Tatum v. Gigliotti

ALPERT, Judge. The dominant issue in this appeal, and one of first impression in Maryland, is whether the immunity provided by Maryland’s Good Samaritan Statute (now Md.Cts. & Jud. Proc.Code Ann. § 5-309) applies to a salaried emergency medical technician. The Facts and Proceedings Norman Tatum, Jr. had a long history of moderate to severe asthma.

Just after midnight on September 21, 1981, he experienced another severe asthma attack. He called the Prince George’s County Fire Department and requested emergency assistance. After arriving at the Tatum household, the paramedics, Gregory Gigliotti (defendant-appellee) and Richard Miller encountered Tatum, who was agitated and breathing in and out rapidly. They tried to place a paper bag over Tatum’s face, an emergency treatment for hyperventilation, but he resisted this effort.

The paramedics administered oxygen to Tatum when the paper bag technique failed to calm him. They then escorted Tatum to the ambulance, rather than transport him by stretcher. At trial, Gigliotti testified that ⁵⁶³ this was due to the unsafe condition of the area over which Tatum would have to be transported. Enroute, Gigliotti testified that he tried to administer oxygen, but Tatum again resisted.

Tatum did hold the oxygen mask in his hand but dropped it when he got off the stretcher to sit on the ambulance jump seat. Gigliotti further related that when the ambulance turned the corner to enter the grounds of the hospital, Tatum slid off the bench seat and fell down onto the floor of the ambulance. As the ambulance stopped in front of the emergency door entrance, Miller and Gigliotti placed Tatum on the ambulance stretcher and rushed him into the hospital. After the emergency technical staff from the emergency room arrived, they started administering medical treatment to Tatum.

The Prince George’s County ambulance report stated that upon arrival at the hospital “Mr. Tatum was conscious, stable, pupils normal, and pupils were equal.” The report was signed by Gigliotti. The emergency room nurse, however, testified that Tatum was in complete respiratory and cardiac arrest when she encountered him. The physician who performed the post-mortem examination testified that Tatum died from cerebral edema, secondary to anoxia from status asthmaticus with respiratory arrest. When asked, inter alia, “whether the administration of oxygen in the ambulance would have permitted Norman Tatum to survive this attack?,” he responded in part that “lack of oxygen is the main reason why Mr. Tatum showed the findings that he showed at autopsy, and I infer from that caused his death____” Appellant, Elizabeth Tatum, filed an action as Personal Representative of the Estate of Norman Tatum, Jr. for wrongful death and a survival action against Gigliotti, Miller, and Prince George’s County.

Prior to trial, the claims against Prince George’s County, Maryland were dismissed on the basis of governmental immunity and the claims against Miller were dismissed on the basis that ⁵⁶⁴ notwithstanding service upon the correct defendant the first name of Mr. Miller was incorrectly set forth on the Complaint. The case was tried by a jury against Gigliotti alone, culminating in the declaration of a mistrial and the granting of judgment for the defendant 1 by the presiding trial judge when the jury was unable to reach a verdict. On appeal, this court must determine whether the trial court erred: 1. In applying the “Good Samaritan” statute’s gross negligence standard to defendant’s action; 2.

In holding that insufficient evidence was presented of gross negligence to require submission of the case to the jury; 3. In excluding Anna Christine Niblack as an expert witness; 4. In excluding a demonstration videotape; 5. In not permitting appellant’s expert to testify as to the “clear and unmistakable duties” of an emergency medical technician; 6.

In granting Defendant Prince George’s County’s motion for summary judgment based on “sovereign” immunity; 2 7. In allowing testimony as to the decedent’s medical record of mental difficulties; 8. In allowing the testimony of Dr. Slye regarding the standard of care of emergency medical technicians; 9. In its answer to the jury’s inquiry as to whether gross negligence can be judged without malicious intent; and 10.

In allowing cross-examination questions which referred to evil intent. ⁵⁶⁵ We consider initially the applicability of the Good Samaritan Statute’s gross negligence standard to defendant’s actions. Resolution of this question is central to this appeal since the testimony in this case indicates that although the actions of defendant Gigliotti may have amounted to negligence, they do not satisfy the threshold of gross negligence. On this basis, the trial judge granted defendant’s motion for judgment. Appellant argues that this statute does not apply to defendant, a salaried emergency medical technician operating within his assigned duties.

Based on the legislative development of the Good Samaritan statute and the plain meaning of its words, we hold that it does encompass the actions of the defendant. We find no merit in appellant’s other contentions and therefore affirm the decision of the trial court. 1. Good Samaritan Statute At the time of the incident, in 1981, the applicable statute was Article 43, § 132, of the Annotated Code of Maryland, which provided, in pertinent part, as follows: (a) A person licensed by the State of Maryland to provide medical care, who renders medical aid, care, or assistance for which he charges no fee or compensation: (1) at the scene of an emergency; (2) in transit to medical facilities; or (3) through communication with personnel rendering emergency assistance is not liable for any civil damages as the result of any professional act or omission by him not amounting to gross negligence. (b) A member of any state, county, municipal or volunteer fire department, ambulance and rescue squad, or the National Ski Patrol System, or law enforcement agency who has completed an American Red Cross course in advanced first aid or its equivalent and possesses a current card indicating that status as determined by the Secretary of Health and Mental Hygiene, or is certified by the State of Maryland as an emergency medical technician or cardiac rescue technician has the same ⁵⁶⁶ immunity provided in subsection (a).

A volunteer fire department or ambulance and rescue squad has the same immunity as its members. (Emphasis added.) Appellant argues that by its terms the Good Samaritan Statute did not apply to services undertaken as a part of the defendant’s duties, for which duties a salary was being paid. Specifically, appellant refers to the language of the statute, “renders medical care, or assistance for which he charges no fee or compensation." He asserts that defendant’s salary amounts to “compensation” under the statute. Appellant cites two out-of-state cases where the respective courts found that the relevant “good Samaritan” statute did not apply to a particular defendant; in one case to doctors in a hospital emergency response team, Colby v. Schwartz, 78 Cal.App.3d 885 , 144 Cal.Rptr. 624 (1978), in the other to a policeman acting within his assigned duties; Lee v. State, 490 P.2d 1206 (Alaska 1971).

These cases are inapposite. In Colby, supra, the court held that the relevant statute was inapplicable because defendants acting in this capacity did not render the type of physical care which constituted “emergency care” as it is used in the statute. In Lee, supra, the court’s analysis centered around whether the defendant had a statutory duty as a police officer to aid someone in an emergency. In neither case was statutory language concerning compensation even an issue. 3 The original Good Samaritan Law in Maryland was enacted in 1963 by Chapter 65, Laws of Maryland 1963; it provided protection in certain circumstances only to “a physician licensed to practice medicine by the Board of Medical Examiners of the State of Maryland.” The next ⁵⁶⁷ year the law was amended by Chapter 48, Laws of Maryland 1964, to add coverage for trained “members of volunteer ambulance and rescue squads.” In 1965 the General Assembly enacted Chapter 475, Laws of Maryland 1965, which expanded the law to include registered nurses and licensed practical nurses.

Chapter 616, Laws of Maryland 1969, added coverage for members and employees of fire departments or ambulance and rescue squads. Of interest to our analysis is the fact that the legislature dropped the word “volunteer” that preceded “ambulance and rescue squads” when it amended the law in 1969. In 1970 the General Assembly completely revised the “Practitioners of Medicine” subtitle in Article 43, which contained the Good Samaritan Law. That law was renumbered as § 182 of Article 43, but otherwise was left basically intact.

Finally in 1976, the General Assembly repealed and reenacted the Good Samaritan Law, consolidating the various provisions that had been enacted over the years into four subsections found in the applicable statute at the time of this incident. The issue before us was cogently addressed in 64 Opinions of the Attorney General 175 (1979), which states, [W]e do not believe that the payment of a salary to several of the paramedics runs afoul of the restriction on charges and compensation. The whole statutory scheme reflects the principle that, if the victim is charged for the help by the person seeking immunity, then no immunity is available under the Good Samaritan Law; but, if the victim is not charged by the one rendering the assistance and seeking immunity, then even a salaried employee is entitled to immunity absent gross negligence. (Emphasis added.) Although this opinion is in no way binding, we find it persuasive.

By subsection (b) of Section 132 it is obvious that the legislature intended “the same immunity provided in subsection (a)” for members of “any ... county ... fire department” who are emergency medical technicians where no fee or compensation was charged. Simply put, since “no fee or compensation” was charged, ⁵⁶⁸ Gigliotti “[was] not liable for any civil damages as the result of any professional act or omission by him not amounting to gross negligence.” This conclusion is consistent with the purpose of the legislation, which is to provide limited, civil immunity to a broad range of persons who might render emergency assistance. 4 We hold, then, that absent a charge to the victim by the person who is seeking immunity, salaried personnel do not receive “compensation” within the meaning of this section. 2. Gross Negligence Having determined that the gross negligence standard is applicable, we turn to appellant’s assertion that she presented sufficient proof of gross negligence to require submission of this action to the trier of fact. In Foor v. Juvenile Services, 78 Md.App. 151, 170 , 552 A.2d 947 (1989), this court summed up Maryland case law as follows: Gross negligence has been equated with “wilful and wanton misconduct,” a “wanton or reckless disregard for human life or for the rights of others.” In Romanesk v. Rose, 248 Md. 420, 423 , 237 A.2d 12 (1968), the Court of Appeals, quoting from 4 Blashfield, Cyclopedia of Automobile Law and Practice, § 2771 (1946), held that “a wrongdoer is guilty of gross negligence or acts wantonly and willfully only when he inflicts injury intentionally or is so utterly indifferent to the rights of others that he acts as if such rights did not exist.” Appellant argues that defendant knew of the possible fatal consequences of failure to act, knew that Tatum needed oxygen during an acute asthma attack, failed to transport him properly from the house, failed to administer ⁵⁶⁹ oxygen to him in the back of the ambulance for a significant period of time, allowed him to remain face down on the floor of the ambulance, and finally, falsified the ambulance report.

All of these taken together, she contends, satisfy the threshold of gross negligence and, therefore, the trial judge erred in entering judgment for the defendant. We disagree. Even though the lower court, in ruling on the question of sufficiency of the evidence, is required to take the facts in the light most favorable to the plaintiff, we hold that the trial judge acted properly in granting the appellee’s motion for judgment. The evidence in this case indicated that although the actions of Gigliotti may have amounted to negligence, they do not satisfy the threshold of gross negligence.

In fact, appellant’s own expert witness, Mr. Harvey Grant (“Grant”), on standard of care failed to testify that any of defendant’s actions constituted a “reckless disregard for human life.” On direct examination, after being asked whether, in his opinion,