- The Washington Times - Thursday, February 6, 2014

For decades, the “public duty doctrine” has been cited by judges across the country to dismiss any number of cases seeking to hold police, firefighters and paramedics accountable for seemingly egregious violations of their duty.

Now the little-known legal precedent — which says emergency workers have no legal obligation to help people in trouble but only a general duty to the public at large — is coming into question from family members of a man who died of a heart attack near a D.C. fire station after being refused help from trained medical personnel inside.

Medric Cecil Mills Jr., 77, died last month after collapsing at a shopping center across the street from Engine 26 in Northeast D.C. in an incident that drew national headlines and outraged Mayor Vincent C. Gray, who demanded an immediate investigation.

“Bystanders were screaming for help to the firefighters,” Mills‘ son, Medric Mills III, said at a press conference Thursday at the shopping center. “But when a medical emergency happened right on their doorstep, they ignored it.”

An attorney for the family was asked immediately about the prospects of a lawsuit against the city — and it’s chronically troubled Fire and Emergency Medical Services Department.

Karen Evans, who is representing the family, said the Millses were evaluating their legal options, and she quickly turned the spotlight to a potential legal hurdle for cases brought under similar circumstances: the public duty doctrine.

In the District, the doctrine prevents the city government from being found negligent for failure to provide services, such as police and emergency response, except in limited circumstances. The District also “has no duty to provide public services to any particular citizen,” a recent D.C. Court of Appeals ruling affirmed.

“It basically says there is no obligation to protect the public,” said lawyer Charles Jerome Ware, who recently represented the family of Durand Ford Sr.

Ford died on New Year’s Day 2013 after waiting 30 minutes for an ambulance to transport him to a hospital on a night the department complained of being short-staffed. The $12 million lawsuit was dismissed in September, with D.C. Superior Court Judge Neal E. Kravitz writing that all claims were “barred as a matter of law by the public duty doctrine.”

Similar laws are used across the country to protect jurisdictions from lawsuits that could drain their coffers and leave them unable to provide services at all.

Some judges have taken the view that it’s not the role of the judiciary to second-guess lawmakers’ decisions about how resources should be allocated. They say such precedents would, for example, put police officials in the position of insuring the personal safety of every member of their community.

But over the years, the District’s legal protection under the doctrine has become nearly absolute.

“The public duty doctrine in Washington is the toughest. It’s pretty concrete,” Mr. Ware said. “Maryland will allow some claims if there appears to be gross or willful actions on behalf of the department. In D.C., they don’t even allow you to get to the point of deciding that.”

Lawyer Jeffrey Light litigated — and lost — the case of Phyllis Woods, who emergency personnel concluded in 2009 was suffering from cigarette withdrawal and did not transport her to a hospital when, in fact, she was showing early signs of a stroke. Both the judge in the case and an appeals court cited the public duty doctrine.

“On some level, it makes a little bit of sense. You shouldn’t necessarily be able to sue police every time a crime is committed and wasn’t prevented,” Mr. Light said.

But of the lack of response in the Mills case, he said, “It seems unconscionable that we would permit that kind of behavior.”

The public duty doctrine for police and emergency responders extends to other public employees. An appeals judge referenced the doctrine in tossing a 1990 lawsuit brought when workers mistakenly damaged part of a home in the course of working on a neighboring structure. A lawsuit claimed that a D.C. inspector should have exercised greater control over the project.

It was also referenced in dismissing wide-ranging claims against the police department and the city for negligence in the death of a 16-year-old girl in a 2010 drive-by shooting on South Capitol Street that was regarded as one of the worst in the District in recent memory.

Gun rights advocates, noting that police are not bound to provide any emergency response, have cited the doctrine as a justification for greater access to firearms as a means to protect their homes.

According to court filings made in the Woods case by the D.C. office of the attorney general, the doctrine has been cited to dismiss at least 17 cases in recent decades. Among them were:

A 1994 case in which accident victims drowned after police prevented civilians from attempting to rescue them.

A 1990 case in which a couple were killed by an escapee from a D.C. halfway house.

A 1990 case in which a man died after he called an ambulance about a headache and was told to take aspirin.

An exception to the doctrine comes in cases in which a “special relationship” exists between emergency workers and the people they treat — a relationship that exceeds the response generally made to other members of the public.

The attorney general’s office in its filing provided just two examples of cases in which the court agreed that a special relationship existed. One of those cases involved a child who starved after a D.C. agency received a report and follow-up warnings.

Officials are conducting an investigation into the circumstances surrounding Mills‘ death.

Noting that the city’s EMS department has been the subject of four major investigations over the past 24 years, Ms. Evans said the family is asking for better.

“Change must come, real change,” she said. “There have been too many reports, too many reviews and too many task forces about D.C. Fire and EMS. What is needed is reform of the law.”

D.C. Council member Tommy Wells, the Ward 6 Democrat who heads the committee that has oversight of public safety agencies, said he will hold a hearing this month on the failed response to the Mills case and plans to raise questions about tort reform as well.

While either the local courts or the D.C. Council have the ability to make changes to the way the District enforces use of the public duty doctrine, past actions show reforms could be an uphill battle.

The D.C. Council opposed any limitations of the doctrine in a July filing in the Woods case.

“The public duty doctrine remains a vital component of the District’s delivery of police, fire, and emergency medical services that should remain intact as implemented by the judicial branch,” the D.C. Council’s general counsel, V. David Zvenyach, wrote in documents filed in the D.C. Court of Appeals.

In the filing, the council’s attorney reasoned that allowing exceptions to the doctrine would give rise to more lawsuits that could drain funding that the government needs to improve and maintain city services.

Though the appeal in the Woods case upheld the city’s use of the public duty doctrine, one judge noted that the broad scope with which the doctrine is used is perhaps not the way it initially was intended.

Judge Kathryn A. Oberly said limiting the legal options after such “inexplicable negligence” on the part of the District’s EMTs “suggests that we have let the doctrine sweep far more broadly than is necessary to strike the proper balance between protecting the District from sweeping liability, on the one hand, and allowing the District’s citizens the chance to prove that their government has failed them miserably, on the other.”