DATE: Monday, September 15, 1997            TAG: 9709130048

SECTION: LOCAL                   PAGE: B9   EDITION: FINAL 

TYPE: Opinion 

SOURCE: Ann Sjoerdsma 

                                            LENGTH:   93 lines

GOOD SAMARITANS U.S.A. ARE AFRAID TO ACT THE GOOD SAMARITAN OF BIBLICAL PARABLE DIDN'T HAVE TO FEAR THAT THE MAN HEFOUND BEATEN AND ROBBED IN THE ROAD WAS FEIGNING INJURY AND MIGHT AMBUSH HIM.

On the streets of Paris, and other European cities, as we've learned since Princess Diana's fatal crash on Aug. 31, passers-by - even pursuing paparazzi - are required by law to assist victims of accidents. To be ``Good Samaritans.''

On the streets of most-towns, U.S.A., passers-by who happen upon an accident - even physicians - can look the other way, ignore the victims. We have no legal obligation to assist.

Thanks to our English common-law origins, Americans have a legal system strong on individualism, whereas Europeans, whose ``civil law'' is Roman, prize social solidarity.

Increasingly, however, in reaction to cases of callous indifference, states such as Minnesota and Wisconsin are mandating citizen help in emergencies. They are imposing on us a duty to assist, provided we don't put ourselves at risk.

As much as I'd like to encourage compassion and community, I think it's too late to legislate such morality. It's too late because it's too dangerous. This ain't France.

The Good Samaritan of biblical parable didn't have to fear that the man he found beaten and robbed in the road was feigning injury and might ambush him. He also didn't have to worry about being sued. Today's Good Samaritan U.S.A. does.

Instead of compelling reluctant or even incompetent people to intervene, we should concentrate on protecting Good Samaritans who act now, without force of law.

All states have ``Good-Sam'' statutes, but ``they're all over the place,'' says Ken King of the Dallas-based American College of Emergency Physicians.

In general, if a Good Samaritan does what a ``reasonable person'' - in France, he's called a bon pere de famille - would do under the circumstances, he won't be held liable in negligence for any harm he may cause the accident victim.

But he still might get sued.

Let me back up a bit. . . .

At common law, there was no duty to render aid to a person in an emergency. A man could sit on a dock, smoke a cigar and watch a person drown without risking any civil or criminal liability.

But there were exceptions.

A key one was a ``special relationship'' between the victim and the would-be rescuer. Certain people have a duty of care toward others because of their relationship, usually one of dependency: the physician toward his patient, the shopkeeper toward his customer, the employer-employee, parent-child.

If that man on the dock were a lifeguard, he'd have to dive in. Duty would call.

But suppose the man on the dock - or a passer-by on the road - attempts to rescue the victim, does a poor job of it and actually worsens the situation? Can he just quit? Others may have held up their rescues in reliance on his efforts.

No, a non-duty can become an affirmative duty after a person chooses to intervene. At common law, interfering had its price. Which is why we have ``Good Samaritan'' statutes - to make it clear that good-faith efforts voluntarily undertaken by would-be rescuers, especially physicians, who lobbied for these laws, are protected and encouraged.

California passed the first Good Samaritan law in 1959.

Ironically, however, these statutes, which typically do not grant absolute immunity, have confused the issue. Why? Because they have to be construed, and when lawyers are around, interpretations of seemingly clear terms multiply.

North Carolina law shields from civil liability ``any person who renders first aid or emergency assistance'' at a motor-vehicle accident unless the person's actions amount to ``wanton conduct or intentional wrongdoing.''

Though it may seem unlikely that Good Samaritans would act wantonly, the term is subject to a lawyer's spin. And what exactly are the limits of ``first aid'' and ``emergency assistance''?

Virginia, which has exemplary Good-Sam laws covering a variety of personnel and crises, indemnifies ``any person who, in good faith, renders emergency care or assistance, without compensation'' to injured people at an accident, fire or other ``life-threatening emergency.''

Does this law safeguard doctors?

Though physicians without ``a duty to treat'' (based on an existing doctor-patient relationship) rarely get sued for their emergency treatment, lawyers can be creative about arguing that such a duty has arisen.

I wish we could do as the French do. But our nation is much too litigious and dangerous. The ``duty to assist'' criminal laws that Minnesota and Wisconsin have enacted are largely symbolic, and likely to be selectively enforced.

For Americans, moral conscience, not legal duty, remains the best guide to emergency aid. But if ever there were an argument for a cellular phone, the plight of the Good Samaritan is it. MEMO: Ann G. Sjoerdsma, an attorney, is an editorial columnist and book

editor for The Virginian-Pilot.

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