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.
Public Duty of EMS Providers (and Other Emergency Services)
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.
Special Duty of EMS Providers (and EMS Physicians)
When a specific individual can be identified as the one in need of care or emergency services the provider then takes on special duty to provide an appropriate response. Special duty may be simple to define, such as when the EMS physician is on scene and has interacted with a specific patient, given orders, and supervised their care. In this case, the EMS physician has a similar duty to the patient as the EMS provider on scene.
When a provider calls for online medical control with specific information and a request for direction, it may be considered that the EMS physician, or medical control physician, now has the same special duty requirements.
Once a duty exists, there is an expectation that the professional will provide due care. Negligence is care less than that which would be provided by a like trained person in like circumstances, and due care is treatment at or above the level of ordinary care which would be provided by a like trained person and like circumstances. The standard of care is the dividing line between negligent care and due care. It is determined by the testimony of experts, who are typically professionals with training and experience similar to the defendant. In civil litigation, the plaintiff has claimed that the defendant has breached their duty by practicing negligently, that is, below the standard of care. The defense may include arguments to the contrary, or offer other reasons why the defendant should not be found guilty.
One common defense used by EMS providers is that of immunity. All states have some form of “Good Samaritan” legislation, enacted to encourage volunteerism and community assistance for those in need. Typically, this legislation provides immunity for responders by raising the standard for negligence if the care rendered is done so in good faith. Common elevated standards include gross and willful misconduct, willful and wanton misconduct, intentional harm, and similar terms; there are variations from state to state. In other words, a plaintiff claiming a breach of duty to provide ordinary care may find the defendant successfully arguing Good Samaritan protection by showing that the care provided, although not optimal, was not so negligent as to constitute gross and willful misconduct. However, recent case law has often successfully shown that Good Samaritan immunity should not be applied to those who hold themselves out as scheduled, uniformed, trained, and often compensated EMS providers. In other words, courts are now finding that EMS providers are professionals, and should not be shielded by Good Samaritan immunity while practicing their profession. When off duty, however, Good Samaritan immunity typically still applies.
In civil law, there are claimed damages. Damages may be physical, emotional, or occasionally financial. In order to be convincing to a jury, they must be substantial and permanent. Temporary discomfort caused by spinal immobilization, for example, may not be as convincing as permanent paralysis resulting from failure to immobilize the spine when indicated.
Causation is an unbroken and logical link between the alleged breach and the claimed damages. For example, if a surgeon incorrectly identifies the operative site and amputates the incorrect leg, the damage would be loss of a leg and the cause would be the surgeon's negligent failure to identify the correct leg.
Liability for EMS providers involving civil law takes the form of suits filed against the provider, their supervisory staff and medical director, and their EMS agency. The suits may allege negligent care, personal injury from use of poorly maintained or faulty equipment, negligence in training, hiring, or supervision, negligent operation of vehicles and other transport equipment, or other charges. EMS providers should be familiar with the involved legal principles, be competent and current in their medical care, follow all relevant laws, regulations, protocols, policies and procedures, and participate in quality improvement and customer service efforts in order to minimize their exposure to civil suits. In addition, adequate liability insurance is a requirement. EMS providers and physician medical directors should ask specifically about coverage provided by their agency or employer to be certain that it covers their scope of practice.
Administrative, or regulatory, law is the final category found in our legal system. In many ways, it is the most complicated. While general laws may empower an agency or government department to regulate an activity such as EMS, the resulting regulations, guidelines, treatment protocols, and individual interpretations and decisions made by government officials may result in an amazingly complex bureaucracy. The legislation forming the basis for administrative law tends to be general, and sometimes purposefully vague. It is the job of regulations, guidelines, policies, protocols, and procedures to specify the bounds and exact nature desired. For example, in Rhode Island, the empowering legislation notes that it is supportive of any EMS scheme that will save lives and promote healing.1 (See Box 21-1). From that legislation, regulations are promulgated by the Department of Health and subsequently protocols, which are more specific about the actions of EMS providers. Failure to follow the standards of EMS practice or the specifications of these protocols and regulations can result in action against the license of an EMS provider or ambulance service. In some jurisdictions, penalties may also include fines. In many cases concerns about EMS performance results in a negotiated settlement where the provider or service promises certain specific performance such as retraining, probationary supervision, and other measures. Although details vary significantly from state to state, in general, there are federal, state, and local sources of administrative law regulating EMS. Box 21-1 Rhode Island EMS Legislation
Health and Safety
Emergency Medical Transportation Services
§ 23-4.1-1 Declaration of policy and purpose. –
The general assembly declares that it is the policy of the state to save lives and speed the healing of persons injured in accidents or otherwise in need of medical service by providing an emergency care system that will bring the injured or sick person under the care of persons properly trained to care for the injured or sick in the shortest practical time and that will provide safe transportation for the injured or sick person to a treatment center prepared to receive the injured person.
It is the purpose of this chapter to promote this policy by providing the means by which the best possible first aid treatment can be brought to the injured or sick person in the shortest practical time and by which the injured or sick person can be safely transported to a medical treatment center in proper equipment that is designed to provide supportive care for the injured or sick person and which is able to communicate with the medical treatment center regarding the treatment of the injured or sick person.
It is the plan of this chapter to provide help for any scheme of emergency medical service that provides trained personnel, furnishes adequate equipment, and which furnishes emergency medical service to the public.
It is not the intent of this chapter to prevent the operation of any nonprofit ambulance service which meets the minimum standards as provided by this chapter for the training of ambulance personnel and for medical service equipment.
(P.L. 1974, ch. 264, § 1; G.L. 1956, § 23-52-1; P.L. 1979, ch. 39, § 1; G.L. 1956, § 23-4.1-1.)
Given this general overview of our legal system, we will now discuss some circumstances where EMS providers should be familiar with the law—patient transfer and end-of-life issues, and then discuss some of the specifics involved in legal regulation of EMS. This description is organized by jurisdiction starting with international and federal laws and regulations, and ending with a description of state and local variations.