PDA

View Full Version : fatigued employees making mistakes- employer liable?


Bob_m
05-05-2006, 06:48 AM
I'm writing an article on shift employees and their working hours.
What I'm trying to find out is if there's caselaw or existing law that
holds employers accountable for mistakes that their employees make
while working extended hours. So far I haven't come up with much in
my searching. I've found several cases where it was found employers
could not be held liable when an employee had an accident on the way
home from work and then claimed that it was caused by long work hours.
What I'm thinking of, for instance, is a doctor who is scheduled and
works two 16 hour shifts in a row. During the second 16 hour shift,
he makes a mistake and a patient dies. The family of the patient sues
the hospital, claiming they were negligent in allowing him to work
such long shifts. My article is focusing on firefighters and
paramedics working long shifts, but I think the doctor example is one
that more people are familiar with.

Can anyone point me in the right direction to find what I'm looking
for?

Stuart Bronstein
05-07-2006, 08:34 PM
Bob_m <robert@usa.com> wrote:

I'm writing an article on shift employees and their working hours. What I'm trying to find out is if there's caselaw or existing law that holds employers accountable for mistakes that their employees make while working extended hours. So far I haven't come up with much in my searching.

An employer is generally responsible for anything an employee does that
is in the course and scope of his employment. It's called the doctrine
of respondeat superior, and there are whole books written on the
subject.

Whether or not someone is a shift employee should have no bearing on
the general rule. It might be evidence that supports a claim of
negligence. But there is no separate rule for shift employees.

Stu

Mike Jacobs
05-07-2006, 08:34 PM
Bob_m wrote:
I'm writing an article on shift employees and their working hours. What I'm trying to find out is if there's caselaw or existing law that holds employers accountable for mistakes that their employees make while working extended hours. So far I haven't come up with much in my searching.

You probably won't find much because such a theory isn't necessary to
hold the employer liable for negligent mistakes made by the employee in
any event. There is a principle of law called "respondiat superior"
which makes the employer liable for the negligence of his employee
committed in the course and scope of the employment and/or while
carrying out the interests of the employer. There is no need to
invent new theories that a skeptical jury might reject, when there is
already this well-established rule that does the same thing.

I've found several cases where it was found employers could not be held liable when an employee had an accident on the way home from work and then claimed that it was caused by long work hours.

That's because the employee was on his own time when driving home from
work. It is not the employer's responsibility if the employee chooses
to drive himself home while tired instead of taking a cab, a bus, the
subway, or walking -- or having a personal chauffeur, or having a
family member come pick him up. It is not the employer's fault that
the employee chose to live somewhere so distant from his place of work
and from available public transportation that he had to drive (or take
a cab). All those choices are the employee's sole responsibility.

What I'm thinking of, for instance, is a doctor who is scheduled and works two 16 hour shifts in a row. During the second 16 hour shift, he makes a mistake and a patient dies. The family of the patient sues the hospital, claiming they were negligent in allowing him to work such long shifts.

The question the victim's attorney will ask himself is, why bother to
allege and have to prove such a derivative, Rube-Goldbergish theory of
the case when I can just allege and prove the facts amounting to the
doctor's own negligence, which will be attributed to the hospital since
he did it in the course of employment? Why complicate matters?
It's going to be hard enough as it is.

My article is focusing on firefighters and paramedics working long shifts, but I think the doctor example is one that more people are familiar with.

If a firefighter or paramedic makes a negligent mistake in the course
of his employment, the same principles of "respondiat superior" would
apply. There's usually no need to prove "negligent scheduling" or some
such theory on the part of the employer.

Can anyone point me in the right direction to find what I'm looking for?

Probably not, but hopefully the above will clarify matters. Good
luck,

--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal
matter.
For confidential professional advice, consult your own lawyer in a
private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300

Ruth
05-07-2006, 08:34 PM
"Bob_m" <robert@usa.com> wrote in message
news:haim525rffi28a28jfditm7lgt6d16u5sa@4ax.com...
I'm writing an article on shift employees and their working hours. What I'm trying to find out is if there's caselaw or existing law that holds employers accountable for mistakes that their employees make while working extended hours



The common law doctrine you are referring to is "Respondeat superior", latin
for "let the master answer", is a legal doctrine which states that an
employer is responsible for employee actions performed within the course of
the employment.

When applied to physical torts as employer/employee relationship must be
established and the act must be committed within the scope of employment
(i.e. substantially within time and geographical limits, job description and
at least with partial intent to further employer's business).

Historically, this doctrine was applied in master/servant or
employer/employee relationships. If the employee or servant committed a
civil wrong against a third party, the master or employer could be liable
for the acts of their servant or employee when those acts were committed
within the scope of the relationship. The third party could proceed against
both the servant/employee and master/employer. The action against the
servant/employee would be based upon the direct responsibility of the
servant/employee for his conduct. The action against the master/employer is
based upon the theory of vicarious liability, by which one party can be held
liable for the acts of another.


--
Ruth, Greta, Woody & Thelma

Mike
05-10-2006, 09:14 AM
Bob_m <robert@usa.com> wrote:
I'm writing an article on shift employees and their working hours. What I'm trying to find out is if there's caselaw or existing law that holds employers accountable for mistakes that their employees make while working extended hours. So far I haven't come up with much in my searching. I've found several cases where it was found employers could not be held liable when an employee had an accident on the way home from work and then claimed that it was caused by long work hours.

An employer can't be held liable (in most cases) for what happens to an
employee or what the employee does AFTER hours, as you found out. So that
isn't quite the same thing as an employee having an accident while AT work
(such as if he's driving from one office to another on the clock.)

What I'm thinking of, for instance, is a doctor who is scheduled and works two 16 hour shifts in a row. During the second 16 hour shift, he makes a mistake and a patient dies. The family of the patient sues the hospital, claiming they were negligent in allowing him to work such long shifts. My article is focusing on firefighters and paramedics working long shifts, but I think the doctor example is one that more people are familiar with.
Can anyone point me in the right direction to find what I'm looking for?

Can't answer specifically (not being a lawyer) but often an employer is
liable for the actions of his employees when they do something while on the
job that harms another person. So if the doctor screwed up and prescribed
the the wrong meds for a patient (even if it's was due to just plain
in-attention and not necessarily due to lack of sleep,) the hospital may be
liable but if the doctor wrecked his car on the way home due to lack of
sleep, they would not be liable.

--
Mike

-------------------------------
"Our enemies are innovative and resourceful, and so are we. They never stop
thinking about new ways to harm our country and our people, and neither do
we," George W. "Shrub" Bush Aug 5, 2004

Bob_m
05-10-2006, 09:14 AM
You probably won't find much because such a theory isn't necessary tohold the employer liable for negligent mistakes made by the employee inany event. There is a principle of law called "respondiat superior"which makes the employer liable for the negligence of his employeecommitted in the course and scope of the employment and/or whilecarrying out the interests of the employer. There is no need toinvent new theories that a skeptical jury might reject, when there isalready this well-established rule that does the same thing.

This is all some great stuff for me to consider, thanks to everyone
for educating me on the legal aspects of such cases. I have two
thoughts, however, after reading the responses:

1. I would think that in some cases, it would be harder to prove
negligence on the employee's part rather than proving negligence on
the employer's part through scheduling. Here's what I'm thinking: A
paramedic is up for 36 hours straight with no sleep. During the
course of running a call, he pushes the wrong dosage of a drug and a
patient dies or is injured severely. While it's a fact his action
caused the injury, proving negligence usually requires that the
plaintiff prove that "no reasonably prudent provider in the same
field" would have done the same thing in the "same or similar
circumstances." I would think it would be reasonably easy for the
paramedic's attorney to prove that any other paramedic up for 36 hours
with no sleep could have made the same mistake. The defense attorney
then lays the blame on the employer for scheduling the paramedic to
work such long hours with no rest. Either that or the plaintiff's
attorney realizes that such a defense could be made on the claim of
medical malpractice and simply goes after the employer right off the
bat for negligently scheduling the paramedic to work such a long shift
where they knew that the employee could make mistakes due to lack of
sleep

I'm not trying to be argumentative, and I'm certainly no attorney, I'm
just genuinely trying to understand this. Isn't this lack of sleep
issue what got long haul trucking companies to set maximum driving
hours and stopped hospitals from working their resident physicians 120
hour work weeks?

2. Let's put another spin on this. The same paramedic, while driving
to an emergency call after 36 hours of no sleep, nods off at the wheel
and slams into another vehicle. The patient they were responding to
dies because they didn't get there on time, and the paramedic suffers
critical injuries. Couldn't both the paramedic and the dead patient's
family sue the employer for "negligent scheduling?"

Thanks for the help! This is going to help me out a lot in my
article.

Stuart Bronstein
05-11-2006, 08:31 AM
Bob_m <robert@usa.com> wrote:

1. I would think that in some cases, it would be harder to prove negligence on the employee's part rather than proving negligence on the employer's part through scheduling.

It's simply not an issue. If they prove employee negligence (in the
course and scope of his employment) then the employer is generally
liable. If they find the employer negligent and that negligence was
the proximate cause of the injuries, they're responsible for that,
too. (Though it's difficult for me to think of a situation in which
an employer could be liable for damages caused by an employee's
action when the employee was not negligent).

I'm not trying to be argumentative, and I'm certainly no attorney, I'm just genuinely trying to understand this. Isn't this lack of sleep issue what got long haul trucking companies to set maximum driving hours and stopped hospitals from working their resident physicians 120 hour work weeks?

Sure. And it could be relevant to the cause of damages. If the
employee claimed he did everything he was supposed to but hadn't
gotten sleep for three days, the jury could disbelieve the employee
and conclude that he had, in fact, not acted reasonably.

But not getting sleep in and of itself isn't the direct cause of an
injury, though it may be a contributing factor.

2. Let's put another spin on this. The same paramedic, while driving to an emergency call after 36 hours of no sleep, nods off at the wheel and slams into another vehicle. The patient they were responding to dies because they didn't get there on time, and the paramedic suffers critical injuries. Couldn't both the paramedic and the dead patient's family sue the employer for "negligent scheduling?"

The patient's family would have a claim if the employer legally had a
duty to show up and give aid. Unless there is a specific law or
contract, courts often hold that is there no legal duty. The reason
for failure to show up is irrelevant in any case.

As far as the driver's injuries, those are probably covered by
workers compensation, which pays whether anyone or no one was
negligent.

Stu

Mike Jacobs
05-11-2006, 08:31 AM
Bob_m wrote (after quoting me):
You probably won't find much because such a theory isn't necessary tohold the employer liable for negligent mistakes made by the employee inany event. There is a principle of law called "respondiat superior"which makes the employer liable for the negligence of his employeecommitted in the course and scope of the employment and/or whilecarrying out the interests of the employer. There is no need toinvent new theories that a skeptical jury might reject, when there isalready this well-established rule that does the same thing. This is all some great stuff for me to consider, thanks to everyone for educating me on the legal aspects of such cases. I have two thoughts, however, after reading the responses:

Thanks for the kudos, and not to be overly picky, just a kind reminder
that it is considered good netiquette to properly attribute quoted
material to the person who said it.

1. I would think that in some cases, it would be harder to prove negligence on the employee's part rather than proving negligence on the employer's part through scheduling.

After reading the last round of replies here another example occurred
to me. In long-haul trucking accident cases it is common for the
victim's attorney to look for and try to present evidence that the
trucker was being held to an unreasonable schedule by his employer,
e.g. a short deadline to carry a load a long distance (a la Smokey &
The Bandit) virtually forcing him to speed, and/or a compensation
system which rewards the driver on a piecework or per-mile basis with
the same net effect; and/or trip logs, black boxes, and dispatch notes
indicating that the driver got from point A (where one call-in was
made) to point B (where the next call-in was made) in such a short time
that his average speed was well over the limit, and/or to show that he
was on the road for more hours at a stretch than permitted by law,
leading to the dangerous combination of fatigue and aggressive
speeding.

But in these trucking cases it is still basically the driver's choice
to continue driving while fatigued and his direct negligence in his
speeding or handling of the vehicle that caused the accident and that
is the main thrust of the case. The evidence of "negligent
scheduling" is brought in for 2 main reasons: (1) to justify an award
of punitive damages against the employer, because their company policy
and practices showed a reckless disregard for safety and made the type
of accident that happened almost inevitable due to the pressures it put
on their drivers; and (2) to head off a driver's defensive comment
that "it wasn't my fault, I was tired because of what my employer made
me do." IMO the latter has no legal value and the defense attorney
may not be legally allowed to argue thusly in closing argument, but if
his client actually testifies to it, it is in the jury's minds anyway
so it may increase jury sympathy with the truck driver and hence lead
to lower overall damage awards, all else being equal. Conversely,
bringing in evidence of the employer's callous disregard for safety can
more than counteract that tendency and lead to even larger awards
against the defendant company, so it's a two way street.

Negligence is almost always a question for the jury on a case-by-case
basis, i.e. very few kinds of conduct amount to negligence as a matter
of law. The jury is called upon to decide if the defendant's conduct
was reasonable under all the circumstances, and if he did something
that a hypothetical reasonable person would not have done, that conduct
is negligent. Creative factual arguments can be made in a case where
they would be helpful, but my main point was, victim's attorneys have
no incentive to undertake the investigation and proof of such facts in
cases where it is NOT necessary and where there is a much easier and
more direct way to prove negligence. And if the victim's attorney
chooses before trial not to make such arguments, the upshot is they
will not be made at trial, and thus do not get preserved for appeal, in
the tiny percentage of tried cases that do get appealed, and thus
appellate-level courts rarerly get any chance to review and decide such
issues.

Here's what I'm thinking: A paramedic is up for 36 hours straight with no sleep. During the course of running a call, he pushes the wrong dosage of a drug and a patient dies or is injured severely. While it's a fact his action caused the injury, proving negligence usually requires that the plaintiff prove that "no reasonably prudent provider in the same field" would have done the same thing in the "same or similar circumstances."

Close, but there is a significant difference in phrasing it in the
negative, which would allow a single counterexample to disprove the
premise and turns the "reasonable person" into a concrete example
rather than a hypothetical ideal, reversing the appropriate standard.
Some particular defendants who are in fact reasonably prudent most of
the time DO make inadvertent mistakes, while tired or while not tired,
but that still usually amounts to negligence if most of them SHOULD in
all reasonableness have done better. This is as much a policy decision
as it is a purely factual one, which is why it is left up to juries
applying a community sense of what is just and fair and what is
expected of actors in such circumstances to determine what conduct is
negligent and what isn't. The standard is usually phrased in the
affirmative as: "_A_ [typical, hypothetical] reasonably prudent person
in those circumstances would NOT have done the same thing. If the
vast majority of fatigued EMT's do NOT inject the wrong dosage, and
esp. if this is considered an unacceptable mistake in the profession
due to its serious consequences and the ease of checking and
double-checking to make sure the right dosage was given, that tends to
show that this mistake should not have happened and thus that the
particular defendant's conduct fell below the expected standard of care
and was negligent.

I would think it would be reasonably easy for the paramedic's attorney to prove that any other paramedic up for 36 hours with no sleep could have made the same mistake.

Sure, they COULD have, but so could anyone else even if NOT overly
fatigued; mere possibility that something could happen does not prove
it to be an intervening cause sufficient to get the direct actor off
the hook for his own, unreasoniable conduct that directly caused the
harm. The defense would have to show a "probability", i.e. greater
than 50% likelihood, that the result would occur each time those
circumstances exist, in order to legally be able to make such an
argument in most jurisdictions. His attorney may sometimes try to make
such an argument obliquely, but consider that the employer and employee
often have the same insurance coverage and since there is no real
conflict between them over who will eventually pay the judgment, they
often are represented by the same attorney, so as NOT to give the
plaintiffs a chance to drive a wedge in between them. The smart
defense attorney will let his client testify to the circumstances in a
sympathetic fashion to humanize himself to the jury as a poor working
zhlub just following orders, and allow the jury to draw their own
conclusions to cut the defendant some slack. The smart plaintiff's
attorney will use the same evidence to show that the employer set up
the conditions for this type of negligence to happen to the point where
they virtually guaranteed someone would eventually make this mistake,
but will point out that it was still a direct violation of the
aapplicable standard of care for the paramedic to do what he did.

Fatigue is not an excuse; if it were, then everyone in the world who
got sued for negligence would just claim that he was too tired to be
thinking straight and it wasn't his fault. That's what checklists, and
double-checks of critical decisions by a fellow team member, are for.
Airline pilots, doctors, and lots of other professionals whose jobs
require them to make split-second decisions under trying and difficult
circumstances with people's lives at stake know this, and that's why
they use checklists and e.g. have prcedures that let the copilot
challenge the captain's decisions if he sees that it will make them fly
into a mountain. The paramedic in your example should have used a
checklist, checked it more than once, and let a fellow EMT also check
his results, which could have prevented the injury even after the
original, mistaken dosage decision was made.

The defense attorney then lays the blame on the employer for scheduling the paramedic to work such long hours with no rest. Either that or the plaintiff's attorney realizes that such a defense could be made on the claim of medical malpractice and simply goes after the employer right off the bat for negligently scheduling the paramedic to work such a long shift where they knew that the employee could make mistakes due to lack of sleep

Situations might arise where that could happen but, for all the reasons
discussed above, it is not very likely you will find many actual
appellate cases discussing this scenario.

I'm not trying to be argumentative, and I'm certainly no attorney, I'm just genuinely trying to understand this. Isn't this lack of sleep issue what got long haul trucking companies to set maximum driving hours and stopped hospitals from working their resident physicians 120 hour work weeks?

Pretty much, yes, but it's because they got tired of being sued and
having to pay big bucks for their employee's foreseeable negligence,
not necessarily because the "negligent scheduling" issue was directly
raised as a separate cause of action against the employer. Evidence of
such overscheduling nevertheless would usually be admissible in the
direct negligence case against the employee as part of the
"circumstances" under which his negligence should be judged.

2. Let's put another spin on this. The same paramedic, while driving to an emergency call after 36 hours of no sleep, nods off at the wheel and slams into another vehicle. The patient they were responding to dies because they didn't get there on time, and the paramedic suffers critical injuries. Couldn't both the paramedic and the dead patient's family sue the employer for "negligent scheduling?"

If the EMT is on an emergency call run at the time, he is driving on
the job, and is probably covered by worker's compensation insurance
through his employer (and thereby barred from suing his employer in
tort for negligently causing his injuries). The patient who didn't
get picked up may be your hypothetical guinea pig for the theory you
are proposing, since he was NOT injured directly by the paramedic's
negligence but only, if the court accepts this reasoning, by the
negligence of the employer in setting up a system which made such
failure-to-responid more likely to happen, eith4er from crashes
enroute, from being asleep at the switch, or whatever. Good luck
finding any such actual case.

Thanks for the help! This is going to help me out a lot in my article.

Don't mention it. Feel free to use my comments, just name me if you
quote me.

--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal
matter.
For confidential professional advice, consult your own lawyer in a
private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300

Guest
05-13-2006, 11:34 AM
Bob_m wrote, in part:
I'm writing an article on shift employees and their working hours. What I'm trying to find out is if there's caselaw or existing law that holds employers accountable for mistakes that their employees make while working extended hours.

prabbit1@shamrocksgf.com wrote, in part:
An employer can't be held liable (in most cases) for what happens to an employee or what the employee does AFTER hours, as you found out.

I suspect Bob_m should now understand from previous entries that
employers can be dinged for their employees' actions within the course
of their job duties regardless of how well rested said employees are.

The question of whether an injured party can sue an employer under a
theory of respondeat superior when a tired employee drives home and
causes an accident seems rather less well settled than prabbit1
intimates. "In most cases" would seem to be the case in Illinois
(resident works 36 hours and causes car accident - no employer
liability (Brewster v. Rush-Presbyterian)) but perhaps not in Oregon
(burger flipper falls asleep at wheel after long shift (Faverty v.
McDonald's)), California (employee gets dizzy from pesticides (Bussard
v. Minimed)) or Texas (dancer required to drink alcohol on job gets
into car accident (D. Houston, Inc. v. Love)).

I do not have a copt of the Restatement (Third) of Torts handy. Could
somebody so blessed by the ALI check out whether the on-site
requirement of s.317 of the Restatement (Second) of Torts relied upon
in Brewster has undergone a refit?

--
I am not your lawyer. This is not legal advice.

Seth Breidbart
05-13-2006, 11:34 AM
In article <oi0462l8p972c6v7sucg2gi26idhkeu0do@4ax.com>,
Bob_m <robert@usa.com> wrote:

1. I would think that in some cases, it would be harder to provenegligence on the employee's part rather than proving negligence onthe employer's part through scheduling. Here's what I'm thinking: Aparamedic is up for 36 hours straight with no sleep. During thecourse of running a call, he pushes the wrong dosage of a drug and apatient dies or is injured severely. While it's a fact his actioncaused the injury, proving negligence usually requires that theplaintiff prove that "no reasonably prudent provider in the samefield" would have done the same thing in the "same or similarcircumstances." I would think it would be reasonably easy for theparamedic's attorney to prove that any other paramedic up for 36 hourswith no sleep could have made the same mistake.

I would consider "same or similar circumstances" to apply to the
plaintiff's medical condition, estimated time to get him to a
hospital, etc.; not to the paramedic's condition.

Seth

Robert Bonomi
05-13-2006, 11:34 AM
In article <oi0462l8p972c6v7sucg2gi26idhkeu0do@4ax.com>,
Bob_m <robert@usa.com> wrote:

You probably won't find much because such a theory isn't necessary tohold the employer liable for negligent mistakes made by the employee inany event. There is a principle of law called "respondiat superior"which makes the employer liable for the negligence of his employeecommitted in the course and scope of the employment and/or whilecarrying out the interests of the employer. There is no need toinvent new theories that a skeptical jury might reject, when there isalready this well-established rule that does the same thing.This is all some great stuff for me to consider, thanks to everyonefor educating me on the legal aspects of such cases. I have twothoughts, however, after reading the responses:1. I would think that in some cases, it would be harder to provenegligence on the employee's part rather than proving negligence onthe employer's part through scheduling.

Was it the action of the employer -- in doing the scheduling -- that
directly and immediately caused the harm? Did the harm occur _when_
the scheduling was done? Could that scheduling have been done _without_
the harm occuring?

Or was it the action of the employee that directly and immediately caused
the harm? Did the harm occur _when_ the employee performed the action?
Could that action have been done _without_ the harm occuring?

You have to show that the _direct_ causation of the harm was the
negligent action.

'Scheduling' may have been a "contributing factor", but it was _not_
the 'cause' of the harm.

To have a case, you just have to show that "the employee screwed up in the
performance of his duties". You propose that the company is liable *because*
'the employee screwed up in the performance of his duties, due to the
way the company did the scheduling.'

Either way, you _first_ have to show that the employee 'screwed up in
the performance of his duties'. If he did *not* screw up, then there
is no actionable harm done, *regardless* of the scheduling basis.

Now, *IF* the employee _did_ 'screw up in the performance of his duties',
and you manage to establish that, you have met the requirement for holding
the employer liable. *WITHOUT*REGARD* to the scheduling issue. So,
"why bother" with the 'negligent scheduling' question?
you *HAVE* establisehd

Here's what I'm thinking: Aparamedic is up for 36 hours straight with no sleep. During thecourse of running a call, he pushes the wrong dosage of a drug and apatient dies or is injured severely. While it's a fact his actioncaused the injury, proving negligence usually requires that theplaintiff prove that "no reasonably prudent provider in the samefield" would have done the same thing in the "same or similarcircumstances." I would think it would be reasonably easy for theparamedic's attorney to prove that any other paramedic up for 36 hourswith no sleep could have made the same mistake.

Irrelevant. The test is what a 'reasonably prudent provider' _might_ do
given the same condition of the patient. "external influences" like
paramedic mental state, lack of sleep, caffeine jitters, high on heroin,
just broke up with spouse, etc. are *not* allowed as part of teh 'same
or similar circumstances.'

The hypothetical "reasonable man" is well-known at law; and is only
under the 'reasonable and typical' stresses for that job. If the _vast_
_majority_ of the people in that job are scheduled for 36 hours straight,
then that 36-hours on duty would be a 'normal' part of the duties, and
then, and only then, would a persons's actions under that situation be
taken into consideration.

The defense attorneythen lays the blame on the employer for scheduling the paramedic towork such long hours with no rest. Either that or the plaintiff'sattorney realizes that such a defense could be made on the claim ofmedical malpractice and simply goes after the employer right off thebat for negligently scheduling the paramedic to work such a long shiftwhere they knew that the employee could make mistakes due to lack ofsleep

Employee negligent in the performance of his duties *is* employer liability.

I'm not trying to be argumentative, and I'm certainly no attorney, I'mjust genuinely trying to understand this. Isn't this lack of sleepissue what got long haul trucking companies to set maximum drivinghours

Methinks it was the government passing _laws_ on the matter that limited
the driving hours.

and stopped hospitals from working their resident physicians 120hour work weeks?
2. Let's put another spin on this. The same paramedic, while drivingto an emergency call after 36 hours of no sleep, nods off at the wheeland slams into another vehicle. The patient they were responding todies because they didn't get there on time, and the paramedic sufferscritical injuries. Couldn't both the paramedic and the dead patient'sfamily sue the employer for "negligent scheduling?"

Nope. The family has no basis to sue. Responding is a 'discretionary'
function. They don't _have_ to come when called. Lots of case-law on
this. Police don't have to come when summoned to the scene of a 'crime
in progress', either.

Paramedic _might_ have basis for an action, but company might equally
cross-file, claiming employee failed to notify company that he was not
in condition to 'competently perform those duties'.

Mike
05-13-2006, 11:34 AM
Stuart A. Bronstein <spamtrap@lexregia.com> wrote:
Bob_m <robert@usa.com> wrote:
1. I would think that in some cases, it would be harder to prove negligence on the employee's part rather than proving negligence on the employer's part through scheduling.
It's simply not an issue. If they prove employee negligence (in the course and scope of his employment) then the employer is generally liable. If they find the employer negligent and that negligence was the proximate cause of the injuries, they're responsible for that, too. (Though it's difficult for me to think of a situation in which an employer could be liable for damages caused by an employee's action when the employee was not negligent).

I am driving a company-owned car. The brakes are bad on the car and my boss
knows about them but I don't. I drive into the back-end of someone due to
the bad brakes and total their car. I was not negligent in any way, since I
had no reasonable knowledge that the brakes were bad. My company/employer is
definitely liable here.

Or did you mean it the other way: "...when the employer was not negligent"?


I'm not trying to be argumentative, and I'm certainly no attorney, I'm just genuinely trying to understand this. Isn't this lack of sleep issue what got long haul trucking companies to set maximum driving hours and stopped hospitals from working their resident physicians 120 hour work weeks?
Sure. And it could be relevant to the cause of damages. If the employee claimed he did everything he was supposed to but hadn't gotten sleep for three days, the jury could disbelieve the employee and conclude that he had, in fact, not acted reasonably.

As I understand it, the employer is responsible for ANY and ALL actions of
the employee if the employee's actions were:

1: part and parcel of the job functions.

2: in some way preventable or predictable by the employer.

I.e. if Iwork in a factory and slip out the back and go to a bar and get
into a fight and injured someone, the employer may not be liable. But if I
slipped out, got drunk, came back in and caused an accident an hour later in
the factory, they probably would be liable since they could/should have seen
that I was drunk and escorted me back out the door.

But not getting sleep in and of itself isn't the direct cause of an injury, though it may be a contributing factor.
2. Let's put another spin on this. The same paramedic, while driving to an emergency call after 36 hours of no sleep, nods off at the wheel and slams into another vehicle. The patient they were responding to dies because they didn't get there on time, and the paramedic suffers critical injuries. Couldn't both the paramedic and the dead patient's family sue the employer for "negligent scheduling?"
The patient's family would have a claim if the employer legally had a duty to show up and give aid. Unless there is a specific law or contract, courts often hold that is there no legal duty. The reason for failure to show up is irrelevant in any case.

But if the paramedic had picked up the person and had the accident on the
way to the hospital and thus delayed the arrival and the patient died, then
they'd probably have a case.

As far as the driver's injuries, those are probably covered by workers compensation, which pays whether anyone or no one was negligent.
Stu


--
Mike

-------------------------------
"Our enemies are innovative and resourceful, and so are we. They never stop
thinking about new ways to harm our country and our people, and neither do
we," George W. "Shrub" Bush Aug 5, 2004

A Michigan Attorney
05-13-2006, 11:34 AM
Bob_m wrote:

A paramedic is up for 36 hours straight with no sleep. During the course of running a call, he pushes the wrong dosage of a drug and a patient dies or is injured severely. While it's a fact his action caused the injury, proving negligence usually requires that the plaintiff prove that "no reasonably prudent provider in the same field" would have done the same thing in the "same or similar circumstances." I would think it would be reasonably easy for the paramedic's attorney to prove that any other paramedic up for 36 hours with no sleep could have made the same mistake.

That's not how it works. As far as the law is concerned, the act of
the employee is the act of the employer (presuming it was done in the
course and scope of the former's duties). They are legally one and the
same person in that situation. Put another way, the employer is acting
THROUGH the employee, as if the employee was a marionette with the
employer holding the strings. So the issue is whether a reasonably
prudent [hospital or whatever] would have pushed that dose of medicine.
The employee's fatigue is irrelevant to the employer's negligence
(although it is relevant to the employee's personal liability, which is
always a possibility because a person is personally liable for the
torts he commits, even if another entity is vicariously liable).

Of course, you must bear in mind that many states have enacted statutes
that modify the common law with respect to medical malpractice and
similar professional errors. So it's not safe to rely on common law
rules (which have mostly been the substance of the posts on this
thread).

Isn't this lack of sleep issue what got long haul trucking companies to set maximum driving hours and stopped hospitals from working their resident physicians 120 hour work weeks?

Hard to say. That could be a regulatory requirement, rather than a
liability risk reduction measure.

2. Let's put another spin on this. The same paramedic, while driving to an emergency call after 36 hours of no sleep, nods off at the wheel and slams into another vehicle. The patient they were responding to dies because they didn't get there on time, and the paramedic suffers critical injuries. Couldn't both the paramedic and the dead patient's family sue the employer for "negligent scheduling?"

Negligent scheduling? I doubt any competent plaintiff's attorney would
rely solely on such a theory. Respondiat superior (as discussed in
other posts on this thread) would apply for the reasons I gave above.
There might also be statutory vicarious liability if the employer owns
the ambulance (depending on state law). But this hypo presents other
possible problems for the plaintiff because many states have "good
samaritan"-type laws which protect first responders and/or bystander
volunteers from all but active and/or gross negligence. As to the
paramedic -- most lawsuits against an employer by an employee are
barred by worker's compensation statutes.

Stuart Bronstein
05-15-2006, 09:58 AM
prabbit1@shamrocksgf.com wrote:
Stuart A. Bronstein <spamtrap@lexregia.com> wrote:
Bob_m <robert@usa.com> wrote: 1. I would think that in some cases, it would be harder to prove negligence on the employee's part rather than proving negligence on the employer's part through scheduling. It's simply not an issue. If they prove employee negligence (in the course and scope of his employment) then the employer is generally liable. If they find the employer negligent and that negligence was the proximate cause of the injuries, they're responsible for that, too. (Though it's difficult for me to think of a situation in which an employer could be liable for damages caused by an employee's action when the employee was not negligent). I am driving a company-owned car. The brakes are bad on the car and my boss knows about them but I don't. I drive into the back-end of someone due to the bad brakes and total their car. I was not negligent in any way, since I had no reasonable knowledge that the brakes were bad. My company/employer is definitely liable here. Or did you mean it the other way: "...when the employer was not negligent"?

I meant that they don't need to prove both employer and employee
negligence. They only need to prove one - whichever one is easier
to prove.

As I understand it, the employer is responsible for ANY and ALL actions of the employee if the employee's actions were: 1: part and parcel of the job functions. 2: in some way preventable or predictable by the employer.

The employer is liable if the employee is acting within the course
and scope of his employment. When that happens is not always easy
to determine.

Stu

John F. Carr
05-15-2006, 09:58 AM
In article <g16c629rfteo7atklqcbbr8jttqpr0pa9l@4ax.com>,
<prabbit1@shamrocksgf.com> wrote:
I am driving a company-owned car. The brakes are bad on the car and my bossknows about them but I don't. I drive into the back-end of someone due tothe bad brakes and total their car. I was not negligent in any way, since Ihad no reasonable knowledge that the brakes were bad.

Your rule is not universal. In Ohio ignorance is no
excuse for brake failure.

--
John Carr (jfc@mit.edu)

Barry Gold
05-16-2006, 03:05 PM
[lots of good analysis by Robert Bonomi snipped]

Bob_m <robert@usa.com> wrote:
2. Let's put another spin on this. The same paramedic, while drivingto an emergency call after 36 hours of no sleep, nods off at the wheeland slams into another vehicle. The patient they were responding todies because they didn't get there on time, and the paramedic sufferscritical injuries. Couldn't both the paramedic and the dead patient'sfamily sue the employer for "negligent scheduling?"

Robert Bonomi <bonomi@host122.r-bonomi.com> wrote:
Nope. The family has no basis to sue. Responding is a 'discretionary'function. They don't _have_ to come when called. Lots of case-law onthis. Police don't have to come when summoned to the scene of a 'crimein progress', either.

But if the paramedic's employer (private company or city) has
'accepted' the call and said they are sending somebody, I think the
family _would_ have a basis for suit. Accepting the call creates a
contract (actual or quasi-) between the responder and the caller.
If the dispatcher said, "I'm sorry, we don't have anybody we can send
right now" or even "we don't respond unless you pay us in advance,
please give us a credit card number", then the caller would know not
to expect them and could call somebody else. By accepting the call
and agreeing to send somebody, they have created a "reasonable
expectation" that a qualified person will arrive within a reasonable
time. If the responder fails to show up through his own wrongdoing
(negligent or intentional), that is a breach of the contract.

It's possible that the employer could argue that they are not
responsible for "consequential" damages(*). But I don't think that
would hold up in court. The type of services being provided --
emergency healthcare -- make it quite predictable that somebody will
be seriously harmed if you fail to show up and provide appropriate
care. That, after all, is what medical malpractice suits are about --
consequential damages for failure to provide appropriate care.

(*) contract law traditionally allowed recovery only for direct
damages -- the cost of getting somebody else to perform on the
contract. Other damages -- loss of business due to not having the
supplies you need, etc., were only allowed if the contract provided
for them.
--
I pledge allegiance to the Constitution of the United States of America, and
to the republic which it established, one nation from many peoples, promising
liberty and justice for all.
Feel free to use the above variant pledge in your own postings.

Mike
05-16-2006, 03:05 PM
John F. Carr <jfc@mit.edu> wrote:
In article <g16c629rfteo7atklqcbbr8jttqpr0pa9l@4ax.com>, <prabbit1@shamrocksgf.com> wrote:
I am driving a company-owned car. The brakes are bad on the car and my bossknows about them but I don't. I drive into the back-end of someone due tothe bad brakes and total their car. I was not negligent in any way, since Ihad no reasonable knowledge that the brakes were bad.
Your rule is not universal. In Ohio ignorance is no excuse for brake failure.

Ok, that example may not have been the best in the world but there are other
things that may cause injury that I wouldn't reasonably know about but the
employer might. Example: I'm a pilot of a 747 and the employer is having
the mechanics fake the maintainance records or such. You wouldn't reasonably
expect the pilot to know if the plane was maintained properly and would
expect he'd rely on the mechanics to do so. Now it might be that even that
case would put some liability on the pilot but I don't expect it would be
such.

--
Mike

-------------------------------
"Our enemies are innovative and resourceful, and so are we. They never stop
thinking about new ways to harm our country and our people, and neither do
we," George W. "Shrub" Bush Aug 5, 2004

Stuart Bronstein
05-17-2006, 10:50 AM
bgold@nyx.net (Barry Gold) wrote:
Robert Bonomi <bonomi@host122.r-bonomi.com> wrote:
Nope. The family has no basis to sue. Responding is a'discretionary' function. They don't _have_ to come when called.Lots of case-law on this. Police don't have to come when summonedto the scene of a 'crime in progress', either. But if the paramedic's employer (private company or city) has 'accepted' the call and said they are sending somebody, I think the family _would_ have a basis for suit. Accepting the call creates a contract (actual or quasi-) between the responder and the caller. If the dispatcher said, "I'm sorry, we don't have anybody we can send right now" or even "we don't respond unless you pay us in advance, please give us a credit card number", then the caller would know not to expect them and could call somebody else. By accepting the call and agreeing to send somebody, they have created a "reasonable expectation" that a qualified person will arrive within a reasonable time. If the responder fails to show up through his own wrongdoing (negligent or intentional), that is a breach of the contract.

So you'd think. As I recall there was a US Supreme Court case from
Colorado in the last few years that had essentially those facts. The
police were called and told about a missing child. They told the
parents to do nothing, that they would investigate. In reality the
police did nothing for quite some time. When they finally went out
looking, they found the child had been killed. If they'd gone out
earlier, they might have found him alive.

The Supreme Court said the police werent financially responsible.

Stu

Barry Gold
05-20-2006, 08:57 AM
>bgold@nyx.net (Barry Gold) wrote:
By accepting the call and agreeing to send somebody, they have created a "reasonable expectation" that a qualified person will arrive within a reasonable time. If the responder fails to show up through his own wrongdoing (negligent or intentional), that is a breach of the contract.

Stuart A. Bronstein <spamtrap@lexregia.com> wrote:
So you'd think. As I recall there was a US Supreme Court case fromColorado in the last few years that had essentially those facts. Thepolice were called and told about a missing child. They told theparents to do nothing, that they would investigate. In reality thepolice did nothing for quite some time. When they finally went outlooking, they found the child had been killed. If they'd gone outearlier, they might have found him alive.The Supreme Court said the police werent financially responsible.

I'll keep that in mind. I still think this might be different from the
paramedic situation. The police told the parents that they "would
investigate". I think reasonable people know that the police
"investigate" at their own pace, setting their priorities according to:
. how serious the crime is
. what tips and other clues they have available
. their past experience investigating crimes of this type
. policitical considerations, e.g., the child of a film star or
the governor is likely to get more attention than the child of
an average middle class family.

But the paramedic dispatcher is basically promising to send an
ambulance "now". (That is, as soon as the team can scramble into
their vehicle, with possible delays of a minute or two to pull on some
clothes if they were, e.g., sleeping.) A court might find the two
situations parallel. And of course it might be found to be a
"discretionary" matter, in which case the government is immune.
Or it might not. We won't know until there is a We won't know until
there is a case involving negligent failure to respond.
--
I pledge allegiance to the Constitution of the United States of America, and
to the republic which it established, one nation from many peoples, promising
liberty and justice for all.
Feel free to use the above variant pledge in your own postings.

* Find more information on Medical Malpractice Laws.
Complete Labor Law Poster for $24.95
from www.LaborLawCenter.com, includes
State, Federal, & OSHA posting requirements