Columns, Mass Casualty Incidents

Pro Bono: MCI Plans Should Consider Alternatives to EMS Transport

Issue 3 and Volume 42.

Mass shootings and active shooter incidents have resulted in an evolution in our training and the standard of care for mass casualty incidents (MCI).

The public expects a focus on rapid access and immediate removal of victims with survivable injuries, and we’re beginning to recognize that some limited risk to responders may be acceptable. We often now have tactical medics moving quickly and in a coordinated fashion to access, remove and transport patients from the less-secure warm zones.

What’s also evolving is the role of the police officer. Often first on scene, police have transported victims prior to EMS arrival or in situations when EMS resources are overly taxed or are unavailable.

During the Aurora, Colo., theater shooting in 2012, police were confronted
with multiple dying victims and an immediate shortage of ambulances. They were given approval to transport patients to area hospitals in police vehicles. In the Orlando nightclub shooting, police held back responders for their own safety and began using police vehicles to start
transporting patients to the trauma center a mile away because the gunman was still firing his weapon.

Although better coordination between police, EMS, and fire in these very taxing and difficult scenes is essential, the question arises: What’s the liability of police officers who transport victims with little or no medical intervention?

Public Duty Doctrine

Police officers typically enjoy a significant degree of immunity in actions that involve discretionary functions conducted for the public’s benefit that arise when performing their governmental duties. This is commonly called the “public duty doctrine,” as there’s no specific duty to an individual person in the general conduct of discretionary police functions. In these situations, police officers (as well as their municipal employers) are typically immune from liability unless their actions are wanton, willful or malicious. This is similar to the gross negligence standard we see in EMS immunity statutes.

But an action such as transporting a critically injured shooting victim when EMS wouldn’t be immediately available (clearly a discretionary act requiring a police officer’s judgment) could create a “special duty” that the police officer would owe to the victim-who’s now relying on the actions of that police officer in a life-or-death situation.

It’s based on the general tort law principle that a person is generally not liable for a failure to act, but when one chooses to act, then that person must not act negligently. When a special duty to a citizen is created, the legal immunities police officers enjoy in the normal conduct of their discretionary duties typically dissolve and the ordinary principles of negligence apply.

Put simply, when a special duty is created, whether any harm to the MCI victim caused by the police transport could be actionable against the police would depend on whether the police acted “reasonably” in that situation.

The fundamental question to the jury would be this: Would another reasonable and prudent police officer have transported the victim in that situation? If the answer is yes, then the police officer and agency would likely be found not to be negligent even where a special duty to the victim is created by the police officer’s actions. (Keep in mind that negligence and immunity principles are driven by state law and every state has varying degrees of these protections as well as numerous exceptions.)

Joint Planning

Most people would say that the officers in the Aurora and Orlando incidents acted reasonably and did what they felt was in the best interest of the patient-and to protect first responders until they were certain the scene was safe and under control. But of course, blatantly returning to the old days of “swoop and scoop” isn’t the answer. In the aftermath of the Philadelphia Amtrak derailment in 2015, many victims were transported by police, but they were taken to the closest hospitals rather than properly being distributed among other nearby city hospitals.

The National Transport Security Board noted in its investigation report that communities must develop a plan to systematically work into its emergency response plan the use of multiple transportation methods and coordinated distribution of patients in incidents where the normal EMS system resources are taxed beyond their limits.

That starts with joint public safety planning meetings on MCIs where all parties come to the table to better define the role of each agency so stability and coordination prevails over disarray and chaos.

Although the actions of police in transporting victims in these unique situations may well be defensible from a legal standpoint, all communities must work to ensure that victims receive the best possible care and transport to the most appropriate medical facilities wherever possible.