Vol. 80, No. 7, July 2007
by ost people would like to help others in emergencies but also want to avoid liability should anything go amiss when providing that help. Many states enacted Good Samaritan statutes, for example, so that physicians would be immune from being held liable for providing emergency assistance to injured people in situations when physicians do not have access to their medical equipment, staff, or a clean environment.
The definitions of a statute's key terms are significant to understanding the scope of the law. This article examines Mueller v. McMillian Warner Insurance Co., a case appealed to the Wisconsin Supreme Court, in which the court defined the terms of Wisconsin's Good Samaritan statute. This clarification of terms gives attorneys, physicians, and emergency medical personnel a better understanding of the immunity statute's application.
Barry W. Szymanski, Marquette 1973, is of counsel with Schober Schober & Mitchell S.C., Wauwautosa. As part of his practice, he represents ambulance and fire departments, emergency medical technicians, and paramedics throughout Wisconsin, and serves as the lawyer for the Wisconsin EMS Association. He is a 2006 graduate of St. Francis Seminary.
Wisconsin's Good Samaritan statute provides liability exemption if the person who offers emergency care complies with the law. The legislature has enacted many legal immunity statutes; compliance with the particular statute's terms is a requirement to be exempt from common law negligence. (See the accompanying sidebar for a list of other Wisconsin exemption statutes.)
In 2006, the Wisconsin Supreme Court examined in detail the Good Samaritan law. In Mueller v. McMillian Warner Insurance Co.,1 the court held that "emergency care" refers to the initial evaluation and immediate assistance, treatment, and intervention rendered to an injured person during the period before care can be transferred to professional medical personnel.2
The Good Samaritan Statute
One of the older legislated exemptions enacted to minimize liability of persons rendering emergency medical care often is referred to as the Good Samaritan statute. Its name is derived from the New Testament parable in which a Samaritan was the only passerby to aid a man left half-dead by thieves.3
Wisconsin's Good Samaritan statute for emergency medical care states the following:
"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. This immunity does not extend when employees trained in health care or health care professionals render emergency care for compensation and within the scope of their usual and customary employment or practice at a hospital or other institution equipped with hospital facilities, at the scene of any emergency or accident, en route to a hospital or other institution equipped with hospital facilities or at a physician's office."4
In Mueller, the supreme court reviewed and affirmed a court of appeals decision5 that addressed the application of the Good Samaritan statute. The supreme court held that the current statute sets forth three elements:
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.6
The court stated that if all three elements are met, the alleged tortfeasor shall be immune from civil liability for his or her acts or omissions in rendering such emergency care. If any element is not met, the alleged tortfeasor is not entitled to immunity under the Good Samaritan statute.7
The purpose of the current Good Samaritan statute, according to the supreme court, is to encourage individuals to provide emergency care to an injured person by immunizing the caregivers from common-law liability if they fail to exercise reasonable care when rendering emergency care in good faith.8
The Facts of Mueller v. McMillian
In October 2003, Merlin and Stephani Switlick held a party for friends and business associates on property they owned in Lincoln County. Guests often spent the night at the family "shack," which had several bunkhouse-style bedrooms.
Apollo Switlick, the son of Merlin and Stephani Switlick, arrived at the party around 2 p.m. He drank a couple of 12-ounce beers before 6 p.m. and a few more beers between 6 p.m. and 10 p.m. Between 6 p.m. and 7 p.m., Lina Mueller, the plaintiff, arrived at the party and went inside the shack with Apollo to play pool and possibly to drink. The adult guests stayed outside the shack, near a pit where the Switlicks had built a bonfire.
The trial record showed that because Lina suffered a skull fracture that resulted in her memory loss, there is no account by her of the events that occurred that evening.
At about 10 p.m., Apollo and Lina joined the adults outside by the fire. Apollo testified that, once outside, he heard an all-terrain vehicle (ATV) "puttering like it was running out of gas or was having a problem." Because Apollo knew his sister and her children had taken one of the family ATVs to check a field for deer, he thought that they might be in trouble. He got on an ATV, and Lina got on behind him. Neither wore a helmet. After checking on his sister, Apollo and Lina headed back to the shack on a trail that was not on the family property.
During that return trip, an accident occurred. According to Apollo, he hit a stump or saw an overhanging branch, slammed on his brakes, and then remembered nothing until he and Lina got back to the shack around 11 p.m. Apollo was unclear about what occurred before the accident and remembered nothing about the ride back to the shack. After they arrived, both Apollo and Lina were bleeding and vomiting.
Apollo and Lina talked to Stephani and Merlin Switlick. Lina went into the bathroom and wanted to lie down on the floor. Stephani Switlick eventually convinced Lina to lie down in one of the bedrooms instead. Apollo lay down in the same bed. Stephani Switlick testified that she woke Apollo and Lina approximately every hour during the night. In the morning, after Lina responded to Stephani Switlick's questions by addressing her as "mom," Stephani Switlick called an ambulance. Lina was taken to a hospital in Merrill where she was diagnosed with a skull fracture. She was then transported to a facility in Marshfield where she was hospitalized and treated.
In January 2004, Lina sued Apollo Switlick for negligence. Some months later, Lina filed an amended complaint alleging that Merlin and Stephani Switlick were negligent in providing alcohol to minors and in providing care for her after the accident.9
The Parties' Arguments
The plaintiff (Lina) argued that the care rendered by the Switlicks was not at the scene of any emergency or accident. She further argued that the Switlicks did not provide emergency care or that, in the alternative, the care they rendered ceased to be emergency care after their initial evaluation and immediate assistance, treatment, and intervention ended.10
The defendants (the Switlicks) argued that they were immune from liability under the Good Samaritan statute for their acts or omissions in rendering care to Lina. In particular, the Switlicks argued that all their acts or omissions regarding Lina occurred at the scene of the emergency and constituted emergency care rendered in good faith.11 The defendants moved for summary judgment.
The Circuit Court
After a hearing, the circuit court issued a written decision and reasoned that to meet the statutory purpose, the scene of any emergency or accident should:
"…follow the person in peril and in need of emergency care. It covers the farmer that answers the door to find the victim of an automobile accident who was able to make it to his door or the driver finding a hunter who, after falling from his deer stand, crawls out to a highway with his broken leg. The fact that the site of the accident is some distance away does not reduce an injured person's need for assistance."12
The circuit court concluded, among several other issues, that Merlin and Stephani Switlick had provided traditional first aid to Lina and thus were immune from liability under the Good Samaritan statute.
The Court of Appeals
The Wisconsin Court of Appeals reversed the circuit court, which had ordered summary judgment to Merlin and Stephani Switlick and had dismissed Lina's claims for damages against the Switlicks for their alleged negligence in caring for her.
The Wisconsin court cited a Minnesota Court of Appeals case in which that court decided that transporting an injured child fell within the scope of the Good Samaritan law even though the driver did not go directly from the scene of the accident to the hospital but instead took a quarter-mile detour.13
Similarly, the North Dakota Supreme Court concluded that a passerby who stopped at the scene of an accident to see if victims needed assistance was "rendering" emergency care because the person was attempting to make aid available.14
However, the Wisconsin Court of Appeals clearly asserted that nothing in the statute suggests any intention that an ordinary person should make care-giving decisions any longer than the emergency situation necessitates.15
In reversing the circuit court's judgment, the court of appeals concluded:
"[W]hen the [S]amaritan is a layperson, the intervention protected will ordinarily be of short duration and of an interim sort. Nothing in the statute suggests any intention that an ordinary person should make care-giving decisions any longer than the emergency situation necessitates…. That nothing was done to make medical help available to Mueller for over six hours only underscores the fact that Stephani was not responding as if to an emergency. Based on the undisputed facts in this case, the Switlicks thus did not provide any care that would entitle them to immunity from liability under Wis. Stat. § 895.48."16
Brief History of the Good Samaritan Statute
On appeal, the Wisconsin Supreme Court noted that the original Good Samaritan statute, enacted in 1963,17 provided immunity only to medical professionals (doctors and nurses) who rendered emergency care.18 In 1977 a statute was adopted that extended Good Samaritan protection to laypersons. In all respects relevant to the issue recently decided by the court, the statute has remained unchanged since 1977.
The court noted that a consistent purpose of the Wisconsin Good Samaritan statute has been to encourage the prompt provision of care in an emergency until professional medical care can be obtained. It further noted that the Legislative Council analysis of the current law stated that the result of reluctance to get involved is that "emergency treatment is often delayed or denied to many persons involved in accidents or who have suffered serious injury" and concluded that the new law "would encourage the public to come to the aid of persons involved in accidents who need prompt emergency care."19
The court also noted that many states in the United States have enacted Good Samaritan statutes to remove the fear of civil liability when a person provides prompt and immediate emergency medical care.20
A commentator cited by the court suggested that the purpose of the Good Samaritan statute is "to encourage lay persons and professionals to respond to another's need for help by granting limited immunity for negligent acts which might occur while rendering emergency assistance."21
The court added that, in reaching this conclusion, the commentator quoted from a letter to her from Rep. J.F. Rooney (whom the commentator refers to as the principal author of Assembly Bill 96). Rep. Rooney said the following:
"In answer to your first question as to why we expanded the scope of the original [G]ood [S]amaritan statutes; it was felt that our society has become `sue happy' and therefore many citizens who might otherwise go to the aid of a fellow human being do not because of the fear of being sued for trying to help. By elimination of the threat of lawsuit, more people would be apt to aid a victim."22
The Wisconsin Supreme Court
In affirming the court of appeals decision, the Wisconsin Supreme Court stated that the dispositive issue was whether the actions taken by the Switlicks between the time they initially evaluated and immediately assisted and treated Lina and intervened on her behalf, and the time they called 911 six to seven hours thereafter, constitute emergency care at the scene of any emergency or accident in good faith for the purpose of the Good Samaritan immunity statute.23 The court then provided insight into the three elements of the Good Samaritan statute:
1) Emergency care must be rendered at the scene of the emergency. The court found that before 1977, the Good Samaritan statute protected only licensed medical workers and contained the following definition of scene of an emergency:
"`[T]he scene of an emergency' means areas not within the confines of a hospital or other institution which has hospital facilities or the office of a person licensed or certified under this chapter."24
This definition was not included when the legislature adopted the present Good Samaritan statute.
The Wisconsin Supreme Court agreed with the circuit court that the phrase "scene of any emergency" should ordinarily be interpreted to cover emergency care at a location where such care is needed, and the phrase was sufficiently broad to include the Switlicks' home, where the injured, bleeding plaintiff arrived after the ATV incident. The supreme court concluded that the initial evaluation and immediate assistance, treatment, and intervention rendered by the Switlicks at their home occurred at the "scene of any emergency."25
2) The care rendered must be emergency care. Because the Good Samaritan statute does not define emergency care, the Wisconsin Supreme Court undertook to define it, but because of the complexity of usage, desired "to provide a flexible, broad working definition of emergency care that is suitable for the present case and may be suitable for a multitude of other cases."26
In Oklahoma, the court noted, emergency care, by law, consists only of "artificial respiration, restoration of breathing, or preventing or retarding the loss of blood, or aiding or restoring heart action or circulation of blood to the victim or victims of an accident or emergency…."27
An Oregon statute defines emergency care as follows:
"(a) Medical or dental care not provided in a place where emergency medical or dental care is regularly available, including but not limited to a hospital, industrial first-aid station or a physician's or dentist's office, given voluntarily and without the expectation of compensation to an injured person who is in need of immediate medical or dental care and under emergency circumstances that suggest that the giving of assistance is the only alternative to death or serious physical after effects; or
"(b) Medical care provided voluntarily in good faith and without expectation of compensation by a physician licensed by the Board of Medical Examiners for the State of Oregon in the physician's professional capacity as a team physician at a public or private school or college athletic event or as a volunteer physician at other athletic events."28
The Wisconsin Supreme Court defined four terms:29
Emergency means a sudden, unexpected happening or unforeseen occurrence or condition.
Emergency medicine means the evaluation and initial, rapid treatment of medical conditions caused by trauma or sudden illness.
Emergency care in Wis. Stat. section 895.48(1) (as it applies to a layperson) means care rendered by a layperson in a sudden, unexpected happening, occurrence, or situation that demands immediate action until professional medical attention is available.
Care means 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.
The court concluded that providing immunity when initial and immediate medical care is required reflects the Good Samaritan statute's legislative purpose, which is to encourage the type of emergency medical services required to stabilize an injured individual's health before care can be transferred to professional medical personnel.30
Therefore, "emergency care" under the statute refers only to the initial evaluation and immediate assistance, treatment, and intervention at the scene of an emergency during the period before care can be transferred to professional medical personnel.31
3) Any emergency care must be rendered in good faith. The Wisconsin Supreme Court did not examine the third element, good faith, in its decision. The Wisconsin Court of Appeals did, however, when it stated that "the term 'good faith' only complicates the matter."32 It added:
"Good faith can mean a `belief in one's legal title or right.' But it can also mean `absence of fraud, deceit, collusion, or gross negligence.' In other words, good faith can be measured subjectively or objectively."33
Court's Analysis of Mueller and the Switlicks' Care
The Wisconsin Supreme Court noted that when Lina returned to the shack bloodied and vomiting, both Merlin and Stephani Switlick may have been involved in the initial assessment of her injuries, the immediate assistance, treatment, and intervention, and the decision not to seek immediate professional medical assistance. Stephani Switlick continued to monitor Lina during the night.34
In evaluating Lina's condition and rendering to Lina immediate assistance, treatment, and intervention, the Switlicks may have been rendering emergency care. It is undisputed, however, that professional assistance could have been summoned immediately after Lina arrived at the house, or at least immediately after the initial evaluation of Lina. Instead of summoning professional medical assistance, the Switlicks determined that the circumstances did not require trained medical professionals, and they decided to, and did, provide ongoing care for Lina throughout the night. Therefore, after the initial evaluation and immediate assistance, treatment, and intervention that constituted emergency care, the Switlicks' assistance, treatment, and intervention changed from emergency care to nonemergency care.
In this definitive case, the Wisconsin Supreme Court held that just doing nothing, that is, "plain non-emergency care,"35 does not provide immunity under the Good Samaritan statute - and if there is no immunity, then the caregiver may be sued in negligence.
However, the court did not open the door to absolute liability. It added that even though a caregiver who is not immunized by the Good Samaritan statute for nonemergency care is subject to the common-law rules governing the conduct, "…it does not necessarily follow that the caregiver will be liable for damages."36
The court is well aware of the balance that the Wisconsin Legislature has tried to accomplish: on one side, encouraging individuals to help those in need, and, on the other side, encouraging caregivers "to seek professional medical assistance."37 In this case, the Wisconsin Supreme Court did not modify long-standing law but rather clarified a statute's definitions, and therefore its application.
Under Wisconsin's Good Samaritan law, according to the Wisconsin Supreme Court, the phrase "scene of any emergency" is a broad phrase that includes the place to which an injured person arrives when a "Good Samaritan" takes action.
The phrase "emergency care" refers to the initial evaluation and immediate assistance, treatment, and intervention rendered to an injured person during the period before care can be transferred to professional medical personnel.38
When no emergency care is provided, a caregiver cannot receive the immunity provided under the Good Samaritan statute. A Good Samaritan can make the initial evaluation, and offer immediate assistance, treatment, and intervention to an injured person. But then, after that emergency care is provided, the injured person is to be transferred to professional medical personnel. If no medical transfer is made, the Good Samaritan immunity law exemption no longer applies.