The EMS Case Review section of TLG brings frontline providers face-to-face with real legal issues and actual court decisions that form the boundaries within which EMS must function.

The text of the cases comes directly from the court records or judicial decisions.

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HACKMAN v. AMERICAN MEDICAL RESPONSE

April 16, 2004.

APPEAL from a judgment of the Superior Court of San Diego County, Wayne L. Peterson, Judge. Reversed.

Defendants Robert Odom and Lurelle Robbins, paramedics employed by defendant American Medical Response (collectively defendants), were dispatched to the scene of an accident involving a car driven by Hackman. After a brief discussion with Hackman and a peace officer, during which Hackman declined treatment or transport because she felt she had suffered no injury, Odom and Robbins (together hereafter Paramedics) left the scene. Hackman collapsed at the scene 20 minutes later and Paramedics returned and transported her to the hospital.

Hackman filed a complaint alleging defendants acted negligently by leaving her at the scene after Paramedics' first visit.

The trial court, relying principally on Zepeda v. City of Los Angeles (1990) 223 Cal.App.3d 232 ( Zepeda ), granted defendants' motion for summary judgment because it concluded defendants owed no duty of care to Hackman.

FACTUAL AND PROCEDURAL BACKGROUND

At approximately 7:00 p.m. on November 25, 1999, Hackman was driving her car in a residential area of Imperial Beach when she collided with a parked car; the collision was sufficiently violent to cause her car's air bag to deploy. A nearby resident heard the collision and called 911. In the minutes before Paramedics arrived at the scene, bystanders described Hackman as “dazed,” “confused,” “unstable,” and that her speech was “slurred” and she “wobbled” or “swayed” when she walked “like she was drunk .”

Paramedics were dispatched to the scene at 7:08 and arrived two minutes later. When they arrived, Hackman and a peace officer were standing next to her vehicle. During their brief stop, Paramedics approached Hackman and cursorily evaluated her condition.

In their declarations in support of defendants' summary judgment motion, Paramedics stated they conducted a visual and interactive assessment of her condition. In deposition testimony, [paramedic] stated he assessed Hackman's breathing, her verbal responsiveness (to determine if she was oriented), her eyes, her ability to move her extremities, her skin color, and questioned her concerning alcohol consumption.

Paramedics concluded Hackman was not injured. Although she stated that she was fine and did not want to be transported to the hospital, [paramedic] testified that had the Paramedics believed Hackman needed treatment and had she refused treatment, they would have had her sign an “against medical advice” (AMA) form. Before doing so, they would have strongly encouraged her to accept treatment. However, because they agreed with Hackman that she did not need treatment, they did not require her to sign the AMA form or strongly encourage her to accept treatment.

After Paramedics left, a bystander noticed Hackman's speech was slowing or becoming slurred, and another was concerned for her health because she seemed to be in a daze and was “walking around like [she was] dumbfounded.” Approximately 20 minutes after Paramedics left, Hackman collapsed at the scene. Paramedics returned and transported her to a hospital for treatment.

B. The Summary Judgment Motion

Defendants moved for summary judgment, asserting that whether or not a duty of care is owed is an issue of law resolvable on summary judgment, and under Zepeda a paramedic owes no duty of care to a victim until the paramedic actually undertakes to examine and treat the victim. Defendants argued that because Paramedics never examined or treated Hackman, they owed no duty of care to her that could have been breached. Hackman's opposition asserted that, even if Zepeda applied and correctly articulated the point at which a duty of care arises, there was evidence Paramedics did undertake to examine Hackman (albeit in a truncated and grossly negligent manner) and therefore the duty of care arose and was violated in this case.

The trial court concluded that Zepeda was controlling and no duty of care was owed to Hackman because Paramedics never undertook to provide assistance to her, and therefore entered summary judgment in favor of defendants.

ANALYSIS

The Duty of Care Applicable to Providers of Emergency Medical Services

The common law rule is that, absent circumstances not present here, a person has no affirmative duty to come to the aid of another ( Zepeda, supra, 223 Cal.App.3d at p. 235), and this rule applies with equal force to law enforcement and emergency rescue personnel. ( Williams v. State of California (1983) 34 Cal.3d 18, 23-24.) However, when a person nevertheless undertakes to come to the aid of another, he or she may be liable for not acting with the level of care either as prescribed by common law or applicable statutory enactments. (5 Witkin, Summary of Cal. Law (9th ed. 1988) Torts, §§ 279-281, pp. 361-366.)

Defendants assert they owed no affirmative duty to come to Hackman's aid and never undertook to provide patient care to her, and therefore under Zepeda they owed no duty to Hackman that could have been breached. Hackman argues that, even assuming defendants had no obligation ab initio to provide aid to her, after Paramedics arrived at the scene and evaluated her condition, they in fact commenced an undertaking to provide aid to her within the test articulated by Zepeda and therefore owed a duty of care to her. Our review of Zepeda and Wright v. City of Los Angeles (1990) 219 Cal.App.3d 318 ( Wright ) convinces us that, whatever may be the outer boundaries demarking emergency rescue personnel's duty of care to a victim, Paramedics here sufficiently embarked on a course of conduct giving rise to a duty of care toward Hackman within even the narrowly drawn boundaries of Zepeda.

In Wright, the court held a paramedic owed a duty of care to a victim at an emergency scene.

There, a paramedic was called to the emergency scene and found the victim on the ground. The paramedic testified he approached the victim and asked if he was hurt; the victim said he was not hurt. The paramedic performed a “60-second examination” (a brief visual inspection), but did not take the victim's pulse or blood pressure. The paramedic saw no symptoms of shock, because the victim was oriented and responded appropriately to questioning, the victim's eyes did not look abnormal, and the victim's breathing and skin did not appear abnormal.

Accordingly, the paramedic left after being at the scene five minutes. ( Id. at pp. 336-338.) The victim died at the scene shortly after the paramedic left ( id. at p. 335), and the jury awarded damages against the paramedic for wrongful death. ( Id. at p. 325.)

The Wright court, … held that substantial evidence supported the jury's verdict on the issue of gross negligence because the paramedic's truncated evaluation of the victim's need for medical assistance was an extreme departure from the standard of care. ( Id. at p. 347.)

Wright's holding was necessarily based on its foundational determination affirming a duty of care was owed to the victim:

Whether a duty exists is determined on a case-by-case basis ( Parsons v. Crown Disposal Co. (1997) 15 Cal.4th 456, 472) and we are cautioned not to mechanically apply standards and conclusions reached in one case to the facts and circumstances of other cases. However, the duty determination in Wright was based on facts bearing significant similarities to the present case.

Moreover, although Zepeda rejected imposition of a duty of care on paramedics responding to an emergency scene on its facts, it recognized that paramedics responding to an emergency scene can owe a duty of care to a victim under different facts, and held the proper line of demarcation to be that a duty of care arises if they undertake to provide aid to the victim, which occurred in Wright.

We conclude that Wright and Zepeda provide guidance on whether, under the facts of this case, Paramedics' conduct created a duty of care toward Hackman.

“Here, a basic duty was established for [paramedic] to provide his medical services in a manner which was not grossly negligent or performed in bad faith ... [paramedic] arriving at a location ... and finding a patient lying on the ground have the duty to make an examination which is sufficient to determine whether the patient has symptoms of any serious injuries ..., and to treat those symptoms or take the patient to a hospital for treatment of the injury.

It is reasonably foreseeable that failure to perform an examination sufficient to determine whether the symptoms of a serious injury are present could result in the failure to ascertain that a serious injury may exist and to treat or obtain treatment for that serious injury, which could result in further injury or death.” ( Id. at pp. 345-346.)

In Zepeda, the complaint alleged the victim was shot, paramedics were dispatched to the scene but refused to render medical attention or otherwise assist the victim until police arrived at the scene, and the victim died because paramedics breached “ ‘a duty to come to the aid of the decedent or at least make inquiry as to the status of the decedent.’ Zepeda noted the “sine qua non of any negligence action is, of course, the existence of a duty of care,” that as a general rule one has no duty to come to the aid of another, and held the paramedics in that case had no general duty to render aid to the victim. ( Id. at pp. 234-236.)

After Zepeda rejected imposing on emergency personnel a mandatory duty to render aid, it then addressed Wright, stating:

“Nothing in [ Wright ] compels a contrary conclusion. In that case, the victim, who had been involved in an altercation with another suspect and was later arrested and handcuffed by the police, died from sickle cell shock after city paramedics summoned to the scene conducted only a cursory examination.

In determining whether the defendants were liable, the Court of Appeal found that Health and Safety Code section 1799.106 established a duty for emergency personnel to provide ‘medical services in a manner which was not grossly negligent or performed in bad faith.’ (219 Cal.App.3d at p. 345.)

The court then applied that standard in finding that the paramedics were grossly negligent in their treatment of the victim. [¶] Contrary to the argument advanced by plaintiffs, Wright does not hold that emergency personnel must respond to all calls for assistance from the general public or risk liability in tort.

Indeed, such a holding would have had no application to the underlying facts. Unlike the instant case, the paramedics in Wright actually examined the victim and thus were held to the standard of care set forth in Health and Safety Code section 1799.106.

Here, of course, the City's paramedics provided no form of assistance and were not obligated to do so either by statute or common law rule.” ( Zepeda, supra, 223 Cal.App.3d at p. 237.)

Therefore, although Zepeda held there is no mandatory duty imposed on paramedics to render aid under common law principles, Zepeda also implicitly recognized that, under Wright, if a paramedic undertakes to provide assistance by examining the victim, he or she owes a duty of care to the victim, and any breach of the duty is measured by the standard of care under Health and Safety Code section 1799.106.

We conclude that, even assuming Zepeda correctly defines the boundaries for when an emergency rescue personnel's duty of care to a victim arises, Paramedics here crossed that boundary. As in Wright, Paramedics conducted a brief assessment of Hackman's physical condition to evaluate her need for medical care, concluded there was no need to provide any further emergency services to her, and then departed. On these facts, Paramedics' undertaking was sufficient to give rise to a duty of care to Hackman under Health and Safety Code section 1799.108.

Defendants argue Wright is distinguishable because the paramedic in Wright abandoned a victim whom the paramedic knew needed medical assistance, and in contrast, here Paramedics' assessment (concurred in by Hackman) concluded Hackman was not in need of care. However, we perceive no significant distinction between Wright and the present case on the issue of whether an undertaking sufficient to give rise to a duty of care was present; both Wright and this case involve emergency personnel whose assessment led them to conclude the victim needed no further assistance from emergency rescue personnel.

Defendants also argue that if a duty of care is imposed under these facts-a person who appears to paramedics to have suffered no injury, who denies being injured, and who expressly declines treatment or transportation-paramedics would be placed in an untenable position of forcing an uninjured and unwilling person to receive treatment.

However, this argument confuses the legal issue-the existence of a duty to use care when assessing the victim's need for treatment or transport-with the factual issue of whether Paramedics' failure to treat an apparently uninjured person who declined treatment is a breach of the duty to use the standard of care specified in Health and Safety Code section 1799.106 because their assessment was in bad faith or constituted gross negligence. We are not presented in this case with, and express no opinion on, whether defendants breached that standard of care in this case.

DISPOSITION
The judgment is reversed. Plaintiffs are entitled to costs on appeal.

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ZEPEDA v. CITY OF LOS ANGELES

Aug. 3, 1990.

Parents of shooting victim sued city for wrongful death, alleging that a paramedic team employed by the city refused to render medical attention or otherwise assist victim until police arrived at the scene.

The Superior Court, Los Angeles County, No. WEC133931, Jack Newman, J., sustained city's demurrer, and parents appealed.

The Court of Appeal, Compton, Acting P.J., held that the paramedics were not obligated to provide assistance either by statute or common-law rule.

Affirmed.

The record reveals that plaintiffs commenced an action against defendants City of Los Angeles (City) and Robert Rosito for the wrongful death of their son Jerman.

According to the allegations of the complaint, Rosito shot Jerman in the neck on February 28, 1988. Even though they were in no apparent danger, a paramedic team employed by the City purportedly refused to render medical attention or otherwise assist Jerman until the police arrived at the scene.

The complaint further averred that Jerman eventually died because the paramedics breached “a duty to come to the aid of the decedent or at least make inquiry as to the status of the decedent.”

The City subsequently filed a demurrer which the trial court sustained with leave to amend. When plaintiffs elected to stand on their complaint, the court again sustained the demurrer and then dismissed the action.

Even assuming, as we must, that all of the material facts alleged in plaintiffs' complaint are true, we find they have failed to state a cause of action against the City for wrongful death.

The sine qua non of any negligence action is, of course, the existence of a duty of care owed by the alleged wrongdoer to the person injured, or to a class of which he is a member. As used here, the term “duty” is simply “an expression of the sum total of those considerations of policy which lead the law to say that the particular plaintiff is entitled to protection.”  Whether or not a duty exists is primarily a question of law.

As a general rule, one has no duty to come to the aid of another. A person who has not created a peril is not liable in tort merely for failure to take affirmative steps to assist or protect another unless there is some special relationship between them which gives rise to a duty to act.

The rules concerning a private citizen's duty-or lack thereof-to come to the aid of another also are applicable to law enforcement and emergency rescue personnel.

Our Supreme Court has made it clear that “ ‘[a] person does not, by becoming a police officer, insulate himself from any of the basic duties which everyone owes to other people, but neither does he assume any greater obligation to others individually.

The only additional duty undertaken by accepting employment as a police officer is the duty owed to the public at large.”

Applying these principles to the instant case, we think it clear that the City's paramedics had no general duty to render aid to plaintiffs' decedent.

Based upon the allegations of the complaint, the emergency personnel involved did not create the peril to decedent, they did not voluntarily assume a special duty to assist him, they made no promise or statement to induce reliance, nor did they increase the risk to him that otherwise would have existed.

Said another way, the paramedics could not negligently perform an act they had not undertaken to perform, and to that extent plaintiffs' pleading is defective on its face.

Plaintiffs argue, however, that a special relationship existed because Health and Safety Code section 1799.107 imposes a mandatory duty upon emergency rescue personnel to render assistance whenever summoned. Plaintiffs' emphasis on the “mandatory” nature of the duty is an obvious attempt to plead around the provisions of Government Code section 820.2 and into Government Code section 815.6.

The latter statute applies to public entities the familiar rule of tort law that violation of a legislatively prescribed standard of care creates a rebuttable presumption of negligence. Government Code section 820.2 provides:

“Except as otherwise provided by statute, a public employee is not liable for an injury resulting from his act or omission where the act or omission was the result of the exercise of the discretion vested in him, whether or not such discretion be abused.”

Government Code section 815.6 states:

“Where a public entity is under a mandatory duty imposed by an enactment that is designed to protect against the risk of a particular kind of injury, the public entity is liable for an injury of that kind proximately caused by its failure to discharge the duty unless the public entity establishes that it exercised reasonable diligence to discharge the duty.”

Health and Safety Code section 1799.107, subdivision (b), provides in relevant part:

“…neither a public entity nor emergency rescue personnel shall be liable for any injury caused by an action taken by the emergency rescue personnel acting within the scope of their employment to provide emergency services, unless the action taken was performed in bad faith or in a grossly negligent manner.”

The clear import of this language is to limit, not expand a public entity's liability exposure for providing emergency services to the public. In enacting the statute, the Legislature declared:

“The Legislature finds and declares that a threat to the public health and safety exists whenever there is a need for emergency services and that public entities and emergency rescue personnel should be encouraged to provide emergency services. To that end, a qualified immunity from liability shall be provided for public entities and emergency rescue personnel providing emergency services.” (Health & Saf.Code, § 1799.107, subd. (a); emphasis added.)

Viewed in light of this expression of legislative intent, we think it obvious that the statute does not impose a general duty upon emergency personnel to provide assistance whenever and wherever summoned.

Subdivision (b) merely defines the level of negligence that will result in the imposition of liability once assistance is rendered. Had the Legislature desired to impose upon emergency personnel the mandatory duty to render aid, it could easily have said so. It did not, and we will not impose such a requirement here.

Nothing in Wright v. City of Los Angeles (1990) 219 Cal.App.3d 318, 268 Cal.Rptr. 309 compels a contrary conclusion. In that case, the victim, who had been involved in an altercation with another suspect and was later arrested and handcuffed by the police, died from sickle cell shock after city paramedics summoned to the scene conducted only a cursory examination.

In determining whether the defendants were liable, the Court of Appeal found that Health and Safety Code section 1799.106 established a duty for emergency personnel to provide “medical services in a manner which was not grossly negligent or performed in bad faith.” ( Id. at p. 345, 268 Cal.Rptr. 309.) The court then applied that standard in finding that the paramedics were grossly negligent in their treatment of the victim.

Contrary to the argument advanced by plaintiffs, Wright does not hold that emergency personnel must respond to all calls for assistance from the general public or risk liability in tort. Indeed, such a holding would have had no application to the underlying facts. Unlike the instant case, the paramedics in Wright actually examined the victim and thus were held to the standard of care set forth in section 1799.106. Here, of course, the City's paramedics provided no form of assistance and were not obligated to do so either by statute or common law rule.

*238 Based upon the foregoing, we can only conclude that, as a matter of law, plaintiffs' action is without merit and that the trial court properly sustained the City's demurrer.

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Motion for Summary Judgment

"Go with what you know, not with what you think you know."

SCHULMAN v. County of Los Angeles Fire Dept./Paramedics

February 7, 2006.

Opposition to Motion of Defendant County of Los Angeles for Summary Judgment; Memorandum of Points and Authorities and Declarations in Support of Opposition

à On the night of May 3, 2004, plaintiff Sarah Schulman, a 22 year-old student at Pepperdine University, ate dinner with several friends at Dukes Restaurant in Malibu. In addition to her meal, she consumed one alcoholic drink. Following dinner, at approximately 9:00 p.m. she returned home.

At 9:45 p.m., she left home and went with several friends to the “Dume Room,” a small bar/restaurant on