Medical related Duty to Act


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savetheclaypigeons
January 13, 2009, 03:42 PM
This is a bit of an odd legal scenario, and I am sure it changes from state to state but thought I would ask.

I am playing a scenario of self defense over and over in my head and can not come up with an outcome and was curious how everyone thought it would play out legally.

Self defense shooting of a BG by a medical professional. For the scenario, it fits self defense categories and the shooting in it self is justified. Scene is safe. Threat is neutralized with rapidly deteriorating health. Legally, a medically professional is required to render assistance (pending on state). Aforementioned person does not render aid to his attacker for unmentioned reason (mentally unable, unwilling, didn't consider etc). How would this play out in the legal system? Are medical professionals held to a different, more scrutinized standard?

I see a few possible outcomes

1) Defender not charged, deemed self defense.

2) Not charged with shooting, but is tried for neglect/abandonment for not rendering aid

3) Charged for manslaughter/homicide for withholding and not rendering life saving aid

4) Counter charges with temporary mental insanity due to circumstances, unfit to render aid, etc

Just curious what your opinions of the situation might be, or if anyone knew of any cases which have played out. Certainly the condition of the BG after neutralizing would play a key role. Perhaps the common statement of making sure a BG is dead would play important in this situation.

Just wondering everyone's thoughts

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Treo
January 13, 2009, 04:06 PM
In Colorado I have no legal mandate to act. I also don't carry a trauma kit or a crash cart in my car(or my back pocket)

In EMT school I was taught that my first responsibility was to secure the scene and not to enter an unsafe scene. As a responding EMT I wouldn't approach that person W/out a cop on the scene I sure wouldn't do it if I was involved.

Picture this:

With the best intentions you attempt to render aid. As you approach the patient he grabs for his gun or makes some other move that you interpret as aggressive. You shoot, and all the witnesses tell the cops that you put him down , walked up to him and deliberately finished him off.

How do you think that'll play in court?

TexasRifleman
January 13, 2009, 04:08 PM
I also don't carry a trauma kit or a crash cart in my car(or my back pocket)


As the OP says, it's state by state but everything I've seen in Texas agrees with this. Don't even carry the med gear with you in the first place.

savetheclaypigeons
January 13, 2009, 04:28 PM
In Colorado I have no legal mandate to act. I also don't carry a trauma kit or a crash cart in my car(or my back pocket)

In EMT school I was taught that my first responsibility was to secure the scene and not to enter an unsafe scene. As a responding EMT I wouldn't approach that person W/out a cop on the scene I sure wouldn't do it if I was involved.

Picture this:

With the best intentions you attempt to render aid. As you approach the patient he grabs for his gun or makes some other move that you interpret as aggressive. You shoot, and all the witnesses tell the cops that you put him down , walked up to him and deliberately finished him off.

How do you think that'll play in court?

interesting points, that's why I mentioned "Scene is safe. Threat is neutralized with rapidly deteriorating health". I was taught also the first thing is to make sure the scene is safe. Obviously you were forced into an unsafe scene, that's why you had to shoot ;). Seems like a sticky situation to me.

Some basic first aid can be rendered such as your standard ABC's without a crash cart, your med equipment may be irrelevant. I'm thinking more about your medical knowledge.

Treo
January 13, 2009, 04:55 PM
I'm thinking more about your medical knowledge.

My medical knowledge tells me the scene isn't secure until PD is on site. What do you think the odds are that they're going to let me work on the patient?

Do I have UPs or should I just ignore them and get the blood & body fluid of an unknown assailant all over me and anyone I direct to assist me? ( I actually do carry a CPR barrier device everywhere I go).

Sorry but unless you alter the varibles until the scenario looks like some thing from Baywatch, (think David Hasselhoff using a AED on a speed boat covered W/salt water) there's no way in Hell I'm approaching that patient

akodo
January 13, 2009, 06:45 PM
"Scene is safe. Threat is neutralized with rapidly deteriorating health".

In EMT school I was taught that my first responsibility was to secure the scene and not to enter an unsafe scene. As a responding EMT I wouldn't approach that person W/out a cop on the scene I sure wouldn't do it if I was involved.

Okay, as a few others have stated, no care until the scene is safe, and there is going to be NO good way of determining if and when he totally stops being a threat.

Seriously, the guy could be 'playing dead' and stab you when you try to apply pressure to his wounds.


There is only one way I can see your scenaio coming into play, where you know FOR SURE the scene is safe.

Day 1, you get in an altercation, and have to shoot the subject. He flees, you don't know if you hit him or not. Call police, yadda yadda. Next day, take a day off work to recover, etc. Next day, back on the job riding in an ambulance, when you get a call the police found some guy in a back ally, unconsious, shot through the upper shoulder, tried to patch it up himself, but didn't do a very good job.

You arrive on scene and prepare to give aid.

OMG! this is the guy who tried to stab you 2 days ago! looks like you winged him!

Do you give aid then? Yes.

But that is a pretty far fetched scenario. Then again, your opening caveats NEED a far fetched scenario to fit.

Attacker down, no way to be SURE he won't continue...not without getting close enough to put yourself in harm's way again. Call 911 ask for police AND ambulance

savetheclaypigeons
January 13, 2009, 08:23 PM
I was envisioning a scenario where the scene was indeed safe and you could clearly identify the threat as neutralized. For example, it is daylight in an open field. BG's shirt off and you see the penetration, and hear gurgling from the airway.

A great point was raised with body substance isolation. That would be a great reason as to not initiate care, and a way to legally defend your actions. :)

HIcarry
January 13, 2009, 08:26 PM
I think you are incorrect if you think that a medical professional has some duty to respond outside his/her job. I have worked in several different states and found none of them to have a statue requiring a medical professional, or anyone, for that matter, to respond to a medical emergency.

I carry an pretty advanced FA kit (IV, cric set, intubation equipment) and have used it frequently when I have happened across accidents and such. But, given the situation you describe, I would not, under any circumstances, attempt to offer medical aid to someone I just shot in a self-defense situation. Besides the very real possibility that the bad guy could make a grab for your gun or initiate another attack, there is a good chance you won't be in the best frame of mind to provide the best care. Any mistakes or omissions could become another legal nightmare to have to deal with on top of the shooting.

XavierBreath
January 13, 2009, 08:26 PM
Legally, a medically professional is required to render assistance (pending on state). You are wrong on this point. There is absolutely no legal requirement for a health care professional to render aid off the job.

There is, perhaps an ethical, moral, and professional expectation, but no legal requirement.

None.

Treo
January 13, 2009, 08:38 PM
no legal requirement for a health care professional to render aid off the job.

Apparantly Oregon has such a law.

That said the OP is essential postulating a 1 in a million alignmen of all the stars and planets, such that on the one day you're required to shoot you happen to hit the one guy that goes down in such a way as to make it clear that you can safely render aid.

on that day you better buy that guy a lottery ticket

XavierBreath
January 13, 2009, 08:39 PM
Can you cite the law requiring a health care professional to render aid Treo? I'd like to see it.

I've been wrong before.

edited to add:
What Oregon has is a Good Samaritan Law (http://landru.leg.state.or.us/ors/030.html), which protects the health care professional from litigation if they volunteer to render assistance.

It is not a requirement to act.

Oregon:
30.800 Liability for emergency medical assistance. (1) As used in this section, "emergency medical assistance" means:

(a Medical or dental care not provided in a place where emergency medical or dental care is regularly available, including but not limited to a hospital, industrial first-aid station or a physician's or dentist's office, given voluntarily and without the expectation of compensation to an injured person who is in need of immediate medical or dental care and under emergency circumstances that suggest that the giving of assistance is the only alternative to death or serious physical after effects; or

(B Medical care provided voluntarily in good faith and without expectation of compensation by a physician licensed by the Board of Medical Examiners for the State of Oregon in the physician's professional capacity as a team physician at a public or private school or college athletic event or as a volunteer physician at other athletic events.

(2) No person may maintain an action for damages for injury, death or loss that results from acts or omissions of a person while rendering emergency medical assistance unless it is alleged and proved by the complaining party that the person was grossly negligent in rendering the emergency medical assistance.

(3) The giving of emergency medical assistance by a person does not, of itself, establish the relationship of physician and patient, dentist and patient or nurse and patient between the person giving the assistance and the person receiving the assistance insofar as the relationship carries with it any duty to provide or arrange for further medical care for the injured person after the giving of emergency medical assistance. [1967 c.266 1,2; 1973 c.635 1; 1979 c.576 1; 1979 c.731 1; 1983 c.771 1; 1983 c.779 1; 1985 c.428 1; 1989 c.782 35; 1997 c.242 1; 1997 c.751 11]



30.801 [1999 c.220 1; repealed by 2005 c.551 8]



30.802 Liability for use of automated external defibrillator. (1) As used in this section:

(a "Automated external defibrillator" means an automated external defibrillator approved for sale by the federal Food and Drug Administration.

(b "Public setting" means a location that is:

(A Accessible to members of the general public, employees, visitors and guests, but that is not a private residence;

(B A public school facility as defined in ORS 327.365; or

(C A health club as defined in ORS 431.680.

(2) A person may not bring a cause of action against another person for damages for injury, death or loss that result from acts or omissions involving the use, attempted use or nonuse of an automated external defibrillator when the other person:

(a Used or attempted to use an automated external defibrillator;

(b Was present when an automated external defibrillator was used or should have been used;

(c Provided training in the use of an automated external defibrillator;

(d Is a physician and provided services related to the placement or use of an automated external defibrillator; or

(e Possesses or controls one or more automated external defibrillators placed in a public setting and reasonably complied with the following requirements:

(A Maintained, inspected and serviced the automated external defibrillator, the battery for the automated external defibrillator and the electrodes for the automated external defibrillator in accordance with guidelines set forth by the manufacturer.

(B Ensured that a sufficient number of employees received training in the use of an automated external defibrillator so that at least one trained employee may be reasonably expected to be present at the public setting during regular business hours.

(C Stored the automated external defibrillator in a location from which the automated external defibrillator can be quickly retrieved during regular business hours.

(D Clearly indicated the presence and location of each automated external defibrillator.

(E Established a policy to call 9-1-1 to activate the emergency medical services system as soon as practicable after the potential need for the automated external defibrillator is recognized.

(3) The immunity provided by this section does not apply if:

(a The person against whom the action is brought acted with gross negligence or with reckless, wanton or intentional misconduct;

(b The use, attempted use or nonuse of an automated external defibrillator occurred at a location where emergency medical care is regularly available; or

(c The person against whom the action is brought possesses or controls one or more automated external defibrillators in a public setting and the person's failure to reasonably comply with the requirements described in subsection (2)(e) of this section caused the alleged injury, death or loss.

(4) Nothing in this section affects the liability of a manufacturer, designer, developer, distributor or supplier of an automated external defibrillator, or an accessory for an automated external defibrillator, under the provisions of ORS 30.900 to 30.920 or any other applicable state or federal law. [2005 c.551 1]



Note: Section 2, chapter 551, Oregon Laws 2005, provides:

Sec. 2. Section 1 of this 2005 Act [30.802] applies to causes of action arising on or after the effective date of this 2005 Act [July 20, 2005]. [2005 c.551 2]



30.803 Liability of certified emergency medical technician acting as volunteer. No person shall maintain a cause of action for injury, death or loss against any certified emergency medical technician who acts as a volunteer without expectation of compensation, based on a claim of negligence unless the person shows that the injury, death or loss resulted from willful and wanton misconduct or intentional act or omission of the emergency medical technician. [1987 c.915 11]



While 30.803 would seem to imply that the ommission of aid by a EMT could result in litigation, the statute applies only to a EMT who acts as a volunteer without expectation of compensation. In other words, the EMT who is the shooter must volunteer his or her services to the dying assailant. There is still no legal requirement to volunteer services.

In fact, if the EMT has a lapse of judgement and does render aid when he or she is the shooter, they leave themselves wide open to prosecution under this statute.

divemedic
January 13, 2009, 09:24 PM
You are wrong on this point. There is absolutely no legal requirement for a health care professional to render aid off the job.

There is, perhaps an ethical, moral, and professional expectation, but no legal requirement.

None.

Same here. I am an instructor for con-ed of nurses, Doctors, as well as in instructor of EMT's and Paramedics in the state of Florida. AFAIK, there is no law that requires a medical provider to render aid while off duty. To do so is to place the medical provider in the position of unpaid servitude.

The duty to act only applies to medical personnel under certain conditions while on duty, and not all the time even then.

ETA: After all, if there is a duty for providers to act, who pays for their supplies, drugs, gloves, and other equipment? Are the providers required to provide them free of charge? For EMT's and medics that are out of their primary jurisdiction, which set of protocols are they expected to use? If you require them to use the protocols of their employer, you are now expecting their employer to bear the legal burdens of the actions of their employees, even when those employees are off the clock and away from home. If you require them to use the protocols of the jurisdiction where the incident occurs, then you place a burden upon the provider to know every set of protocols in the state.

I just don't see any state doing that.

XavierBreath
January 13, 2009, 09:57 PM
30.803 Liability of certified emergency medical technician acting as volunteer. No person shall maintain a cause of action for injury, death or loss against any certified emergency medical technician who acts as a volunteer without expectation of compensation, based on a claim of negligence unless the person shows that the injury, death or loss resulted from willful and wanton misconduct or intentional act or omission of the emergency medical technician. [1987 c.915 11]

In fact, looking at Oregon statute 30.803, it appears if an EMT shot someone in self defense (an intentional act that causes injury or death) and then volunteered their services to save the assailant's life, they may be held liable for the intentional act of the shooting itself. The charitable act of volunteering services to save their assailant's life may make them liable for the shooting!

I'm not an attorney, but if I were a EMT and lived in Oregon, I would want to talk to my attorney about the specifics of this particular statute.

Until then, I would have to assume that the liability began at the time services were volunteered. Since the shooting would have occured prior, I would hope the EMT couldn't be held liable for the actual shooting under this statute.

-v-
January 13, 2009, 10:04 PM
I am an EMT-IV in Tennessee, and we have no duty to render medical aid while off-duty. That said, if I was in such a situation I would keep the gun trained on him and call 911. The only way to be sure that the scene is safe is when the boys in blue disarm and cuff the offender. Then, if I feel like it, I can render aid, but once again I am under no legal (nor in that particular case do I feel any moral) obligation to do so.

-edit-: Also, Oregon's statute is food-for-thought, since helping the assailant out could potentially open my person up to litigation by the BG. Not something I would want to run the risk of having to deal with.

MostlyHarmless
January 13, 2009, 11:23 PM
Minnesota is one of the few states that has a law mandating a duty to render aid. It applies to all people, not just EMTs or docs. However, a call to 911 satisfies the letter of the statute.

XavierBreath
January 14, 2009, 12:09 AM
Minnesota law:
604A.01 GOOD SAMARITAN LAW.
Subdivision 1.Duty to assist.A person at the scene of an emergency who knows that another person is exposed to or has suffered grave physical harm shall, to the extent that the person can do so without danger or peril to self or others, give reasonable assistance to the exposed person. Reasonable assistance may include obtaining or attempting to obtain aid from law enforcement or medical personnel. A person who violates this subdivision is guilty of a petty misdemeanor.

Subd. 2.General immunity from liability.(a) A person who, without compensation or the expectation of compensation, renders emergency care, advice, or assistance at the scene of an emergency or during transit to a location where professional medical care can be rendered, is not liable for any civil damages as a result of acts or omissions by that person in rendering the emergency care, advice, or assistance, unless the person acts in a willful and wanton or reckless manner in providing the care, advice, or assistance. This subdivision does not apply to a person rendering emergency care, advice, or assistance during the course of regular employment, and receiving compensation or expecting to receive compensation for rendering the care, advice, or assistance.

(b) For the purposes of this section, the scene of an emergency is an area outside the confines of a hospital or other institution that has hospital facilities, or an office of a person licensed to practice one or more of the healing arts under chapter 147, 147A, 148, 150A, or 153. The scene of an emergency includes areas threatened by or exposed to spillage, seepage, fire, explosion, or other release of hazardous materials, and includes ski areas and trails.

(c) For the purposes of this section, "person" includes a public or private nonprofit volunteer firefighter, volunteer police officer, volunteer ambulance attendant, volunteer first provider of emergency medical services, volunteer ski patroller, and any partnership, corporation, association, or other entity.

(d) For the purposes of this section, "compensation" does not include payments, reimbursement for expenses, or pension benefits paid to members of volunteer organizations.

(e) For purposes of this section, "emergency care" includes providing emergency medical care by using or providing an automatic external defibrillator, unless the person on whom the device is to be used objects; or unless the person is rendering this care during the course of regular employment, the person is receiving or expects to receive compensation for rendering this care, and the usual and regular duties of the person include the provision of emergency medical care. "Automatic external defibrillator" means a medical device heart monitor and defibrillator that:

(1) has received approval of its premarket notification, filed pursuant to United States Code, title 21, section 360(k), from the United States Food and Drug Administration;

(2) is capable of recognizing the presence or absence of ventricular fibrillation or rapid ventricular tachycardia, and is capable of determining, without intervention by an operator, whether defibrillation should be performed; and

(3) upon determining that defibrillation should be performed, automatically charges and requests delivery of an electrical impulse to an individual's heart.

History: 1994 c 623 art 2 s 1; 1995 c 205 art 2 s 8; 1998 c 329 s 1; 2001 c 107 s 1

609.662 SHOOTING VICTIM; DUTY TO RENDER AID.
Subdivision 1.Definition.As used in this section, "reasonable assistance" means aid appropriate to the circumstances, and includes obtaining or attempting to obtain assistance from a conservation or law enforcement officer, or from medical personnel.

Subd. 2.Duty to render aid.(a) A person who discharges a firearm and knows or has reason to know that the discharge has caused bodily harm to another person, shall:

(1) immediately investigate the extent of the person's injuries; and

(2) render immediate reasonable assistance to the injured person.

(b) A person who violates this subdivision is guilty of a crime and may be sentenced as follows:

(1) if the injured person suffered death or great bodily harm as a result of the discharge, to imprisonment for not more than two years or to payment of a fine of not more than $4,000, or both;

(2) if the injured person suffered substantial bodily harm as a result of the discharge, to imprisonment for not more than one year and one day or to payment of a fine of not more than $3,000, or both;

(3) otherwise, to imprisonment for not more than one year or to payment of a fine of not more than $3,000, or both.

(c) Notwithstanding section 609.035 or 609.04, a prosecution for or conviction under this subdivision is not a bar to conviction of or punishment for any other crime committed by the defendant as part of the same conduct.

Subd. 3.Duty of witness.(a) A person who witnesses the discharge of a firearm and knows or has reason to know that the discharge caused bodily harm to a person shall:

(1) immediately investigate the extent of the injuries; and

(2) render immediate reasonable assistance to the injured person.

(b) A person who violates this subdivision is guilty of a crime and may be sentenced as follows:

(1) if the defendant was a companion of the person who discharged the firearm at the time of the discharge, to imprisonment for not more than one year or to payment of a fine of not more than $3,000, or both;

(2) otherwise, to imprisonment for not more than 90 days or to payment of a fine of not more than $1,000, or both.

Subd. 4.Defense.It is an affirmative defense to a charge under this section if the defendant proves by a preponderance of the evidence that the defendant failed to investigate or render assistance as required under this section because the defendant reasonably perceived that these actions could not be taken without a significant risk of bodily harm to the defendant or others.

Subd. 5.[Repealed, 1994 c 623 art 5 s 3]

History: 1991 c 243 s 2; 2004 c 228 art 1 s 72

604A.02 AID TO SHOOTING VICTIM.
A person who is subject to the duty imposed by section 609.662, subdivision 3, who, without compensation or expectation of compensation, renders assistance to the injured person, is not liable for any civil damages as a result of acts or omissions by that person in rendering the assistance unless that person acts in a willful and wanton or reckless manner in rendering the assistance. This section does not apply to a person who renders the assistance during the course of regular employment and receives compensation or expects to receive compensation for rendering the assistance.

WardenWolf
January 14, 2009, 12:40 AM
While medical professionals are required or expected to render aid in some areas, they are NOT required to do so if the situation endangers their own safety. That is the domain of emergency responders to deal with. Non-emergency personnel are not expected to place themselves in harm's way. In such situations, a simple, "I feared for my life" will generally suffice.

You can also argue that you were in no condition to make sound medical decisions and provide adequate care, having been severely shaken from the situation. Your primary medical duty would be to call police and ambulance and give the dispatcher a heads-up on what they can expect.

45ACPUSER
January 14, 2009, 12:58 AM
It totally fascinates me how some people carry medical equipment that they may not be covered legally to use outside of their job. I am pretty sure the medical director would deny any responsibility for cares provided. Of course you can elect to be your own first responder, but providing invasive interventions is probaly beyond the scope of practice. Then it amazes how FR and EMT Basics make reference to using a crash cart? Man you would think your were an attending MD/DO in a Level 1 Trauma Center or the like!

Suffice to think that some people need to quit over thinking! The scene is not safe! It is not safe till the responding LE agency has established it. Till then most Good Sam laws tend to say that intervention is making contact with LE and EMS constititutes aid being rendered....

45ACPUSER
January 14, 2009, 01:01 AM
MN State Statutes
604A.01 GOOD SAMARITAN LAW.
Subdivision 1. Duty to assist. A person at the scene of an emergency who knows that another
person is exposed to or has suffered grave physical harm shall, to the extent that the person can
do so without danger or peril to self or others, give reasonable assistance to the exposed person.
Reasonable assistance may include obtaining or attempting to obtain aid from law enforcement or
medical personnel. A person who violates this subdivision is guilty of a petty misdemeanor.

Treo
January 14, 2009, 01:16 AM
Then it amazes how FR and EMT Basics make reference to using a crash cart? Man you would think your were an attending MD/DO in a Level 1 Trauma Center or the like!

Or they could be a second year MA student who is expected to know their way around a crash cart

Or maybe they had ACLS training in the Army Doh!

And while we're here who do you think it is that gets you to the level one in one piece?

WardenWolf
January 14, 2009, 01:42 AM
In my opinion, "safe" is, "I hit him in the head. He's down. For good." If he's in any other condition, he's not "safe" to approach.

MedWheeler
January 14, 2009, 10:59 PM
I've never seen a "duty to act" clause that also required the health-care provider (HCP) to endanger himself/herself, or possibly do so, to render aid. One of the departments I worked for was a "public safety" department; that is, the functions of law enforcement, fire fighting, and EMS, all fell under one agency, and we were cross-trained to at least some degree. Our paramedic unit consisted of two armed police medics that did traffic enforcement during the first eight of their 24 hours when not on calls (they patrolled in an ALS-equipped SUV.)
They responded one night to a LEO shooting that took place just outside the city limits, in a town in which we had also been sworn in as LEO as per our mutual-aid agreement. Of course, scene safety had already been insured by that town's force, including the shooting officer. No "conflict of interest" was ever construed.
I work in EMS now, and have for the last 17 years. I would not attempt to "work" a wounded suspect I have just shot in protection of myself or another. My "rendering of aid" would consist of two things: calling for help, and keeping him covered at gunpoint to prevent him from acting again in a manner that gets him shot again.

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