A Negligence Primer — Good Samaritan Defense

This was originally written for my EMS friends, but the basic concepts still apply:  duty, breech, causation, and damages.

Setting the stage:  It’s 3am (of course), and you just laid down after watching a Star Trek – The Next Generation marathon when the tones go off, and the dispatcher announces another of a long line of winter vehicle rollovers.  Blah, blah, blah, icy roads and drunk drivers.  Wind and snow, minor extrication, neck pain and minor bleeding from the head, the patient intoxicated but friendly.  C-collar, the requisite uncomfortable backboard, and couple of big IVs just because, and a quick drop off at the local ER.  The next afternoon you hear the patient began seizing shortly after you left the ER, and died a short time later from a massive subdural.  Three years later you get the summons and complaint, naming you, your partner, your duty supervisor, your service, the hospital, the ER Doc, the radiologist, and the high school janitor as defendants in a lawsuit claiming negligence.

First, let’s dispense with the Good Samaritan defense.  You were on duty and paid a decent hourly wage.  Therefore, you’re not covered under the statute.

Negligence in the common parlance simply means you screwed up and you should have known better.  However, in legal terms, “negligence” has a very specific meaning, and very specific elements that require evidence to reach the conclusion that someone is “legally” negligent.  If the plaintiff is unable to prove each element of negligence, then the defendant cannot be found liable.

In order to be legally negligent, the plaintiff must show that the defendant had a duty to act (duty), that the defendant failed to follow the standard of required conduct (breach), that the failure was the cause of harm to the victim (causation), and that actual harm resulted (damages.)  These four elements: duty, breach, causation, and damages, must all be proven in order to prevail.  The Good Samaritan statute, which all EMTs seem to consider when thinking of negligence, speaks to two levels of negligence – simple negligence and gross negligence.  Outside of this narrow statute, however, the level of egregiousness is relevant only in the amount of punishment given.

Let’s flesh out this discussion a bit.  “Duty” is the easy one – did you have a duty to provide care to the patient.  Yes or no.  In the above case, for example, you were on duty and being paid to respond.  Therefore, yes, you had a duty.  This is the easiest of the four elements to prove, or to defend.  You’re off duty and drive past an accident scene which already has numerous responders present.  No duty, no negligence claim.  Volunteers can sometime have a bit more difficult time, but the standard becomes whether you in any way held yourself out at the time of the event to be available to respond.  If you were “on call,” duty attaches, if not, duty likely does not attach.

“Breach” is slightly more difficult to prove, but still often relatively easy.  Did you do (or not do) something beyond or outside the industry standard?  In other words, did you breach your duty to treat a particular illness or injury in an appropriate manner?  This is gross simplification, of course, because evidence would be required at trial about what, exactly, was the “standard of care” required in the given circumstance.  This makes this particular element the most wishy-washy, as dueling experts vie for the attention of the judge or jury.

“Causation” is the often missed elements by the lay public.  This means that your actions, or inactions, actually caused the harm being alleged.  If your patient was hit in the head by a pipe wrench, and you later drop him injuring his knee, you’re only responsible for the knee injury, not the whole shebang.  This can often be difficult to determine.  For example, a COPD patient presents with severe respiratory distress.  You provide high flow oxygen, but not CPAP; when the patient continues to deteriorate you elect to sedate and intubate, causing dental trauma, increased swelling to the throat and worsening of the distress.  The patient eventually arrests due to extreme hypoxemia.  How much was your fault, if any?  Would she have continued to deteriorate regardless of your actions?

“Damages” is reasonably straight forward, if the above elements have been met and determined.  First, were there actual injuries that caused harm to the patient?  It’s the “no harm, no foul” rule of negligence.  You should have given Amiodarone, not lidocaine, for an SVT according to your medical standing orders.  But the patient persevered and lived despite your best efforts.  You had a duty to act, you breached that duty, but you did not cause compensable harm.  While you may be on the soup line because you dangerously violated your standing orders, at least you won’t end up in court.   However, if actual harm was caused by you, then you are responsible for those damages.

One can be negligent in the common sense but not be legally negligent.  While this may be of little real comfort, EMTs should have a basic understanding of the general concepts of legal negligence.  As for the scenario mentioned above?  A good attorney will bring in a lot of questions.  Was the alcohol masking signs and symptoms of head trauma the EMTs and hospital should have recognized earlier?  Should the patient have been taken to a trauma center rather than just the local ER?  Did the EMTs adequately describe for the ER staff the circumstances surrounding the crash such that the physician and staff could better assess the totality of the patient’s potential injuries?  Obviously there aren’t enough details to make any reasoned response, and in the end it may take a judge or jury to flesh out all the answers.  Such is the nature of the legal world.

Alaska Attorney Headed to Annual ABA Conference

ABA Conference on Construction Law
Clayton Walker, Jr.


Who:  Clayton Walker, Jr. of Alaska Law Offices, Inc., 240 E. Tudor Ste. 230, Anchorage, AK 99503  907-375-9277.

What:  The American Bar Association (ABA) Forum on the Construction  Annual Meeting:  Themed: Surfing the Next Wave: The Future of Construction Law.

When April 25-27

Where:  DanaPoint, Calif.

Why:  Building the Best Construction Lawyers.

The American Bar Association (ABA) Forum on the Construction Industry will hold its annual meeting, entitled “Surfing the Next Wave: The Future of Construction Law and Practice,” April 25-27 in Dana Point, Calif. The event will focus on technological advances for construction projects; the future of government regulation for preference programs and workforce issues; the future of construction insurance, bonding, and construction law practice; and the globalization of construction alternative dispute resolution.




The construction industry is finally focusing on its lack of productivity and efficiencies compared to other industries and is looking to advanced technology to change the paradigm. This session looks at the potential roles of emerging super hi-technology in construction, including robotics, modular construction, new contracting and administration techniques, and some key legal issues that may arise with the use of these new and emerging construction concepts, methods and materials.



This session is an opportunity to learn about future trends in federal, state and local government procurement, and particularly the expansion of programs to involve disadvantaged, small and local, disabled veteran-owned, minority-owned, and women-owned contractors, subcontractors, and suppliers, to require use of U.S. and local products and services (Buy America, ARRA and state/local initiatives) to protect particular industry sectors (anti-bid shopping laws), and to provide greater access to bonding


What is the future of construction insurance and bonding and the law that governs them? Will domestic and international underwriting standards, coverages, and policy language begin to merge? Will there continue to be coverage for construction defects? Will subcontractor default insurance continue to make inroads into the surety market and will law governing it develop? Will legislatures eliminate the statutory requirements for bonds?



(Presented in conjunction with the ABA Law Practice Management Section)

The ABA Model Rules of Professional Conduct now state that a lawyer should keep abreast of changes in the law and its practice, “including the benefits and risks associated with relevant technology.” This session showcases both hardware and software beneficial to a construction lawyer’s practice, while both in and out of the office. These new practice management tools have the potential to enhance client service many-fold, and are likely integral to the new paradigm that is “practicing construction law” in the 21st Century.



New technologies are revolutionizing the way projects are bid, negotiated, memorialized, and managed. This session examines the legal services that will likely be spawned by future advances in procurement and back office project management, such as internet-based procurement, reverse online auctions, on-line real time simultaneous contract drafting and



This session explores how the construction business is changing and where the practice of construction law is headed. Given the dramatic need for construction services in the developing world, how will this globalization of the industry impact U.S. construction lawyers? What effect will the emergence of the “non-firm” law firm, contract lawyers, and outsourcing of legal services have? How will growing pressure to control fees and costs drive law firms’ use of technology and the possible use of construction litigation funding? Future consumers of legal services will likely demand counsel with higher levels of specialization, so how can small firms and solo practice lawyers compete in a more segmented legal market?



The project may be in your backyard, but the architect is from Sweden, the general contractor is owned by a Spanish conglomerate, and the steel is from China. Your local project may use the FIDIC contract forms, not AIA; and the UN Convention on the International Sale of Goods, not the UCC; and the New York Convention, not the Federal Arbitration Act, may be the governing law. Dispute resolution is as likely to be under ICC, ICDR, LCIA, or UNCITRAL rules as AAA. International norms are revolutionizing construction contracting and will influence the dispute resolution process. This session will explore the impacts of globalization on the future of domestic dispute resolution.


For more information on the event click here:



For more information regarding this seminar, you can contact Mr. Walker at chwalker@q69.990.myftpupload.com or visit our website at www.aloinc.com.