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Why striking down the Ill. Public Duty Doctrine is not an attack on EMS

EMS providers have a duty to make a good faith effort to provide competent, efficient and compassionate emergency care to everyone and anyone in need

EMS providers and firefighters across the Land O’ Lincoln are reacting to the Illinois Supreme Court decision that essentially abolishes the so-called "Public Duty Doctrine."  

There is a difference between liability protection and immunity, just like there is a difference between incompetence and negligence. Liability protection recognizes that accidents happen; immunity does not care what you do. You must accept that, in EMS, those are some pretty important distinctions.

At issue here is the move by the Illinois Supreme Court to do away with the "Public Duty Doctrine." In Illinois, it was state that the government does not owe the general public a duty to render care. This doctrine has been applied to provide protection/immunity from litigation when the care 911 agencies provided did not meet the undefined standards or expectations of a fickle public. While intended to protect against claims stemming from errors of omission, as a matter of practice, the doctrine never expressly drew distinctions between negligence or incompetence or just simple human error and became something of a catch-all.

As you might imagine, the thought that there would be no duty to provide care does not compute with me. In my humble opinion, not only is there a duty to provide care, there is a duty to provide competent, efficient and compassionate emergency care to everyone and anyone in need, when they call and without exception.

The case at the center of this change is one in which a series of bizarre circumstances after a 911 call for service resulted in a 41-minute delay. The patient died. The family sued.

For the record, the case itself is a non-starter for me. Someone called 911; 911 responded; EMS arrived at the home and made what appears to be a good faith effort to gain entry. With no further information and no response to their knocking, they left. It happens. Not knowing anything else, I don’t see that they did anything wrong.

The EMS agency cited the "Public Duty Doctrine" as a defense. That’s where they lose me. That defense would maybe apply to an error of omission; if they did not respond at all. However, 911 did respond, so it appears there was no omission.

Two sides to the same coin
On the heads side of the coin we have the notion that providers must be protected from improper, frivolous or spiteful claims of damage. I could not agree more. The doctrine certainly accomplished that goal.

Moreover, I will be the first and loudest to argue that providers are way too vulnerable to litigious attack by immoral gold-diggers at the hands of the lowest of the bottom-feeding plaintiff’s lawyers looking more for money than justice. My disdain for them runs deep.

On the tails side of the coin we have abuse and exploitation; the ambiguity of the doctrine seems rife with opportunity for providers to breed and foster complacency and even malice; to hide misconduct behind a wall of no duty.

Clearly that is problematic and goes against everything EMS is supposed to represent.

Dispel the myth
Comments from EMS providers after the decision seem to suggest that a great many providers believe that this ruling is an affront to them, an attack. I assure you, it is not.

Then again, the only providers who need to be worried about this ruling are those who sought or plan to seek refuge in its protections. If that is the case, they probably don’t belong in EMS anyway.

In reality, EMS providers in Illinois have lost nothing. The Supreme Court essentially ruled that the doctrine is antiquated and specifically stated that "… application of the public duty rule is incompatible with the legislature’s grant of limited immunity in cases of willful and wanton misconduct…" and that logic holds true.

Blanket and vague protections don’t truly serve anyone — EMS providers, firefighters or civilians. There are simple ways to legislatively protect EMS providers while simultaneously protecting the public with established standards of care.

In California, for example, the Health and Safety Code protects both EMS providers and the public by declaring that so long as providers perform their duties in good faith and without gross negligence, they cannot be held liable for damages. Most states use similar language.

Gross negligence, of course, is a squishy concept and hard to prove. Good faith, however, is fairly easy concept. You either did the right thing for the right reasons or you did the wrong thing for the wrong reasons.

Applied to the case in Illinois, the family called 911 and EMS responded; the providers appeared to have made a good faith effort to gain access and were unable. The loss of life is both unfortunate and sad, but nothing in my reading suggests that their conduct was either grossly negligent or performed in bad faith.

To me the "Public Duty Doctrine" created a defense that is ill-placed in EMS. Effectively, the doctrine says to the public in any given situation, "Hey, what are you mad about? We did not have to respond at all…" and that, of course, is ludicrous.

That is not how I want to be perceived as an EMS provider. How about you?

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