When does legal liability to an EMS patient begin?
The Legal Guardian answers a reader's question about if legal liability starts at time of dispatch or time of patient contact
David Givot, an EMS1 columnist and editorial advisor, occasionally receives questions from EMS providers who find themselves in the kinds of situations about which he writes. The following is a question Givot received from a reader and is happy to answer.
Question: “When does your legal liability start, time of dispatch or at patient contact? Example, if you're dispatched to a chest pain and en route you're told you can disregard per the caller. The patient later dies. Are you liable for not proceeding in to at least try to make contact?”
Answer: This is a great and important question. Thanks. I wish it was easy to answer. Like everything in EMS, there is more gray than black or white.
To a certain degree, liability follows EMS providers everywhere they go and in everything they do, on duty and off. The degree of liability varies depending on too many factors to list. For an EMS provider who is on duty and subject to emergency call response, your degree of liability expands and contracts based on the phase of the response.
Response phase liability
When you are dispatched to a call and commence the response, your immediate liability mostly involves the care with which you respond; driving with due regard and safety, selecting the safest and most direct route, etc. As was noted in Zepeda vs. City of Los Angeles, until you arrive on scene, your duty to the actual patient has not yet attached.
So the shortest and simplest answer to the question about liability here is: No, an EMS provider who is cancelled en route by dispatch is not liable for patent care. That is well settled.
Improper response cancellation
Unless … If the provider has reason to believe or, worse yet, knows that the cancellation is not proper, then he or she is not yet relieved of the duty to respond.
For example, and very hypothetically, if dispatch communicates to the responding unit that the patient complaining of chest pain is also pale, cool and diaphoretic, a good plaintiff’s lawyer might argue that the responders should have known that a caller in such a state could not be expected to make informed decisions about cancelling a responding unit and, as such, the responders should have communicated the rationale to dispatch and continued the response to "check it out."
After all, EMS providers are expected to know more than the lay public about what is and what could be wrong. As an EMS defense attorney, I would argue vehemently against that notion, but the plaintiff’s argument could be sufficient to convince a jury to make a finding of liability.
The flip side of that same coin is this: A unit is dispatched to a patient with chest pain; the unit is cancelled en route; and there is no other information available to the provider, then there can be no liability of the provider for the subsequent death of the caller because, more than anything, the provider has not breached any duty.
I have written extensively about duty and breach. Expand or refresh your knowledge about duty to act and breach of duty by reading:
- Was EMS care of hypothermic teen negligent?
- The EMS legal conundrum of a 'still alarm'
- 911 breached duty by sending responders to wrong address
- How Mich. responders triple breached an absolute duty to respond
Traffic collision response
Another common scenario on this theme is the unit that is cancelled en route to a traffic collision. The same principles apply; if the provider has no reason to believe that the cancellation is improper, there should be no liability for it.
However, if the unit is cancelled by dispatch as it approaches or passes the scene and the providers can see extensive vehicle damage and a person with blood on his face, it could easily and successfully be argued that the EMS provider knew or should have known that there was a patient to whom a duty of assessment and treatment was owed.
I think the simplest bottom line is this: Within EMS is a chain of command and policies to support it; where the policies are followed, the law generally protects providers. However, if a provider knows or reasonably should know about circumstances that contradict the policy, he or she must act on that knowledge or belief.
Do you have an EMS legal question for me? Email me firstname.lastname@example.org and I will consider it for an upcoming EMS1 column. Note: I am only licensed to practice law in California. Any response to hypothetical questions is intended for educational purposes only and is not intended to be nor should it be considered legal advice.