With the seemingly ever-present possibility of a mass shooting, terrorism event or an act of nature creating a mass casualty incident (MCI), every EMS agency needs to confront the new operational-and legal-realities that face them.
One such question: Do EMS agencies run the risk of legal liability when MCI patients are transported from the scene by law enforcement, bystanders or other non-EMS assets?
First and foremost, it’s important to go back to basics and remember that most tort liability is based on the concept of reasonable foreseeability. In other words, if a particular harm is reasonably foreseeable, liability can attach to the person or entity who could or should have reasonably foreseen it, but neglected to do so. That’s the essence of the law of negligence.
It becomes harder to attach liability to an EMS provider or an EMS agency when the harm that befell a person was not reasonably foreseeable. The problem is, shocking events that have transpired over the past 15-20 years have made an awful lot of stuff foreseeable today when it wouldn’t have been before.
Evolving MCI Standards
The Columbine school shootings in Colorado in 1999 were something of a turning point in our ideas of liability in the midst of chaotic crises that involve large numbers of patients. In that case, a school teacher was shot and suffered what some believe was a survivable injury.
Because responders followed what was then standard practice of ensuring scene safety before EMS providers were allowed into the building, there was a prolonged delay in EMS access to the patient. This was despite the fact that there were repeated 9-1-1 calls from the classroom indicating that no shooters were present and that the patient was bleeding to death. Famously, a white board sign in the window told the personnel on scene that in the room there was “1 bleeding to death.” The patient subsequently bled to death and his estate filed a lawsuit.
Central to the lawsuit was the allegation that the responders should have entered the building sooner.
In the years following Columbine, many EMS systems formed or began to participate in tactical EMS units, who entered active scenes along with law enforcement to more rapidly asses and evacuate critical patients.
The point in recounting the Columbine case and subsequent litigation is to demonstrate that the standards of care in MCIs, especially ones caused by violence or terrorism, have changed and are still undergoing fundamental shifts today.
Identifying Patients is Key
If bystanders and patients resort to transporting critical patients without the knowledge or involvement of EMS, it would seem to be very difficult for a patient-or his estate-to attach liability to the EMS agency when they had no way of knowing of the existence of the patient.
However, one of the issues that a lawyer could argue was “foreseeable” was the mere fact that MCI patients can be spread over a wide area and can be found in multiple locations, and it can be alleged that one of the fundamental responsibilities of the EMS responders and tactical commanders is to get an early assessment of the number of patients and triage their potential level of acuity.
As long as EMS agencies act with reasonable care in locating, identifying, triaging, treating and transporting patients in an MCI, it would be difficult, but not impossible, for a plaintiff’s attorney to hold the EMS system accountable for a bad outcome when a patient was transported by a bystander, by law enforcement or some other non-EMS resource. If that non-EMS transport was done because a patient who was known about was ignored, overlooked or forgotten, then an EMS system should expect to be held accountable. But when an EMS system has no way of knowing about patients who are removed from the scene before EMS even has a chance to assist them, it’s hard to imagine a scenario where the EMS responder could face liability.