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Liability of Volunteer Emergency Medical Care Provider in North Carolina

Typically, a health care provider must act “in accordance with the standards of practice among members of the same health care profession with similar training and experience situated in the same or similar communities under the same or similar circumstances at the time of the alleged act giving rise to the cause of action.”  The plaintiff must show a violation of this by “the greater weight of the evidence.”  Emergency medical personnel are held to a slightly looser standard.  Their violation of the standard of care must be shown by “clear and convincing evidence.”  These standards are set forth in G.S. 90-21.12, which states that

(a)     Except as provided in subsection (b) of this section, in any medical malpractice action as defined in G.S. 90-21.11(2)(a), the defendant health care provider shall not be liable for the payment of damages unless the trier of fact finds by the greater weight of the evidence that the care of such health care provider was not in accordance with the standards of practice among members of the same health care profession with similar training and experience situated in the same or similar communities under the same or similar circumstances at the time of the alleged act giving rise to the cause of action; or in the case of a medical malpractice action as defined in G.S. 90-21.11(2)(b), the defendant health care provider shall not be liable for the payment of damages unless the trier of fact finds by the greater weight of the evidence that the action or inaction of such health care provider was not in accordance with the standards of practice among similar health care providers situated in the same or similar communities under the same or similar circumstances at the time of the alleged act giving rise to the cause of action.

(b)     In any medical malpractice action arising out of the furnishing or the failure to furnish professional services in the treatment of an emergency medical condition, as the term "emergency medical condition" is defined in 42 U.S.C. § 1395dd(e)(1)(A), the claimant must prove a violation of the standards of practice set forth in subsection (a) of this section by clear and convincing evidence.

G.S. 90-21.11(1) defines a “health care provider” as

a.      A person who pursuant to the provisions of Chapter 90 of the General Statutes is licensed, or is otherwise registered or certified to engage in the practice of or otherwise performs duties associated with any of the following: medicine, surgery, dentistry, pharmacy, optometry, midwifery, osteopathy, podiatry, chiropractic, radiology, nursing, physiotherapy, pathology, anesthesiology, anesthesia, laboratory analysis, rendering assistance to a physician, dental hygiene, psychiatry, or psychology.

b.      A hospital, a nursing home licensed under Chapter 131E of the General Statutes, or an adult care home licensed under Chapter 131D of the General Statutes.

c.      Any other person who is legally responsible for the negligence of a person described by sub-subdivision a. of this subdivision, a hospital, a nursing home licensed under Chapter 131E of the General Statutes, or an adult care home licensed under Chapter 131D of the General Statutes.

d.      Any other person acting at the direction or under the supervision of a person described by sub-subdivision a. of this subdivision, a hospital, a nursing home licensed under Chapter 131E of the General Statutes, or an adult care home licensed under Chapter 131D of the General Statutes.

G.S. 90-21.11(2) defines a “medical malpractice action” as

a.      A civil action for damages for personal injury or death arising out of the furnishing or failure to furnish professional services in the performance of medical, dental, or other health care by a health care provider.

b.      A civil action against a hospital, a nursing home licensed under Chapter 131E of the General Statutes, or an adult care home licensed under Chapter 131D of the General Statutes for damages for personal injury or death, when the civil action (i) alleges a breach of administrative or corporate duties to the patient, including, but not limited to, allegations of negligent credentialing or negligent monitoring and supervision and (ii) arises from the same facts or circumstances as a claim under sub-subdivision a. of this subdivision.

The North Carolina statute further limits the liability for those who are “render first aid or emergency health care treatment” and receive no compensation for their services.  In this case, such volunteer is not liable for damages unless the injuries were caused by “gross negligence, wanton conduct or intentional wrongdoing on the part of the person rendering the treatment.”  G.S. 90-21.14 contains the applicable provisions and states that

(a)     Any person, including a volunteer medical or health care provider at a facility of a local health department as defined in G.S. 130A-2 or at a nonprofit community health center or a volunteer member of a rescue squad, who receives no compensation for his services as an emergency medical care provider, who renders first aid or emergency health care treatment to a person who is unconscious, ill or injured,

(1)     When the reasonably apparent circumstances require prompt decisions and actions in medical or other health care, and

(2)     When the necessity of immediate health care treatment is so reasonably apparent that any delay in the rendering of the treatment would seriously worsen the physical condition or endanger the life of the person,

shall not be liable for damages for injuries alleged to have been sustained by the person or for damages for the death of the person alleged to have occurred by reason of an act or omission in the rendering of the treatment unless it is established that the injuries were or the death was caused by gross negligence, wanton conduct or intentional wrongdoing on the part of the person rendering the treatment. The immunity conferred in this section also applies to any person who uses an automated external defibrillator (AED) and otherwise meets the requirements of this section.

(a1)   Recodified as G.S. 90-21.16 by Session Laws 2001-230, s. 1(a), effective October 1, 2001.

(b)     Nothing in this section shall be deemed or construed to relieve any person from liability for damages for injury or death caused by an act or omission on the part of such person while rendering health care services in the normal and ordinary course of his business or profession. Services provided by a volunteer health care provider who receives no compensation for his services and who renders first aid or emergency treatment to members of athletic teams are deemed not to be in the normal and ordinary course of the volunteer health care provider's business or profession.

(c)     In the event of any conflict between the provisions of this section and those of G.S. 20-166(d), the provisions of G.S. 20-166(d) shall control and continue in full force and effect.

This limitation of liability is very similar to the Good Samaritan Statute found in G.S. 20-166(d).  It states that

Any person who renders first aid or emergency assistance at the scene of a motor vehicle crash on any street or highway to any person injured as a result of the accident, shall not be liable in civil damages for any acts or omissions relating to the services rendered, unless the acts or omissions amount to wanton conduct or intentional wrongdoing.

North Carolina courts have explained the rationale of the Good Samaritan statutes as generally attempting “to eliminate the perceived inadequacies of the common-law rules, under which a volunteer, choosing to assist an injured person although having no duty to do so, was liable for failing to exercise reasonable care in providing the assistance.”  This common-law rule would, in effect, discourage someone from providing assistance.  The courts have also explained that "Good Samaritan statutes are generally designed to protect individuals from civil liability for any negligent acts or omissions committed while voluntarily providing emergency care."

This leads us to the question of what amounts to “gross negligence, wanton conduct, or intentional wrongdoing” in the context of providing emergency care?

There is limited North Carolina caselaw dealing with this topic.  The North Carolina Court of Appeals looked at the issue for the first time in 2011 in the case Green v. Kearney.  In that case, Green was in a car accident and suffered a serious head injury.  The first emergency provider checked Green’s vitals and determined that Green was dead.  Upon the arrival of more emergency providers, the first provider asked them to verify that Green did not have a pulse.  They did not.  The medical examiner arrived and dismissed the observed movement of Green’s abdomen and chest as air leaving the body.  The medical examiner later dismissed the observed twitch of Green’s eye as a muscle spasm.  Green was brought to the morgue and put in a refrigeration cabinet in a zipped bag.  It was not until almost 2 ½ hours after the accident occurred, when an officer wanted to reexamine Green’s body, that Green was removed from the refrigeration cabinet and zipped bag.  At that time, the officer noticed movement in Green’s abdomen and emergency services were called.  Green suffered permanent injuries.

Green sued the emergency providers under G.S. 90-21.14.  The court found lots of definitions of wanton conduct but no application by North Carolina courts in the context of emergency care.  The Court of Appeals stated that

An act or conduct rises to the level of gross negligence when the act is done purposely and with knowledge that such act is a breach of duty to others, i.e., a conscious disregard of the safety of others. An act or conduct moves beyond the realm of negligence when the injury or damage itself is intentional.

For an example of the application of this standard, the court looked at a recent case from Illinois which was interpreting a similar statute.  It summarized the Illinois court’s reasoning as follows:

In each of the Illinois cases discussed which found that claims of “willful and wanton” conduct had been stated, the courts stressed the knowledge of the emergency personnel and their actions which were not in accord with that knowledge: knowledge that a person was suffering a potentially fatal asthma attack but failing even to attempt to open an unlocked door; knowledge that a person was unsecured on a stretcher with unstable legs placed on a pothole and leaving the person unattended despite this knowledge; knowledge that a person was having an allergic reaction and difficulty breathing but still waiting seven to eight minutes to administer medication.

The court found that the actions of the emergency providers in Green did not rise to the level of willful and wanton conduct because

Here, the problem was defendants' lack of knowledge: they did not know that plaintiff was alive. Even if their lack of knowledge was caused by a negligent failure to conduct a sufficiently thorough examination to establish whether plaintiff was living or deceased, this is still ordinary negligence.  Plaintiff has not forecast any “intentional wrongdoing or deliberate misconduct” as to these defendants.

Volunteer emergency providers are held to a looser standard than typical health care providers under North Carolina law.  If you have been injured by a health care provider, it is important to have a lawyer who understands all the issues.  Contact a lawyer at Rosensteel Fleishman, PLLC (704) 714-1450.

 

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