comment here.

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