A very hot legal topic these days concerns so-called Good Samaritans, people who assist others with medical emergencies. The typical situation involves someone lying on the street, a victim of an accident, a heart attack, etc. Will that person receive assistance, or will he/she be ignored by passers-by?

The issue became very prominent in 2006 with the Peng Yu case:

On Nov 20, 2006, an old woman fell to the ground and broke her leg after jostling at a bus stop in Nanjing, an eastern China city. A young man, Peng Yu, helped her up and escorted her to hospital. Later the woman and her family dragged the man to court, which ruled that the young man should pay 40 percent of the medical costs. The court said the decision was reached by reasoning. The verdict said that “according to common sense”, it was highly possible that the defendant had bumped into the old woman, given that he was the first person to get off the bus when the old woman was pushed down in front of the bus door and, “according to what one would normally do in this case”, Peng would have left soon after sending the woman to the hospital instead of staying there for the surgical check.

No surprise that many people felt that Peng Yu’s case was not handled correctly, and that the decision would lead to a chilling effect on the willingness of people to act as Good Samaritans in the future. Some statistics published subsequently have bolstered that opinion.

Every time a new case crops up, as happened this past Monday, the public furor usually includes two “solutions.” First, since these cases are, to some people, evidence of society’s moral shortcomings, the ‘obvious’ fix is a renewed emphasis on moral teaching (in schools, at home, etc.). Second, because China’s legal system seems unable to properly respond to these incidents, new legislation is required.

Let’s take a look at the call for a legal solution. What if China passed some sort of Good Samaritan Law? This seems to be an attractive possibility to some commentators, but I think there are some important limitations that are being overlooked.

What is a Good Samaritan Law? It’s legislation that provides for legal immunity for certain categories of individuals who respond to emergencies. In many jurisdictions, it only includes so-called “first responders,” people like firefighters, police and emergency medical service providers. The law protects against lawsuits being filed after the emergency services have been provided, with plaintiffs usually alleging that the service provider did their job poorly or exacerbated the medical condition.

What about private individuals?

In other jurisdictions, the category is more broad. In response to a celebrated case in California, the government there passed a revision to its Good Samaritan Law that focused protection not on the type of person involved but the services they were providing. In other words, if someone was helping out during an emergency, they would be protected whether they were a firefighter or a private citizen. The seminal case there involved someone who pulled a co-worker out of a car crash; the victim later alleged that the act of “yanking” her out of the car led to, or worsened, her injuries.

Is this sort of law what we need in China?

Let’s take a look at Monday’s case, involving an old woman and a now-vindicated bus driver:

Seeing her on the ground with her ruined tricycle nearby, Yin pulled his bus over, stepped off together with a ticket taker and helped the woman to stand up. He left the scene only after a villager who was acquainted with Shi came to pick her up.

The woman, whose head was injured and who was sent to the hospital, reported the accident to the police afterward, claiming that it was the bus driver who had knocked her over.

A classic case, much like what happened to Peng Yu in 2006. But would a Good Samaritan law have helped?

Keep in mind that with the California case I mentioned, and with most Good Samaritan laws, the issue of the intent of the service provider is not at issue. In other words, the controversy is not about whether the person was trying to help, but rather whether the assistance was provided in a negligent manner.

That is not what happened with Peng Yu or this week’s incident, both of which involved intentional misstatements or fraud. The complainant in these cases is not alleging negligence at all, but that the other party was responsible for the underlying injury.

Therefore, in my opinion, these cases are quite distinguishable from one another. These infamous China cases are not really classic Good Samaritan situations at all, insofar as laws granting immunity are concerned.

And you can see the problem here. Even if a Good Samaritan law were in place, how would a judge grant immunity to a person when the facts are not even clear whether he/she was assisting the injured person or actually caused the injury in the first place?

The underlying problem here is the fraud, the lying, and it comes down to a he said/she said. There is no way to remedy that completely via a legislative fix. It all comes down to available facts and witness credibility. One way to approach this problem is to gather as much evidence as possible via increased surveillance. With respect to Monday’s bus incident, the driver was ultimately exonerated by video footage from a camera installed on the bus itself.

This conclusion may not be to everyone’s liking, but to solve China’s Good Samaritan problem, perhaps we don’t need new law, just more cameras.

© Stan for China Hearsay, 2011. | Permalink | No comment | Add to del.icio.us
Post tags: civil liability, Good Samaritan Law, tort

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