In an earlier post (The risk of liability for performing emergency CPR is overstated – even in the USA (October 7, 2015)) I reported on a report – ‘Strategies to Improve Cardiac Arrest Survival: A Time to Act’ (Institute of Medicine, 2015). That report included this (at p 113-114; emphasis added):
A fear of legal consequences and a lack of familiarity with Good Samaritan laws are frequently cited as reasons for not performing bystander CPR. These fears are not without justification: although a bystander has no legal duty to rescue, there can be legal consequences for intervening. Theoretically, a member of the public could be sued for providing bystander CPR; however, the committee is unaware of any successful suit of this type. To mitigate the confusion and fear of potential rescuers, CPR instructors are urged to inform trainees of the protections available for lay rescuers in their area.
My friend and colleague Luke Dam has drawn to my attention a US case that may, or may not, confirm that principle – see David Statter, Lawsuit blames Firehouse Subs theme for workers thinking they are rescuers (STATter911 (online), 29 April 2016). The gist of the story is that staff at a restaurant called ‘Firehouse Subs’ attempted CPR on a choking customer but failed to ensure a clear airway before beginning Expired Air Resusciation (mouth-to-mouth). The online article quotes a local paper reporting that the deceased’s widow is:
… now suing Firehouse Subs for her husband’s wrongful death, claiming that the firefighting theme made staff brazen enough to try to attempt CPR—instead of waiting for the actual first responders to arrive. The suit accuses franchise owners Doroty and Edvard Dessalines for not training their employees how to treat choking victims.
Statter asks ‘If the workers had waited for the real rescuers to arrive and Mr. Skoff still died, you don’t think there would have been a lawsuit about the employees doing nothing, do you?’
Luke asks ‘I assume with our Good Samaritan laws, this would not happen here?’
Let me then discuss some of the issues here. First, Good Samaritan laws – take the NSW laws as an example. The Civil Liability Act 2002 (NSW) s 57 says:
A good samaritan does not incur any personal civil liability in respect of any act or omission done or made by the good samaritan in an emergency when assisting a person who is apparently injured or at risk of being injured.
(See also Civil Law (Wrongs) Act 2002 (ACT) s 5; Personal Injuries (Liabilities and Damages) Act 2003 (NT) s 8; Civil Liability Act 1936 (SA) s 74; Civil Liability Act 2002 (Tas) ss 35B; Wrongs Act 1958 (Vic) ss 31B; Civil Liability Act 2002 (WA) s 5AB).
That does not mean that someone can’t bring a legal action. The person who, ultimately, has to decide whether s 57 applies is a judge and litigation is the process to bring a case before the judge. Section 57 creates a defence and a hurdle for the plaintiff to jump but a plaintiff who wanted to argue that the defendants were not good Samaritans (I’ll come back to that) or were not acting in ‘good faith’ can do that. So s 57, and no doubt the good Samaritan laws in Florida, don’t stop the allegation being made, but they do frame the legal issues the plaintiff has to address.
Would Good Samaritan laws apply here?
The first thing to note is that that the lawsuit is not against the staff. Accepting what has been reported (noting that we’re relying on a newspaper report and an online report, not the actual court documents) we are told that ‘The suit accuses franchise owners Doroty and Edvard Dessalines for not training their employees how to treat choking victims’; it is not accusing the staff for failing to perform CPR properly.
Are the franchise owners’ good Samaritans? Using the NSW definition, a good Samaritan is ‘a person who, in good faith and without expectation of payment or other reward, comes to the assistance of a person who is apparently injured or at risk of being injured’ (s 56). The franchise owners didn’t do that so on one view, the Act wouldn’t apply to them.
The alternative argument is that as with all aspects of a business, the business doesn’t operate by the hands of the owners only. The owners employ people to act on their behalf so when the employees stepped forward, they were ‘the owners’. The franchise may not have had a duty to provide CPR, whilst any business would owe a duty to their customers, they couldn’t just try to work around the dying customer, they duty may require no more than calling 911 (in the US) or triple zero in Australia. If the owner’s representatives stepped forward to help it makes sense to say that it was the owners who provided CPR and that they too are entitled to good Samaritan protection. That is something the court will have to resolve if it ever gets there (and I doubt it will, see below).
Note that if the staff were trained in first aid and were being paid an allowance to be a workplace first aid officer then they would not be good Samaritans as they would not be acting ‘without expectation of payment’ because they are in fact paid to provide first aid. That would not change the defendant, under the doctrine of vicarious liability their employer – the franchisees – would still be liable for any negligence (see Vicarious liability for the actions of fire wardens (March 5, 2016) and Queensland paramedics, registration and misunderstanding the law on liability (April 12, 2016)) but it might change the nature of the allegations.
The next issue will be ‘Did the owners need to train someone to provide CPR?’ Again I’m going to use NSW law as my example. I’ve previously talked about the Work Health and Safety Act requiring that a PCBU (a person conducting a business or undertaking) has to have in place first aid and emergency procedures (Work Health and Safety Regulations 2011 (NSW) rr 42 and 43) which includes having persons trained in first aid (r 42(2)). I have argued that this may not extend to having in place AEDs (see Liability for failing to install an AED? (April 7, 2016) and Making the installation of AED’s compulsory (September 27, 2015) but CPR does not require any technology and equipment.
So a lawsuit against a PCBU for not having anyone trained in first aid (which I would infer includes CPR) may well be a live issue, but it would still face the problem of trying to show it would have made a difference, ie that even with proper training, and a clear airway, the patient would have survived. (I suppose ‘choking’ is different to sudden cardiac arrest so that issue may be easier to get over than in other cases).
Will it ever get to court?
I doubt it. For all the reasons discussed above, and before, this case has bugger all chance of winning. The plaintiff would have to show that the defendant owed the deceased a duty to actually take action, the action taken was not ‘reasonable’ and that had they acted differently it would have made a different to the outcome. They will also have to deal with the Florida good Samaritan statutes (if any).
That doesn’t mean they won’t get some money. People involved in the emergency services and emergency response may like to think that it’s all about the principle and that someone should not be liable here, and that the widow should be grateful someone tried something. And that a successful outcome for the plaintiff puts the defendant’s in an unwinnable position because, as Statter noted, there would be a much better cause of action if the staff had done nothing.
But insurance companies have little interest in principle (see Settlement in Black Saturday litigation is approved (December 23, 2014)). Their obligation is to maximise return to shareholders and that is by paying out as little as possible. And paying the plaintiff to go away may cost much less then defending the case. Further, if they defend it, win or lose, there becomes a precedent that other people can look at. If the defendants win this one, the next case will be phrased in such a way to avoid the obstacles that get tested here. IF the defendants lose well that just encourages other. Settle the case and it disappears. Remember that in this blog I have said that there are no reported cases of people being sued for doing first aid or CPR. The US report, cited above, also said ‘the committee is unaware of any successful suit of this type’. If this case settles it disappears into the dust, there is no ‘report’ and the case is not, from an academic lawyers’ point of view ‘successful’ (though not doubt the plaintiff and her lawyers would see it as a success). If this case does settle, this blog and other writers will still say no-one’s been successfully sued because no court has ruled on the issue and report writes will still be ‘unaware of any successful suit of this type’.
Further insurance companies want to keep the customers happy (within reason). If they chose to defend it, their customers have to give evidence, and await verdicts. People pay insurers to make problems go away. Making a settlement does that and people then say ‘my insurance company was great, they made the problem disappear’. Of course it depends on the attitude of the insured. If the insured was, say a first aid company, they may well take the view that in a case like this they don’t want to settle in which case they may be pleased that the insurer fought it. Whilst the ultimate decision does rest with the insurance company, and the bottom line has to be the ultimate issue, the attitude of the insured may certainly be something an insurer wants to consider when deciding whether or not to settle.
Application to Australia
This is a case out of left field. I would not expect to see such a case run, and even seeing it started is novel. In Australia we don’t have ‘wrongful death’ suits like the US so I would be very surprised to see a case like this here. There are other issues here too. In Australia lawyers are not allowed to charge a percentage of the verdict and lawyers have to give a personal assurance that they think a case brought to court has ‘reasonable prospects of success’ so there is less incentive to speculate in litigation. That might make it harder to bring a case like this here. Even so I’m surprised to see it even from the US.
Having said that if my prediction is correct, this case will never see a final hearing. In the US there are lots of steps to remove hopeless cases (if you watch American legal TV consider a ‘motion to dismiss’). Cases can get kicked out of court at an early stage if there’s really no chance. That might happen here but if it’s a single judge of a Florida court it’s not a major precedent. If the issue moves up the judicial scale it may end up saying something useful about the state of the law. If the case settles, either with payment to the plaintiff or not, it will not make a difference to the current view that the risks of litigation and liability are very low and it would still be the case of no ‘reported’ decisions on liability for performing CPR. But perhaps we can no longer say ‘no-one‘ has been sued.