NY City EMTs – the Duty to Act

A recent incident in New York City once again raises the question of duty to act. Does an off-duty EMT have a duty to render aid to a citizen in distress? While it will take years for the legal issues to play themselves out, the tragedy is being played out in the press damaging the reputation of FDNY and EMS workers in the process.

On December 9, 2009, at about 9:00 am two EMTs walked into an Au Bon Pain coffee shop. While there, an employee began experiencing shortness of breath and abdominal pains. The woman, who was pregnant at the time, was reported to have been unconscious and turning blue. Other employees, seeing the two FDNY employees, asked them to help. According to witnesses, the pair declined, suggesting merely that 911 be called. 911 was called, a crew arrived, but the woman and her unborn baby died.

And now the questions start…….

Well you would think they would start. However, after watching much of news footage and reading the various news reports from New York, there seems to be very few questions being asked. Rather, there was a steady stream of condemnation from family members, politicians, and media pundits directed at the two EMTs. But no one seems to be asking some of the real hard questions that need to be addressed. Did the off duty EMTs have a legal duty to act? If so, was it satisfied by providing the recommendation to call 911? If not, what should the EMTs have done without proper PPE or medical equipment? How much would have been enough? Would simply kneeling by the patient’s side have been enough? Taking the woman’s pulse and respirations?

As if those questions are not enough comes another twist: the two EMTs were actually dispatchers, not field EMTs. They had little to no field experience. Should that factor into the equation?

One point I feel compelled to make: we need to separate the legal issues from the moral issues. If the allegations in the press are true…. which mind you they often are not…. but if they are true, the conduct of the EMTs was morally unconscionable and reprehensible. That is a moral consideration only.

But legally, where is the line to be drawn on their (and our) duty to act? As firefighters, EMTs, paramedics – when do we have – and when do we not have – a legal duty to act? Let me throw one more log on this unsettling fire. What if the two EMTs had been drinking prior to entering the coffee shop. Does having an alcoholic beverage immediately after work extinguish a duty to act? Would it matter if they had one beer or ten beers? Now before someone goes off half-cocked – let me set the record straight: I am asking a purely hypothetical question. I am not suggesting alcohol was involved in the NYC case. I am simply trying to make a point…. because each of us needs to understand the factors that may influence the duty we may owe.

If alcohol usage would excuse someone from a duty to act, how about exhaustion from having been up for over 24 hours? What about the use of prescription drugs that have precautions such as “do not drive or operate machinery”, "may impair judgment or motor skills"? And what about recreational/illegal drugs? Would these other factors have a bearing on one’s legal duty to act?

These are not easy questions and there are no pat answers. The New York case will be an interesting one to follow as the facts and issues unfold.

For more details. And Here.

About Curt Varone

Curt Varone has over 40 years of fire service experience and 30 as a practicing attorney licensed in both Rhode Island and Maine. His background includes 29 years as a career firefighter in Providence (retiring as a Deputy Assistant Chief), as well as volunteer and paid on call experience. He is the author of two books: Legal Considerations for Fire and Emergency Services, (2006, 2nd ed. 2011, 3rd ed. 2014) and Fire Officer's Legal Handbook (2007), and is a contributing editor for Firehouse Magazine writing the Fire Law column.
  • The duty to act I believe depends on which state you’re in. In Virginia, as I have been told, no firefighter is a sworn officer and therefore does not have any legal standing outside of their AHJ.
    As an ex-Detroit FF, I was told many times over that if we saw a MVA we were obligated to stop and render assistance as much as our training and equipment permitted.
    In this lawsuit happy society, every firefighter is caught between the urge to help our fellow man (that is why we joined the fire service in the first place, isn’t it?) and wanting to protect our family/ourselves (because not every FF carries PPE when off-duty) as well as those that are afraid of losing material/financial assets due to a lawsuit because we aren’t going to be protected by our fire department.
    As I understand it, a an off-duty is not necessarily protected by the state’s Good Samaritan Laws. One or more things need to change. First is to include all public safety officers (firefighters, EMTs/Paramedics & police) under an expansion of the Good Samaritan Laws as well as making all public safety officers shown in their home state will reciprocity in other states and commonwealths.
    I am far from being a lawyer, just a firefighter that can’t pass an MVA to offer assistance in a deep commitment to help everyone I can. Must be a genetic defect in the Austin family, as my son is a third generation firefighter and my oldest daughter is in medical school.

  • John K. Murphy

    Obviously more to the story as there always is. It’s important to know if these two EMT’s have a duty to act in circumstances like the one in NYC. What are the department policies and procedures – what is the law that EMT’s in NY work under? They have already been tried and hung by the jury of public opinion. What does it take to act responsibly and under what circumstance? It takes no effort to provide assistance and call 911. It is the responsible thing to do. But for the shortsightedness of these two EMT’s, massive effort will now take place by FDNY in damage control; responding to litigation over the failure to act and the reputation of a great organization is on the line.
    As emergency service providers, we are trained to “act” in situations that call for our particular set of skills. Human compassion should be one of those skills.

  • This case also raises another interesting issue: if it is determined that an off duty EMT has a duty to render aid, and is injured in the process, does the employer have to cover the employee as if they were on duty? The NYC case does not seem to raise this issue, but my Dad had a saying: hard cases make bad law. If the end result of the NYC case follows public opinion that EMTs have a duty to act whether on or off duty, then the workers comp question will follow soon after.

  • cat

    NYS statutes do not obligate an individual citizen, regardless of training, to
    respond to a situation or provide care unless there is a formal duty by job description or role expectation. Such a duty to act arises from participation with an agency having jurisdiction.


    • Thanks Cat

      Interesting document. All states should take this extra step and address this problematic area – as NYS has done.


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