San Antonio Express-News
March 18, 2003

Good Samaritan Shelter

copyright 2003, Paul Premack

Dear Mr. Premack: I live in a retirement community and they have just purchased a defibrillator. They are sending some people to classes for its operation. They believe the Good Samaritan law covers the use of the defibrillator on anyone in the community to whom they apply it. Even though the people are being trained in a short course they will most likely lose those skills before they use them. I certainly do not wish to have this used on me. Does the Good Samaritan law cover the use of a defibrillator and if so, can it be used on me against my wishes? S.C. via Email

Both of you want to know if the Good Samaritan law will protect a layperson from legal liability when administering medical care in an emergency.

The Texas Good Samaritan law says that "A person who in good faith administers emergency care, including using an automated external defibrillator, at the scene of an emergency… is not liable in civil damages for an act performed during the emergency…" So right off the top, it sounds like both the non-certified giver of CPR and the slightly trained defibrillator operator are shielded from liability even if their efforts do more harm than good.

When we look deeper into the law, several exceptions turn up. First, if the care is provided 1) in a hospital or other health care facility or 2) during medical transport, then the liability shield is dropped. Second, if the caregiver is being paid (or would, under usual circumstances, expect to be paid) for the service, the shield is dropped. Third, if the harm is caused willfully or with wanton negligence, the shield is dropped.

It seems that the CPR volunteer should be clear on the first and second points – but if the defibrillator operator is a paid employee of the retirement community, then the second exception may impose liability.

What about that third exception: "willful or wanton negligence"? The Texas courts define it as "entire want of care which would raise the belief that the act or omission complained of was the result of a conscious indifference to the right or welfare of the person or persons affected by it." In other words, if the caregiver intended to cause harm or was apathetic to the effect of the care provided, then the shield might be dropped. That allows examination of any caregiver’s actions and motives, and may peel away the protection of the Good Samaritan law.

Can the defibrillator be used on S.C. against her wishes? In an emergency situation, the law presumes that you give consent for life-saving care. To avoid that, you must sign an out-of-hospital "do not resuscitate" order. You can get one for free on my website by visiting www.Premack.com/forms.htm. You should also have a Directive to Physicians to broaden your protection, since it allows the withholding of life-sustaining treatments without liability.