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.
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.
What Is The Good Samaritan Law? (coming soon)