What Is The Duty To Act?

This week I’d like to explore two related topics that tend to create a bunch of confusion – the duty to act and the good Samaritan law. If you want to see a room full of EMTs argue with each other, ask a question like, “So, when does an EMT have a legal duty to act?” or “To whom does the good sam law really apply?” These are subjects where myth and confusion are more common than fact so lets jump in to these two, often confusing, legal tenants.

Today we’ll look at the duty to act and on Thursday we’ll dive in to the good samaritan law.

On duty or off duty, paid or volunteer, in or out of uniform, when do you, as a professional rescuer really have a legal duty to act? Once you have a duty to act, what does that mean for your care and your liability? The true meaning of the duty to act can be confusing.

One of the things that make legal definitions like the duty to act so hard to nail down is the fact that they are not elements of federal law. They can’t be applied universally to caregivers around the nation. If they were we could say, “Here in the United States the duty to act is defined as … This is different from Canada and Great Britain where …” But it isn’t that simple. Depending on which country, state or territory you live in, the duty to act can mean very different things.

For the professional rescuer the duty to act is generally inherent to employment. If you are a trained medical professional and you are acting with an expectation of compensation you have a duty to act appropriately and within the scope of your training when called to assist with an emergency situation.

Let’s put that in plain English. If your are on the clock and receiving pay for your service, you have a duty to respond to emergencies and provide appropriate rescue and care. The rescue and care you provide has to be in accordance with your training. It also has to be reasonable and within your scope of practice.

Here are some common situational questions:

What if I’m a volunteer working for an ambulance company or a fire service? Volunteer are not generally recognized as having a duty to act. If you aren’t receiving pay or benefits for your service (remuneration) then your acts remain a voluntary choice and not a legal obligation.

What if I’m not on the clock but I am in uniform? While your failure to act in an emergency may reflect poorly on your organization and stir some public outrage, there is no legal tenant that links your attire to your duty to act. The law could basically care less what your wearing, they care if your being compensated.

What if I receive some compensation other than money for my service? This is where the law gets fuzzy. What does or does not meet the definition of remuneration or compensation (depending on the wording of the code) may ultimately need to be determined by the court.

Some common forms of compensation are occasionally addressed in the actual legal text. For instance here in Colorado (USA), Ski resort volunteers who receive ski passes for compensation, but not money, are still protected under good samaritan protection and do not have a duty to act.

Does this mean that I can’t be sued for not providing care if I’m not on duty? No. This is a common misconception. You can be sued for just about anything. This means that you are unlikely to be found guilty of a crime if you are sued.

Other interesting facts about the duty to act:

Some untrained citizens fall under “duty to act” or “duty to rescue” laws. For instance, in most industrialized nations, spouses have a duty to attempt to rescue each other – including all fifty states of the U.S. Travel industry personnel have a duty to assist their patrons in emergencies. Parents also have a duty to rescue and assist minor children including “in loco parentis” caregivers like school teachers and babysitters.

U.S. common law dictates that there is no general duty to act in an emergency, however, at least eight states have enacted laws requiring citizens to assist strangers in peril. These states include Florida, Ohio, Massachusetts, Rode Island and Vermont. You can be charged with a misdemeanor for not responding to someone in danger. Citizens are never required to place themselves in peril. This allows for so much subjectivity that the laws are generally ignored by law makers and citizens.

In opposition to citizen duty to act laws, Texas has a statute stating that no citizen has a duty to assist another against their voluntary will.

The TV show Sienfeld used the citizen duty to act law as the premise for the series final show in 1998.

European countries tend to have more strongly worded citizen duty to act laws stating that anyone who reasonably capable is responsible for rendering aid to another in peril so long as it does not place them in harms way.

What about when you don’t have a duty to act? If you’re off duty and not receiving compensation are their any protections for you if you attempt to render aid? On Thursday we’ll discuss the good samaritan law.

Related Articles:

The EMT Code of Ethics

What Is The Good Samaritan Law? (coming soon)

Five Rules For One Shift

Comments

  1. Great post, as usual.
    Rough topic for those in the volunteer and private industries. Clear cut for us paid municipal folk.
    I’d like to challenge you to take this one step further though and possibly cause some big waves.
    What if I, the Paramedic, is told by my employer that today I am to work as the driver of the BLS engine that has ALS equipment and am not being paid as a Paramedic, but as a Driver?
    Do I have a duty to act as a paramedic as licensed?

    HM

  2. HM,

    As you often make clear in your “You Make the Call” posts doing the right thing is the better position to defend. Not doing anything and defending not doing anything because of your pay rate at the least will reflect poorly on you and your organization and at worst could have large financial consequence for local government and your employment status.

    In your scenario is a crew member on the engine trained and designated to provide ALS assessment and care?

  3. In South Carolina does an EMS have a duty and, if so, is there an acceptable response time?

  4. Steve Whitehead says:

    I agree with Greg, HM. On most calls you can fall back and take the BLS seat, but if you’re the only dude there and ALS intervention is needed, you need to pull out all the stops. The public and the law doesn’t care about subtle pay differences. If your a trained and approved ALS provider in the system, you need to step up. Legaly and morally.

  5. Steve Whitehead says:

    Aida your expectation of compensation will still dictate if you have a duty to act or are a “good samaritan.” Acceptable response times will depend on your community and the resources available.

  6. Bart Cowan says:

    If you are a paid provider and have a pt in the back and come upon an accident, do you still have a duty to act in the state of KY?

  7. Does an emt in new jersey have a moral or legal duty to take care of a person in need of help? Whether on the job or oFF? An trying to find an answer to this ? for a class I am taking. Thanks in advance if you know the answer.

  8. Steve Whitehead says:

    @Bart You do not have a duty to act if you are already commited to patient care or assigned to the care of a patient. But you should assess the needs of the patients on the scene vs the nature of the patient in the rig and consider splitting your crew until more help arrives.

    @Anita All the information above applies to you in New Jersey. If you are on duty you have a legal duty to act. If you are not on duty, you do not have a legal duty to act. The moral perspective is up to you to decide.

  9. @Bart: If you are transporting a pt, any pt, let’s say it’s just some kid who fell and sprained his ankle…

    and you come across armafreakinggeddon……ten car pileup, and an arm flys out of one of them and leaves a bloody streak on your white hood of the ambulance…

    you have to keep transporting your patient.

    you may not stop.

    you’d be abandoning your patient.

    If you’re on the way to the scene of said sprained ankle, you can call up dispatch and say “hey, can you divert me to this pileup I just witnessed?” and if they dispatch someone else to the sprain, you can run over to the pileup and save the day.

    but you can’t self-dispatch in most areas

  10. marie mitchell says:

    My lawyer told me it was ok my neighbors to watch my 12 yr. son chock to
    death on a balloon, in their bedroom they did not have to reeder aid to my
    son.He was on complete life support for 5 days then he passed away. My
    lawyer said that was legal.

  11. marie mitchell says:

    So you have to reender to a minor child
    In your home in Texas?!

  12. Confused Rookie EMT says:

    I’m a Basic for a private company and a volunteer for a small township department. On my way home from work tonight, I came across a two car MVA with local FD en route. I was still in my uniform for the private company and held c-spine for a patient with chest pain as a precaution. In uniform, off the clock, and not a member of local FD, was I in the wrong for initiating pt care? The medic let the patient into the back of the truck, didn’t speak to me or tell to release c-spine and pretty much made me feel like an ass.

  13. administrator says:

    @Confused There are a multitude of reasons why the medic on scene chose to ignore your care. He / she may have disagreed with your prioritizing the c-spine of a single patient over the more general management of the scene. They may have been having a bad day. They may have some bias against your organization that leads them to behave unprofessionally toward folks wearing your uniform. They may have felt something you were doing was medically inappropriate. The possibilities are endless. If it concerns you, I would try to talk with the medic about it. Only the individual can explain their actions. We can only speculate.

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  18. Winn Williams says:

    What IF,

    An off duty paramedic in their personal vehicle has a head on collision with someone, freaks out, and leaves the scene of the accident? This actually happened in the city I live in….

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