Court Slims Scope of Immunity for EMTs Under Good Samaritan Law

New Jersey Law Journal
By: Charles Toutant
July 8, 2002

Reading the Good Samaritan Law narrowly, an appeals court has ruled that emergency medical technicians are not entitled to immunity for negligence in record-keeping that leads to injury or death.

Although providing care at the scene of emergencies poses more risk that it does in a hospital, the completion of an accurate report of observations of a patient's condition does not involve the same difficulties, the judges found.

"The legislative policy of immunizing persons from liability for negligence in performing emergency medical services may be achieved without construing that immunity to extend to negligence in the preparation of the report provided to the hospital," Judge Stephen Skillman wrote in Tarquino v. Jersey City, A-2142-01T3, decided June 28.

As a deviation from common law, N.J.S.A. 26:2K-29, the Good Samaritan statue governing intermediate-level EMTs, should be construed narrowly to apply only to delivery of care, not to record-keeping, said Skillman, joined by Judges Philip Carchman and Harold Wells.

The court reversed summary judgment dismissing a suit against two Jersey City EMTs who transported Julio Tarquino, an assault victim, to Christ Hospital. The EMTs, Pedro Reyes and Arafat Saab, gave hospital personnel a copy of their "run sheet" - a report of their actions - with a code marked negative for nausea and vomiting.

A few hours later, Tarquino was released to police after the emergency room staff concluded he was not seriously injured. In fact, though, he had been vomiting. Taken to the Hudson County Jail, he began having seizures and became comatose. He was declared brain dead four days later. The cause of death was determined to be pressure on the brain from heavy bleeding.

Shelley Stangler, the Springfield solo practitioner representing Tarquino's mother, Francesca, says she obtained expert testimony from a physician saying that reporting the patient's vomiting to the emergency room staff would have alerted them to administer a brain CAT scan, disclosing the extent of his injury.

"It would have been very broad to presume that the statue covered all conceivable conduct on the part of emergency medical technicians," Stangler says. "The statue specifically limits the immunity to actual treatment modalities."

Stangler had argued unsuccessfully to Superior Court Judge Maurice Gallipoli in Hudson County that the EMTs' conduct constituted bad faith under the statute. She said an investigation by the Hudson County Prosecutor's Office into Tarquino's beating by a Jersey City police officer showed the EMTs prepared a second report - never submitted to the hospital - that said the patient had vomited. After Gallipoli rejected that argument, Stangler shifted her strategy on appeal, arguing that the EMTs' completion of their report did not fall within statutory immunity.

Stangler says N.J.S.A. 26:2K-29 is the subject of only one other published opinion, Frields v. St. Joseph's Hospital and Medical Center, 305 N.J. Super. 244 (1997), which held that the statue provided immunity to EMTs against charges they used excess force with a drug overdose patient who later died.

The Tarquino opinion makes no reference to Frields, and Stangler says the cases are too dissimilar to be compared.

Marc Goldstone, general counsel for the paramedic Monmouth Ocean Hospital Service Corp., says the Tarquino court was wrong to differentiate report writing from deliver of care.

Such reports are mandated by regulations of the state and insurance companies, Goldstone says, and EMTs fill them out under the same field conditions as in administering care. EMTs in urban areas typically answer 15 calls for service in a 12-hour shift, he says, and they sometimes fill out run sheets long after caring for the patient.

Goldstone predicts the Tarquino ruling will make it harder for Monmouth Ocean Hospital Service Corp. to get out of what he calls "nuisance suits" filed each year by accident victims, of which 80 percent to 90 percent are usually dismissed based on immunity. Tarquino, he says, "removes a significant protection and creates a gaping loophole in the immunity statue for sharp plaintiffs' attorneys to say 'we're not suing for care, we're suing for documentation.'"

He says the ruling will exacerbate a shortage of qualified personnel in both paid and volunteer rescue services, where would-be candidates are scared off by personal liability issues.

The attorney who argued for the two EMTs, Robert Gunning, has left the firm of Reiseman Sharp Brown & Rosenberg in Parsippany and could not be reached for comment. The partner who took over the case for the firm, Sam Rosenberg, was vacationing and unavailable for comment.

Stangler says she has not heard from Rosenberg about whether he will appeal.