BY SPENCER A. HALL
The recent suspension of a veteran firefighter with the Houston (TX) Fire Department for allegedly failing to treat a child brought to a fire station demonstrates the importance of remembering duty. Duty is a legal concept that implies that an individual or organization has a legal responsibility to act or refrain from acting in a given situation.1 If the individual does not fulfill his obligations, then he may be legally liable for the consequences under theories of negligence. Without an underlying duty, there can be no negligence.2 This article will present a synopsis of the facts in the Houston case, which are used to demonstrate several means by which a duty to act may be found for an emergency services provider. No judgment of the Houston Fire Department is intended herein.
On June 12, 2000, Daniel, a 12-year-old, walked to a nearby fire station with his sister’s mother-in-law, Lucia, with whom he was staying. Daniel was complaining of pain in his chest and nausea. When they arrived at the fire station, they met Firefighter L, who was able to speak with Lucia in Spanish. During the initial conversation, Daniel vomited on the apparatus floor. Other firefighters were aware of the child’s visit but were unable to understand the Spanish conversation. There was no ambulance at the fire station because it was on a call. Firefighter L was an EMT; it is not clear that he performed any patient evaluation. The child was given a glass of water and was taken home because Lucia allegedly did not want to incur the cost of an ambulance. About 40 minutes later, Lucia and Daniel returned to the fire station because the pain was worse. They again spoke with Firefighter L and refused an ambulance. Firefighter L discussed the possibility of a stomach virus. Lucia and Daniel went home briefly and returned with the child’s aunt, who spoke English. The aunt asked where the ambulance was and was told that it was on a call. Allegedly, the aunt was told that an ambulance was available, but it might be some time before it could arrive. The family left and transported the child to a nearby hospital, where he died shortly afterward from a ruptured aortic aneurysm.
FIREFIGHTER SUSPENDED
About three weeks later, when a reporter contacted the Houston Fire Department, the fire chief ordered an investigation. The investigation concluded that Firefighter L had neglected his duty by
- failing to “notify an EMS supervisor prior to any nontransport of a pediatric patient, even if authorized by the Base Station physician”3;
- neglecting to take vital signs, in violation of guidelines, which required him to “continually monitor the patient for changes in condition and document vital signs every five minutes or as often as practical. Assess and record a minimum of two sets of vital signs for each patient”4; and
- failing to transport the patient despite guidelines to “transport all pediatric and adolescent patients (less than 18 years of age) to an appropriate medical facility regardless of their appearance or situation unless nontransport is authorized by the appropriate Base Station physician.”5
Firefighter L was suspended. Daniel’s family, not surprisingly, has filed a lawsuit.
One point that seems clear in retrospect is that although the Houston Fire Department’s investigation assumed that Daniel was a “patient,” it is not clear that Firefighter L thought he was doing anything more than giving advice. This is where duty comes in. A patient is one to whom duty is owed. Some of those duties are outlined in the policies and procedures of the fire department. Interestingly, at the time of this incident, the Houston Fire Department had no policy for dealing with “walk-in” patients but stated in the investigation that “Houston Firefighters are bound by department regulations regarding patient treatment regardless of the circumstances under which they come into contact with a Citizen seeking assistance.” Unfortunately, this would also likely be the view of any court.
FINDING A DUTY
Viewed in one way, finding a duty is the same as finding that one individual is relying on another. Usually this is because the second individual, the one with the duty, has more power or control of the situation. For example, a property owner who would presumably be in a better position to know any possible dangers (such as exposed wires) is responsible for warning or protecting any visitors to his property from these dangers. Similarly, a physician has the duty to warn a patient of possible risks and benefits of medical treatment, something the patient would be unlikely to know.
In the present case, Lucia and Daniel were going to the fire station for help. They did not understand what was causing Daniel’s discomfort and were looking for someone with more medical knowledge who might assist them. By doing this, Daniel assumed the role of a patient, just the same as if the family had called the ambulance to his home. Once the reliance began, the duty on the part of Firefighter L, as well as the department he represented, arguably began. Duty is often defined by the expectations of the person doing the relying, rather than the individual who assumes the duty.
There is some protection in the law for police, fire, EMS, and other public safety personnel, since it clearly would be both unworkable and unfair to find a duty on the part of police toward every person who was a victim of crime, for example. This is the public duty doctrine. The public duty doctrine states that public safety agencies generally have a duty only toward protecting the population as a whole rather than specific individuals. Generally, the only time a public safety agency may be found to have responsibility to a specific person is when a “special duty” exists.6
SPECIAL DUTY
The key to finding a special duty is finding that a “special relationship” has formed. Factors courts use to find this special relationship include the open assumption by an agency to act on behalf of a specific individual, knowledge on the part of the agency’s agents that inaction could lead to harm, direct contact between the agents and the individual, and the individual’s reliance on the agency’s help. The way public duty and special duty often work may be illustrated in the common case of a fire company’s being dispatched to a wrong address. Courts often find that a single conversation by a homeowner with dispatch is insufficient to create the special relationship necessary to find special duty. On the other hand, making several calls to a dispatcher about a medical problem has been found to create a special duty in at least one case. Given the information from Houston, it would be difficult to argue that Daniel and Lucia’s repeated interactions with an agent of the Houston Fire Department did not create a special duty in this case.
LESSONS TO LEARN
There are a couple of lessons to be learned from this episode. The first is the importance of a regular review of policies and procedures. Walk-ins are not an uncommon occurrence, and the policy provisions for dealing with them might have prevented the problems seen here. More importantly, however, agencies need to remind their members that their responsibilities may be somewhat different when they put on a uniform. A regular citizen has no legal duty to help an individual who approaches him, while a firefighter, a medic, or an officer often does. Public safety organizations exist to help people. When an individual confronts an organization’s representatives and asks for help, this may be enough to trigger a duty of the agency to respond, and failure to do so may leave them liable.
In late September 2000, an arbitrator determined that suspension was too severe a penalty for Firefighter L, and the 20-year veteran returned to duty.
Endnotes
- Organizations and individuals are treated similarly under the law, and what is said about one in this article may be ascribed to the other as well.
- Negligence requires duty, breach of duty, causation, and damages.
- The Houston Fire Department Emergency Medical Services First Responder/BLS Guidelines and Standing Orders, section III, Transportation Policies, subsection V, Pediatric Transportation Guidelines.
- Ibid., section I, General Measures, subsection III, Secondary Survey, paragraph F.
- Ibid., section III, Transportation Policies, subsection V, Pediatric Transportation Guidelines.
- Special duty does not exist in all states; some have outlawed it by statute.
SPENCER A. HALL is an emergency room physician, a physician advisor at the New Mexico Firefighters Training Academy, and a consulting attorney based in Lincoln, New Mexico. He has served as Lincoln County medical director and as EMS director for New Mexico Region III. A certified firefighter II and EMT, Hall is a National Fire Academy instructor on incident and health and safety officer courses.
