Twenty Minutes? Thirty? Forty? EMS Liability for Delayed Response Times

‘IT FELT LIKE FOREVER’: DENVER FAMILY QUESTIONS 17 MINUTE AMBULANCE RESPONSE TIME

– CBS News Colorado, June 10, 2020

ST. LOUIS MAN SAYS HE WAITED 10 HOURS FOR AMBULANCE TO ARRIVE FOR SICK BROTHER

– Fox 2 Now News, January 4, 2022

IN AN EMERGENCY, EXPECT TO WAIT 30 MINUTES FOR AN AMBULANCE IN ATLANTA

– Atlanta News First, July 14, 2022

The issue of delayed ambulance responses to the populations they serve has been a perennial problem for as long as the industry has existed. As populations keep growing and aging, there will be an increased demand for prehospital services, and governments will have to learn to meet those demands. The famed economist Thomas Sowell said, “[t]he first lesson of economics is scarcity: there is never enough of anything to fully satisfy all those who want it. The first lesson of politics is to disregard the first lesson of economics.”¹

Sometimes ambulance scarcity becomes a major problem. Units are not available when seriously sick and injured patients need one most. Therefore, a question arises: what is the legal liability of an ambulance service for a delayed response? The purpose of this article is to examine what, if any liability may attach and what legal theories both protect providers and possibly expose them to lawsuits.

It is important to define what entities are covered by the topic of this article. When we discuss an “ambulance service,” we are discussing a public provider of EMS functions. This may be a dedicated governmental emergency medical services provider, a public fire department or a municipal corporation. We are not discussing a private ambulance company that contracts with a government body to provide EMS coverage. That model would be regulated by contract law – what contractual promises did the private company promise to the government representative (and, therefore, the served population) for response times. Contract law is a completely different topic from what is discussed here.

The first lesson in this article is a refresher on the topic of negligence. What constitutes negligence? Common law has typically defined it under a four-part test: 1) duty; 2) breach of duty; 3) causation; and 4) damages.² To explain these elements, a person or entity has a duty to act or withhold harmful action in a situation; that individual failed to act or withhold acting; there is a direct relationship between the action/failure to act and some adverse result; and the harmed individual was measurably damaged by the harm.

While this article will focus on the temporal duties that ambulance services have to respond to calls for assistance, the topic of damages is important to consider when weighing late responses. If a person is not harmed by a delayed EMS unit, there would be no showing of negligence for understaffing ambulance coverage. This is currently reflected by agencies that utilize systems like the Medical Priority Dispatch System (MPDS), which gathers enhanced information from a caller about an emergency, essentially ranks calls by need for attention and dispatches ambulances accordingly. In essence, it is assessing the potential damages or harms that might result from a delayed response. Is it perfect? Hardly. However, unless and until a better system comes along, EMS agencies will continue to utilize MPDS to allocate scarce ambulance resources.

When discussing liability and protections for EMS providers in delayed responses, it is also important to recall that there are essentially two legal systems in the United States where litigation occurs: state courts and federal courts. Providers can potentially face cases in either sphere.

The fifty states have generally been very protective of EMS providers on the topic of delayed responses to EMS scenes. To summarize, it is typically very hard to hold an EMS provider liable for harm that arises from delayed response and subsequently delivering care. Some states have been proactive in providing statutory protection to EMS agencies that shield them from liability for late scene arrivals.

For example, Maryland has two laws that shield ambulance companies from civil liability for late scene responses: the Good Samaritan Act,³ and the Fire & Rescue Companies Act.⁴ Similarly, Texas has shielded 911 EMS providers from liability under its Tort Claims Act.⁵ However, in neither state are the statutes absolute bars from liability. In Maryland, an EMS provider may still be responsible if the injured party can show that it acted with gross negligence.⁶ Gross negligence is not mere negligence (see above for a definition of same); instead, it is something much more. As explained in the case of Coit v. Nappi, 248 Md. App. 44 (2020), “[g]ross negligence is an intentional failure to perform a manifest duty in reckless disregard of the consequences as affecting the life or property of another, and also implies a thoughtless disregard of the consequences without the exertion of any effort to avoid them.” Under Texas law, an agency can be held liable if the harm falls within one of three express exceptions to the Tort Claim Act.⁷ Therefore, jurisdictions that have passed laws protecting agencies for untimely responses have built formidable defenses to such allegations – but not insurmountable ones.

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Is it foreseeable that an agency can be held liable for delayed responses under codified state laws? Possibly. Some systems in the United States are chronically understaffed and ambulance delays appear to be the rule rather than the exception. If a harmed party can demonstrate that a public provider has consistently failed to address chronic understaffing and slow response times, there is the potential that a state court would consider this to be not mere negligence but gross. While no state appellate court has held such to date, all it takes is one published appellate court decision to create a new body of law. The risk does exist.

Other states have protected EMS agencies from liability for late responses through developed case law and reliance on legal principles related to sovereign or state immunity. Sovereign or state immunity is a doctrine expressing that the sovereign, or government, cannot commit a legal wrong and is immune from civil suit or criminal prosecution unless it so consents to the action.⁸ States may have different specific names for the doctrine but the principles remain the same. In New York, the courts explained the immunity within the realm of EMS as follows:

Protecting health and safety is one of municipal government’s most important duties. Since municipalities are run by human beings, they sometimes fail in that duty, with harmful, even catastrophic, consequences. When that happens, as a general rule, the municipality is not required to pay damages to the person injured. The rationale for this rule is that the cost to municipalities of allowing recovery would be excessive; the threat of liability might deter or paralyze useful activity; and thus the net result of allowing recovery would be to make municipal governments less, not more, effective in protecting their citizens.⁹

Again, because each state is its own legal jurisdiction and their courts operate independently of each other, the sovereign or state immunity doctrine may not be an absolute bar to liability for late 911 responses depending on where the agency is located. In New York, if a plaintiff can show that an agency had a “special relationship” with the harmed party, this may act as a waiver of the sovereign immunity defense.¹⁰ A special relationship involves both promises made by an agency to individuals for service, direct contact between the agency and the affected citizens, and knowledge on the agency’s part that delayed action could result in harm.¹¹ While no published appellate case decision from New York has yet held an EMS provider liable for delayed response to an emergency scene, it does not stretch the imagination to see where, under the right circumstances, liability may attach. If an EMS agency has a specialized program to serve citizens with unique needs (like the St. Louis Fire Department’s STARS program that serves medically fragile pediatric patients,¹²) it could be argued that failure to have ambulances available when patients served by these programs require one is harmful, and therefore punishable, based on the agency’s pre-existing knowledge of the patient’s needs.

In contrast to New York, the State of Washington has a rather liberal body of law allowing harmed parties to recover from public entities for delayed responses. State law holds that municipal corporations are liable for damages arising out of their tortious conduct, or the tortious conduct of their employees, to the same extent as if they were a private person or corporation.¹³ Washington does, however, have a similar protection to New York called the “public duty doctrine,” which says that a plaintiff must prove the breached duty was owed to him or her specifically, and was not the breach of an obligation owed to the public in general.¹⁴ An understaffed ambulance service that affects the broad public is not a harm directed at any one specific person.

However, the public duty doctrine may be weakened by exceptions built into Washington state law. If a government ambulance service is providing services without any statutory mandate to do so, it would be treated no differently than private parties providing the same services under similar circumstances (i.e. – there is no sovereign immunity defense available).¹⁵ It could be held liable for late responses under a simple negligence theory. Furthermore, Washington creates different state protections based upon whether the government actor is a volunteer or paid employee. Volunteers can only be held liable to the public for the harms they cause if they are grossly negligent; however, paid employees may be liable under simple negligence.¹⁶ It is foreseeable that an all-volunteer, government based EMS agency would be afforded better protection under Washington law for late responses than a municipal service staffed by full-time, paid employees.

What the reader should take away from a review of state laws and court cases is that both state courts and legislatures are very protective of EMS agencies and are loathe to hold them liable for late responses to emergency scenes. A limited review of state case law for a select time period failed to reveal any published appellate decision affirming monetary awards against ambulance companies for untimely responses. Both state case law and statutes shielded the agencies from liability. That said, both the case law and statutes contained exceptions to the protections they offered. If EMS agencies failed to address continuing problems with delayed scene responses, it is foreseeable that the exceptions to protective laws may become the avenues by which ambulance providers are found responsible for harms if response problems persist over an extended period of time.

Federal law, while not nearly as involved as the state courts in EMS litigation regarding slow responses, is the place where interesting legal developments have occurred. This should direct both agency directors and their legal counsel to pay attention to what is happening in this sphere.

Injured parties and their attorneys have attempted to attach liability to EMS agencies in federal courts for late responses through what are called “Section 1983” claims. A Section 1983 claim allows people to sue government agencies and its employees for violations of their federally-protected civil rights under 42 U.S.C. § 1983.¹⁷ Plaintiffs have made arguments in the past that inadequate provision of ambulance care has deprived them of rights to life, liberty and property interests.¹⁸ However, the federal courts have not attached liability to ambulance providers for such claims.¹⁹ Federal courts (and state courts that have rarely decided Section 1983 cases) have consistently held that incompetent emergency services provided by a state agency do not rise to the level of constitutional violations.²⁰

Therefore, situations where a fire department dispatcher made a wrong diagnosis and failed to send rescue services,²¹ or where EMS providers responding to a 911 call refused to take an injured party to a hospital of her choice although she had requested an ambulance that could take her to that specific facility,²² did not create viable Section 1983 claims. The only occasions where public service providers may have liability for individuals in their charge would be situations involving involuntary commitment or incarceration²³ – in other words, care and custody far beyond that typically provided by EMS agencies.

While Section 1983 typically does not provide potential litigants with an avenue for relief for delayed scene responses, there has been a relatively new legal theory put forth under these actions that could potentially offer relief to plaintiffs. The “state created danger theory” as applied to Section 1983 claims holds that “liability may attach where the state acts to create or enhance a danger that deprives the plaintiff of his or her Fourteenth Amendment right to substantive due process.”²⁴ To prove a Section 1983 claim under the state-created danger theory, a plaintiff must show:

1. the harm ultimately caused was foreseeable and fairly direct;
2. a state actor acted with a degree of culpability that shocks the conscience;
3. a relationship between the state and the plaintiff existed such that the plaintiff was a foreseeable victim of the defendant’s acts, or a member of a discrete class of persons subjected to the potential harm brought about by the state’s actions, as opposed to a member of the public in general; and
4. a state actor affirmatively used his or her authority in a way that created a danger to the citizen or that rendered the citizen more vulnerable to danger than had the state not acted at all.²⁵

The state created danger theory arose from the United States Supreme Court case of DeShaney v. Winnebago, 489 U.S. 189 (1989). Federal district and circuit appellate courts have been steadily adopting this theory as a means of holding government actors liable for the harms they cause.

Has any EMS agency been held liable for late scene responses under Section 1983 claims and the state created danger theory? No – at least not yet. Agencies have escaped liability under the third prong of the four-part test described above. Courts have held that when the alleged wrongdoing involves a policy or practice directed at the general public and not the specifically harmed plaintiff, the state-created danger theory does not apply because the defendant agency lacked specific knowledge of the plaintiff’s condition.²⁶ Insufficient ambulance coverage and delayed responses to EMS calls affect the public in general. Therefore, no specific harm to any individual attaches.

However, it is not difficult to envision situations where this prohibition may no longer apply to the state created danger theory. What about a scenario where an EMS agency has a sick “frequent flyer” who, one day, calls for assistance when units are tied up on other dispatches and this person is injured or dies from delayed care? Assuming an EMS agency knew of its chronic, insufficient ambulance coverage and the delayed scene responses caused by same, a repeat patient with longstanding medical conditions would have at least an argument that the agency’s unstated policy of continued, insufficient ambulance coverage caused his or her harm and was foreseeable.

What an EMS agency director should take away from this article is that the legal protections are strong for ambulance services who are plagued by insufficient coverage and delayed scene responses. These protections extend to services in both state and federal courts. While these defenses are formidable, plaintiffs’ attorneys are constantly testing them to see if liability will attach in the future where it did not exist before. Directors should also be aware that the longer a problem exists with delayed scene responses, courts may view this tolerance as acceptance of inadequate and harmful conditions. This, in turn, may create waivers to defenses where none previously existed. Legal situations change, and directors would be wise to address scene delays before they become a chronic problem.

References

1. https://www.brainyquote.com/quotes/thomas_sowell_371242

2.Restatement (Second) of Torts § 282 (1965)

3. Md. Code Ann., Cts. & Jud. Proc. § 5-603

4. Md. Code Ann., Cts. & Jud. Proc. § 5-604

5. Texas Civil Practice and Remedies Code Title 5, Chapter 101

6. Tatum v. Gigliotti, 321 Md. 623, 583 A.2d 1062 (1991); McCoy v. Hatmaker, 135 Md. App. 693, 763 .2d 1233 (2000)

7. Texas Civil Practice and Remedies Code Title 5, Chapter 101.021

8. https://definitions.uslegal.com/s/sovereign-immunity/

9. Laratro v. City of New York, 8 N.Y.3d 79, 81 (2006)

10. Valdez v City of New York, 18 NY3d 69, 960 NE2d 356, 936 NYS2d 587 (2011); Cuffy v City of New York, 69 NY2d 255, 505 NE2d 937, 513 NYS2d 372 (1987)

11. Cuffy, supra.

12. https://www.ssmhealth.com/cardinal-glennon/health-professionals/stars-for-special-needs-kids

13. RCW 4.96.010(1)

14. Beal v. City of Seattle, 134 Wn.2d 769, 784, 954 P.2d 237 (1998)

15. Wash. Rev. Code § 4.96.010

16. Norg v. City of Seattle, 18 Wn. App. 2D 399 (2021)

17. https://legal.thomsonreuters.com/blog/what-are-the-elements-of-a-section-1983-claim/

18. DeShaney v. Winnebago County Dep’t of Social Servs., 489 U.S. 189, 196 (1989); Wideman v. Shallowford Community Hosp., Inc., 826 F.2d 1030, 1036 (11th Cir. 1987)

19. Id.

20. Id.

21. Archie v. City of Racine, 847 F.2d 1211 (7th Cir. 1988)

22. Wideman v. Shallowford Community Hosp., Inc., 826 F.2d 1030, 1036 (11th Cir. 1987)

23. DeShaney, 489 U.S. at 200

24. Morrow v. Balaski, 719 F.3d 160, 177 (3d Cir. 2013)

25. Id.

26. Kneipp by Cusack v. Tedder, 95 F.3d 1199, 1208 (3d Cir. 1996)