Negligence for Dummies

Ok, I’ve adapted this lesson from a Facebook post I’ve made, but I’ve given some thought to explaining some legal concepts that impact EMS and this is my first effort.  Please let me know if this is helpful and if you’d like to see other legal topics explained.

Please understand that while I’m a lawyer, I’m not your lawyer and my explanation will be pretty generic, because the law is going to differ in each state.

There are four elements that are required to prove up a negligence case. You must have all four of these for the plaintiff to win their case. Duty, Breach, Causation, and Damages.

Duty — This means that you owe a responsibility of reasonable care to another while performing an action which could cause harm. Generally speaking, duty does not attach until you are either dispatched to the patient or you assume patient care. Abandonment a separate claim/lawsuit that occurs when you assume patient care and relinquish said care prior to being relieved by a provider of equal or higher training/certification.

Breach — In short, this is breaching the standard of care. Standard of care means what an ordinary, reasonable provider of similar skill and experience would do in a similar situation. While we often discuss state protocols, card courses (CPR, PHTLS, etc), textbooks, and expert witnesses, ultimately, these are all factors and evidence that will be assist the fact-finder in the case (the jury in a jury trial or the judge in a bench trial) establish what the standard of care is.

Causation — In other words, did your acts and/or omissions cause the harm to the plaintiff?

Damages — Was there actual harm that can be quantified to the plaintiff? Did the plaintiff suffer physical, economic, or psychological damages that the trier of fact (whether the jury or the judge) can quantify into monetary damages?

As I mentioned at the beginning, you’ve got to have all four of these elements for the plaintiff to succeed with a claim for negligence.

I’m happy to help explain further, but since I’m not your lawyer and, unless you’re in Texas, I’m not licensed to give legal opinions for you, I’d prefer not to discuss specific case(s) that you might’ve been involved in.

Hope this helps!

Clickbait for you. Frustration for me.

Right now, the EMS social media is abuzz with a piece of so-called religious rights legislation that’s passed the Michigan House of Representatives.  In short, the legislation allows for a person to claim a religious exemption from other laws that infringe upon their religious rights.  Currently, legislation such as this is most commonly championed by Christian social conservatives as an attempt to nullify local and state gay rights provisions.  Our “friends” at EMS1 are headlining this as “Will Michigan allow EMS providers to withhold care based on the patient’s sexuality?”

Here’s my take as an EMS provider, attorney, and someone who’s analyzed state legislation for over a dozen years.  Oh, and also as someone who completely supports the rights of gays and lesbians, including the right to marry.  This bill doesn’t impact EMS one bit.  Not one iota at all.  Doesn’t even mention EMS. I am not YOUR lawyer (although, for the right retainer and hourly rate, that COULD change…), but I can’t see how this proposed piece of legislation changes the duty to respond and the duty to act for EMS (or the fire department or police either).

Also, the bill has only passed through the Michigan House of Representatives and still has to make it past the Michigan Senate and get the signature of the Governor.  As I’ve said before, the legislative process is designed to kill legislation, not pass it.  The chances of a bill getting becoming law are slightly better than my getting a lucrative basketball contract, but probably not as good as your next EMS shift not getting to transport a non-acute patient.

I blame two parties for this kerfuffle and misinformation.  One, somewhere out there, there’s probably a well-meaning and sincere gay rights activist who took the conclusions of this legislation well past the logical extreme.  Second, the lemmings of EMS social media AND the EMS websites blindly posted this without any research, whether out of a lack of legal understanding, believing in a specific agenda, or just trying to drive up clicks.

I’m going to do something I only do occasionally and only when I’m really peeved. I’m calling a publication out by name.  EMS1 — You guys should know better.

As the great American President Abraham Lincoln once said, “Don’t believe everything you read on the internet.”

Not nice. Politically incorrect. And probably true.

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