ATTACHMENT D

PROPOSED NEW STATUTES
SHOWING REVISIONS TO PRESENT SECTION 52-557b
AND WITH COMMENTARY

Sec. 1. (Present sec. 52-557b(a)) "Good samaritan law".

(a) [A] FOR THE PURPOSES OF THIS SECTION "EMERGENCY MEDICAL OR PROFESSIONAL ASSISTANCE PROVIDER" MEANS A person licensed to practice medicine and surgery under the provisions of chapter 370 or dentistry under the provisions of section 20-106 or members of the same professions licensed to practice in any other state of the united states, a person licensed as a registered nurse under section 20-93 or 20-94 or certified as a licensed practical nurse under section 20-96 or 20-97 [, a medical technician or any person operating a cardiopulmonary resuscitator or a person trained in cardiopulmonary resuscitation in accordance with the standards set forth by the American Red Cross or American Heart Association .

(b) AN EMERGENCY MEDICAL OR PROFESSIONAL ASSISTANCE PROVIDER, who, voluntarily and gratuitously and other than in the ordinary course of his employment or practice, renders emergency medical or professional assistance to a person in need thereof, shall not be liable to [such] THAT person [assisted] for civil damages for any personal injuries [which result from acts or omissions by such person] RESULTING FROM ORDINARY NEGLIGENCE in rendering the emergency [care] MEDICAL OR PROFESSIONAL ASSISTANCE [, which may constitute ordinary negligence]. The immunity provided in this subsection does not apply to acts or omissions constituting gross [,] NEGLIGENCE OR wilful or wanton [negligence] MISCONDUCT. [For the purposes of this subsection, "automatic external defibrillator" means a device that: (1) Is used to administer an electric shock through the chest wall to the heart; (2) contains internal decision-making electronics, microcomputers or special software that allows it to interpret physiologic signals, make medical diagnosis and, if necessary, apply therapy; (3) guides the user through the process of using the device by audible or visual prompts; and (4) does not require the user to employ any discretion or judgment in its use.]

COMMENT

This new section is present section 52-557b(a). The study committee believes that the immunity granted in that subsection is traditional "good samaritan" immunity, while the immunity in subsection (b) is simply a statutorily granted immunity. The committee recommends clearly separating the two into new sections to avoid confusion.

The immunity provided in section 1 no longer includes persons trained in cardiopulmonary resuscitation or automatic external defibrillation. These individuals are now covered under the broader protection of section 2 (b), which immunizes them for ordinary negligence for these procedures whether provided on or off the job.

The present statute uses both the terms "emergency medical or professional assistance" and "emergency care." The revision adopts only the former term in both places to avoid confusion.

The present statute uses the term "gross, wilful or wanton negligence," which is both undefined and confusing. The courts have opted to define "wilful or wanton misconduct" in the pertinent cases. The revision adopts the term"wilful and wanton misconduct," and thus keeps the body of case law interpreting that term, and includes "gross negligence" as an additional exception to the immunity granted under the section . The same revision appears in section 2, subsections (a)-(f).

Sec. 2. (NEW) (Present sec. 52-557b(b)-(e)) Other immunity for emergency medical services providers.

[(b) A (a) FOR THE PURPOSES OF THIS SUBSECTION, "ASSISTING PERSON" MEANS a paid or volunteer [fireman or policeman] FIREFIGHTER OR POLICE OFFICER, a teacher or other school personnel on the school grounds or in the school building or at a school function, a member of a ski patrol, a lifeguard, OR a conservation officer, [patrolman or special policeman] PATROL OFFICER OR SPECIAL POLICE OFFICER of the Department of Environmental Protection, or [ambulance personnel] AN AMBULANCE DRIVER, AS DEFINED IN SECTION 19a-175(6), who has completed a course in first aid offered by the American Red Cross, the American Heart Association, the National Ski Patrol, the Department of Public Health or any director of health, as certified by the agency or director of health offering the course, [and ] A PERSON LICENSED AS A PARAMEDIC UNDER CHAPTER 384d, A PERSON CERTIFIED AS AN EMERGENCY MEDICAL TECHNICIAN UNDER SECTION 19a-175(5), A PERSON CERTIFIED AS A MEDICAL RESPONSE TECHNICIAN BY THE COMMISSIONER OF THE DEPARTMENT OF PUBLIC HEALTH. AN ASSISTING PERSON who renders emergency first aid to a person in need thereof [,]shall not be liable to [such] THAT person [assisted] for civil damages for any personal injuries [which result from acts or omissions by such person] RESULTING FROM ORDINARY NEGLIGENCE in rendering the emergency first aid [, which may constitute ordinary negligence]. THE IMMUNITY PROVIDED IN THIS SUBSECTION DOES NOT APPLY TO ACTS OR OMISSIONS CONSTITUTING GROSS NEGLIGENCE OR WILFUL OR WANTON MISCONDUCT.

(b) FOR THE PURPOSES OF THIS SUBSECTION, "AUTOMATIC EXTERNAL DEFIBRILLATOR" MEANS A DEVICE THAT: (1) IS USED TO ADMINISTER AN ELECTRIC SHOCK THROUGH THE CHEST WALL TO THE HEART; (2) CONTAINS INTERNAL DECISION-MAKING ELECTRONICS, MICROCOMPUTERS OR SPECIAL SOFTWARE THAT ALLOWS IT TO INTERPRET PHYSIOLOGIC SIGNALS, MAKE MEDICAL DIAGNOSIS AND, IF NECESSARY, APPLY THERAPY; (3) GUIDES THE USER THROUGH THE PROCESS OF USING THE DEVICE BY AUDIBLE OR VISUAL PROMPTS; AND (4) IS CAPABLE OF DETERMINING, WITHOUT INTERVENTION BY AN OPERATOR, WHETHER DEFIBRILLATION SHOULD BE PERFORMED. ANY PERSON TRAINED IN CARDIOPULMONARY RESUSCITATION OR IN THE USE OF AN AUTOMATIC EXTERNAL DEFIBRILLATOR IN ACCORDANCE WITH THE STANDARDS SET FORTH BY THE AMERICAN HEART ASSOCIATION OR THE AMERICAN RED CROSS, OTHER THAN A PERSON LICENSED TO PRACTICE MEDICINE AND SURGERY UNDER THE PROVISIONS OF CHAPTER 370 OR DENTISTRY UNDER THE PROVISIONS OF SECTION 20-106 OR MEMBERS OF THE SAME PROFESSIONS LICENSED TO PRACTICE IN ANY OTHER STATE OF THE UNITED STATES, A PERSON LICENSED AS A REGISTERED NURSE UNDER SECTION 20-93 OR 20-94 OR CERTIFIED AS A LICENSED PRACTICAL NURSE UNDER SECTION 20-96 OR 20-97, WHO RENDERS CARDIOPULMONARY RESUSCITATION OR AUTOMATIC EXTERNAL DEFIBRILLATION TO A PERSON IN NEED THEREOF, SHALL NOT BE LIABLE TO THAT PERSON FOR CIVIL DAMAGES FOR ANY PERSONAL INJURIES RESULTING FROM ORDINARY NEGLIGENCE IN RENDERING THE CARDIOPULMONARY RESUSCITATION OR AUTOMATIC EXTERNAL DEFIBRILLATION. THE IMMUNITY PROVIDED IN THIS SUBSECTION DOES NOT APPLY TO ACTS OR OMISSIONS CONSTITUTING GROSS NEGLIGENCE OR WILFUL OR WANTON MISCONDUCT.

(c) No paid or volunteer [fireman, policeman or ambulance personnel] FIREFIGHTER, POLICE OFFICER, PARAMEDIC, EMERGENCY MEDICAL TECHNICIAN, MEDICAL RESPONSE TECHNICIAN OR AMBULANCE DRIVER who forcibly enters the residence of any person in order to render emergency first aid, CARDIOPULMONARY RESUSCITATION OR AUTOMATIC EXTERNAL DEFIBRILLATION to a person whom he reasonably believes to be in need thereof shall be liable to such person for civil damages incurred as a result of such entry. The immunity provided in this subsection does not apply to acts or omissions constituting gross [,] NEGLIGENCE OR wilful or wanton [negligence] MISCONDUCT.

[(c)] (d) An employee of a railroad company, including any company operating a commuter rail line, who has completed a course in first aid offered by the American Red Cross, who is trained in cardiopulmonary resuscitation in accordance with standards set forth by the American Red Cross and who renders emergency first aid or cardiopulmonary resuscitation to a person in need thereof, shall not be liable to such person assisted for civil damages for any personal injury or death which results from acts or omissions by such employee in rendering the emergency first aid or cardiopulmonary resuscitation, which may constitute ordinary negligence. The immunity provided in this subsection does not apply to acts or omissions constituting gross [,] NEGLIGENCE OR wilful or wanton [negligence] MISCONDUCT.

[(d)] (e) A railroad company, including any commuter rail line, which provides emergency medical training or equipment to any employee granted immunity pursuant to subsection [(c)] (b) of this section shall not be liable for civil damages for any injury sustained by a person or for the death of a person which results from the company's acts or omissions in providing such training or equipment or which results from acts or omissions by such employee in rendering emergency first aid or cardiopulmonary resuscitation, which may constitute ordinary negligence. The immunity provided in this subsection does not apply to acts or omissions constituting gross [,] NEGLIGENCE OR wilful or wanton [negligence] MISCONDUCT.

[(e)] (f) A teacher or other school personnel, on the school grounds or in the school building or at a school function, who has completed both a course in first aid in accordance with subsection [(b)] (a) of this section and a course given by the medical advisor of the school or by a licensed physician in the administration of medication by injection, who renders emergency care by administration of medication by injection to a person in need thereof, shall not be liable to the person assisted for civil damages for any injuries which result from acts or omissions by the person in rendering the emergency care of administration of medication by injection, which may constitute ordinary negligence. This immunity does not apply to acts or omissions constituting gross [,] NEGLIGENCE OR wilful or wanton [negligence] MISCONDUCT.

[(f)] (g) The provisions of this section shall not be construed to require any teacher or other school personnel to render emergency first aid or administer medication by injection.

COMMENT

This new section is present section 52-557b(b)-(e). Subsection (a) has been reorganized to add a new definition of "assisting person" and to update certain terminology in conformance with other sections of the general statutes.

In subsection (a), the term "ambulance personnel" has been deleted in both places where it occurs. The terms "paramedic," "emergency medical technician," "medical response technician" and "ambulance driver", the current terminology for persons who would ordinarily staff an ambulance and other emergency response vehicles, have been substituted. Licensing of paramedics and certification of emergency response technicians are provided for both by the general statutes and by Department of Public Health regulation. Certification of medical response technicians is not specifically provided for in the general statutes, but is provided for by DPH regulation 19a-179-16(a). These persons may be ambulance personnel, or may be serving with other emergency service providers.

In subsection (b), new language is added to provide immunity for individuals trained in CPR or automatic external defibrillation, whether these procedures are provided during employment or outside of employment. The subsection excludes the specified medical personnel, who are provided good samaritan immunity under section 1.

The subsection also revises the definition of "automatic external defibrillation" in (4) to recognize that defibrillators used presently are actually "semi-automatic" defibrillators that require additional operator steps (i.e., pressing the "analyze button" when prompted by the machine or assuring that victims and rescuers are safe before shocking).

Subsection (c) expands existing language by including entry to provide CPR or defibrillation.

Other revisions to section 2 track the exception language re "gross negligence or wilful and wanton misconduct" in each subsection to that in section 1(b).

Sec. 3. (NEW) Cause of action in gross negligence.

Any person who sustains an injury due to acts or omissions by a person rendering emergency medical or professional assistance under section 1 or by a person rendering emergency first aid under section 2 may seek damages in the superior court by bringing an action in gross negligence. "Gross negligence" means the failure to exercise even a slight degree of care, regardless of any intent to inflict an injury or of any reckless disregard of consequences.

COMMENT

This new section provides that a cause of action in gross negligence for injuries sustained under section 1 or 2 shall be recognized by the courts. This formulation generally is in accord with that of sections 52-570a and 52-571c that similarly provide for a cause of action for specified injuries. This section effectively overturns the decisions in Shaham v. Wheeler, No.321879, 1999 LOIS 64 (Conn. Super. 1997), Croteau v. American Medical Response, No. CV97-0256039S, 1999 LOIS 7899 (Conn. Super. 1997) and Maderos v. Shelton Police Dept., CV97-00558185S, 1999 LOIS 11445 (Conn. Super. 1997) holding that Connecticut does not recognize a cause of action in gross negligence.

Generally, Connecticut courts have long abandoned the degrees of negligence approach, finding that "such refinements can have no useful place in the practical administration of justice." Dickerson v. Connecticut Co., 98 Conn. 67, 88 (1922). However, Mark Turner notes in his article, Dial 911: Emergency Medical Care Providers, Gross Negligence, and the Loophole in the Connecticut Good Samaritan Statute (available in the Law Revision Commission offices), pp. 53-63, that some Connecticut courts have recognized gross negligence as a cause of action in Dram Shop cases and in certain criminal cases. Thus, there is some precedent for reintroducing gross negligence in Connecticut in cases involving emergency medical care providers.

William Prosser provides this relatively accessible definition for "gross negligence":

As it originally appeared, this [gross negligence] was very great negligence, or the want of even scant care. It has been described as a failure to exercise even that degree of care which a careless person would use. Several courts, however, dissatisfied with a term so nebulous, and struggling to assign some more or less definite point of reference to it, have construed gross negligence as requiring wilful misconduct, or recklessness, or such utter lack of care as will be evidence of either-- sometimes on the ground that this must necessarily have been the intent of the legislature. But it is still true that most courts consider that "gross negligence" falls short of a reckless disregard of consequences, and differs from ordinary negligence only in degree, not in kind. There is, in short, no generally accepted meaning; but the probability is, when the phrase is used, that it signifies more than ordinary inadvertence or inattention, but less than conscious indifference to consequences.... (citations omitted).

William L. Prosser, Handbook of The Law of Torts, 4^th Ed., § 34 at 183.

The committee recommends this formulation of "gross negligence" that defines it as conduct constituting a higher degree of negligence than ordinary negligence, but not rising to the level of "wilful or wanton misconduct."

STATEMENT OF PURPOSE: To clarify the statutory immunity for ordinary negligence granted to emergency services providers.