Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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UPDATED: Mar 8, 2013

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The California nursing home death of 87-year old Lorraine Bayless made national news this week upon the release of a dramatic 911 tape in which the dispatcher pleaded in vain with an employee of the nursing home to perform CPR in an attempt to save the elderly woman’s life.   Claiming that performing CPR was against nursing home policy, the nurse refused the dispatcher’s increasingly desperate requests to administer CPR, waiting instead for professional emergency response personnel to arrive. 

In the ensuing uproar over what many accuse as unethical behavior, commentators have questioned why the nurse refused to provide medical aid, and whether or not the nursing home policy, assuming it was properly followed, needs to be changed.  Of particular note, many people have expressed concerns that the nurse, and the nursing home, favored inaction due to fear of a lawsuit – effectively valuing protection from litigation over the life of a resident.

Good Samaritan Laws and Legal Liability

Whether or not the motivation for inaction was based on fear of legal action, it is unlikely that either the Glenwood Gardens nursing home or the nurse on the scene could be held legally liable for administering CPR unsuccessfully.  Although it is a possible for someone providing medical aid to a person in need to be sued, the circumstances are limited to rare instances in which the aid given was so unnecessary and poorly administered that it made the situation worse.  Even if the nurse had not been able to successfully resuscitate Ms. Bayless, it is unlikely that she would expose herself or Glenwood given the life-threatening nature of the situation and the immediate need for CPR.

The nurse and the home are further protected by California’s Good Samaritan laws which provide legal protection to parties that provide necessary aid to individuals in need of medical assistance.  Good Samaritan laws across the country vary from state to state, but generally offer full legal protection for any party who attempts to provide emergency aid to someone in need.  Some Good Samaritan laws require others to assist parties in need, but California’s does not.  Under the protection of California’s Good Samaritan law, the nurse could not have been sued by the family of Ms. Bayless for a failed attempt at CPR

Investigations Likely to Come

The 911 call revealed that the nurse was made aware of her legal protections by the dispatcher as the conversation became increasingly more desperate.  Despite be absolved from responsibility, albeit from a source whose authority could be questioned, the nurse stuck nursing home policy, and not only refused to provide aid, but refused to elicit help from strangers to provide aid while Ms. Bayless was on Glenwood property.  Throughout the duration of the call, the nurse responded to the dispatcher’s request to provide CPR by saying she could not do so, leaving both criminal investigators and nursing home administrative bodies to ponder investigation into the affair.

While it is not likely that the nurse or the home face criminal prosecution for failing to provide aid or elicit assistance for the dying woman, some sort of regulatory punishment could be forthcoming.  Additionally, as a result of the incident, some legislative groups may consider pushing new laws that can serve to prevent this type of incident from happening in the future.  Glenwood has largely been unresponsive to requests for interviews, but has issued a statement denying it is company policy to not provide aid, and promising to conduct an internal review to ensure its policy is both well crafted and fully articulated to all staff.

Although Ms. Bayless did not have a DNR order stating she did not want CPR or other medical aid, it is worth noting that her family has expressed their satisfaction with the situation, and said that they do not intend to file any legal action because she did not desire “life-prolonging intervention.”  The family’s statement will likely do little to silence critics who believe, given what the nurse knew at the time of the emergency, failure to provide medical aid to a dying woman was an ethical violation.  Whether or not there is legal or legislative fallout remains to be seen, but in the mean time this story remains a troubling example of a failed emergency response protocol.