by Dawn Kennedy
By now you may have heard of the victim who is contemplating filing a lawsuit in Colorado against the first responders who saved him from a flash flood water rescue scene in the fall of 2013. If not, you can read a few news accounts here and here.
This case raised some interesting comments across various blogs and of course across Facebook, many of the comments from rescuers (and the family members who love them) sounded something like, “Should the rescuers have risked their own lives to go into the flood when they thought that any victims in that car were already dead?”
A Legal Duty (obligation) to do anything can generally be found in the United States where there is a special relationship between people (parent/child) or there is a contractual obligation (paid lifeguard at the community pool). Establishing that someone has a “duty to act” is critical to finding that person liable for injuries to others or property. A Moral Duty on the other hand is an obligation that arises out of feelings of right and wrong, and generally cannot subject a person to liability. Good Samaritan Laws are found in most United States Jurisdictions, and these laws generally protect people who voluntarily help others in a reasonable manner from being held liable, and successfully sued1. Basically, if a person is not “legally” required to act, he cannot be found “legally” liable for not acting. In this sense, it is limited to the idea of a lawsuit- not whether someone “should” have done something because it would have been “the right” thing to do. In contrast to this general U.S. standard, other countries may impose a legal duty on anyone who witnesses an accident, and a failure to act can be a basis for liability and perhaps even be considered criminal.
Legal Duty while on Duty (under contractual obligation)
Where a duty exists under a contract, a person who fails to respond and do what is required by the contract, for example to provide appropriate medical care at their level of certification, can be held liable if an injury occurs because the person did not render care. There are other elements that would have to be proven to a jury, but finding that a person owed that duty under a contract is an important step. Where responders are paid professionals, they are contracted with whatever municipality, private service, or agency to provide the services they are hired to do. That seems straight forward and simple, and it is a good rule of thumb. As I said earlier, this is not the only thing someone has to prove in a lawsuit to find a person liable. In the story linked above, the victim may prove that his rescuers were professional, paid responders, and in that jurisdiction the contract imposed a duty to respond and render care. Thankfully, that is not the entire story. But the rest of the story is truly best left in the realm of the lawyers...
Scene Safety as a Consideration? Dead Heroes Can’t Save Lives
This case has brought out another interesting issue regarding a responder’s duty to respond, balanced against scene safety considerations. Scene safety is one of the FIRST things responders learn while in class. During my Basic EMT class a few of us “responders” were “injured” or “killed” during scenarios because we rushed in to the scene (with newbie enthusiasm), and did not ensure the scene was safe for us OR the patient to begin providing care. The natural human sense of urgency to rescue a person who is alive must be tempered, often through training, to ensure that both victim and rescuers can safely affect a rescue. Establishing an offsite triage area to receive patients from an unsecure scene is the typical operational protocol. In fact, not only is it not generally a violation of the duty of care, but where responders may become additional casualties themselves, it is often a violation of agency policy to ignore this practice.
I don’t think anyone would argue that if the victim had died in the accident rescuers should NOT put their own lives in jeopardy to attempt a body recovery until the scene was safe to do so. Alternatively, if the victim is dead, the recovery would be in a manner that is safe for the responders, such as towing the vehicle out of the water rather than recovery using dangerous swift water/ tactical rope rescue methods. But if the victim is alive- is any scene ever “too” dangerous?
Other Great Reading on this issue:
An excellent piece for Registered Nurses, grappling with similar issues can be found here.
An excellent article for EMS by Steve Whitehead on The EMT Spot on this topic can be found here.
Eric Aguilar tackled a tricky area for Law Enforcement regarding duty and jurisdiction in Law Enforcement Today.
Dawn Kennedy is a former Firefighter/NREMT-Paramedic, who worked in mostly small to mid-sized communities surrounding Tucson, AZ. She left the field in 1997 and moved to Germany as an Army wife. Upon return to the US a few years later, she felt the cruel hand of “no reciprocity” for Paramedics between certain states. She is the CEO of At The Ready Publications, LLC because she saw that rural first responders needed their own platform to share information and address the unique challenges they face. In her spare time, she is a third year law student - but has no plans to chase ambulances after passing the bar. Please contact Dawn at dkennedy(at)atthereadymag.com