Lawrence T. Bennett, Esq.  is a lawyer and the Program Chair in Fire Science & Emergency Management at the University of Cincinnati.  He is the author of a book ‘Fire Service Law’.  Professor Bennett runs a website where he provides updates on US Law (see https://ceas.uc.edu/academics/departments/aerospace-engineering-mechanics/fire-science/fire-service-law.html) or you can subscribe to his updates as a newsletter.

This report on the decision in Anthony Fornabaio, et a. v. Beacon Broadway Company, Inc.; Transcare Corporation, et al. appears in the December 2020 newsletter. Here the plaintiff sued, but lost, on the basis that he had refused assistance and there could therefore be no duty on the EMS practitioners to provide the support that had been refused.

The question of a responder’s duty and potential liability where a patient unwisely refuses consent to assistance is a common theme on my blog. Whilst this case has no direct application in Australia, Australian first responders may still find it reassuring that even in the US (where we have many myths about how easy it is to sue) a competent patient’s right to refuse treatment must be upheld and that treating practitioners cannot be negligent for not providing otherwise warranted care where that care has been refused. 

NY: PLAINTIFF PASSED OUT AT CONCERT – _REFUSES EMS HELP – _ORIENTED TIMES 3 – FALLS ON HIS FACE – _CASE DISMISSED

On Nov. 19, 2020, in Anthony Fornabaio, et a. v. Beacon Broadway Company, Inc.; Transcare Corporation, et al., the Appellate Division of the Supreme Court of New York, held (3 to 0) that when a competent adult patient refuses EMS help, his lawsuit against the concert provider and Transcare, the EMS provider should be dismissed.

“Any duty Beacon or Transcare owed to plaintiff to assist him in exiting the theater terminated when he refused such assistance. It is well settled that a competent adult has the right to determine the course of his or her own medical treatment, including declining treatment (Matter of Fosmire v Nicoleau, 75 NY2d 218, 226 [1990]). Plaintiff does not dispute that he refused assistance in standing or ambulating. Further, the testimony was that the EMT technician assessed plaintiff as alert and oriented as he left his seat to exit the theater. Given this, the complaint should have been dismissed in its entirety as to defendants Beacon and Transcare (see Branda v MV Pub. Transp., Inc., 139 AD3d 636, 637 [1st Dept 2016]).”

Facts:

“Plaintiff Anthony Fornabaio and his wife were attending a concert at defendant Beacon’s venue. Shortly after the concert began, plaintiff passed out in his seat, regained consciousness with his wife shaking him awake, and immediately passed out again. The Beacon security supervisor and a Transcare EMT responded via a radio call to where plaintiff was seated. Plaintiff was described as slumped in his seat with his eyes closed. Questions posed by the EMT technician determined that plaintiff was ‘completely conscious,’ and alert and oriented times three. She advised him, however, that because it was too loud inside the theater, she was unable to check his blood pressure and to check his pulse, it was necessary that they go outside the theater.

The testimony was that while multiple offers were made to plaintiff to assist him in standing and in walking from the theater, he refused, stating that it was embarrassing and that he wanted to walk on his own. While plaintiff ultimately stood on his own and walked unassisted up the aisle to the landing at the rear of the seating area, with Beacon security and the EMS worker following and with other Beacon personnel making sure the aisle was clear, when plaintiff reached the landing, he again lost consciousness and fell forward, striking his face on the floor.”

Legal Lesson Learned: Key facts – person was “alert” and “oriented times three” – led to dismissal of this case.