Opinion
No. 10-03-00299-CR
Dissenting Opinion on Rehearing Delivered and Filed: December 14, 2005.
Appeal from the 249th District Court, Johnson County, Texas, Trial Court No. F35621.
DISSENTING OPINION ON REHEARING
The majority opinion on rehearing continues to apply an incorrect "rational-juror" test to the evidence to determine if an accused has the right to a defensive instruction. Moreover, in its discussion of the evidence, the opinion on rehearing fails to apply the correct standard of review. As the original majority opinion notes, the evidence should be viewed in the light most favorable to the defendant. See Ferrel v. State, 55 S.W.3d 586, 591 (Tex.Crim.App. 2001); Johnson v. State, 157 S.W.3d 48, 50-52 (Tex.App.-Waco 2004, no pet.) (reversing and remanding case because self-defense was raised by the evidence viewed in light most favorable to defendant). But the opinion on rehearing reviews and discusses the evidence in both a neutral light and in a light most favorable to the prosecution, rather than in the light most favorable to Shaw.
In her motion for rehearing, Shaw aptly distinguishes between an unlicensed "medical assistant" and a licensed "physician assistant" by pointing to the Physician Assistant Licensing Act, which provides:
(a) A person is not required to hold a license issued under this chapter to practice as:
(1) a technician, assistant, or employee of a physician who performs delegated tasks but does not act as a physician assistant or represent that the person is a physician assistant; or . . .
TEX. OCC. CODE ANN. § 204.003(a)(1) (Vernon 2004) (emphasis added).
Shaw additionally asserts that if she were a licensed physician assistant, it would have been very unlikely for her to have called 9-1-1 for instructions on performing CPR. This argument, drawn from the evidence, additionally supports the conclusion that the jury could have found that she was a medical assistant who mistakenly thought she was licensed.
Why the defense in section 22.04(k)(1)(B) is limited to a "person not licensed in the healing arts" (unless that person is working under the direction of a licensed physician) is baffling. Did the legislature actually intend to provide this defense only to a "person not licensed in the healing arts" who administers emergency medical care in good faith and with reasonable care? See TEX. PEN. CODE ANN. § 22.04(k)(1)(B) (Vernon 2003) (current version at id. § 22.04(k)(2) (Vernon Supp. 2005)). Are Good Samaritans (other than licensed physicians or persons acting under the direction of a physician) who are licensed in the healing arts not entitled to this defense for their good-faith conduct in an emergency?
The purpose behind civil "Good Samaritan" laws is to increase the incentive for volunteers to provide emergency medical care by lowering the standard of care and exposure to liability. See McIntyre v. Ramirez, 109 S.W.3d 742, 745 (Tex. 2003) ("we observe that the purpose of this statute is to increase the incentive for volunteers — and particularly physicians — to respond to medical emergencies"); Pleasant Glade Assembly of God v. Schubert, 174 S.W.3d 388, 396 (Tex.App.-Fort Worth 2005, pet. filed) ("the Good Samaritan statute . . . provides that a person who in good faith administers emergency care is not liable in civil damages for an act performed during the emergency unless the act is wilfully and wantonly negligent. It is designed to offer protection to persons who voluntarily administer emergency care."); Rosell v. Central West Motor States, Inc., 89 S.W.3d 643, 658 (Tex.App.-Dallas 2002, pet. denied) ("statute lowers the standard of care to encourage both certain medically-trained persons and laypersons to render aid in emergency situations"). The civil Good Samaritan statutes currently distinguish between licensed and unlicensed persons, apparently for professional medical liability purposes. Compare TEX. CIV. PRAC. REM. CODE ANN. § 74.151 (Vernon 2005) with id. § 74.152. The prior statute had two sections as well: former section 74.001 ostensibly covered health care professionals who administered emergency care, while former section 74.002 covered "persons not licensed in the healing arts," including emergency medical service personnel. See Acts 1985, 69th Leg., R.S., ch. 959, § 1, 1985 Tex. Gen. Laws 3299 (formerly codified at TEX. CIV. PRAC. REM. CODE ANN. §§ 74.001-.002). In 1985, emergency medical service personnel (such as paramedics or EMTs) were not licensed; but since 1999, they can now be licensed. See 25 Tex. Admin. Code § 157.40 (2005); 24 Tex. Reg. 571, 1999 WL 49025 (1999) (section 157.40 effective Feb. 4, 1999). But compare Moore v. Trevino, 94 S.W.3d 723, 726-27 (Tex.App.-San Antonio 2002, pet. denied) (holding emergency medical service personnel are not persons licensed in healing arts), with Wheeler v. Yettie Kersting Memorial Hosp., 866 S.W.2d 32, 50-51 (Tex.App.-Houston [1st Dist.] 1993, no writ) (parties and court assumed EMTs were persons licensed in healing arts).
When the defense at issue was added to section 22.04 in 1989, was the "person not licensed in the healing arts" language mistakenly imported from the civil Good Samaritan statutes without attention to its purpose in the civil liability context? See Acts 1989, 71st Leg., R.S., ch. 357, § 1, 1989 Tex. Gen. Laws 1442. One would reasonably think that, in passing former section 22.04(k)(1)(B), and despite the apparent language to the contrary, the legislature did not intend to discourage persons licensed in the healing arts (such as nurses and physician assistants) from providing emergency medical care when not under the direction of a licensed physician.
I would reverse the judgment and remand the cause for a new trial.