I was choking in a restaurant. One of the customers tried to perform the Heimlich maneuver on me to clear my wind pipe. The customer failed. But a waiter from the restaurant knew what to do and saved my life. If I died, would my estate have any claim against the Good Samaritan that failed to clear the blockage?
Your estate may have had a claim. Your question raises the issue of the Good Samaritan.
Generally, if anyone attempts to help someone else, the person who is helping has an obligation to use reasonable care. So the customer who failed to clear your blockage, might have been liable for your death. (Interestingly, the people who stood by and watched helplessly would have no liability.) If a person feels compelled to assist another person, then the Good Samaritan must use reasonable care. Parvi v Kingston, 41 NY2d 553, 394 NYS2d 161 (1977). So that means, if the Good Samaritan attempts to help, but puts the victim into a worse position than he originally was, the Good Samaritan is liable for the injuries that result from the injured person being in a worse position.
Immunity for Health Care Professionals
This principle of holding the Good Samaritan liable for injuries lead to medical professionals declining to help citizens in distress for fear of being sued for malpractice. However, there are a series of laws that protect medical professionals from being sued for helping a person in an emergency situation. For example Physicians (Education Law section 6527(2)), Physician’s Assistants (Education Law section 6547), Nurses (Education Law section 6909(1)), and certified Emergency Medical Technicians (Public Health Law section 1266-b) are not liable for rendering aid unless the injured party can prove “gross negligence.” As you probably can infer, the burden for proving “gross negligence” is quite high. Gross negligence is the failure to use even slight care. So it is unlikely any medical professional would be liable for malpractice.
In your particular case, since you were saved by the waiter, you would be unable to prove any damages against the first person who tried to help you. So you would not have a claim.
By James Santner, Esq.
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