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There are two areas of legal concern for EMS practitioners:
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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?
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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.
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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.
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STRUCTURE OF THE US LEGAL SYSTEM
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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.
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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.
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Criminal liability involving EMS usually involves one of the following ...