In late February, Lorraine Bayless, 87, died at a California independent living facility after an employee declined to provide CPR — for more than seven minutes, even as a 911 dispatcher pleaded with her to intervene. The incident was the subject of enormous public outcry and generated widespread criticism of the facility. But it also raises important legal questions relevant to older adults and families living in similar settings.
Ms. Bayless collapsed in the dining room at Glenwood Gardens, in Bakersfield. A nurse identified only as Colleen indicated to the 911 operator that she was constrained by company policy from administering CPR. In a statement, Glenwood Gardens said the employee was acting as a resident services director — not as a nurse — and noted that as an independent living facility, Glenwood Gardens “by law is not licensed to provide medical care to any of its residents.” (By comparison, assisted living and nursing home facilities do provide varying degrees of health care.)
The company that owns the facility, Brookdale Senior Living, then issued a statement that said, “This incident resulted from a complete misunderstanding of our practice with regards to emergency medical care for our residents.” Yet the company has declined to respond to questions about what exactly those practices are.
Hoping to put the painful matter behind them, Ms. Bayless’s relatives made it clear she wanted a natural death and said they would not pursue legal action.
Like many commenters on this blog, experts noted that California and many other states have “Good Samaritan” laws intended to protect people who take action in medical emergencies from being penalized for trying to provide assistance. Interestingly, though, it is not clear that the law would have applied in this instance.
Good Samaritan laws provide immunity from civil lawsuits alleging negligence or harm. The statutes, which vary considerably from state to state, are aimed primarily at medical providers but also can cover ordinary people who step forward to help in emergencies. But certain exceptions apply.
In California, the law applies to individuals who in “good faith” and “not for compensation” offer emergency assistance. This excludes doctors and nurses who are paid to offer medical care at institutions like hospitals, medical clinics and nursing homes.
“When these health care professionals are on the job, there is no immunity and they of course can be sued for malpractice,” said Stephen Sugarman, a professor of law at the University of California, Berkeley.
What is not clear is whether this exception would apply to a nurse, like Colleen, who serves as an employee of a nonmedical institution in a nonmedical capacity. “Whether she would be protected by the Good Samaritan statute would need interpretation,” said David Levine, a professor at the University of California Hastings College of the Law in San Francisco.
Adam Winkler, a law professor at the University of California, Los Angeles, said, “The courts haven’t given enough guidance about what ‘for compensation’ means under California law.”
On the one hand, he said, it could be argued that the woman should be exempt from the Good Samaritan law because she received a salary and had a work relationship that called for a certain level of care for residents. On the other hand, perhaps she deserved legal protections because her work wasn’t medical in nature and she would have been acting outside of the scope of her job.
Another wrinkle: A separate California statute that applies to licensed nurses mandates that nurses cannot be held liable for civil damages when they provide emergency aid at the scene of “an emergency which occurs outside both the place and the course of that person’s employment.” Assuming Colleen is a licensed nurse, this suggests she would not have been covered by Good Samaritan protections so long as she delivered CPR at her workplace, said Eric Carlson, a directing attorney at the National Senior Citizens Law Center.
“That doesn’t mean that she would be liable automatically for a bad outcome. That would become possible in the case of gross negligence or if she didn’t act as a competent professional,” Mr. Carlson said.
Policies of this kind are in place at independent living centers across the country. Independent living centers say they are housing-only arrangements, akin to what Mr. Winkler called “dormitories for the elderly.” In medical emergencies, the policy of many institutions is to call 911 and wait for help to arrive. This applies to CPR and other types of emergencies — when residents fall and break a hip, or suffer a stroke, or faint for an indeterminate reason.
But some experts question whether CPR should be lumped together with other types of medical assistance, or whether it stands on a category of its own — what might be called basic life support services.
The question of the facility’s duty to provide care “will largely turn on what was in the resident’s agreement,” said Jaime King, an associate professor of law at the Hastings law school, in an e-mail. “The fact that it was an independent living facility with no claim to offering medical services” suggests there is no obligation to provide assistance, she wrote.
Mr. Sugarman isn’t so sure. “Suppose the woman was in fine health and in the facility dining room and was clearly choking?” he said. “Would it be O.K. for the staff just to ignore her even if they knew how to do the Heimlich? I don’t think so.”
The issue has caught the attention of the California State Assembly’s Committee on Aging and Long-Term Care. Its chairwoman, Assemblywoman Mariko Yamada, recently held hearings about independent living operators to explore “whether there should be some basic life support standard of care at these facilities.”
Did the nurse have a professional, if not legal, duty to perform CPR? “If someone licensed as a nurse is acting as a nurse, then yes, she must intervene and provide appropriate medical care,” said Russ Heimerich, spokesman for the California Department of Consumer Affairs, an agency that includes the state’s board of nursing. Failure to do so would put a nurse’s license in jeopardy, he added.
“But if I’m a nurse working part time at Ross selling clothes, I don’t have a duty to intervene,” he added.
The key question, then, is what the nurse’s responsibilities were at Glenwood Gardens. As resident services director, she would not have been required to provide CPR, Mr. Heimerich said, so long as medical care was not seen as part of her job description.
“The general rule in the U.S. is that you have no duty to rescue” someone in a medical emergency except if you’re a medical professional who’s on the job and acting within the scope of your medical practice, said Mr. Levine of the Hastings law school.