Good Samaritan Laws affirm that: Anyone who renders aid or rescue services in good faith as the result of an emergency that was not caused by such person, in actions that are not willful or gross negligence, are granted immunity from legal action for any mistakes or actions that lead to further injury or death

Thank you for your contribution, but I have a couple of questions.

First of all, the definition of a Good Samaritan Law given by you is a generally accepted one, but it is generally applicable only in the Common Law countries. For example, grossly negligent infliction of harm is considered a crime in most states of the US, but in the Russian Federation there is no differentiation between simple negligence and gross negligence.

I understand that Good Samaritan Laws protect from civil liability, I stated as much. What I don't understand is which mistakes in providing aid would be considered criminal offences and whether it ever happened, because gross negligence and wanton disregard are considered to be criminal mens rea, and in some states criminal infliction of harm is expressly mentioned as not being covered by Good Samaritan Laws. All the studies that I found fail to address not only whether criminal infliction of harm in providing aid happens in real life, but how it would even look like if it happened.

Secondly, there might be a language barrier - I don't speak Spanish and had to resort to automatic translation, but as far I could understand both articles that you sent have nothing to do with the topic at hand - the first pertains to extradition, the second - to out-of-court and and no-trial litigation.

There could not be a criminal mens rea for CPR, even it it caused injury. So in Anglo-Saxon jurisprudence and Roman Law there certainly could not.

Barry Turner

Could you please explain further?

Because in the Russian Federation (which is a Roman (Civil) Law country) there certainly could be a criminal mens rea in causing injury by improper CPR: Part 3

Article 26 of the Criminal Code defines negligence as not understanding that possible occurrence of dangerous consequences is possible, while being able and being obliged to with required diligence.

There are numerous examples of people committing, frankly, idiotic mistakes in CPR: pushing a knee on a person's chest, hitting it by a fist with force, pulling a person to another room by his shirt, choking him in the process and so on. It is obvious that all of them were being able to understand detrimental character of their actions at the time, and, committing them - they had to.

So why is this impossible to have a criminal mens rea in emergency aid? Even US Good Samaritan Laws (like, literally, all of them), exempt Good Samaritans only if gross negligence or wanton disregard (which are generally accepted as a criminal forms of mens rea) are not present. some of them expressly state that criminal offences do not fall under the protection.

Gross negligence manslaughter is a possible cause of a criminal action for any faulty medical intervention. In the UK we have the cases of R v. Bateman & R v Adomako. Cases involving gross negligence cross the boundary between criminal and civil law and require a very much higher standard of proof. While it is possible it is unlikely that a jury would find a rescuer guilty of gross negligence.

When I did CPR we had to retrain every 2 years. It was assumed that when doing this on a patient it would cause some injury, often broken ribs. Since the alternative was the patient dying the courts would be sympathetic to most people causing injury attempting to save a life.

I have attached some lecture notes which may be of use.

Your comment is invaluable, thank you!

If I understand correctly, you are saying that it is in principle possible to bring criminal charges for improper CPR, but it is highly unlikely for a jury to convict.

I've read on the Common Law concept of gross negligence - Bateman and Adomako certainly ring a bell. Researchers like professor Quick and his disciples criticise the use of gross negligence doctrine as being hopelessly circular: juries are instructed to, basically, consider a mistake criminal if it looks so grave as to deem criminal punishment.

In this context no sane prosecutor would bring charges against a person who would be able to say to the jury "Hey, I honestly tried to save him!". Hence, there are around 300 medical manslaughter cases every year in countries like Germany and Russia, and 12 in the US in 20 years.

So, in Civil Law countries this should be quite different: there is little to no discretion to be applied, and yet I haven't been able to locate any mention of criminal prosecutions or even any rational for their non-existence outside Russia.

Kiril

I have been involved in a number of pharmaceutical cases in the US involving negligence. The degree of negligence was certainly sufficient to pass the gross negligence test but pharmaceutical companies are very powerful and enormously rich.

Plea bargaining and cash settlements usually prevent cases going against them and for that matter doctors.

You might want to consider the provisions of this legalisation on social responsibility.

Kiril

A bit more information that may be useful you.

Barry Turner

Thank you again!

In case it may interest you, I have heard similar sentiments from members of Russian public and law enforcement, but not relating to cash infusions in order to hush down the problem.

Public healthcare is much more prevalent in the Russian Federation than the private one, and almost all the doctors working in private clinics are primarily employed in the governmental facilities, which also provide most of the commercial healthcare. So the problem of that you described doesn't concern the public.

But I've heard a lot of complaints about forensic experts, being MDs themselves, covering up their colleagues.

Myself, I don't see any strong indication of it, and tend to ascribe discrepancies in their practice to the absence of uniform understanding of causality among the experts.

Also, thanks for the documents you provided.

But I'd like to point an alarming fact: all the research that I've been able to find points to either impossibility or absence of criminal prosecutions for improper resuscitation - in Russia and abroad. That includes the very Resuscitation Council of Russia, that published a statement that proclaims harm done in CPR to be covered by extreme necessity. Not only that there is a lot of convictions for it in reality, but all the attempts to claim necessity in them actually failed.

I am not aware of research in the criminal context. There is only one context that I am aware of where criminal liability may apply. In the U.S. armed services some people receive emergency medical training (corpsman, medic, etc). In some states and for certain branches on the U.S. military, a person with such training is considered a qualified civilian medical professional in certain contexts. Therefore, if such a person administers resuscitation in the civilian context then they are considered medical professionals working at such.

But, some states do not recognize such members of the military as medical professionals. Therefore, if there not a Good Samaritan law and their military medical training does not qualify them as a civilian medical professional and they administer resuscitation improperly, they may be subject to criminal liability for the improper practice of medicine.

In most jurisdiction, the conduct of a good samaritan must be reasonable under any circumstances. Meaning one has to take into consideration the good samaritan's "employment or occupation, degree of intelligence, physical condition, and other circumstances regarding persons, time, and place." One can also argue that if you are a "good samaritan" you are given a certain margin to commit a negligent act but such should not be gross in nature.

The standard of care is relatively easy to establish in medical interventions. A qualified and full trained medical professional must reach a very high standard.

In the matter of gross negligence this too is easy to differentiate from regular tortious negligence. It is behaviour described succinctly by Lord Hewart CJ. in R v. Bateman

“In order to establish criminal liability the facts must be such that in the opinion of the jury the negligence of the accused went beyond a mere matter of compensation between subjects and showed such disregard for the life and safety of others as to amount to a crime against the State and conduct deserving punishment."

In the attached essay from the BMJ at the time the discussion on page 335 is instructive.

A first aider is of course not judged at the standard of the surgeon but the same principle applies in showing a disregard for the safety amounting to a “crime against the state and deserving of punishment”.

11 June MMXXI

How about the number of women who are drugged to relieve the pains of childbirth, and then must undergo an expensive caesarian section?

Oh, doctor, how man caesarians do you need to buy a Mercedez-Benz?

Cordially...

ASJ

Rodel Capule

Thank you, for your answer! Please, tell me if I understand your point correctly.

1. "Meaning one has to take into consideration the good samaritan's "employment or occupation, degree of intelligence, physical condition, and other circumstances regarding persons, time, and place.""

It is not required of a Good Samaritan to have a qualification of a professional medical worker, nor even to be qualified to provide emergency aid (as, for example, drivers or policeman are in Russia).

For example, there was a case of a guy who thought that his mother (afflicted with Alzheimer) choked on food (which she was prone to do), and tried to open her jaws and clear her airways. In the process her broke her jawbone (apparently, already frail from old age osteoporosis), which caused her death.

Even though the trial court convicted him of manslaughter, the cessation court overturned the decision, pointing that the possibility of him committing a "no-fault harm" - causing damage while not being to foresee the consequences of his actions and not being required to, was not explored.

Clearly, he wasn't acting beyond good faith - he was committing an act that is usually harmless and would not be in any way detrimental to any other person. After all, it is not that easy to break a person's jaw, and nobody, apart from professional doctors, is required to know the effect of old age on bones and structure of a human skull.

The problem is, the law "On protection of people and territories from natural and technological disasters" requires EVERY citizen to learn first aid, which effectively makes in impossible to claim ''no-fault harm'. And the official list of first aid measures requires to act differently.

2. "One can also argue that if you are a "good samaritan" you are given a certain margin to commit a negligent act but such should not be gross in nature."

There are numerous cases of people committing horrendous mistakes in providing first aid: one guy thought that his friend had a seizure and was hitting him in the head in order to wake him up. When it didn't work, he took a knife and tried to pry his jaws open (which you should NEVER do), stabbing him in the face.

The other one was hitting a guy in (supposedly) cardiac arrest in the chest with a fist repeatedly. One was making chest compressions, not noticing that his knee was on the victims throat, one was pushing with force on the abdomen instead of the chest, and many others apparently thought that harder you push - the better.

In my opinion, there is a fairly accurate test to ascertain whether there was a "no-fault" or not: what if the perpetrator was on the other side? Could he or she possibly understand that if it was done to them, it would be detrimental? If they could, and their actions were usually not harmful (or not harmful enough to cause serious injury), than it was a "no-fault".

Barry Turner

Thanks again!

From what I've read on the gross negligence concept, especially in medical manslaughter, it is not at all clear.

Quick, for one, argues that the Bateman and Adomako standard of gross negligence is too vague and circular to provide necessary certainty: a jury is basically instructed to consider a crime such an act that "screams" to be a crime.

The jury is basically instructed to consider a matter of law and arbitrarily so (i.e. to decide whether an act is crime). And I don't know about Britain, but in Russia juries are required to consider only matters of fact.

Hence, my version on the absence of prosecutions for first aid manslaughters: when a jury is given, basically, absolute discretion on the matter, you don't want to bring before them a guy who is too sympathetic.

I've attached Quick's article, but don't remember for sure this is the right one.

Anthony St. John

Well, that wasn't helpful.

Kiril

Quick is mistaken about the directions to the jury. They are not asked to consider a matter of law at all but whether an act or omission was so far from an acceptable standard that if became a criminal issue. This is a decision on facts not law.

In The English law of tort duty of care is a legal matter, standard of care is a matter of fact decided on evidence.

In criminal cases therefore the judge must nor direct the jury as to facts as was established in Woolmington v.DPP in which he stated:

"Throughout the web of the English Criminal Law one golden thread is always to be seen that it is the duty of the prosecution to prove the prisoner's guilt subject to... the defence of insanity and subject also to any statutory exception. If, at the end of and on the whole of the case, there is a reasonable doubt, created by the evidence given by either the prosecution or the prisoner... the prosecution has not made out the case and the prisoner is entitled to an acquittal. No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained."

Consequently any direction by the judge to a jury to make a decision on law would be a misdirection.

Any individual charged with gross negligence manslaughter could not be convicted without substantial evidence that their act or omission was so bad that it had crossed the considerable divide between civil and criminal liability.

Gross negligence manslaughter charges against medical professionals are very rare because while negligence to the civil standard is determined on the balance of probabilities criminal liability is determined on evidence adduced that establishes guilt beyond reasonable doubt. What for instance would determine whether CPR was proper or improper? The Bolam test might very well apply where an unusual form of CPR was used. I have heard it discussed that using the heel on the sternum may very well be reasonable in certain circumstances. A reasonable body of first aiders may agree.

Negligence cases against first aiders are rare because negligence by first aiders is rare.

The nature of first aid would make determining criminal negligence incredibly difficult. The patient is often in a dangerous place, near a live electrical circuit for instance or at a crash scene. The first aider does not have the time a medical professional in an emergency room may have. CPR or AED is done in circumstances where time is absolutely crucial. CPR can be rendered difficult by facial injuries and any number of problems can occur.

A severely injured patient may be bleeding profusely but CPR always takes precedence over stemming blood loss. If the patient dies through loss of blood the first aider could not be negligent, however in an emergency room multiple medical professionals would be able to deal with multiple issues.

Another issue you might want to consider is that of triage. A first aider or responder may have to decide which patient is attended to, inevitably leaving another to die. It is extremely unlikely that a court could find that death to be the fault of the first aider even though they have chosen not to help that individual.

A person who commits an act intentionally or negligently and death was a likely result shall be considered to have committed the crime of murder.