Good Samaritan Laws in New York

By Kevin S. Mahoney

Many of us have seen the Department of Health billboards that indicate, "See an Overdose – Call 911 – The Good Samaritan Law Protects You" put up in response to the spike in opioid overdoses. There actually are two "Good Samaritan" laws in New York that the fire service should be generally aware of.

How It All Started

Luke 10:25-37 tells of a time when a lawyer asked Jesus to provide further detail as to the instruction of "love thy neighbor" and was answered with the parable of the Good Samaritan. It begins with a man who is beaten, robbed, and left for dead on the side of a road. As he lies suffering, a man from his community, a fellow Levite, approached, saw him, and for whatever reason, passed by. Next, a priest came upon the injured man, but he also passed by. A third man from a different community, Samaria, approached the injured man and stopped to help. He provided clothes, water, and attention. He helped the injured man up onto a mule and walked beside him to the nearest town where he paid for a room so the man could recover. This is how "love thy neighbor" was described and the story became known as that of the "Good Samaritan."

New York's Public Health Law

Section 3000-a of the New York Public Health Law is the first New York "Good Samaritan" law. It was enacted in 1984 and provides protection in a civil lawsuit for someone providing aid to another "at the scene of an accident or other emergency outside of a hospital, doctor’s office, or any other place having necessary medical equipment" if they are doing so "voluntarily and without expectation of payment." The protection is in the form of the legal standard that is applied to the actions or omissions of the "Good Samaritan."

In many civil lawsuits, the legal standard that is applied is one of "negligence," but for the "Good Samaritan," that standard is elevated to "gross negligence." Negligence is defined as "a failure to use ordinary care." By comparison, gross negligence is defined as, "a failure to use even slight care" or "conduct that is so careless as to show a complete disregard for the rights and safety of others." As a result, if one were being sued, there is little question that person would prefer to be judged under the standard of gross negligence.

Different sections of the Public Health Law provide this specific protection via this elevated standard to physicians, dentists, physical therapists, and physician assistants and Section 3000-a basically applies to the general public. Notably, Section 3013(4) provides this protection to CFR, EMT, and AEMT personnel and does not contain the language regarding the location of the emergency being outside of a place having necessary medical equipment.

As a result, if an EMT is working as a paid EMS provider and renders aid to a patient as part of his/her employment and for some reason there is a lawsuit, it is highly likely that the standard involved in that case would be one of negligence. However, if that same EMT, even if still in uniform, is off shift and stops to assist at an accident on the way home from work and there is a resulting lawsuit, the standard involved should be one of gross negligence because the EMT has provided aid without the expectation of monetary compensation.

Obviously, the purpose behind the law is to encourage people of all professions to help others in need and did so to minimize their chances of losing any resulting lawsuit. The law does not specifically prevent a "Good Samaritan" from being sued, but it does make it much less likely that the plaintiff will be successful, which will impact the decision of a plaintiff's lawyer to bring a suit in the first place. Of course, the facts and circumstances of a particular case play the primary role for those determinations.

New York’s Penal Law

Section 221.38 of the Penal Law is what is being referred to in the Department of Health billboards. This section was enacted in 2011, but publicity for it has been rekindled. The purpose of the law is to encourage people to call 911 for assistance by removing fear that the caller may be arrested and charged with a drug or alcohol possession offense.

There are two basic types of possession in this context: "physical possession" occurs when the drug is on the person in some fashion (in hand, in the pocket, etc.) and "constructive possession" occurs when the substance is not physically possessed but the individual is in a position to exercise "dominion and control" over it. If the police enter a home and come upon a pile of cocaine on the living room table, then anyone having access to it could be charged with possessing it. It may not matter if it did not belong to the person, or if the person did not use it, or even if he/she did not intend to use it. The fact that the cocaine was in plain view and there was access to it may invoke the doctrine of constructive possession.

As a result, if someone is shooting heroin and others are around, whether using or not, there is a risk of the bystanders or co-participants being charged if the police see it. The Legislature decided, almost unanimously, that it was not worth the risk of having someone die of an overdose because the bystanders or co-participants did not call for help due to a fear of being arrested for possession. As a result, those witnessing or personally experiencing an overdose that call for help are treated as "Good Samaritans" and are legally protected from a criminal prosecution as a result. This applies to drug possession, drug paraphernalia possession, and underage alcohol possession charges.

The protection of this statute is for someone in good faith seeking health care for himself/herself or another person who is suffering a "drug or alcohol overdose or other life threatening emergency." Conditions fitting this phrase are, "physical illness, coma, mania, hysteria, or death." In order to provide protection to laypersons, the standard is whether someone with "an average knowledge of medicine and health, could reasonably believe that the condition is in fact a drug or alcohol overdose and (except as to death) requires health care."

As with most rules, there are exceptions. This law does not protect those accused of a Class A-I drug possession felony (generally eight ounces or more), those with open arrest warrants, or probation/parole violations.

For 911 callers who may be accused of selling drugs, the law provides an affirmative defense that may assist the person in defending a charge if he/she does not have certain prior convictions and is seeking help in the same circumstances as those protected from a possession charge described above.

Drugs and related materials that fire/EMS providers come upon on scene are still evidence (and should be treated as such) although, since this law was enacted, it is generally less likely that law enforcement will be interested in gathering it.

Conclusion

As a result, these statutes are designed to encourage people to voluntarily render aid in emergency situations and call for help in overdose situations. Many emergency situations compel people to act first and think second, since there is little to no time for the latter. Fortunately, New York has some legal protections in place to shield "Good Samaritans" in these situations.

About the Author:
Kevin S. Mahoney is an attorney with the law firm of HoganWillig in Amherst, NY. He has been with that office for 20 years and enjoys working with several local volunteer fire and ambulance companies as part of his practice. Mahoney also volunteers as an interior firefighter and EMT with Bergholz Fire Company in Wheatfield, NY, where he currently serves as lieutenant. He can be reached via email.