Duty seems to be one of those terms synonymous with EMS. The idea of duty is drilled in to us from day one of EMT training and reinforced throughout our career no matter how far we advance. As regular people just cruising through life, we only owe each other one duty: not to place another person in a position where they face an unreasonable risk of harm. Beyond that, we really don’t owe anyone anything. However, we are not regular people just cruising through life.
Many will argue that this essential tenet of EMS - to do no harm - is the number one duty owed by any provider and, theoretically, I would agree. However, the issue of “duty” does not tend to come up unless some harm has already been done, which, from a legal perspective, makes it moot. In reality, primum non nocere is more of a guiding principle than a duty. Of course, if your motivation to do no harm is the existence of a duty, perhaps you are not meant for EMS.
Beyond the somewhat esoteric principle of primum non nocere, is the far more tangible and measurable – and legally real – duty to act.
In the simplest terms, a duty to act is a legal duty requiring a party to take necessary action to prevent harm to another person or to the general public. As EMS providers, this duty has been interpreted by courts to mean responding to calls in an expeditious, but safe, manner; performing a thorough assessment of both the patient and the situation; providing the appropriate treatment; and transporting to an appropriate receiving facility when transport is warranted.
The use of lights and sirens is incidental to the duty to respond. The law in every state requires that emergency vehicles respond in a safe, professional, and reasonable manner and in compliance with local vehicle code rules. Safe and reasonable emergency vehicle operation is an absolute duty. It would be a mistake to assume that the law will cut emergency vehicle operators additional slack for breaking traffic laws. On the contrary, many courts have employed the “you should have known better than anyone else” philosophy and issued stiffer penalties for EMS provider violators. Furthermore, providers have a duty to know where they are going and how to get there. We have all gotten lost on the way to a call; however in the age of GPS and other advanced route guidance tools, the margin for error is much slimmer than when EMS providers used spiral-bound, paperback, Thomas Guide atlases .
Responding, though, is not limited to how one gets to the scene of a call. Responding refers to what a provider does on the scene itself. I have often said that it is the EMS provider’s duty to respond to the NEEDS of everyone who calls, rather than just focusing on the presence or absence of some traumatic or medical emergency. It is the EMS provider who all too often must determine what those non-medical needs are. For example, when the little old lady calls in the middle of the night for help changing her bed sheets, there would be no express or implied duty to change the sheets (although doing so would be nice), but there would be a duty to recognize that perhaps she needs the assistance of family or another caregiver or social services – and to get the ball rolling on those services by whatever means are appropriate. She may not be a patient, but she is a person and is no less important.
Make no mistake; the law is crystal clear on duty when it comes to assessments. As illustrated by Wright v. City of Los Angeles and Hackman v. AMR , a provider, once patient contact is made, has an absolute duty to perform a thorough assessment and to act on the findings thereof. The law does not recognize the existence of a partial or truncated assessment. Far too often, I see and hear about EMS providers in a legal pinch because they left something out or bypassed part of an assessment. “In my professional judgment, I did not think it was necessary…” is a common explanation I hear. NO!
There may be plenty of room for professional judgment in other areas of EMS, but on the thoroughness of an assessment, there is none. The law in every state has codified a duty to perform a full and complete assessment on every living patient. Naturally, the assessment of cardiac arrest patients may not get too far beyond the ABC’s before treatment is initiated or measures withheld – they are the exception, not the rule.
The interpretation of the duty to treat seems to also be subject to external factors such as the mood of the provider, the time of day, or the proximity to the ER. Once again, the law is unambiguous about the provider’s duty to treat; if a treatment is indicated based on the thorough assessment, and providing the indicated treatment is reasonable under the circumstances, the provider has an absolute duty to provide – or attempt to provide – such treatment. The most common example of failing to treat is not establishing an IV because the ambulance is right around the corner from the hospital. “They can do it when we get there. I don’t want to make the mess.” It seems so simple and innocuous, but it is a symptom of a much larger problem – complacency.
Where there is an assessment with findings that require treatment, transport to an appropriate receiving facility is the logical completion of the sequence – and the legal requirement. Of course not all patients who are assessed and treated in the field require transport to the hospital. I get it. Hypoglycemic patients who respond to D50, for example, may not need to go to the emergency department despite the administration of IV medication. Other patients who are alert and oriented and possess the requisite capacity to decline transport may also refuse – no matter how much we want them to go. However, such cases represent exceptions to the general rule. Without appropriate authority and documented empirical evidence derived from a thorough assessment, there is an absolute duty to transport (or vigorously attempt to transport) patients who warrant transport.
Although not necessarily codified, case law has created an implicit duty to mitigate the substandard performance or outright incompetence of fellow providers. Simply put, the emerging legal trend is to hold all providers accountable for the failings of one. Duty is and always has been important. The law only codifies what we all learned in school: EMS providers have a duty to respond, a duty to act, a duty to perform a thorough assessment, a duty to appropriately treat the findings of that assessment, and to transport where necessary. It’s not brain surgery, it’s EMS. After a while, though, “duty” kind of loses its cachet and becomes just another word in the lexicon of EMS; more memory than meaning.
Well, I’m here to tell you, “duty” has not lost any of its cachet or meaning or importance as far as the law in concerned. In the law, “duty” is very much alive and well; “duty” is with you on every call and if you breach it, it will sound its barbaric yawp over the roofs of the world ( Thank you, Walt Whitman ) and you, as they say, will be in deep Bandini . This article, originally published on July 6, 2015, has been updated.
EMS1.com columnist David Givot, a seasoned EMS employee with three years of law school under his belt, is looking to the future of EMS. He has created TheLegalGuardian.com as a first step toward improving the state of EMS through information and education designed to protect EMS professionals nationwide.
