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Click here for the full text of this decision FACTS:When paramedic Sandra R. Young and emergency medical technician (EMT) James A. Greene Jr., first encountered Era Sheppard Smith early on the morning of Jan. 19, 2001, on a roadside in rural Marion County, Smith was in severe respiratory distress and looked to be oxygen-deprived. Smith had been suffering from end-stage renal disease, diabetes, hypertension, pulmonary embolism and gastroesophageal reflux. At the time, she was due for dialysis and had fluid on her lungs. During the crisis, Smith suffered respiratory and cardiac failure. Though a heartbeat was re-established, Smith ultimately died from the crisis. Shirley Dunlap, a daughter of Smith, brought a wrongful death and survivor action against Young, Greene, Good Shepherd Hospital Inc., d/b/a Good Shepherd Medical Center, and Champion EMS, f/k/a EMS Directlink, claiming negligence in the treatment and care of Smith. The defendants moved for summary judgment based on application of the so-called “Good Samaritan” statute and on the lost chance of survival doctrine. The trial court granted their motion. HOLDING:Affirmed. The San Antonio Court of Appeals has, under similar facts, applied the Good Samaritan provision to EMS personnel. Moore v. Trevino, 94 S.W.3d 723 (Tex. App. – San Antonio 2002, pet. denied). The Texas Civil Practice & Remedies Code does not define “healing arts” as it would apply to the former �74.002. The only available statutory definition the court finds of “healing art” comes from the Texas Occupations Code �104.002: The healing art includes any system, treatment, operation, diagnosis, prescription, or practice to ascertain, cure, relieve, adjust, or correct a human disease, injury, or unhealthy or abnormal physical or mental condition. At first glance, the duties of EMS personnel would appear to fall within this broad definition. Under former �74.002, when people render emergency care in the role of “emergency medical service personnel,” regardless of their expectation of payment, they would not be liable for that care unless “wilfully or wantonly negligent,” so long as they are “not licensed in the healing arts.” Necessarily under the statute, some people can provide care as EMS personnel, yet not be licensed in the healing arts. The court believes that the statutory language suggests that EMS personnel are not “licensed in the healing arts.” Dunlap’s proposed interpretation of former �74.002 � that emergency medical services fall within the definition of the healing arts � would mean that the protection offered by �74.002 is available only to those EMS personnel who are not properly certified and, nevertheless, perform emergency medical services. That would be nonsensical, the court believes. When asked at oral argument to which class of persons �74.002 would apply, if not to Young and Greene, Dunlap suggested the provision applies to volunteer EMS personnel who receive only reimbursement of expenses. The court finds three flaws in this suggestion: 1. such a distinction ignores the clearly stated intent of the Good Samaritan provision that remuneration or the expectation of remuneration is not to be considered when deciding whether the provision applies to the given circumstances, 2. the court finds no provision which distinguishes between the certification of volunteer EMS personnel and those who are paid, and 3. it is reasonable to conclude that, had the Legislature intended the Good Samaritan provision to apply to only those volunteers, it would have used the specific term “emergency medical services volunteer” rather than the more general term “emergency medical services personnel.” Not only does �104.003 of the Texas Occupations Code fail to mention EMS personnel, as Moore points out, but the entire code, thorough as to several health professions, fails to address EMS personnel. See Tex. Occ. Code Ann. � 104.003 (Vernon 2004). This omission suggests the Legislature considers EMS personnel different from those who practice medicine and, thus, would exclude them from “the healing arts.” This suggestion is confirmed by the several distinctions found in a variety of sections of the Texas Occupations Code and the Texas Health & Safety Code. The court concludes that Young and Greene were “not licensed in the healing arts” and, thus, fell within the protection of the Good Samaritan provision. Young indicated she knew Smith required intubation two to three minutes after her secondary assessment in the ambulance. But, since Smith was so ill in so many ways and considering that Young was continuing CPR and a method of ventilation, which Hess admitted was acceptable, Young’s failure to immediately intubate does not rise to the level of willful or wanton negligence. Greene stated that he and Young did not discuss the administration of the cardiac medications as a viable treatment, as the EMS personnel in Wheeler had done. So, there is no proof here that Young and Greene failed to do what they knew should have been done. Rather, Young and Green acted in a hurry and, as Young explains, were trying to get the critically ill Smith to the hospital without delay. The record raises no question as to whether Young and Greene were willfully or wantonly negligent. The court concludes that the appellees here conclusively established the former �74.002 as an affirmative defense. OPINION:Morriss, CJ; Morriss, CJ, Ross and Carter, JJ.

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