This one is from the US and has been brought to my attention via a newsletter published by a US firefighter and lawyer, Larry Bennet (see http://ceas.uc.edu/aerospace/FireScience/fire-ems-safety.html). Even though it’s from America, readers concerned about reduced staffing and vacant rosters for emergency paramedics will be interested, and dare I say surprised, by the outcome.
In Ellen Jean Mix v. Romstadt, et al., 2015-Ohio-561 neither the city of Northwood Ohio, the fire chief nor the medical director were liable for the death of a citizen who rang 911 and found that there was no-one staffing the city’s emergency ambulance.
The city ran a volunteer fire department. There were 4 employees and two fire stations. Fire fighters were paged when there was a fire call and were paid for their time when responding to a call. The fire service also operated an Advanced Life Support (ALS) ambulance that was meant to be staffed 24 hours a day.
There had been a 30% cut in the department’s budget since 2010. This had resulted in a hiring freeze, a pay reduction for volunteers and not surprisingly, a fall in the number of volunteers. The protocol was that when a 911 call for an ambulance was received, the EMTs for the nearest station were paged; if there was no response after 7 minutes the other station was paged. After a further 7 minutes assistance was sought from neighbouring emergency services.
On 3 March 2011 at 6.49am the appellant called for an ambulance to attend to her husband who she could not rouse. A single responder EMT was despatched at 7.06am. The appellant called at 7.11am to say her husband has topped breathing. A neighbouring ‘medic unit’ was despatched at 7.13am. Ultimately aid arrived by Mr Mix died. Mrs Mix sued the city, the fire chief, the fire department’s medical director and others.
Under Ohio legislation, an emergency ambulance service is only liable where there is ‘wilful or wanton’ misconduct. The trial court dismissed the action on the basis that there was no evidence that could support an allegation that ‘the parties acted in a willful/wanton or reckless manner’. Mrs Mix appealed.
The Deputy Fire Chief gave evidence that:
… if there was a gap of any hour or two where no one had signed up he would not “go out of my way to fill one hour because of the redundancy of the system being a volunteer based system was that someone should be or hopefully would be available to respond.” Wojcinski admitted that there was no written policy or procedure in place to notify a dispatcher when the 800 unit would be unmanned. When the unit was unmanned, Wojcinski stated that it was his belief that if a dispatcher was aware of it, they would notify the volunteers…
The Fire Chief
… testified that he attempted to keep the unit manned at all times but that due to the voluntary nature of the department, if no one was available he could not fill certain gaps. This issue was compounded by the economic downturn and resulting budget cuts.
As for the budget cuts, the Mayor testified that ‘the city attempted to raise revenue on two occasions but that the voters rejected the levies’.
The outcome was that as no-one’s conduct met the ‘wanton or wilful’ misconduct standard ‘the city and its employees … are immune from liability for the unfortunate death of appellant’s husband…’
I make no claim that a similar result would or would not happen in Australia but I did think that this would be of interest given the general perception that not only do they sue for everything in America, they also win. Certainly in terms of emergency services, as I would suggest is true in Australia, establishing a duty to rescue or respond is not easy (see also US city not liable for failure to rescue (February 13, 2013)).
I am wondering your opinion of the impact of Kent v Griffiths  2 All ER 474 for Australian ambulances services in respect of a likely duty to respond after the Ambulance service accepts the triple zero call? As most Australian States/Territories have statutory based models compared with the U.S. case above which involved a volunteer service, I imagine this may also present a distinguishing point for our Services? Kent v Griffiths also distinguished the duty to respond for ambulance services as a duty to the individual patient contrast the duty of other emergency services (fire, police, etc) requiring a duty to the public at large.
I told the story of the Ohio case as I thought it would interest readers, but as I noted, it’s not meant to reflect law in the US. The English case of Kent v Griffiths is more directly relevant to Australia but it would not have direct application in a similar fact situation. In Kent v Griffiths the ambulance service advised the caller that an ambulance had been despatched when in fact it had not been. Further there was no reason given for the delay. That would be different to a situation where there were simply no resources to despatch – in the Ohio case because no-one had volunteered for the shift, in other cases it may be that all the ambulances are currently engaged.
One issue in Kent v Griffiths was that the ambulance service argued that they were an emergency service and wanted to be treated like a fire brigade but the court said they were more analogous to a health service and could and did owe a duty to the individual that called them.
The issue of ‘duty’ didn’t arise in the Ohio case; one can infer that ‘duty’ was accepted. In that case there was no liability as there had to something more than mere negligence. Even if that was not the case all a defendant has to do is what is ‘reasonable’. It would seem ‘unreasonable’ not to ensure that there was someone rostered to cover the ambulance but as noted it was a volunteer company and they did have arrangements for mutual aid. In remote Australia where we depend on volunteers for ambulance, fire and rescue services there will also be the chance that an emergency call will be made and there will be no-one to attend. What the legal consequences would be would depend on all the facts.