Georgia Appeals Court Holds EMS Can Rely on Cancellation by Police

The Second Division Court of Appeals of Georgia has held that when police order EMS to stage, and later release them because no victim is located, there is no legal duty on the part of the medics to independently verify the police determination. The decision reverses a trial court ruling and resulted in the granting of a motion for summary judgment for the EMS provider.

The case was brought by the estate of Hannah Smith, who died of an overdose in 2019. Named in the suit was National Emergency Medical Services, Inc., the EMS provider. The facts are highly relevant to the central issue in the case. Quoting from the decision:

  • At 3:38 a.m. on April 19, 2019, Athens-Clarke County Police Dispatch transferred a 911 call to National EMS dispatcher Ollie Bazemore.
  • Police Dispatch remained on the line while the caller told Bazemore that his girlfriend was “dying in [his] bed” and “needs help.” Then the call disconnected.  The caller did not reveal the type or cause of the emergency, so Bazemore characterized it as an “unknown problem.”
  • Bazemore called the number back, but the call went to voicemail. Because the caller had stated that he did not know his location or address, Police Dispatch used GPS from the call to determine an address and told Bazemore that police were on the way.
  • Bazemore dispatched National EMS paramedic Josh Willard and emergency medical technician Jacob Hester.
  • Willard deposed that at the time of dispatch, “there was no confirmed address, there was no confirmed patient, or patient information… [a]nd there was no contact with the caller.”
  • Willard, Hester, and the police arrived at the scene around the same time, 3:52 a.m. Officer Jonathan Surine of the Athens-Clarke County Police Department came to the window of Willard and Hester’s vehicle, which was stopped on the street at the bottom of the steep driveway leading up to the house, and said, “[W]e have history at this address. There’s a lawyer that lives here that is very anti-public safety. So you need to stage here, we’ll go up and figure out if something’s going on, and we’ll let you know.” Willard deposed that he “took that as an order of you are to stage[,]” and that he typically follows police orders like this, which to him meant, “that you stay away from the scene at a safe distance . . . you don’t approach the active scene until cleared to do so by law enforcement.”
  • After telling National EMS to stage at the bottom of the driveway, Surine walked up the steep hill to the house. He deposed that he did not expect the EMS team to walk up the driveway and knock on the doors of the home themselves. He had firsthand knowledge of where in the house Smith lived because he had been there before, responding to a call about her. She was flagged by Police Dispatch records as a “10-96,” meaning she had a “mental health flag.” During that prior call, Smith had told Surine “not to bang [on the door] real hard if we ever came back out again . . . or be loud, because . . . the rest of the house was where her father lived. And she said that he might get irritated.”
  • Surine went to Smith’s door at the back of the house and, over the course of several minutes, knocked five different times and stated, “Hannah, it’s the Clarke County Police Department.” Another police officer joined him partway through this process. Surine did not knock at the front door or carport side door. Surine’s attempts to reach Smith were recorded on his body camera. He twice asked Police Dispatch to try to make phone contact and also shone his flashlight through a window, but further calls to the number got no response. He deposed that he did not observe any “exigent circumstance that would lead me to believe that somebody may have been in danger” to justify a forced entry.
  • After the second failed attempt at reaching the 911 caller by phone, Surine reported the incident as a “Status 2” – meaning an “unfounded complaint.” He told Police Dispatch that he would “10-22” the National EMS team, meaning “quit/cancel, go back in service.” He then began walking back down the driveway, where he met Willard, who had walked about two thirds of the way up the driveway to see what was causing the delay. The body camera recording shows Surine telling Willard, “Doesn’t want to come to the door, so, let’s get out of here.” The recording ends at this point. As Surine recalled in his deposition, “I told them that they could 10-22, which means go back, like disregard, cancel.”
  • Willard deposed that the National EMS dispatcher told the crew that Police Dispatch “advised we could cancel” and that he told his dispatcher that the police officer on the scene also had given them a “verbal cancellation.” Bazemore, the National EMS dispatcher, deposed that “when police say[] cancel, they, you know, did what they’re supposed to do and we don’t override PD[,]” and that while either an EMT or law enforcement may cancel a call, “if law enforcement is dispatched, it would be law enforcement.” “We had to be told [by the 911 police dispatcher] to cancel the call, which we were, and the call was cancelled.”
  • Bazemore then talked to the National EMS team, telling them they “could cancel.”
  • About seven minutes elapsed between the time EMS arrived on the scene and the time that the call was cancelled, at 3:59 a.m.
  • Smith’s boyfriend, Dustin Eddy, testified at the coroner’s inquest that he and Smith went out to get beer about five times and “drank over a hundred beers that day. I know we did.” On the night at issue, he testified, “out of the blue[,] . . . [she] poured a pile [of pills] in her hand and put them on her tongue and I begged her, don’t swallow them. When she swallowed them, that’s when I grabbed her phone off her bed and called 911[.]” But, he testified, “she grabbed the phone from me, hung up on 911, told me no, they were – the police were not coming to her daddy’s house. That was all I could do.” Smith took the phone away from him and he did not know what happened to it. Eddy testified that because he was at Smith’s house, “[s]he was kind of the boss. . . . She laid down. She explained to me that she had done this numerous times just to scare people. She had made it, it was no big deal. She laid down. I laid down.” He did not hear the police arrive or knock on the door, he did not see lights, and he did not hear the phone ring again.
  • When Eddy woke the next morning, Smith’s “body was really cold.” He thought this was because the air conditioning was set to 60 degrees. He covered her up and shook her again. After a few minutes, when she did not wake up, at about 9:00 a.m., he called 911 again. The “Call for Service Report” for Eddy’s call reports an “unresponsive female” and a “poss[ible] overdose,” and that Eddy told 911 he had tried to call earlier but Smith “took the phone away from him and hid it; no emergency response was ever called for[.]”
  • Senior Police Officer Shawn Denmark responded to the second 911 call, as did a different National EMS crew, whom he met at the bottom of the driveway because he knew it would be hard for them to find Smith’s door. When Denmark arrived, fire fighters were already on scene, performing CPR. Smith was pronounced dead at the scene.
  • The Georgia Bureau of Investigation’s Division of Forensic Sciences autopsy report noted a contusion on Smith’s lower abdomen, hypertensive cardiovascular disease, postmortem toxicology of “highly elevated concentrations of” Metoprolol and Fluoxetine, and a “blood alcohol concentration of 0.223 grams per 100 mL.” Her death was designated a “suicide.”

The legal wranglings involved the admissibility of expert witness testimony as to whether EMS personnel have a legal duty to make an independent investigation when police cancel them because a victim cannot be located. The estate’s expert, James McCans, testified on deposition that there is a national standard of care requiring EMS to personally “make entry into the home.” The trial court concluded that his testimony created a triable question of fact.

The Court of Appeals disagreed, concluding as follows:

  • McCans is clearly an experienced paramedic, and stated opinions formed on the basis of his experience. However, the opinions that he expressed based on that experience were not directly on point with the question before the trial court regarding emergency responders’ duty after a 911 scene has been cleared by law enforcement and responders have been told they may cancel their response.
  • Here, McCans specifically testified that he was unaware of any standard, protocol, law or regulation – whether national, regional, or in Georgia – addressing the precise situation at issue in the instant case.
  • While he did testify that, in his experience, EMTs and paramedics he had worked with or observed were “more aggressive” in attempting to find a patient, he did not aver that this experience amounted to any sort of standard or duty of care applicable anywhere – much less in Georgia – in cases where police examine a scene, tell EMTs no patient was found – or, in Surine’s words, that the potential patient “[d]oesn’t want to come to the door[.]”
  • Although McCans deposed that “the end of staging” – meaning the point at which law enforcement notifies EMTs that it has completed a safety assessment – “isn’t cancellation” of an emergency response, and that police indicating “I don’t want you, you can go, or you’ve got to go” does not mean EMTs cannot continue to do their jobs, he specifically acknowledged that he had never heard anyone else in his profession articulate that standard.
  • McCans has, at best, identified “discretionary” and “non-prohibited” actions by emergency responders applicable to a situation in which police examine the scene of a 911 call and tell responders that a patient cannot be or does not want to be found.
  • He has specifically testified that others in his profession have not articulated any standard regarding what responders’ duties are when police tell them they can or must cancel a call.
  • McCans has essentially opined that National EMS should have done more, but has not established that a recognized standard of care required it to do more, nor has he articulated any standard of care requiring emergency responders to disbelieve or override what they are told by law enforcement at the scene.
  • McCans has not articulated a reliable standard of care either through his own specific experience or that of others in his profession applicable to the situation at issue. Nor has he reliably applied any standard to the facts of this case.
  • When engaging in a reliability analysis, courts must be careful to focus on the expert’s “principles and methodology, not on the conclusions that they generate.”
  • Further, when a witness relies solely or primarily on experience, then the witness must explain how that experience leads to the conclusion reached, why that experience is a sufficient basis for the opinion, and how that experience is reliably applied to the facts.
  • As a result, Smith’s Estate has not met the requirements … that it show the expert’s opinion testimony to be the product of reliable principles and methods which have been applied reliably to the facts of the case.
  • The trial court erred in denying National EMS’s motion to exclude McCans’ opinion testimony regarding the standard of care.
  • Because Smith’s Estate did not show that National EMS failed to conform to a recognized duty or obligation, National EMS was entitled to a grant of summary judgment, as a matter of law.

Here is a copy of the decision:

About Curt Varone

Curt Varone has over 45 years of fire service experience and 35 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, 4th ed. 2022) and Fire Officer's Legal Handbook (2007), and is a contributing editor for Firehouse Magazine writing the Fire Law column.

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