There are two areas of legal concern for EMS practitioners:
First, what is the legal structure under which EMS is practiced?
Second, what are the legal liabilities faced by EMS practitioners and their physician medical directors?
Both of these concerns are addressed in this chapter. First, we will review the structure of the legal system and discuss areas of legal liability. Then, the chapter outlines the government regulation of EMS in the United States and discusses several important areas of consideration, including patient transfer, and end-of-life issues.
Discuss “duty to act” for EMS personnel.
Discuss “due regard for public safety” as it applies to EMS operations.
Discuss legal aspects of out-of-hospital DNR, advance directives, and living wills.
Discuss EMS provider role when aiding law enforcement (eg, blood draw for blood alcohol levels).
Describe federal legislation that defined EMS systems and provided the initial funding opportunities for states to develop them.
Define COBRA and EMTALA.
STRUCTURE OF THE US LEGAL SYSTEM
Although describing the legal system in a few paragraphs is an oversimplification, as it would be for medicine, a brief outline is warranted. There are three general categories of law in our system: criminal law, civil law, and administrative law.
In criminal law, the aggrieved party is the government and the defendant is charged with a crime. Penalties include incarceration, fines, and other severe limitations. A relevant example would be fraudulent billing by an ambulance company where fictitious patient transports were submitted for payment. The responsible party or parties would be charged with a crime, insurance fraud, and if convicted would be penalized with fines and/or jail time. Since the penalty is severe, the legal standard is that the defendant must be found guilty beyond a reasonable doubt. Guilt is determined by a finding that the defendant violated the law without a reasonable defense or explanation. Just as rules in medicine have exceptions, laws often have exceptions and circumstances that may be used as a defense. For example, murder (the killing of one by another) is against the law, but self-defense, military engagement, and police actions may be exceptions depending on the circumstances. It is said that our need for attorneys depends more on the exceptions than on the laws. Attorneys advocate for the party that they represent, trying to convince the judge and jury that interpretation of the law, legal precedent established through the resolution of prior similar cases (case law), and the special circumstances of the particular case should result in a decision in favor of their client (government or defendant). In most cases, a jury is involved in deciding criminal cases, but some criminal matters are handled by judges or other means.
Criminal liability involving EMS usually involves one of the following circumstances:
Criminal conviction of an EMS provider with resultant license action. For example, an EMS provider convicted of child pornography may be required to surrender his or her license.
Crimes involving misuse of or diversion of controlled substances. Physician medical directors may be responsible for the entire system that acquires, inventories, stores, distributes, uses, and replaces controlled substances within an EMS system. If a provider is found to be diverting controlled substances, or if an audit discovers discrepancies, the involved provider and physician may be liable for criminal or civil penalties depending on the infraction.
Criminal conviction of an EMS provider related to an on-duty action. Vehicular homicide, assault and battery, and other criminal charges may ensue after negligent vehicle operation, assault of a patient or bystander, or other similar acts.
Fraud involving billing. Filing of false insurance claims and other billing fraud may lead to criminal charges against the involved parties.
Crimes involving sexual harassment, boundary violations, discrimination, and other illegal behavior in the workplace. These charges may involve supervisory personnel as well as the individual or individuals accused of the illegal behavior if the workplace fails to provide adequate safeguards and measures to provide a proper work environment.
Civil law resolves disputes between the parties. The plaintiff charges the defendant with a civil violation such as medical malpractice, breach of contract, or defamation of character. The plaintiff must prove that the defendant, more probably than not, (a less stringent test than for criminal cases) met four tests for guilt in a civil matter. These are:
Generally, these four tests mean that the defendant had an obligation to behave toward the plaintiff in a certain manner (duty), failed to meet that obligation (breach), that the plaintiff suffered some harm (damage), and that the breach of the defendant caused the damage (causation). The fact that a civil matter reaches the courtroom is evidence that it was not resolved in some more amicable manner. Therefore, some people assert that there is actually a fifth element in civil cases: anger. Without anger, the plaintiff would not proceed to file legal charges against the defendant. This is the basis for approaches that embrace honesty, transparency, and apology in the etiquette of medical error management; acknowledgment of human frailty in a setting where diligent efforts were made to provide good care is often accepted by otherwise angry potential plaintiffs. While many civil disputes are decided by juries or at bench trials where the judge also serves as a finder of fact (the jury’s role in a jury trial, where the judge oversees the legal proceedings but does not decide which evidence is factual), alternative dispute resolution such as mediation or arbitration may be used to resolve civil cases, and many civil cases are settled through negotiation. The penalty in civil cases is most often a financial payment, although there may be specific performance required, such as judicial orders to improve training, staffing, or some other aspect of care. Due to difficulties with assuring compliance (the court system is ill equipped to inspect such aspects of the health care system), specific performance is more often a part of a settlement or mediation agreement than a judicial order.
Duty attaches for most professionals when a clearly defined relationship is established with a client. For example, when a physician specialist evaluates a patient during a scheduled office visit, or when an attorney signs a contract with the client seeking professional services to craft a will. In EMS, however, duty may attach before the individual EMS provider is near any particular patient. Depending upon what services the agency holds itself out to perform or what contracts have been signed, duty may attach to the entire population of an area (duty to the public or public duty), to a person in peril, or to a specific patient (special duty) who has requested aid, even though none has yet arrived. For example, some disaster relief agencies hold themselves out to be prepared to respond to disaster circumstances and able to provide relief within particular jurisdictions or for particular problems. In some circumstances, it could be argued that they owe a duty to persons in those jurisdictions should a disaster arise, or for victims of the particular problem they claim to be capable of handling (cave rescue, urban search and rescue, earthquake relief, etc) Another example is an agency contracted to provide emergency EMS response for a particular jurisdiction which has promised (by contract) to provide timely and excellent EMS care for the citizens of that area. Again, in some circumstances, it could be argued that they then owe a duty to someone in peril within that jurisdiction, and that they certainly owe a duty to a specific patient who has requested aid. Of course, it is clear that EMS providers owe a duty to patients they touch, evaluate, and transport. However, they also owe a duty to those patients who refuse transport, and (if allowed) to patients the EMS providers refuse to transport.
EMS providers also owe a duty to persons other than the patient they are caring for and transporting.
The agency and its providers have a duty to provide emergency response to a community that they are designated to serve. This includes ensuring readiness and provision of the appropriate response when activated.
They owe a duty to others on or near the route of response or transport to operate the responding vehicle or ambulance with due regard for public safety. Ambulance operations involve the risk of injury to persons in the vehicle, pedestrians, and occupants of other vehicles. Operation of an ambulance in a manner that increases these risks often occurs when warning lights and sirens are used because the ambulance may be violating (legally) standard vehicle operating laws and practices. However, unsafe operation does not require the use of lights and sirens. Likewise, lights and sirens operation can be carried out safely and effectively.
They also owe a duty to other responders to perform their job in a safe and coordinated manner so as to prevent injury and illness and others. In addition to vehicle operations, the use of rescue equipment, sharp medical equipment, contaminated medical supplies, and patient movement equipment can all be managed in a manner that either protects or risks harm to other responders.
They owe a duty to their employer and/or supervisor to practice within the bounds of their training, jurisdictional regulations and protocols, and agency policies and procedures. Failure to follow these rules places both the individual provider and their superiors at legal risk.
Some would argue that they also owe a duty to the next patient, as yet unknown, and therefore should timely and efficiently complete care of the current patient so they can return to availability. Unwarranted delay and deception to avoid the appearance of the availability (eg, failing to notify a dispatcher of availability in order to relax, chat, etc) may result in response delay and thereby harm to subsequent patients.