The question of what duty EMS has to respond to an incident before it is officially called in has come to the forefront with the Jan. 25, 2014, incident in Washington, D.C., when 77-year-old Medric “Cecil” Mills died just outside a fire station. Mills collapsed to the ground after suffering a heart attack, but firefighters refused to respond, telling bystanders they could not provide help until the incident was called in and they were dispatched. Mills got help from a D.C. police officer who flagged down an ambulance that happened to be passing by.

In the case of the very similar Rennix incident, the Supreme Court of Kings County, N.Y., ultimately found that the EMS personnel could not be sued under the circumstances of the case. Although the Rennix incident occurred in December of 2009, the court’s decision was issued on Feb. 14, 2014, less than a month after the D.C. incident, and analyzes the duty and defenses available to EMS.

On Dec. 9, 2009, 25-year-old Cynthia Rennix was working as a cashier at the Au Bon Pain restaurant in downtown Brooklyn. At the time, Rennix was six months pregnant. Shortly before 0900, she informed a co-worker, Lourdes Colon, that she felt dizzy and nauseated, and that she had some abdominal pain. She went to a back room in the restaurant, where the Colon noted she was using an asthma inhaler. The restaurant’s supervisor, Dwight Vaccianna, asked Rennix if she wanted to go home; she replied that she wanted to go to the hospital and asked him to call an ambulance.

Colon went back out to the front of the restaurant, where she noticed two FDNY EMTs in uniform, standing at the sandwich bar. The restaurant was located in the same building as an FDNY dispatch center at One MetroTech Center in downtown Brooklyn. Colon told the EMTs, Melissa Jackson and Jason Greer, that there was an employee in the back of the restaurant who was having trouble breathing. Colon testified that she saw Jackson take out her cellphone, but she did not hear what Jackson was saying. Colon went to the back of the restaurant and asked Vaccianna to call an ambulance. When he did so, the dispatcher told him that they already had the call and that an ambulance was on its way.

Rennix continued to have difficulty breathing. At no time did Jackson or Green come into the back room to evaluate Rennix. Jackson and Green, while trained as EMTs, were assigned to the dispatch center located in the building. They had no equipment with them and were on a break at the time Rennix became ill. Jackson would later testify that she called dispatch to request an EMS response to a pregnant female having difficulty breathing; this was confirmed by a dispatch recording. A BLS unit was dispatched. Jackson further testified that she did not go to evaluate Rennix because she was a dispatcher and had no equipment with her. Dispatch recordings also confirmed the subsequent call from Vaccianna reporting a female who had asthma who was having trouble breathing.

Rennix lost consciousness prior to the arrival of the ambulance. An ALS ambulance staffed by paramedics was also dispatched (the BLS unit had been sent initially because it was closer). The BLS unit arrived at 0924. The BLS unit found Rennix unconscious, apneic and pulseless on the floor of the room in the back of the restaurant. The EMTs began performing CPR. The ALS unit arrived at 0928. They removed Rennix from the restaurant while performing CPR; once in the unit they intubated her and began administering ACLS drugs atropine, epinephrine and a vasopressor; they also defibrillated her twice. Despite their efforts, Rennix remained in cardiopulmonary arrest.

They arrived at the hospital at 0953; both paramedics were in the back of the ambulance working on Rennix. They continued working the arrest until 1017, when they pronounced her dead while simultaneously delivering her female child by emergency Caesarean section. The baby died at 1210. An autopsy was performed on Rennix and determined the cause of death to be acute and chronic bronchial asthma.

This incident drew media attention heavily criticizing Jackson and Green for simply calling 9-1-1 rather than going to the back of the restaurant to assess Rennix. Mayor Michael Bloomberg remarked that the incident was “unconscionable” and “an outrage.” A lawsuit by the Rennix family followed. Plaintiffs alleged that the city was negligent in failing and refusing to provide emergency care and treatment to Rennix, and neglecting its duty to respond to an emergency through its EMTs.

FDNY EMS Chief Abdo Nahmod investigated the incident. He met with law enforcement personnel to discuss the roles and responsibilities of EMTs. They reviewed the EMS Command Operating Guide Procedures. They found that the procedures required members of the EMS Command to “acknowledge and provide treatment to all flag-down assignments, advising the dispatcher as soon as possible.” Chief Nahmod subsequently executed an affidavit that resulted in criminal charges filed against Jackson. Charges were not filed against Green because he had died in the interim. The charges alleged criminal official misconduct pursuant to a section of the law that stated: “[a] public servant is guilty of official misconduct when, with intent to obtain a benefit or deprive another person of a benefit…knowingly refrains from performing a duty which is imposed by law or is clearly inherent in the nature of his/her office.” Official misconduct is a Class A misdemeanor.

The plaintiffs’ complaint alleged that the city was negligent, that its EMTs had been charged with criminal official misconduct, that they had abandoned a patient in need of emergency medical services and that they intentionally refused to come to Rennix’s aid when she required care, in violation of rules, regulations, manuals, protocols and oaths requiring EMTs to come to the aid of those in need of medical assistance. Discovery ensued, with interrogatories and document production, and depositions of the involved witnesses.

Criminal charges against Jackson were dismissed on May 2, 2013 when Chief Nahmod reversed his previous position, stating that Jackson had not violated the “flag-down rule” because it only applied to vehicles and not people. Plaintiffs amended their complaint to allege negligence and gross negligence, and took the deposition of Nahmod. He testified that Jackson was not on an authorized break, but instead on duty when she was at the restaurant. He further testified that “EMTs are required to provide assistance when asked, to the level of their training and the[ir] capability and the equipment they have on hand.” He noted that Jackson never made patient contact or performed a patient assessment, but instead notified dispatch of a medical emergency. He further testified that the flag-down rule applied to ambulances that were waved down by a member of the public, and that on-duty EMTs were required to stop. He testified that this was the interpretation of the rule he had consistently provided to the District Attorney’s office, and that since Jackson was not in an ambulance at the time, he did not interpret her actions to be covered by the rule, but that the Assistant District Attorney had misunderstood.

Experts for the plaintiffs, paramedic Arthur Romano and physician Howard Schwartz, submitted affidavits concurring that deviations from standard EMS practice constituted negligence and gross negligence. These deviations included failure to attend to Rennix until an ambulance arrived, failure to assess or treat and failure to obtain and report sufficient details to allow the appropriate dispatch of ALS units. They pointed to a six minute delay in the ability of the ambulance to access the patient due to the need to have security lower a barrier to allow the ambulance to drive on the sidewalk, and held Jackson and Green responsible for this delay since they could have taken steps to expedite access. Romano also disagreed with Nahmod’s interpretation of the flag-down rule; he had worked in the New York City EMS System for 14 years.

The court engaged in a detailed analysis of the legal duty applicable to the EMTs under these circumstances, and found that the opinions of plaintiffs’ experts were inconsistent with the law. Assistance rendered by FDNY EMTs requires the existence of a “special duty” running directly to the injured person. That special duty requires more than the duty owed to the public generally. The Court of Appeals rejected plaintiffs’ reliance on the breach of a special duty, finding that the statute defining a special duty did not authorize a private right of action. The court further found that there was no direct contact between Rennix and Jackson or Green, that there could be no “justifiable reliance” on anything the EMTs had done or said that would form a basis for liability.

Although the evidence presented to the court initially suggested that Jackson’s behavior in disregarding an obligation to respond to the needs of a citizen in distress was egregious, ultimately, the court found that plaintiffs had failed to establish that the city had a special duty to Rennix through its agents, Jackson and Green, and that they could not be found liable without showing that the defendants owed a duty to Rennix. All claims against the city were dismissed.

This case demonstrates the complexity of the law in the area of the duty owed by a defendant to a plaintiff and how a factual scenario indicating liability on its face may not hold up under intense legal scrutiny. The obligations of Jackson and Green while on duty, in uniform and knowing of a citizen in distress did not extend to impose liability on them for failing to do more than summon help. Although these EMTs may not have had a legal obligation enforceable by law, it is important to remember the way it looks to the community when EMS providers who are in uniform and on duty refuse to provide assistance when requested to do so by a member of the public.

RESOURCES

1. Cynthia Rennix v. Melissa Jackson, New York City Fire Department, New York City Emergency Medical Services, City of New York and Long Island College Hospital, 2014. WL1303427 (NY Supp), 2014 N.Y. Slip Op. 50499(U). Unreported Disposition.

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Two very different sides of the story were presented at trial: one by the responding paramedics, and one by the decedent’s father. The jury found in favor of the father and against the paramedics, and further found that the paramedics had acted in a “willful and wanton” manner. The jury was instructed that willful and wanton conduct is a “course of action that shows an utter indifference or conscious disregard for the safety of others.” The court’s 2013 opinion affirmed the jury’s award after nine years of litigation.

On Oct. 30, 2004, Larry Furio—father of the decedent, Joseph Furio—picked his son up from his mother’s house and took him home at about 11:15 p.m. Joseph had finished an inpatient drug rehabilitation program two weeks earlier. Shortly after Joseph went to bed, Larry heard gasping from Joseph’s room and found him cyanotic and dyspneic; he then stopped breathing and became unconscious. Larry immediately called 9-1-1 at about 1 a.m. and attempted CPR. Joseph awakened, but still had slurred speech and appeared groggy.

By the time EMS arrived, Joseph was able to communicate and denied taking any drugs; he asked why the paramedics were there. Joseph told his father in the presence of the paramedics that the “pills I’m taking make me tired.” Larry later testified that one of the paramedics rolled his eyes and appeared put out that they had been called. There was a dispute of fact between Larry and the paramedics as to whether Larry told them that Joseph had a history of asthma and whether Larry told them that his son had been unconscious.

The jury found in favor of the father and against the paramedics, and further found that the paramedics had acted in a ‘willful and wanton’ manner.

Paramedic William Peterson testified at trial that he did not think they had a patient. He testified that Larry told him he thought that he had overreacted to whatever happened, and that Joseph was fine. He did not know that there had been an attempt at CPR, did not know of Joseph’s history of drug abuse, and stated that they left thinking there was no patient to treat. Peterson did not ask questions of Larry as to what had precipitated the 9-1-1 call, and did not take Joseph’s vital signs because he saw no evidence of dyspnea.

Paramedic Howard Franzen testified that the call came in for an unconscious child, possibly asthma. He recalled that Joseph denied having an asthma attack. He did a visual assessment, observed that Joseph was alert and answering questions appropriately, and his skin tone was normal. Joseph said he was fine, and Franzen did not ask any further questions of Larry. He recalled Larry apologizing for the call, and telling Larry that if he needed 9-1-1 to call them back. He also did not know that Larry had attempted CPR, or that Joseph had a history of substance abuse.

Joseph was not transported. Larry continued to check on his son until about 3:15 a.m., and then went to sleep. The next morning he found Joseph unconscious and called 9-1-1 again. Joseph was transported to the hospital, but later died.

Plaintiff called an expert witness, Dr. David Tan, who testified that, to a reasonable degree of medical certainty, Joseph was suffering from an opiate overdose. He further testified that if an appropriate EMS assessment had been done, that a history of a life-threatening situation would have been elicited. Plaintiff also called expert witness Guy Haskell, who testified that the statement Joseph made about the pills making him tired was sufficient to trigger an EMS assessment and further investigation into what the pills were and how many of them had been taken.

The defendants called Dr. Max Koenigsberg, who testified that the paramedics had complied with the standard of care because they determined that the subject of the original call had no complaints, was not in any distress, did not appear disoriented and was not a patient. Koenigsberg stated that Peterson and Franzen made their determination of Joseph’s status by observing him, seeing that he had an airway, was breathing and had adequate circulation. He testified that further evaluation was not needed because Joseph was not a patient.

The court engaged in a detailed analysis of the immunity issues applicable to this factual scenario, relying primarily on a 2002 case.³ The court in the Antonacci case had held that absolute immunity applied if there was no examination, or a failure to diagnose or treat. However, immunity would not apply if there was negligent treatment, or if there was willful or wanton conduct that took the paramedics outside of the immunity.

A great deal of the analysis focused on the conflicting testimony of witnesses and court documents as to whether any medical care was provided to Joseph. Ultimately, the court held that immunity turned on whether the paramedics had made a diagnosis and begun to treat, or whether they had not made a diagnosis at all. The defendants in this case affirmatively asserted that there had been no medical care of any kind rendered in this case, and that they were entitled to absolute immunity. They asserted that absent knowledge of Joseph’s history of substance abuse, they could not be found guilty of willful and wanton conduct.

The jury disagreed, finding willful and wanton conduct, and returning a verdict in excess of $8 million. The verdict, though challenged by the defense, was upheld by the court.

Ultimately, the court held that immunity turned on whether the paramedics had made a diagnosis and begun to treat, or whether they had not made a diagnosis at all.

This case illustrates a number of important points. First, EMS must make every effort to determine why a 9-1-1 call was made and what happened before they arrived. Second, an apparent life-threatening event, or ALTE, requires a full patient assessment and transport to an appropriate facility even if the patient appears to have fully recovered. We are trained to transport the near-drowning patient; this was a similar type of event in which it appears that Joseph had a near miss respiratory arrest that was interrupted by his father’s intervention. Third, even absolute immunity is not absolute and when a jury finds willful and wanton conduct, that immunity does not apply. Fourth, lawsuits against EMS are becoming increasingly sophisticated and the public will not tolerate what it feels is complacency on the part of EMS providers.

References 

1. Abruzzo v. City of Park Ridge, 2013. WL 6732663 (Ill. App. 1 Dist), unpublished.

2. Abruzzo v. City of Park Ridge (“Abruzzo II”), 2008. 231 Ill. 2d 324, 329.

3. Antonacci v. City of Chicago, 2002. 335 Ill. App. 3d 22.

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