When 911 Responders Fail Wantonly: Ohio Supreme Court Says Cities Can Be Held Liable (Riffle v. Akron)

Published April 9, 2013 · Ohio Supreme Court

Early on the morning after Christmas 2008, Andrea Riffle, in her third trimester, began bleeding heavily, and her family called 911. The Akron Fire Department's EMS crew arrived, took her vital signs, did not check on the unborn child, and did not take her to the hospital. Instead they called a private ambulance company and waited. By the time she reached the labor and delivery unit, the baby's heart rate had collapsed. Doctors performed an emergency cesarean section. The child lived three days.

The Riffles sued the city. Akron's answer was that it is a political subdivision performing a governmental function and is therefore immune, no matter how badly its paramedics performed. On March 21, 2013, a unanimous Ohio Supreme Court rejected that argument in Riffle v. Physicians & Surgeons Ambulance Serv., Inc., 135 Ohio St.3d 357, 2013-Ohio-989. When a city's emergency medical crew acts with willful or wanton misconduct, the city is not immune.

The immunity statute and its fifth exception

Ohio's Political Subdivision Tort Liability Act, R.C. Chapter 2744, starts from the rule in R.C. 2744.02(A)(1) that a city, county, township, or similar body is not liable for injury or death caused by its employees in connection with a governmental function. Providing emergency medical services is a governmental function. I have written about how narrow the exceptions are, most recently in the pothole decision from Cleveland and in the Supreme Court's rec-center ruling.

The exception at issue in Riffle is R.C. 2744.02(B)(5). It makes a political subdivision liable "when civil liability is expressly imposed upon the political subdivision by a section of the Revised Code." The General Assembly added a caution: liability is not "expressly imposed" just because another statute gives a city a duty, uses the word "shall," or carries a criminal penalty.

The other statute in play is R.C. 4765.49(B), Ohio's emergency-medical-services immunity law. It says a political subdivision that provides EMS is not liable for the actions of its first responders, EMTs, and paramedics "unless the services are provided in a manner that constitutes willful or wanton misconduct."

Akron's argument, and why it lost

The city argued that R.C. 4765.49(B) is just one more immunity, a defense that only matters if a plaintiff first gets through one of the five exceptions in R.C. 2744.02(B). Under that reading, a city could never be liable for its EMS crews at all, because no exception in 2744.02(B) specifically mentions emergency medical care. The Riffles pointed out that this would make the "willful or wanton" language in 4765.49(B) meaningless for cities.

The Supreme Court traced the history. The EMS statute's predecessor was enacted in 1976, before the Supreme Court abolished common-law immunity in 1982 and before the legislature reinstated it in Chapter 2744 in 1985. For decades, appellate courts across Ohio, including the Second District, have read the EMS statute to deny immunity when paramedics act wantonly, and the General Assembly has amended the statute repeatedly without disturbing those rulings.

Reading the two statutes together, the Court held that R.C. 4765.49(B) expressly imposes liability on a political subdivision for emergency medical services provided with willful or wanton misconduct, and that this triggers the (B)(5) exception. The Riffles' complaint, which alleged that the crew acted negligently, recklessly, and wantonly, therefore states a claim, and the case goes forward.

Willful or wanton: a high bar, honestly described

This decision does not make cities liable for every mistake a paramedic makes. Ordinary negligence, meaning a failure to use reasonable care, is still protected by immunity. The exception requires willful or wanton misconduct. In general terms, willful misconduct is an intentional departure from a clear duty with knowledge of the likely harm, and wanton misconduct is a failure to exercise any care at all toward someone to whom a duty is owed, in circumstances where there is a great probability that harm will result. These are demanding standards, and I discussed how Ohio courts apply similar language to emergency vehicles in this post on a fire-truck crash case.

But the standard is not impossible, and Riffle shows what kind of facts can meet it at the pleading stage: a crew that responded to a pregnant woman with serious bleeding, took vitals, did not assess the fetus, did not transport, and handed the patient off to a private ambulance. Whether that was wanton is now for a jury, not for a motion to dismiss.

Why early investigation decides these cases

Immunity cases against EMS agencies are won or lost on records that the city controls:

• The run report (patient care report) that the crew completed, including times of dispatch, arrival, assessment, and departure, and the vital signs and interventions recorded.
• Dispatch and radio logs from the 911 center, which show what the caller reported and how the call was coded.
• Protocols. Every EMS agency operates under written medical protocols that tell crews when to transport, when to call for advanced life support, and how to assess obstetric emergencies. A crew that ignored its own protocol is far closer to wanton than one that followed it.
• Training and discipline files for the responders involved.
• Hospital records showing the patient's condition on arrival, which establish what the delay cost.

Much of this is obtainable through public-records requests before a lawsuit is ever filed, and some of it, particularly recordings, is overwritten on a schedule. Our office treats claims against the government as its own practice area because the procedures, the deadlines, and the evidence are different from an ordinary negligence case.

What this means for you

If you called 911 and the responders' conduct went beyond a mistake, if they refused to transport a patient who was obviously in crisis, ignored their own protocols, or abandoned a patient, Riffle confirms that the city cannot simply point to Chapter 2744 and walk away. The family will still have to prove willful or wanton misconduct, which is why the records described above have to be requested immediately.

The private ambulance company and its employees were also defendants in Riffle. Private EMS providers have their own immunity under R.C. 4765.49, also limited to conduct short of willful or wanton misconduct, but they are not political subdivisions and are not shielded by Chapter 2744. In a case involving both public and private responders, both have to be evaluated.

Our wrongful death practice handles these cases with care, with the perspective of nineteen years in public safety. I know how run reports are written and what a competent crew should have done. If your family lost someone because responders failed them, call and let me look at the records.