Where Duty Ends: The Perils & Pitfalls of Off-Duty Response

Shane Kelly stopped to help. That he was off duty didn’t matter—fire departments in his state allowed their personnel, even off the job, to stop and render aid if they encountered an emergency.

Kelly had come upon an accident scene on the Ronald Reagan Turnpike near Wildwood, FL, on June 8, 2002. A Toyota pickup had overturned in the heavy rain and lay on the median, its driver inside. The 26-year-old Oviedo Fire Rescue firefighter was one of six motorists—including two firefighters, an EMT and a physician—who pulled over to assist.

They were attempting to aid the trapped occupant as the tractor trailer approached. With traffic backed up on the wet highway, the semi’s driver swerved to avoid a slower-moving 18-wheeler in the No. 1 lane. Veering onto the median, the semi slammed into the Good Samaritans and the overturned pickup. Kelly and Orlando physician Donald Diedel were killed.

A crash report from the Florida Highway Patrol documented faulty windshield wipers on the semi. Kelly’s death was officially attributed to multiple blunt force injuries with compound fractures of the skull.

Where Duty Ends

Shane Kelly’s was ruled a line-of-duty death, but it might not have been everywhere. Florida has a statewide mutual-aid compact, signed by representatives of all its counties and cities, allowing employees of government fire and EMS agencies to respond to any emergency they encounter. By longstanding state law, the performance by such personnel of their regular professional duties, even after hours or in other jurisdictions, is considered within the normal scope of their employment.

At the time of Kelly’s death, though, there was some wiggle room for local jurisdictions to contest that. Basically, such jurisdictions could themselves define what their providers’ so-called regular duties were, potentially leaving an out in cases where it could be argued that a provider was acting outside the scope of those official duties.

This was not an out sought by Oviedo Fire Rescue, which deemed Kelly’s death line-of-duty from the outset. And after the incident, state policy was changed so that all such injuries and deaths among employees of government fire and EMS agencies in Florida are now considered to be in the line of duty. That’s a nice legacy for a young firefighter who gave his life. But it’s only one aspect to the complicated issue of off-duty responses.

“If Not Them, Then Who?”

It seems natural to allow, even encourage, selfless public servants with specific training and skills to apply them to help folks in need. They’re able, they’re usually willing, and they’re almost always ready.

“Firefighters and EMS personnel are probably the first people who will stop at a traffic collision to do something other than ogle,” says Walt Malo, who oversees firefighter safety for the Florida State Fire Marshal’s office. “They’re trained to handle this kind of emergency. And beyond that, these are people who like to help people—that’s why they’re in the profession. They’re going to do what they can when the need arises. If not them, then who?”

But should they? What happens when they get hurt or killed? Are they covered? Are they liable if they screw up?

“It’s a complicated issue,” says Rick Patrick, MS, FF, EMT-P, director of EMS programs and services for York, PA-based emergency-services insurer/consultant VFIS. “Sure, people should stop and render care. But that’s just a Good Samaritan issue. It’s not necessarily more of a responsibility for a trained provider. The states vary on requiring fire and EMS providers to stop—some do, some don’t, and it can be a very controversial subject.”

Know the Rules

The first aspect to this discussion is what you’re legally allowed to do. Does your state allow you to stop and help when you’re not on the job? Does your department? If the answers are yes, are there specific requirements as to when and how?

There are subtle shades even to a matter as seemingly basic as this. What, for one, does off-duty really mean?

“If everybody’s paid, it’s clear what ‘off-duty’ is,” says Patrick. “But from a volunteer standpoint, there’s a school of thought that as a volunteer, you’re always on duty, no matter where you are.”

In other words, you may, by state or local law, have a duty to respond to accidents or injuries you encounter (and this may be true for paid providers as well as volunteers). And there may even be further distinctions beyond that: Does your state law distinguish between public and private agencies? (Florida’s does: That mutual-aid agreement and line-of-duty assumption do not apply to private EMS agencies—individual medical directors set the policies for those.) What about responding directly to an incident versus responding after you return to the station first? (The latter may make you part of an official response, and thus provide additional protections.)

Other pertinent factors to consider include Good Samaritan and Worker’s Comp laws. Are you legally protected if you render aid outside the job? Are you covered if you’re injured while doing so? Will your department, under the Fair Labor Standards Act or terms of a collective bargaining agreement, have to pay you for your unrequested labor?

With EMS governed at the state level, it’s not possible to generalize about most of these issues. You have to know the rules in your state.

“First and foremost, you need to look at your state’s Worker’s Compensation law to see if it has any express prohibitions,” says Chuck Ryan, a captain with Fairfax County (VA) Fire and Rescue and an attorney in the Washington, DC, offices of Dombroff & Gilmore, a law firm active in emergency-services litigation. “It’s also not a bad idea to check out the Good Samaritan laws. Virginia, as an example, provides immunity for EMS providers or people rendering aid when not compensated, though that does not apply when compensation is involved. Good Samaritan laws, obviously, are in place to encourage citizens to assist others in need, within reason—within their scope of training and expertise.”

That last part is important. Depending on the state, you, as an EMS provider, may not be protected if you try to act outside what you’re specifically trained to do.

“The standard by which you’re judged for negligence is: Did you act in accordance with somebody of the same and/or similar training and expertise?” notes Ryan. “If you’re a second-year EMT who stops at the scene of an accident, the standard of care that’s going to be applied to you will be the standard of care of second-year EMTs, not of paramedics. It’s sort of a sliding scale of what you know and should know. That second-year EMT shouldn’t be doing a field tracheotomy!”

Elsewhere, you may not be required or even allowed to do more than the so-called “prudent layperson” would in the same position.

“When you’re off duty, there’s a good argument that you can only do what the average layperson could do in a similar situation,” says Patrick. “Granted, your knowledge base may be greater, but if you don’t have all your equipment and gear, you may not be able to use it. So that plays into what a Good Samaritan actually is.”

Assuming you’re personally shielded from potential litigation arising from your efforts to assist, you also have to think of your department—will what you’re doing get them sued? City and county agencies may enjoy sovereign immunity, or blanket protection from being sued. Then again, they may not. Ditto for privates.

“Say somebody’s involved in a car accident, and they’re looking for people to sue,” says Ryan. “For some reason or another, the plaintiff’s lawyer decides that the care rendered by off-duty firefighter/EMT John Smith wasn’t up to snuff. They’re going to sue not only the individual, but the agency as well, because it’s typically the agency that provides the training.

“This is just the real-world view of this. Obviously, we’re in a litigious society. There are sovereign immunity laws all over the place, but that doesn’t stop some people from at least putting the name on the complaint and serving the lawsuit. They may not get anywhere with it, but it still presents a risk, and there’s a cost associated with it.”

As additional protection in such scenarios, some providers favor personal insurance. This is not unanimously regarded as a good idea—some feel it’s an invitation to sue—but it can offer an additional level of protection against your actions having unintended legal consequences.

“I think it’s a good idea. It’s like renter’s insurance, in my view,” says Ryan. “It’s cheap, and it protects you when you really need it. You don’t have to worry about your home or your assets in the event of a judgment.”

Know your state’s laws and your department’s policies, and get an educated opinion on what you can and should do if someone needs your after-hours professional help.

Road Rules

By the side of the road, matters become far less ambiguous.

While there’s a dearth of formal data on the topic, it seems that many off-duty responses are to vehicle accidents. Thus, the first step for departments allowing off-duty responses to take is one recommended by the National Institute of Occupational Safety and Health (NIOSH) in its investigative report on Kelly’s death: “Fire departments should develop SOPs for the response of off-duty firefighters in their privately owned vehicles to interstate highway incidents.”

The National Fire Protection Association’s 1500 standard (Standard on Fire Department Occupational Safety and Health Program) agrees, but broadens it beyond the highways: “[Fire departments] shall enact specific rules and regulations pertaining to the use of private vehicles for emergency response.”

This kind of formalization works to protect the folks in the field. It spells out what they should do and how, and lets departments maximize their people’s scene safety.

“Core to any of these issues, no matter what the topic is, is policy,” says Patrick. “People want to know what’s expected of them, and then have guidelines or policy that allows them to do it. It’s to management’s betterment to have good policy with sound, doable SOPs.”

Sound, doable SOPs are essential, but they present a double-edged sword as well: They may need to be specific to fully protect personnel, but from a legal perspective, getting too specific can cause trouble. The more rules you place on such acts, the greater the potential for violating one and thus incurring liability.

“Having a policy is better than not,” says Ryan, “but it’s not a bad idea if it’s generic: ‘We encourage our personnel to render aid when they see the need for such aid, and be mindful of personnel safety and universal precautions’ and so forth. But having the policy, and keeping it as generic as possible, is better than remaining silent on it.”

According to NIOSH, highway SOPs should discuss such things as vehicle positioning, minimum equipment requirements, methods of securing the area, and wearing appropriate high-visibility clothing.

In Kelly’s case, none of the six impromptu rescuers was wearing a safety vest or reflective material, and there were no flares, cones or other traffic-control devices to help fend off other motorists.

“There was a state trooper on the scene, and they carry that kind of stuff in their cars, but this thing had just happened,” says Malo. “He had parked his vehicle on the left-hand shoulder, with the overhead lights on—that should warn somebody. His vehicle was blocking the scene; in fact, the truck avoided the state trooper’s car—it went around him and plowed into the group of victims and emergency people.

“There were a lot of circumstances in this situation that made it ripe for catastrophe. Had that 18-wheeler come down the road five minutes later, there would have been all kinds of emergency equipment on the road, and that lane probably would have been closed.”

The Safe Samaritan

Other drivers’ inattention is something you can’t control. But if you’re going to be working roadside scenes without the benefit of apparatus and uniform, there are steps you can take to improve your odds of emerging unscathed.

VFIS offers a number of resources in this area. One is a video, Highway Safety for Emergency Services, that discusses elements of vehicle safety (see Table 1 on page 54). Most of these have some applicability to private vehicles and off-duty activities, as well as to official apparatus and formal responses.

“Essentially, what we’re teaching people is what construction companies have been doing for decades,” says Patrick. “We’re taking it into the emergency-services arena, because it’s really not different. We can do the same things.”

Many of these are commonsense and easily adapted for first-on-scene responders in private vehicles. But some require equipment. Again, before you load up your trunk with cones and flares and reflective vests, check the laws in your state and your department policies, and be sure of what you’re allowed or prohibited to carry.

When pulling over to help at an accident scene, get as far away from traffic as possible. Move yourself or, if permitted, move the traffic. Secondary to that, be big, bright and easily seen. Carry clothing that makes you stand out.

“Most important is a safety vest,” says Thom Dick, quality care coordinator for Pridemark Paramedic Services in the Denver area and a 34-year veteran of EMS. “Not body armor, but just some basic reflective gear. Flares are also probably good, even outside of rural areas. The California Highway Patrol, for instance, will restock your personal flares if you’re at a scene before the designated responders and you use your flares.”

From a treatment standpoint, “a decent first aid kit is a good idea,” says Dick, “and if you live in a really rural area, a lot of people carry oxygen setups that they purchase themselves, and then recharge the tanks at a local fire department. And some of them carry tanks that are provided by volunteer agencies.”

Check your state law on this, though. As oxygen is explosive, not all states allow it to be carried in private vehicles.

Shielding the scene with emergency vehicles is fairly common practice, and it can be done with private vehicles as well. You may not have a light bar or stand out from traffic like your rig, but there’s no doubt that even your personal vehicle will withstand an impact from another car better than you, yourself will.

A caveat, though: As you’re blocking out other traffic, don’t block out the emergency vehicles that will inevitably need access to the scene.

“The first-in vehicle may be a personal vehicle,” says Patrick, “but the next-in vehicle may be the ambulance, and they have to be able to get into the scene and out with the patient. Make sure you’re protecting yourself and the scene, but at the same time, remember that when the engine or a heavy-rescue truck arrives, they need to be right on top of the crash.”

Whether you’re on duty or off, it seems subjects like these can sometimes get short shrift in terms of formal instruction and articulated policies. The information is out there, but departments don’t always make it available or emphasize it as strongly as they should.

“I don’t think there’s always good safety training for EMS about where to park your vehicle and how to protect yourself,” says Dick. “I’ve seen conflicting practices in different places. For instance, in some places, they’ll tell you to park upstream, to block traffic. But that makes it difficult to load the ambulance, because you have to go into the stream of traffic to get the patient to the loading doors. Ideally, it’d be great to have law enforcement set down lanes for you, but you’re often there before they are. And if they are there first, the scene is often not yet well-controlled.”

Scene control is the bottom line, and there’s no magic bullet for safety. It’s important to remember that all the cones, flares, vests and strategically parked vehicles discussed here, constitute imperfect measures. In fact, they can give providers a rather false sense of security.

“I would actually caution against providing off-duty personnel with traffic cones and those kinds of things,” says Malo, “because it gives people an opportunity to enter into a situation they normally wouldn’t enter into, when there’s no real protection.”

Another very real fact—and let’s be realistic here—is that if the situation is dire enough to warrant stopping, a lot of providers will feel like they don’t have time to take steps to adequately control the scene. If a trauma patient is gushing blood, how can you bother putting down cones?

“Even if they have the necessary equipment in the trunk, if they’re the first to arrive on the scene, they may not take the time to use them,” says Malo. “They’re probably going to go right to the victim.”

“It goes against the grain of a lot of EMSers, I think, to take the time to lay out flares and block off traffic,” agrees Dick. “They feel like what they should be doing is taking care of the patient. But if you think about doing the most good for the most patients, you really should have a priority for controlling traffic.”

Events like the one that killed Shane Kelly are a real threat, and if you wish to help at roadside accident scenes, conquering that basic rush-to-help impulse is a must.

“It’s hard for a lot of EMS people to do, because they’ve always been trained to tend to the patient first,” says Malo. “But you can’t help anybody if you become a victim as well. It is extremely important to make the scene safe first—that has to be the priority.”

Good Help Is Hard to Find

Scene etiquette bears mention in this discussion. If you’re the first on an accident scene, on-duty responders will likely appear soon. In virtually all cases, your continued participation will be at their pleasure.

It’s on the other side that the decision has to be made. If you’re the first component of the official response and arrive to find a bystander rendering assistance, do you let him—even if he’s specifically trained—continue to assist?

If state law or department policy says no, that’s clear enough. But if you’re allowed discretion, it becomes trickier, and opinions vary on what you should do.

“If you pull up to a scene and somebody is rendering what appears to be effective care, my opinion would be to let them continue,” says Dick. “I think that also involves family members. If somebody’s doing effective CPR, there’s really no reason to interrupt them unless they’re getting tired or want to be relieved.”

“It’s going to be person-power dictated,” says Patrick. “If you have enough person power with you, I’d relieve them. But if you’re a two-person crew showing up and somebody’s already doing CPR, that’s going to allow you to do other things to enhance treatment.”

If you’re the more highly trained provider, you may be required to assume control. But however you proceed, be aware of all potential legal consequences. Might you or your agency be liable if the person you let help makes a mistake? Also, know how your state laws and department’s protocols apply to other healthcare providers. You may have to defer to a physician or a nurse with more training.

And by all means, if it looks like the bystander’s care isn’t up to snuff, you must step in.

“Whoever the practitioner is, if it looks like their care is wacky, you have a right to question it,” says Dick. “But I don’t think it would ever be appropriate to dismiss somebody out of hand who was doing a good job.”

The Big One

It’s worth noting that the discussion so far has centered on individual providers responding to single small-scale incidents they happen upon while off the job. A problem many in the emergency services will recall from three years ago was well-intended fire and EMS providers rushing to the scene of a major large-scale disaster: the World Trade Center. These off-duty personnel were not part of the official response and were not plugged in to any formal structure—hence those orchestrating the formal response never knew they were there, didn’t direct their efforts and couldn’t integrate them with others on scene. Of the 343 firefighters killed, 60 were off-duty.

In the aftermath of that catastrophe, a quick consensus formed in the emergency services: This is not a good thing. As much as you might want to help when the Big One hits your town, you have to go through channels.

“That is true. And it was true before the World Trade Center too, only people didn’t follow it,” says Dick. “I think that incident was responsible for publicizing the consequences of not conducting a coordinated response, and just responding willy-nilly.”

FDNY policy at the time prohibited off-duty personnel from participating in fire department operations. This was routinely enforced at smaller incidents. But the planes struck the towers at the approximate time shifts were changing in the city’s stations, and a lot of off-going providers ended up coming to the scene to help.

“They were trying to do something worthwhile,” Deputy Chief Charles Blaich told Newsday. “[But] there has to be a level somewhere saying, ‘That’s wonderful, now get out of here.’ ”

“The scene is very difficult to control when you have lots of people showing up,” another unidentified chief said. “We have to have command and control. We have to know who is in there.”

“If you don’t have accountability,” says Patrick, “it’s hard to have control.”

Conclusion

Like so many topics in EMS, it’s tough to generalize about off-duty responses. State labor codes, Good Samaritan statutes, Worker’s Comp laws, department and union policies and more may affect what you can and should do if you happen upon a fellow citizen in need.

Within those parameters, many fire and EMS personnel will willingly help whenever and however they can. In such instances, it is imperative to do as much as possible to ensure one’s own personal safety. It’s not your emergency, as the saying goes, and you won’t be much help by becoming a victim too.

“Most first responder and emergency services injuries and deaths occur in their first 10 minutes on scene,” notes Patrick. “That’s when the scene is not yet controlled. If we don’t control the scene, from a safety perspective, from the outset, we’re only killing ourselves.”

That’s important to remember, whether you are on- or off-duty.