Negligence principles in mass shootings
The Las Vegas shooting put many EMS providers directly in harm’s way, as bullets rained down indiscriminately on thousands of defenseless people. Dozens of EMS professionals from Community Ambulance were on scene covering the event, and, in a matter of moments, many other practitioners from responding agencies were there to administer care. The quick and selfless actions by these dedicated caregivers saved countless lives that tragic night.
Potential legal liability for the actions taken by EMS in this incident certainly wasn’t on anyone’s mind as dozens of professionals instinctively sprang into action to save lives.
But, what if you make a mistake? What if you don’t have enough supplies, equipment or adequate staff to handle the multiple casualties? What if you hesitate? These are questions that we may ponder when not engaged in the immediate response to a crisis like a mass shooting.
Can you get sued for your actions or inactions in this terrible situation? A claim for negligence could certainly be brought against you and your EMS agency. However, the law takes into account extreme circumstances that severely tax our ability to perform as we normally would.
The law is forgiving to those who respond.
Negligence is the area of tort law focused on the harm caused by one person against another person for failing to act in a reasonable manner.
The core concept of negligence is that people should exercise reasonable conduct in their actions by considering the potential harm that they might foreseeably cause.
What’s considered reasonable conduct involves a comparison with other individuals who have similar training and available resources. Experts use this comparison to determine what’s considered reasonable or unreasonable conduct. Extenuating circumstances, such as being under fire from a high-powered rifle, or being faced with multiple critically injured victims and limited resources, are taken into consideration.
The general tort law principle in our society is that of ordinary negligence, which is the idea that we all can be held accountable for the ordinary mistakes we make when: 1) We have a duty of care to others; 2) There’s a breach of that duty; 3) There’s harm to other persons because of that breach; and 4) The harm is legally caused by the breach in the duty of care—and not due to other factors beyond our control.
All four elements must be proven for a plaintiff to win a case of negligence—which isn’t an easy thing to do, even in ordinary patient care situations. In mass casualty situations, the standard of care expected of the EMS practitioner isn’t as rigid.
The law is forgiving to those who respond and provide care in difficult circumstances. EMS practitioners have a qualified immunity that raises the bar for the plaintiff to meet the burden of proof—making it difficult to prove a case of negligence against a provider. Keep in mind, however, that the law of negligence and the availability of various immunities may vary from state to state.
In a mass shooting, it would be so unlikely that any court would find an EMS provider liable for negligence—especially for failing to enter an active shooter situation to administer care. The standard of care is to move in to rescue victims when the area is no longer an active shooter scene. However, in Las Vegas, many did just that—exhibiting amazing bravery and self-sacrifice, and the law is on their side for doing so.
In situations like the one that occurred in Las Vegas, we’re fortunate to have effective immunity provisions that are designed to encourage helping others in times of need and under adverse conditions.
The fundamental responsibility we all have as citizens is to act reasonably toward our fellow human beings. In EMS, we can only be expected to conduct ourselves as other reasonable EMS practitioners would conduct themselves given the same or similar circumstance.
A Personal Test
If you’re unsure about liability and negligence when you’re about to act, pause for a second and ask yourself: Is what I’m about to do as an EMT or paramedic consistent with what my colleagues would normally do in this situation?
If the answer is yes, then you’re not an outlier, and it would be unlikely that what you’re about to do would be viewed as negligence. If the answer is no, you might want to reconsider the decision. This simple test can help to ensure that the care you’re about to provide to the patient is reasonable in that situation.