Failure to Respond - Liability?

[helicopper 1,050]

EMS agency X (doesn't matter if VAC or VFD) is the designated service provider for Town X which has a population of say 20,000 people and an annual call volume of about 1500 calls.

This fictional agency has some difficulty getting out on first calls for service but almost always relies on mutual aid for subsequent or simultaneous calls despite having a second and third ambulance in its inventory.

My question is this: does this agency have any obligation to cover its own calls or is its reliance on mutual aid acceptable? Is there no limit to the expectation that its neighbors - all volunteer agencies - will continue to provide primary EMS within their borders?

[Guest]

It may be very difficult, to prove, but i'm sure a good enough lawyer could argue fraud in certain cases.

Fraud must be proved by showing that the defendant's actions involved five separate elements: (1) a false statement of a material fact,(2) knowledge on the part of the defendant that the statement is untrue, (3) intent on the part of the defendant to deceive the alleged victim, (4) justifiable reliance by the alleged victim on the statement, and (5) injury to the alleged victim as a result.

Source

[Goose 188]

If there is any responsibility and subsequent liability on the home agency i would doubt anything would ever happen. Unless, of course, someone important in town died as a result of a lengthy response. Sadly, this hypothetical is business as usual for too many Westchester agencies.

[crcocr1 8]

It depends. If the EMS agency rosters its ambulance, it is assuming the responsibility to respond. The cause of action would be one for negligence. If the EMS agency does not roster its ambulance, it does not assume a responsibility to respond, leaving the village, town, or city with the obligation to develop a plan for EMS in that respective area.

Further, as Goose ably mentioned, the failure to respond may only prove a breach of duty. To obtain damages, the injured party must prove causation as well as certain and foreseeable damages. See generally Prosser and Keaton on Torts, 5th Ed. (1984).

Edited January 6, 2009 by crcocr1

[xfirefighter484x 234]

It depends. If the EMS agency rosters its ambulance, it is assuming the responsibility to respond. The cause of action would be one for negligence. If the EMS agency does not roster its ambulance, it does not assume a responsibility to respond, leaving the village, town, or city with the obligation to develop a plan for EMS in that respective area.

Further, as Goose ably mentioned, the failure to respond may only prove a breach of duty. To obtain damages, the injured party must prove causation as well as certain and foreseeable damages.

Jeez, that sounds like that was written by a lawyer!!

[IzzyEng4 427]

Having been a C-MED dispatcher up here in CT for several years, yes the agency holding the PSR (public safety responder) for a specific area / town / city is liable. They are also liable to have backup coverage in the event they cannot answer a call to service if they are unavailable. Now this does cover if said agency has 2 ambulances and both are out on calls and say a third call come in, the agency may or may not send a first responder to the scene as mutual aid is being dispatched. This also covers if the agency does not get out for a response at all and mutual aid is requested after an a lot time frame as not to hinder response (usually no more than 3 to 6 minutes after the initial dispatch).

Now if the initial agency has a track record of not answering calls to service on the initial response, the state OEMS steps in and will investigate the agency and determine what course of action to take, especially if the complaints are coming from patients from that specific response area. ("Why am I getting X-town's ambulance instead of the one in my town?)

[helicopper 1,050]

It depends. If the EMS agency rosters its ambulance, it is assuming the responsibility to respond. The cause of action would be one for negligence. If the EMS agency does not roster its ambulance, it does not assume a responsibility to respond, leaving the village, town, or city with the obligation to develop a plan for EMS in that respective area.

Further, as Goose ably mentioned, the failure to respond may only prove a breach of duty. To obtain damages, the injured party must prove causation as well as certain and foreseeable damages. See generally Prosser and Keaton on Torts, 5th Ed. (1984).

Are you saying that an agency that receives 911 calls from the dispatch center is not assuming a responsibility to respond? I'm less concerned with legal issues and fraud than I am with people (municipal officials, taxpayers, etc.) holding their feet to the fire to either provide the service they exist for, give it up and shut down, or fix the problems so they can cover their calls without an undue burden on their neighbors.

If you could elaborate on your definition of "roster"-ing its ambulance, I'd appreciate it.

Thanks and stay safe!

[Bnechis 3,961]

It depends. If the EMS agency rosters its ambulance, it is assuming the responsibility to respond.

Better look at your CON (certificate of need) from the Health dept. See if you responsible 24/7?

Do you have a contract with the municipality that says your the primary agency?

You agreed with the state youd cover it, you agreed with the municipality?

I've never seen anyone consider a non rostered agency does not have to respond. That would also mean every VFD that does not have assigned crews also does not have a responsibility to respond. Which means almost every VFD. I think not

[pasobuff 38]

Are you saying that an agency that receives 911 calls from the dispatch center is not assuming a responsibility to respond? I'm less concerned with legal issues and fraud than I am with people (municipal officials, taxpayers, etc.) holding their feet to the fire to either provide the service they exist for, give it up and shut down, or fix the problems so they can cover their calls without an undue burden on their neighbors.

If you could elaborate on your definition of "roster"-ing its ambulance, I'd appreciate it.

Thanks and stay safe!

I understand 'rostering' as having basically an 'on call' list.....

When I volunteered, we has a sign-up sheet for duty coverage - so if you commit to having people covering a specific time of day, they had better be there!

[Bnechis 3,961]

Fraud must be proved by showing that the defendant's actions involved five separate elements:

(1) a false statement of a material fact,

On your letterhead or vehicle: "saving lives 24/7", "Always on call", "we protect our community". Contract with town sayings, etc.

(2) knowledge on the part of the defendant that the statement is untrue

Your records show that you often do not respond and call MA, but the above statement is on your fundraiser...can you explain that to the jury?

(3) intent on the part of the defendant to deceive the alleged victim

We don't want the community to know that we cant get out, & we dont want paid in here, but we know we cant cover the shifts

(4) justifiable reliance by the alleged victim on the statement

I called 911 like it said on the side of the amb. and they never came

(5) injury to the alleged victim as a result.

My condition worstened because of the delay.

I'm not a lawyer (& never played one on TV) but I think a good lawyer could make a jury buy this. Particularly if a child died and particularly if there have been complaints raised in the past about the service (Officer please tell the jury how often the amb. does not respond or takes 30 min. etc.)

[Guest Engine1]

It may be very difficult, to prove, but i'm sure a good enough lawyer could argue fraud in certain cases.

Source

Ok I certainly dont think there is any "FRAUD" involved in any way shape or form. As for an agency that has more then one vehicle - I think that is irrelivant. If an agency has a contractual agreement with a municipality or district to provide for ambulance service, it is required to provide an ambulance, staffed as per NYS protocol, which if BLS, is EMT and Driver. If ALS, that is Driver and Medic. Driver could be an EMT but again it is irrellivent. As for the agency having more then one vehicle, that does not require the agency to have sufficient man power on call to staff all those vehicles. If your local police dept in your small village has 10 police cars, and 10 calls come in, does that require them to have an officer in every car responding? Or is that fraud, or has some other illegal situation taken place as a result of the depts failure to provide 10 police officers to staff their 10 vehicles for their 10 calls.

This is not an attack against any one on EMTBravo, but as of late, I've been reading alot of threads. While I may not specify my area of expertise, for personal reasons, I am involved in many aspects of emergency services. I read some threads and some responses from people who clearly have no idea how either police depts work, fire departments work, or ambulance corps. If you are new to EMT Bravo, or an explorer, or someone yonger tryign to learn about stuff - GREAT! We all have to learn, but use a little caution in what you say when you are responding to threads b/c what you say can easily be taken as fact by people. When I read what someone is saying i usually "assume", and yes that is my fault, that it is coming from someone well versed in the subject and someone that is either involved in the paticular service being discussed, or someone that has intimate knowledge. I usually do not respond to threads unless I am involved in the type of agency that is being discussed or if I have first hand knowledge about the topic being discussed. Just my 2 cents so that the information priovided on this forum is more accurate and helpful for all members.

[NJMedic 96]

In New Jersey there is no CON requirement for BLS. There is also no legal requirement for any municipality to provide EMS. 30-40 minutes waits for an ambulance are common place in some towns, everyday.

Tri Data produced a report for NJ last year saying the law should be changed to require municipalities to assure that EMS is proved within a certain time. If was up to the town to decide how they were going to accomplish that....third service EMS, private contract, Hospital based, etc.

[crcocr1 8]

I understand 'rostering' as having basically an 'on call' list.....

When I volunteered, we has a sign-up sheet for duty coverage - so if you commit to having people covering a specific time of day, they had better be there!

Chris192,

I believe your question was answered quite competently by pasobuff.

For professional reasons, I must keep my posts general in nature; and therefore cannot entertain the remainder of your questions regarding "holding people responsible."

Crcocr1

_____________________________

BNECHIS,

Insofar as fraud, I just will say the intentional misstatement of fact must occur at the time of the alleged inducement to act (i.e. you promise to provide a service knowing that you will not provide it when you recieve a CON).

Crcocr1

_____________________________

Engine1

I echo the second paragraph of your comments. If you have any questions or comments about my posts, please feel free to pm me. (I make this statement knowing that your comments were not directed toward me, nor disagree with any portion of your post.) I love to learn, which is why I chose my career and volunteer during my off-hours. I, therefore, would love to learn from a seasoned professional in Fire/EMS.

Crcocr1

Edited January 6, 2009 by crcocr1

[helicopper 1,050]

Perhaps I'm being more obtuse than usual. I'm not referring to the obligation of an individual to the service. I'm referring to the service having an obligation to the municipality(ies) that it "serves".

No, a PD with 10 cars may not put them all out on the road at a given time but they have duty shifts and staffing levels. There are times that the call volume and staffing are not in harmony but that is a different situation.

My concern, and the reason for bringing up this issue, is to discuss whether or not an agency has an obligation to respond to calls in its service area. Even with the three ambulances in Agency X, there could be instances of 4-5 calls and an absolute need for mutual aid.

What about two calls in an hour?

What is the minimum standard that an agency must meet?

It just boggles my mind that there are agencies out there that routinely and as a matter of course fail to respond and are not being called on it.

[Goose 188]

Perhaps I'm being more obtuse than usual. I'm not referring to the obligation of an individual to the service. I'm referring to the service having an obligation to the municipality(ies) that it "serves".

No, a PD with 10 cars may not put them all out on the road at a given time but they have duty shifts and staffing levels. There are times that the call volume and staffing are not in harmony but that is a different situation.

My concern, and the reason for bringing up this issue, is to discuss whether or not an agency has an obligation to respond to calls in its service area. Even with the three ambulances in Agency X, there could be instances of 4-5 calls and an absolute need for mutual aid.

What about two calls in an hour?

What is the minimum standard that an agency must meet?

It just boggles my mind that there are agencies out there that routinely and as a matter of course fail to respond and are not being called on it.

Boggles you and i both. Personally, i think it should be public information how often mutual aid is requested. Or, at the very least, someone at the County should have those numbers.

[16fire5 693]

There are plenty of fire protection districts in NYS that contract for fire protection i.e. anytown(town) has a contract with anytown fire company (not for profit independent fire company) to provide fire protection and/ems coverage to said fire protection district(s). If the fire company is failing to respond on any type of regular basis I'm sure a case could be made for breach of contract.

[pasobuff 38]

There are plenty of fire protection districts in NYS that contract for fire protection i.e. anytown(town) has a contract with anytown fire company (not for profit independent fire company) to provide fire protection and/ems coverage to said fire protection district(s). If the fire company is failing to respond on any type of regular basis I'm sure a case could be made for breach of contract.

And in my experience - this occurs in both volunteer and career/contracted areas.......one reason I would rather (literally) not be able to make the decision for myself to call an ambulance...and rather drive myself (been there, done that multiple times!)....or have someone drive me to the hospital. Some contracts do specify a minimum staffing level that is supposed to be maintained, or a maximum response time.

This thread reminds me when I was a fairly 'new' EMT....was at the Corps with another member who was a Medic.....we were listening to a neighboring VAC being toned out for a call.....I think it was difficulty breathing...something like that.....they were being paged, and paged and paged........so the other member and I got ready to roll out, knowing we were going to be called mutual aid 'any minute'......FINALLY we were toned out and off we went.....

Got to the call, to find an FD EMT on scene who had been trying to stabilize the PT until an ambulance arrived. Well we did, just in time to watch the guy code.....a member of the EMS squad whose territory did show up at about this point which was good.

As we started working the PT, another call was dispatched for an MVA in this jurisdiction.....guess what? The call was covered! (Go figure!).....and, the member who was with us attempted to leave to go to that call, but was quickly stopped.

How many times have people said something to the effect that 'it's just a band-aid call'....or it's a 'regular'.......in the case of this person,, he could have WALKED to the hospital faster than it too for us to get to him after all the unanswered dispatches, then the time it took us to get there.......unfortunately he did not make it....

Just one of the calls that has kind of stuck with me through the years.

[MerlinMedic 5]

Hmmm, lots of food for thought here. I am not a lawyer type, so I will stay away from those answers, but the problem is all over. In my neck of the woods it is a paid person who will not ALS any call unless it is God awful. As he is the boss, and QA/QI guru, there is no paper trail. His med director is in the dark. I am not sure if he chooses to remain so or what. Due to local politics, no one reports him.

But this is an issue that needs an official response. Many vollies get burned out on BS calls. So do many profesionals. I am sure most of us have gone to a cardiac arest with CPR in progress to find the victim alive and well.

When I was in the classroom as a teacher, I use to work with the kids on when to call 9-1-1. Did that with the Scouts too. My vollie squad has reached out to the local schools with free classes for health class & driver's ed. They were turned down after the school found out we are mandated reporters & not beholden to following the school's illeagal policies on suspected child abuse. THAT is another issue.

Soo, in my long winded way I gues I am saying we need to better police ourselves. We need help from the State to protect wistle blowers. Until that happens, the only resolution will be an ugly lawsuit.

[Doc 11]

This is an interesting question and I haven't heard of a case like this coming up in the field of EMS or the fire service. Similar cases have come up in law enforcement, however. Are their any parallels to the question of whether or not a police agency has a duty to protect individuals? In a sense, I could see it since both activities would appear to be equivalent aspects of the agencies duties. If that's the case, then the answer, according to case law, is NO. The police have no affirmative duty to protect. Every case where an attempt has been made to make a police agency liable for their inability to act or act in a timely manner has been shot down. Court cases have universally stated that police agencies are under no obligation to protect individuals and cannot be held liable for damages. A lot of the case law seems to extend this lack of affirmative duty to act to greater municipal government. I'm no lawyer, but it seems logical to me that government will see to it that government is immune from common sense if it means avoiding lawsuits. If this is the pertainent case law, then no, it would seem that a government / municipal EMS service cannot be held liable for it's inability to act or act in a timely manner. Either that or law enforcement is a special case...

"Bowers v. Devito, 686 F.2d 616 (7th Cir. 1982) (There is no constitutional right to be protected by the state against being murdered by criminals or madmen. It is monstrous if the state fails to protect its residents against such predators but it does not violate the due process clause of the Fourteenth Amendment, or, we suppose, any other provision of the Constitution. The Constitution is a charter of negative liberties; it tells the state to let the people alone; it does not require the federal government or the state to provide services, even so elementary a service as maintaining law and order.); (No duty to protect) = Rule 12(B )(6) Motion to Dismiss; Cf. Reciprocial obligations;"

"Warren v. District of Columbia (444 A.2d 1, 1981) ((O)fficial police personnel and the government employing them are not generally liable to victims of criminal acts for failure to provide adequate police protection ... this uniformly accepted rule rests upon the fundamental principle that a government and its agents are under no general duty to provide public services, such as police protection, to any particular citizen ... a publicly maintained police force constitutes a basic governmental service provided to benefit the community at large by promoting public peace, safety and good order.);"

Here's an interesting magazine article on the topic... http://policechiefmagazine.org/magazine/in...;issue_id=52007

I think the EMS issue of failure to respond is far more complicated. I'd hate to be a lawyer on either side of this argument.

Edited January 7, 2009 by Doc

[Goose 188]

And in my experience - this occurs in both volunteer and career/contracted areas.......one reason I would rather (literally) not be able to make the decision for myself to call an ambulance...and rather drive myself (been there, done that multiple times!)....or have someone drive me to the hospital. Some contracts do specify a minimum staffing level that is supposed to be maintained, or a maximum response time.

This thread reminds me when I was a fairly 'new' EMT....was at the Corps with another member who was a Medic.....we were listening to a neighboring VAC being toned out for a call.....I think it was difficulty breathing...something like that.....they were being paged, and paged and paged........so the other member and I got ready to roll out, knowing we were going to be called mutual aid 'any minute'......FINALLY we were toned out and off we went.....

Got to the call, to find an FD EMT on scene who had been trying to stabilize the PT until an ambulance arrived. Well we did, just in time to watch the guy code.....a member of the EMS squad whose territory did show up at about this point which was good.

As we started working the PT, another call was dispatched for an MVA in this jurisdiction.....guess what? The call was covered! (Go figure!).....and, the member who was with us attempted to leave to go to that call, but was quickly stopped.

How many times have people said something to the effect that 'it's just a band-aid call'....or it's a 'regular'.......in the case of this person,, he could have WALKED to the hospital faster than it too for us to get to him after all the unanswered dispatches, then the time it took us to get there.......unfortunately he did not make it....

Just one of the calls that has kind of stuck with me through the years.

Status quo for volunteers - cheery picking the jobs, but they will take your money and praise any day of the week! Good thing you and your buddy stepped up to the plate and did the right thing - this sort of stuff is less and less common, so hats off the both of you.

[RWC130 594]

Take a look at # 5!

EMT Staffing Standard for Voluntary Ambulance Services

Bureau of EMS Policy Statement

Policy Statement # 01-04

Date 05/16/01

Subject Re: EMT Staffing

Standard for Voluntary

Ambulance Services

Supercedes/Updates New

There have been issues raised about the EMT staffing standard that became effective January 1, 2001 for voluntary ambulance services. Article 30 of the Public Health Law states that "the minimum staffing standard for a voluntary ambulance service shall be an Emergency Medical Technician with the patient." The following is intended to help clarify the meaning of the law. This policy is written for ambulance service operation. It does not address first response service operation.

1. A voluntary ambulance service must have an Emergency Medical Technician (EMT) or higher, attending to the patient at the scene and in the ambulance while transporting the patient to the hospital.

2. If a voluntary ambulance service has a written response policy in place in which an EMT is allowed to respond directly to the scene from home or work, the ambulance may respond to the scene of the emergency even if an EMT is not on board.

3. If the EMT responding directly to the scene is delayed and the only other ambulance crew available are Certified First Responders (CFR), the CFR may begin care. It is acceptable to have a CFR as a part of an ambulance crew. The EMT assumes responsibility for care upon arriving at the scene.

4. If the EMT does not arrive at the scene and another service is immediately available with appropriate staffing, the patient should be transported by that service. If no other service is immediately available the patient should be transported. An intercept with an appropriately staffed ambulance or first response service should be sought while en route to the hospital.

5. Continual and repeated failure of a service to assure an EMT arrives at the scene to provide care may result in the Department taking disciplinary action against the service and/or the individual.

6. A service may send an ambulance and equipment to the scene of an emergency if they know another service will provide the EMT staff necessary to perform patient care. The service sending the ambulance would share responsibility for the care being provided. These types of mutual agreements to share the staff and equipment must be done in writing in advance.

7. The staffing standard requires one (1) EMT with a patient. Therefore, an ambulance must be staffed with at least one EMT. While it is preferable to have more than one EMT if there are multiple patients, the law does not require it. In the event of a multiple patient situation, the EMT would assume supervision of the care being provided to the patients being treated and transported.

8. If only one (1) EMT is available to staff the ambulance crew, that EMT must be the patient care provider and/or supervise the patient care being provided. The EMT may NOT be the driver of the ambulance when a patient is being transported. NOTE: In a multiple casualty incident (MCI), local or regional protocols should be followed.

9. An ambulance should NOT respond to the scene of an emergency if it is known, in advance that an EMT is not available, as previously discussed in this policy. It is recommended that all ambulance services preplan for the lack of staffing by written mutual aid agreements with neighboring ambulance services and by alerting the local Public Safety Answering Point (PSAP) or dispatch authority as early as possible when you know that EMT level staffing is NOT available. Careful pre-planning, mutual aid agreements and continual recruitment programs are necessary to assure sufficient EMT staffing.

Issued by:

Edward Wronski, Director

Bureau of Emergency Medical Services

http://www.health.state.ny.us/nysdoh/ems/policy/01-04.htm

[Goose 188]

If that was actually abided by and enforced, a lot of towns and villages would be without ambulance service...

[RWC130 594]

As far as this NOT being abided by and enforced I agree with you 100%!

Maybe that IS the problem?

NYS DOH EMS does have the authority to take disciplinary action

and they should start.

Most VAC's do Bill for Service now. Correct?

Where does ALL that money go?

You can only buy so many 4X4's and BVM's.

Do you really need a $150,000 Ambulance with all the Bells and Whistles

if you CAN'T get it out the door?

Let's be honest!

IT MAY SAVE A LIFE!

Let's say you have 3 Ambulances.

Why not have the Duty Crew paid 24/7.

2nd and 3rd Calls will be covered by the Volunteers.

Take some of the burden OFF the Volunteers who most work 2 or 3 jobs

just to survive.

It's "Good PR" for XXX Volunteer Ambulance Corps because you

are covering your calls and being PROACTIVE!

When you can't cover your own calls it hurts all VAC's.

When a call for Mutual Aid goes to a 4th or 5th VAC to cover it

WE HAVE A PROBLEM!

Yes, "WE" have a problem. Why?

Because "WE" all suffer.

PAID DUTY CREW.....

GET THE AMBULANCE OUT THE DOOR!

[Bnechis 3,961]

If that was actually abided by and enforced, a lot of towns and villages would be without ambulance service...

Actually it means they would have to have paid crews, it would also force many agencys to merge.

[Goose 188]

Actually it means they would have to have paid crews, it would also force many agencys to merge.

At some level, yeah. I think it would mean more territory for the privates instead of multi-town/village municipal solutions like there ought to be.

RWC - You saying what i've been complaining (but have been lambasted here as anti-volunteer) about. The fact is there is going to be less and less of a place for volunteers in EMS in the next decade as our run numbers skyrocket. Having 1 paid crew is not going to always cut it because if they are on a job and a second and third job comes in they are not going to be any more apt to get out then they would before the paid crew. Unless of course its an MVA or something that can get them in the news paper. In fact i would argue that having a paid crew may make things worse when it comes to second and third jobs - i saw it happen first hand at a past employer.

Few agencies/members will ever admit that (some do and they are to be applauded for their efforts to progress) and they will talk you/the town/village/whatever until their blue in the face how career is not the answer yadda yadda yadda.

Until this stops getting looked at as a dollar and cents game and the towns/villages grow a pair and decide to get involved directly i can't see much changing.