Pro Bono: Are You Always On Call?

 

 
 
 

Douglas Wolfberg JD, EMT | Steve Wirth, Esq., EMT-P | From the March 2013 Issue | Thursday, April 4, 2013


Scenario: A medic stops at the grocery store after her shift. She’s still in her company uniform and witnesses an older man drop to the floor, apparently unconscious. Does the medic have a legal duty to act? Probably not. If she chooses to walk on by, can she be held legally liable? Again, probably not. Why? Because she doesn’t have a legal duty to act.

Tort law requires four elements for a plaintiff to hold a defendant legally responsible for a personal injury. These elements are 1) a legal duty to act; 2) a breach of that duty; 3) proximate causation (i.e., the defendant’s breach of duty was the legal cause of the plaintiff’s harm); and 4) damages (i.e., losses or harm that merits financial compensation). Unless an EMS provider has a legal duty to the patient, they cannot be held liable in tort law.

In our scenario above, the medic was off duty, having completed her shift. The fact that she was in uniform doesn’t change the analysis; your legal duty to act isn’t dependent on your wardrobe.

To use the reverse of this example, if the medic was on duty, spilled grape juice on her uniform at work and changed into a non-uniform shirt, she still has a duty to respond when called. Certainly, the fact that the medic was in uniform while off duty at the grocery store, probably with a patch or some insignia that identified her employer, still doesn’t create a legal duty to act when she witnessed the man fall to the floor. Of course, it could raise a public relations issue if the medic elects not to provide assistance to the patient, but it doesn’t give rise to a legal duty.

As this scenario makes clear, there’s a difference between a legal duty and a moral duty. Certainly, many EMS providers feel they may have a moral duty to act in this scenario, though that is a personal decision that the law permits each of us to make based on our own values and beliefs. In fact, this is why most states have Good Samaritan laws: to incentivize people to act on behalf of a fellow human being in peril even though they may have no legal duty to do so.

Can the medic’s employer be held liable for the medic’s failure to act? They possibly can in the court of public opinion, but not in tort law. If the agency is dispatched to respond, of course, that’s a different story. But her employer cannot be held liable simply because an off-duty employee decided not to render aid as a bystander.

What are the liability ramifications in this case if the medic does choose to act and provides care to the patient? Can the medic be held liable? Can her employer? Let’s start with the medic herself. When she decided to act voluntarily, most states’ laws would hold her liable only for harm that resulted from gross negligence, recklessness or intentional misconduct—not for acts of ordinary negligence. (Gross negligence vs. ordinary negligence is a threshold issue that is typically decided by the judge before the case goes to trial.)

Some individual EMS providers choose to carry personal liability insurance to address concerns about personal liability, though in truth it’s quite rare for an EMS provider to have to pay out of their own pocket in a tort case. (In fact, we haven’t encountered it in our nearly 20 years in the practice of law.)

Lastly, what is the liability of the medic’s employer if the medic chooses to act, in her uniform, while off duty? That is a bit more complex. If the employer has a policy (or even an unwritten expectation communicated to employees) making it a job requirement to provide off-duty care as a bystander, then it can possibly be held liable, because any errors or omissions committed by the medic would then likely be found to have occurred in the course and scope of her employment. However, in our experience, it’s unlikely (and inadvisable) for an EMS agency to have such a policy, which means the agency itself could most likely not be held liable for any acts or omissions committed by one of its employees off duty.

The concept of a legal duty to act is a basic principle of tort law, and is the threshold issue in determining whether an EMS provider can face liability for their acts or omissions.




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Related Topics: Administration and Leadership, Legal and Ethical, off-duty, uniforms, Jems Priority Traffic

 
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Douglas Wolfberg JD, EMT Doug Wolfberg is an EMS attorney and founding partner of Page, Wolfberg & Wirth. He has previously worked as an EMS field provider, EMS educator, county EMS director, and EMS administrator at the state and federal levels.

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Steve Wirth, Esq., EMT-Pis a founding partner of Page, Wolfberg & Wirth, LLC. Steve is an active EMS provider and firefighter, and a national EMS speaker and a member of the JEMS and EMS Insider editorial board. He can be reached at swirth@pwwemslaw.com.

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