EMERGENCY MEDICAL SERVICES EMS

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1 IAFF EMERGENCY MEDICAL SERVICES EMS and the Law Monograph 3 International Association of Fire Fighters

2 Emergency Medical Services EMS and The Law Monograph 3 Department of Emergency Medical Services International Association of Fire Fighters, AFL-CIO, CLC Copyright 1997 by the International Association of Fire Fighters. This publication is protected by copyright. No part of it may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording, or otherwise without written permission from the International Association of Fire Fighters, Department of Emergency Medical Services. International Standard Book Number: i

3 Foreword Today more than 80 percent of fire departments perform some level of emergency medical services (EMS), making professional fire fighters the largest group of providers of prehospital emergency care in North America. No other organization public or private is capable of providing prehospital emergency response as efficiently and effectively as fire departments. Fire department operations are geared to rapid response, whether it is for EMS or fire suppression. Cross-trained/dual-role fire fighters are trained to aggressively attack their work whether it involves a fire, a rescue, or a medical emergency. It is no surprise that study after study has shown that fire department-based prehospital emergency medical care systems are superior to other provider types. However, as we look into the future of prehospital emergency medical care, we are called upon to evaluate our role and the possible need for change in the context of a rapidly evolving medical care system. We must look at what we have learned during the past century and create a vision for the future of fire-based EMS. This vision must address necessary legislation for the protection of fire-based systems. It must address public education, prevention, and the possible expansion of the scope of practice for paramedics. This vision must consider the effects of managed care organizations on prehospital EMS, as well as revenue recovery for the services fire fighters perform. It must also protect fire-based systems from the threat of privatization, as well as protect the citizens we serve by preserving the nation's universal emergency access number, The information in this series of monographs is designed to guide local fire department leaders through the process of developing a vision for the future of a firebased EMS system. As fire department leaders develop their vision for the future, outside challenges will occur. Many of these challenges will involve legal threats. This monograph is the third in the series and contains information concerning the types of litigation that may be brought against individual EMS providers and administrators of firebased EMS systems. The role of the professional fire fighter is constantly changing. We are called upon to act as multi-faceted first responders answering not only fire calls but rescue, hazardous materials, and emergency medical calls. By answering the challenge of change, we can continue to meet the needs of the communities we serve and do what we do best protect property and save lives. Harold A. Scaitberger General President

4 Acknowledgments The IAFF would like to acknowledge the Department of Emergency Medical Services staff, specifically Jonathan Moore and Sandy Miller, for their work in the development of this publication. The IAFF also wishes to recognize the members of the IAFF EMS Committee for their editorial review and support: James L. Hill, District 7 Vice President, Co-Chair Dominick F. Barbera, District 12 Vice President, Co-Chair Robert B. McCarthy, President, PFF of Massachusetts Patrick Cantelme, President, IAFF Local 493, Phoenix, AZ Dan Fabrizio, President, IAFF Local 2, Chicago, IL Mark A. Lloyd, President, IAFF Local 385, Omaha, NE Richard L. Mayberry, President, IAFF Local 522, Sacramento, CA Gary Rainey, Secretary, IAFF Local 1403, Metro-Dade Co., FL Ronald L. Saathoff, President, IAFF Local 145, San Diego, CA IAFF DEPARTMENT OF EMERGENCY MEDICAL SERVICES Lori Moore, MPH, EMT-P, Director International Association of Fire Fighters AFL-CIO, CLC Department of Emergency Medical Services 1750 New York Avenue, NW Washington, DC (202) (202) (FAX)

5 EMS and The Law Table of Contents INTRODUCTION...1 I. EMS PROVIDER MEDICAL-LEGAL ISSUES...3 IMMUNITY FROM LIABILITY...3 Good Samaritan Laws...3 Governmental Immunity...4 Statutory Immunity for Emergency Medical Providers...4 CIVIL LIABILITY ACTIONS...5 LIABILITY PROTECTION...6 Liability Insurance...6 Risk Management...6 II. EMS SYSTEM ADMINISTRATIVE LEGAL ISSUES...7 ANTITRUST LITIGATION...8 The Gold Cross Case...9 Parker Immunity...10 The Sacramento Case...14 JURISDICTIONAL RIGHTS TO PROVIDE...15 The San Bernardino Case...16 The Santa Clara City Case...18 QUI TAM LITIGATION...20 The Mason County Fire District 5 Case...21 CONCLUSION...22 Appendix 1. EMS ProviderImmunity Appendix 2. Medical-Legal Concerns of Prehospital EMS Providers i

6 INTRODUCTION During the early years of emergency medical services (EMS) system development, there were few concerns about medical-legal issues. More recently, however, there have been increasing numbers of cases brought against prehospital providers (EMTs and paramedics)and against system administrators (municipalities and fire departments). As a result, those involved in EMS today must be informed and concerned about medicallegal issues surrounding the provision of emergency medical services. Before discussing specific legal issues that confront EMS providers and administrators, it is important to define specific parts of the legal system that are relevant criminal and civil terms. Criminal law refers to conduct or offenses that have been established in statutes by the legislature as public wrongs or crimes against the state. Therefore, such conduct is prohibited and deemed inappropriate for the betterment of society. 1 Wrongs are usually prosecuted by the State or another public governmental entity. Violations of criminal law may be punishable by imprisonment. Civil law refers to private law, as between two recognizable parties, which may include a corporation. A plaintiff may seek recovery of money or other forms of relief from the defendant. Civil law includes actions based on tort or contract. A tort is a legal term referring to a wrongful act done by a person in a negligent or willful manner against another person causing injury. For example, a claim of injury in a medical malpractice case is a tort action. Contract actions are brought when there are disagreements over a promise or transaction between two or more individuals. 1

7 Administrative law is an area of civil law that pertains to the government s authority to enforce its rules, regulations, and statutes through the action of agencies. For example, a paramedic is granted a certification or license by the state. Any violation of the conditions of that certification or licensure would be conducted as an administrative proceeding. These laws create liabilities or obligations to do or refrain EMS providers from doing something. In America, there are several sources of law. Constitutional sources include the United States Constitution describing fundamental rights and state constitutions which may guarantee additional rights. Statutes which are simply laws passed by legislatures and approved by the government executive (the President, or governors). Counties and cities may also make laws, ordinances, or other rules governing the locality. Where these laws conflict with one another, the law from the highest government level typically is the ruling law. Common law, case law, or judge-made law, meaning decisions that have resulted from court cases, which interpret statutes and constitutions in the context of specific disagreements. This law may be changed or overturned by a court with higher authority or by the same court at a later time. Administrative regulations which are created by federal or state agencies as authorized by statute. Typically, these regulations have the force of law, meaning that violations of regulations can be punished by civil or even criminal penalties. 2

8 I. EMS PROVIDER MEDICAL-LEGAL ISSUES WHAT IS HAT IS whatwhat The profession of emergency medical technicians (EMTs) and paramedic can only function by virtue of statutory authority provided by the state. Each state statute should define specific acts allowed. It is a violation of civil law to act beyond or in violation of these provisions. Most states also have statutes requiring that certain categories of health care providers report suspect cases of specific injuries or diseases, such as child or elderly abuse, some communicable diseases, rape, animal bites, and gunshot wounds. Failure to report these cases may be grounds for civil and/or criminal punishment, depending on state laws. A. IMMUNITY FROM LIABILITY GOOD SAMARITAN LAWS With the state of California being the first, every state in the United States has passed legislation of some form that is designed to grant immunity from liability for certain individuals who render care in an emergency situation. The concept of the Good Samaritan Law is that reducing the liability of the rescuer removes a barrier that might prevent people from providing on-scene medical assistance to the injured. Typically, as long as a Good Samaritan does not seek compensation, act recklessly, or intentionally do wrong, any harm caused by such assistance is not actionable. In most states, the Good Samaritan Law is a defense that must be presented in court and does not automatically prevent a suit from being filed. Some states expressly reject the use of Good Samaritan laws by someone who has a pre-existing duty to provide care to injured victims. Other states have specifically limited the environment (for example, outside a hospital) 3

9 or type of provider (i.e., volunteer) to which the law applies. For example, Texas Good Samaritan statute covered all people except those who work in an emergency department until the statute was recently amended to cover everyone. In Pennsylvania, one section of the state s Good Samaritan statute covers medical personnel and another section covers lay persons. Most Good Samaritan statutes excuse liability only for acts done in good faith. This means acts done in a reasonable manner, without malicious intent, or reckless disregard for the injured person. Before any EMS provider relies on a Good Samaritan Law as a basis for avoiding liability, relevant state statutes should be reviewed and interpreted by an attorney. GOVERNMENTAL IMMUNITY The doctrine of governmental immunity, also known as qualified or sovereign immunity, once was a strong protection from liability for government employees. However, this principle has been abandoned in some states and severely limited in others. For example, the states of Arizona and Louisiana specifically exclude EMTs, EMT-Intermediates, and paramedics from immunity from liability while operating a motor vehicle. The state of Wisconsin specifically excludes a paramedic from governmental immunity because of a ministerial duty to act. In states that still maintain governmental immunity, a public employee may be relieved from certain liabilities related to negligence but they should not assume the doctrine to be a shield against all liabilities. STATUTORY IMMUNITY FOR EMERGENCY MEDICAL PROVIDERS Some state legislatures have enacted statutes that specifically provide immunity for EMS providers. These statutes were enacted to ensure the availability of adequate emergency care for the ill and injured. These statutes are similar to sovereign immunity provisions and have similar restrictions. For example, the state of Ohio has implemented statutes to protect individuals providing emergency medical care. The state of New York s statutes protect only volunteer EMTs, while statutes in the state of Michigan protect any public or private EMT. 2 4

10 B. CIVIL LIABILITY ACTIONS Because patients may be entitled to monetary compensation for injuries caused by careless acts of emergency care providers, an EMT or paramedic may become a defendant in a civil suit. Two terms must be defined with regards to this type of action standard of care and malpractice. The standard of care is the basis for evaluating a claim of negligence. The standard of care is determined by what a reasonable, prudent EMS provider of similar training, skills, and experience would do in like circumstances. Malpractice usually refers to negligent conduct by a professional in the performance of duty. To win a case alleging malpractice, the plaintiff must prove each of the following four elements by a preponderance (more than 50%) of the evidence: 1. The defendant had a duty to act according to the standard of care; 2. A breach of that duty occurred; 3. The breach of duty caused the injury; and 4. The patient s/plaintiff s injury can be assessed monetarily. Another common basis for civil cases against EMS providers is abandonment which is the unilateral termination of a provider/patient relationship when the patient still needs care, but provision is not made for that care and an injury results. Refusal to transport a patient or talking a patient out of being transported to a hospital is an invitation for an abandonment claim. Other EMS provider liability claims may include battery, assault, false imprisonment, libel, or slander. 5

11 C. LIABILITY PROTECTION LIABILITY INSURANCE Liability insurance is not a means to avoid liability itself. Rather, it provides payment for legal representation and damage awards entered against the policy holder. Because the provision of EMS is unique and considered a specialized aspect of medical care, paramedics may consider seeking malpractice coverage with an insurance company familiar with EMS procedures. At the very least, EMS providers should clearly understand what protections their employers will provide should a lawsuit be brought against them for actions in the course of employment. RISK MANAGEMENT There are various ways that providers can reduce their exposure to lawsuits. First, EMS providers must pay strict attention to patient run report documentation. A properly documented run report can diffuse potential lawsuits. In addition, preparation and prevention may provide some liability protection, particularly in situations involving emergency vehicle operations. Defensive driving or emergency vehicle operations courses may avoid the incidents that bring litigation. Training records must be up to date and skills must meet, at a minimum, current guidelines and practices in the industry. There have been few studies of litigation involving EMS providers. One such study was conducted in 1993 and published in Prehospital and Disaster Medicine in This retrospective study analyzed cases obtained from a computer database of trial court cases filed against EMS agencies nationwide (between ). The study revealed that half of the cases recorded involved an ambulance collision, and the remainder involved alleged negligence of a patient care provider. Negligence allegations were based on arrival delays, inadequate assessment, inadequate treatment, patient transport delays, and no patient transport. Researchers concluded that EMS systems should include a risk management component that focuses on reducing the legal risk to EMS agencies and prehospital care providers. Risk management activities may be conducted within the quality assurance/quality improvement or training components of EMS systems. 6

12 II. EMS SYSTEM ADMINISTRATIVE LEGAL ISSUES Just as the individual providers of emergency medical services may be vulnerable to litigation resulting from patient encounters, the administrative entities of EMS systems are vulnerable to litigation, for example, from outside agents seeking to compete for the revenue producing piece of an EMS system. This section discusses statutes and case law that may impact the EMS system provider. This system provider is defined as a governmental entity: city, county, fire district, or fire department. The 1973 Emergency Medical Services Systems Act (Public Law ) defined EMS as a system which provides for the arrangement of personnel, facilities, and equipment for the effective and coordinated delivery, in an appropriate geographical area, of health care services under emergency conditions occurring either as a result of the patient s condition or of natural disasters or similar situations and which is administered by a public or non-profit entity which has the authority and the resources to provide effective administration of the system. (emphasis added) As universal emergency access through the system is nearing completion, local governments are becoming increasingly more accountable politically and legally for providing emergency medical services. While most governments choose to provide EMS in-house some choose to contract with a private company or other non-governmental entity for these services. Some governments that have historically contracted with a private ambulance company for EMS provision and are deciding to bring that 7

13 service back in-house are facing litigation challenging their right to do so. 4 In recent years, three types of litigation have been filed in an attempt to prevent a municipality from providing its own emergency medical services antitrust litigation, jurisdictional right to provide, and qui tam suits. A. ANTITRUST LITIGATION The aim of the nation s anti-trust laws is to promote competition within industries. Economic theory suggests that, the greater number of firms within an industry and the fewer the impediments to firms that would like to enter that industry, the more competitive the industry will be. 5 Under Section 1 of the Sherman Act, [E]very contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce...is illegal. Section 2 of the Act states that [E]very person who shall monopolize, or attempt to monopolize, or combine or conspire with any other person or persons, to monopolize any part of the trade or commerce...shall be deemed guilty... Two additional major antitrust laws have been passed since the Sherman Act. Major provisions of the Clayton Act, passed in 1914, were intended to prohibit price discrimination in which sellers discriminate in price between different purchasers of commodities of like grade and quality (Section 2) and to eliminate mergers that lessen competition or tend to create a monopoly (Section 7). 6 The Federal Trade Commission Act was also passed in Section 5 of this act forbade unfair methods of competition and created a new agency, the Federal Trade Commission, to help enforce the antitrust laws. Antitrust suits may be brought both by the Federal Trade Commission and by the US. Department of Justice, although only the Justice Department can bring suits that involve Sherman Act violations in criminal proceedings. Private plaintiffs and state antitrust authorities may also bring antitrust 8

14 suits, although these suits tend to be of lesser importance. 7 Litigation costs in antitrust cases can be substantial. Firms found in violation of the Sherman Act may be fined treble damages, an amount equal to three times the damages of the antitrust action. THE GOLD CROSS CASE Kansas City, for many years, provided emergency ambulance services to its citizens by operating a public ambulance system through the Kansas City General Hospital and, later, through the city fire department. In the early 1970s, however, Kansas City began to contract with five competing, private companies for emergency ambulance service. A central dispatch center allocated calls among the various companies on a round-robin basis. In 1973, the dispatch center adopted a policy of dispatching the closest available ambulance to the scene of the accident, regardless of which company owned the vehicle. In 1978, controversy arose concerning the slow response time by the private ambulance companies to emergency calls. As a result, the city formed a Public Safety Improvement Committee to investigate alternatives for improving emergency medical service. The Committee reported its findings to the city council on March 21, 1979, and recommended that the city adopt a publicly controlled ambulance system with a single provider for both emergency and non-emergency services. Within two weeks, the city council approved a resolution committing Kansas City to such a system. In September 1979, the Kansas City council passed an ordinance formally adopting the public utility model for city ambulance service and creating a nonprofit public trust, MAST, to implement and manage the new system. Several problems prevented Kansas City from implementing its plan. First, Missouri law requires all ambulance service operators to have a state-issued license, which MAST did not possess. Moreover, MAST did not own the equipment necessary to provide full ambulance service to the city. Thus, MAST could not provide a bidder with either the license or 9

15 the equipment necessary to implement the public utility model. Consequently, in October 1979, the city council repealed its September ordinance. The successor ordinance, while retreating from full implementation of the public utility model, reiterated Kansas City s commitment to the concept. Thereafter, MAST contracted with ASI, a private company that possessed the requisite state license and equipment, to provide the city s ambulance service. MAST apparently issued the exclusive municipal license to ASI without complying with the competitive bidding procedures required by city ordinance. According to Kansas City, ASI received the license because ASI was the only state-licensed company in the area that possessed sufficient equipment to provide ambulance service on a single-provider basis. Eventually, in December 1980, the city council directed MAST to fully implement the public utility model. In September 1981, MAST purchased all of ASI s outstanding stock, thereby obtaining the company s equipment and state license. Thereafter, on December 17, 1981, the city council passed Ordinance 53539, which directed MAST to fully implement the public utility model. Shortly thereafter, the private ambulance companies, Gold Cross and Transfer and Standby Service, Inc., filed a lawsuit contending that Kansas City and other defendants violated the federal and state antitrust laws and the United States Constitution by implementing a publicly controlled, single-operator ambulance system. The defendant s case was built on case law known as Parker immunity. PARKER IMMUNITY Parker v. Brown (317 U.S. 341) is a U.S. Supreme Court case that serves as the starting point for any case involving state-action immunity doctrine. In Parker, the Supreme Court relied on principles of federalism and state sovereignty to hold that Congress did not intend the Sherman Act to restrain a state, its officers, or its agents from activities directed by its legislature that restrict or otherwise regulate competition. Therefore, if 10

16 a particular act is an action of the state, it is generally exempt from the operation of federal antitrust laws. For example, actions of state legislatures and decisions of the highest state courts have been held exempt from antitrust liability as state action. However, when the anti-competitive activity in question is not directly that of the state legislature or the highest court, but is carried out by others pursuant to state authorization, additional analysis is required to determine whether the activity is attributable to the state and whether state-action immunity applies. 8 Parker immunity was cited in a recent case, Shepard Ambulance, Inc. v. Pierce County Fire District 6 d/b/a Central Pierce Fire and Rescue, in which a federal district court denied a motion for preliminary injunction stating that the plaintiff had failed to adequately demonstrate that the defendant is not entitled to Parker immunity. The core issue in this case was the decrease of emergency calls to Shepard Ambulance, Inc. if the defendants, the county fire and rescue service, provided EMS service. Here, the court held that the Washington statute at issue gives the defendant broad power to directly provide emergency services, or to contract for the provision of those services. 9 An expression of state policy that is sufficient to establish Parker immunity is comprised of two elements: 1) the legislature must have authorized the challenged activity, and 2) it must have done so with an intent to displace competition. The first element of this test was plainly satisfied in the Gold Cross case. The Missouri legislature enacted a comprehensive regulatory scheme which expressly authorized the various elements of the single-operator ambulance system adopted by Kansas City. The state permits cities to provide ambulance service to its citizens, to acquire the necessary equipment, to contract with one or more operators to provide the ambulance service, and to promulgate rules to regulate the provision of that service (Mo. Rev. Stat. Sec ). 11

17 Section of Missouri Revised Statutes provides: 1. Any county, city, town or village may provide a general ambulance service for the purpose of transporting sick or injured persons to a hospital, clinic, sanitarium or other place for treatment of the illness or injury, and for that purpose may (1) Acquire by gift or purchase one or more motor vehicles suitable for such purpose and may supply and equip the same with such materials and facilities as are necessary for emergency treatment, and may operate, maintain, repair and replace such vehicles, supplies and equipment; (2) Contract with one or more individuals, municipalities, counties, associations or other organizations for the operation, maintenance and repair of such vehicles and for the furnishing of emergency treatment; (3) Employ any combination of the methods authorized in subdivisions (1) and (2) of this section. 2. The municipality or county shall formulate rules and regulations for the use of the equipment and may fix a schedule of fees or charges to be paid by persons requesting the use of the facilities and provide for the collection thereof. The state enacted additional laws concerning ambulance service, permitting municipalities to impose their own restrictions on ambulance service in addition to those imposed by the state. Section of Missouri s statutes provides that the issuance of a state license does not authorize operation of an ambulance without a franchise in any county, municipality or political subdivision which has enacted an ordinance making it unlawful to do so. Section provides that municipalities may adopt ambulance service ordinances that do not conflict with state law. 12

18 Continuing to apply the Parker doctrine, the second and more difficult question was whether Missouri intended to displace competition with regulation or monopoly service. The district court found that such an intent existed, stating that the state s policy [was] to place anti competitive restraints on ambulance service and that its regulatory scheme clearly indicates an intent to regulate the provision of ambulance service on the basis of public need rather than to allow unbridled competition. Moreover, the state enacted its own anti competitive scheme for regulating ambulance service in Missouri, which applies in addition to any municipal regulation. (Mo. Rev. Stat. Sections et seq.) This chapter requires all ambulance operators and vehicles to be licensed by the state, details the types of records that all ambulances must keep, and provides that no ambulance may be licensed without an annual determination by the state license officer that public convenience and necessity require the proposed ambulance service. The Decision: The district court found that the state action doctrine shielded the defendants from liability under the federal antitrust laws. The district court held that because the state action doctrine exempted the defendants from liability under the federal antitrust laws, it also exempted them under Missouri s antitrust statutes. 10 An appellate court later upheld the district court s decision stating: The issue we face here is whether the City of Kansas City, the Metropolitan Ambulance Services Trust (MAST), and various other defendants violated the federal and state antitrust laws and the United States Constitution by implementing a single-operator ambulance system to provide all of the city s emergency and non- 13

19 emergency service. We hold that Kansas City, MAST, and the consultants they retained are shielded from federal and state antitrust liability because they established the municipal ambulance system pursuant to state authorization and a clearly articulated and affirmatively expressed state policy to displace free competition in the ambulance business. We further hold that none of the defendants deprived the plaintiffs of their constitutional rights to due process. The district court s judgment, therefore, is affirmed. 11 THE SACRAMENTO CASE In May 1994, American Medical Response of Sacramento, California brought a lawsuit in federal district court against six fire districts and the regional emergency communications center for allegedly using their control over the access and communication system to restrain unlawful competition in the local EMS market. AMR representatives stated that the fire departments had fragmented the EMS system in Sacramento County and adversely impacted the delivery of medical treatment to the citizens and taxpayers. They stated that the departments acted without authorization from Sacramento County, diverting request for assistance to their own ambulance operations, and preventing AMR from having access to those calls that they needed to serve the community and save lives. AMR claimed the fire departments were using their control over the system to establish an illegal monopoly. This suit followed earlier litigation by Sacramento County to prevent other agencies (cities and fire districts) from usurping its authority by providing their own EMS services. In November 1993, the Sacramento County suit came before Judge Ronald B. Robie who ruled that the fire districts and the cities have the right to operate emergency ambulances without county approval. Judge Robie made several points relevant to fire agencies statewide. The California Health and Safety code sets the level of prehospital emergency medical service that cities and fire districts were providing 14

20 on June 1, 1980, as the minimum service level. The code also prohibits counties from restricting cities and fire districts from providing that minimum level of service. In addition, cities and fire districts do not lose their right to provide these services, if the level of service is increased beyond that established on June 1, Nothing in the code can be interpreted as prohibiting a city or fire district from increasing their level of emergency medical services. Entering into an agreement with the county does not terminate the right of cities or fire districts to continue providing prehospital emergency medical services at the level established on June 1, The 1980 level of service is a minimum, therefore, it can only be increased by Sacramento County, not decreased. The state EMS Act gives counties the authority to supervise EMS services but does not give authority to take over, control, or stop prehospital emergency medical services provided by cities or fire districts. 12 Following this decision, the County terminated its contract with AMR, and AMR filed an appeal, claiming an antitrust violation. The Decision: In November 1994, a three judge panel unanimously ruled that the appeal was moot (that is, it could not be judged), stating that, because the county had terminated AMR s contract before the appeal was heard, AMR had no standing, or stake in the case. B. JURISDICTIONAL RIGHTS TO PROVIDE In the past, several county governments in California had taken on the responsibility of providing or contracting to provide emergency medical 15

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