A Call for Good Samaritan Protection

 

Jan/Feb 2010

NSPE TODAY
A Call for Good Samaritan Protection

BY SARAH OGDEN

NSPE is continuing its pursuit of federal Good Samaritan legislation for professional engineers. Though the U.S. has not recently faced major emergencies like September 11 or Hurricane Katrina, when the next disaster strikes and PEs are needed to assist in emergency operations, they must be able to volunteer without liability concerns.

NSPE endorses model Good Samaritan legislation in its professional policies. The model legislation advocates protection for "[a] professional engineer who voluntarily, without compensation, provides structural, electrical, mechanical, or other engineering services related to a declared national, state, or local emergency caused by a major earthquake, hurricane, tornado, fire, explosion, collapse, or other similar disaster or catastrophic event at the request of or with the approval of a national, state, or local public official, law enforcement official, public safety official, or building inspection official acting in an official capacity." The model law provides qualified immunity, ensuring that the liability protection is removed if there is wanton, willful, or intentional misconduct.

The distinction between voluntary and paid work is important. The legal definition of a Good Samaritan is a person who renders aid in an emergency on a voluntary basis, without compensation. When PEs are performing paid professional services under normal circumstances, they do so with the understanding that they are undertaking a certain amount of risk that is covered by their liability insurance. PEs voluntarily responding to an emergency—Good Samaritans—must make life-and-death decisions within the constraints of limited time and resources. Good Samaritan protection would ensure that PEs volunteering under these circumstances would not be punished for using their expertise to try to save lives.

Another important distinction is the time period during which a PE responds. According to the Federal Emergency Management Agency, "first response" is the immediate period that includes search and rescue, electrical power, food, water, shelter, and other basic human needs. This is the period when volunteer PEs must make decisions under imperfect conditions. During the long-term recovery phase, when damage to public facilities and infrastructure is repaired, PEs are better able to evaluate risk. (They also are usually paid for their work.) Only PEs volunteering during the first-response phase would be covered under the Good Samaritan law.

There is precedent for federal Good Samaritan legislation for professional engineers. In the Volunteer Protection Act of 1997 (P.L. 105-19), Congress found that "the willingness of volunteers to offer their services is deterred by the potential for liability actions against them" and thus aimed to promote volunteerism by offering qualified immunity for volunteers acting for nonprofit organizations or government entities. The law, however, stipulates that, "if appropriate or required, the volunteer was properly licensed, certified, or authorized by the appropriate authorities for the activities or practice in the State in which the harm occurred, where the activities were or practice was undertaken within the scope of the volunteer's responsibilities in the nonprofit organization or governmental entity."

In the Volunteer Protection Act's reference to licensure is another key to the Good Samaritan debate: qualifications. At the heart of Good Samaritanism is the idea of doing more good than harm—that one should act when not acting would cause further injury. The reason many states offer Good Samaritan protection only to licensed or certified professionals such as doctors and nurses is that licensure provides assurance of qualifications. Qualifications come into play when, for instance, a car accident victim with spinal injuries is pulled from the car by a layman, compounding the injuries. If the car is not on fire and is not at risk of being hit again, the layman has done further harm to the victim. A doctor facing the same scenario, however, would know that such a victim should not be moved and would administer whatever medical care was possible until better equipped help arrived.

Similarly, professional engineers have the expertise to provide competent engineering services in an emergency. Where life and death are concerned, "unknown quantities" are too big of a risk. Licensure is the best way to ensure that only qualified individuals make critical decisions. Good Samaritan protection for licensed professional engineers—who, in addition to their expertise, adhere to a code of ethics that upholds the public health, safety, and welfare—would help to ensure that enough PEs are willing to help when the next emergency arises.

Federal Good Samaritan legislation for professional engineers should be a political no-brainer. It is a no-cost measure that would encourage PEs to volunteer in emergencies. Nor is it an entirely new concept: The Good Samaritan Protection for Construction, Architectural, and Engineering Volunteers Act was introduced in the House in 2007, but it languished in the Judiciary Committee until the 110th Congress adjourned.

Though the lack of recent disasters has drawn congressional attention away from emergency management, NSPE will continue to fight for Good Samaritan protection for professional engineers volunteering in an emergency so that when PEs are called to action, there will be no deterrents.

For more information, see NSPE's Issue Brief, "Engineers' Good Samaritan Laws," at www.nspe.org/IssuesandAdvocacy/TakeAction/IssueBriefs/index.html.