EMERGENCY MEDICAL SERVICES EMS

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

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: 0-942920-24-4 i

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, 9-1-1. 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

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 20006 (202) 737-8484 (202) 737-8418 (FAX)

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

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

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

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

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

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

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 1994. 3 This retrospective study analyzed cases obtained from a computer database of trial court cases filed against EMS agencies nationwide (between 1987-1992). 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

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 93-154) 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 9-1-1 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

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 1914. 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

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

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

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. 67.300). 11

Section 67.300 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 190.105.4 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 190.105.5 provides that municipalities may adopt ambulance service ordinances that do not conflict with state law. 12

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 190.100 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

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 9-1-1 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 9-1-1 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

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, 1980. 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, 1980. 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

services for cities and fire districts within their counties. In more recent years, fire districts and various cities have elected to provide their own EMS services including transport. Such action has been met with litigation questioning the various jurisdictions rights to do so. These decisions by cities and fire districts have been questioned not only by county governments but also by private companies contracting with county governments to provide services. These cases have centered around a California state law known as the EMS Act, a division of the California Health and Safety Code. The sections relevant to the following cases include general provisions, definitions, state administration, local administration, and medical control chapters. However, it is the local administration chapter, Section 1797.201, that is of primary importance. This section provides that:...upon the request of a city or fire district that contracted for or provided, as of June 1, 1980, prehospital emergency medical services, a county shall enter into a written agreement with the city or fire district regarding the provision of prehospital emergency medical services for that city or fire district. Until such time that an agreement is reached, prehospital emergency medical services shall be continued at not less than the existing level, and the administration of prehospital EMS by cities and fire districts presently providing such services shall be retained by those cities and fire districts, except the level of prehospital EMS may be reduced where the city council, or the governing body of a fire district, pursuant to public hearing, determines that the reduction is necessary. THE SAN BERNARDINO CASE The controversy began in August 1991. At that time, both a private ambulance company and city of San Bernardino s Fire Department were providing paramedic services. The private company, however, was the only provider of ambulance transport in city. 16

The County of San Bernardino filed a lawsuit in April 1992, against the City of San Bernardino, alleging that: (1)the County has the sole power and authority under the EMS Act to adopt local regulations and ordinances pertaining to emergency medical services within the County; (2) the EMS Act preempts the regulation of emergency medical services by any local entities, such as the City of San Bernardino; and, (3) the City must comply with all County protocols, policies and procedures pertaining to all aspects of emergency medical services. Specifically, the County alleged that it had issued two protocols that the City was refusing to follow. The first, called the Patient Management Protocol, had been issued on November 1, 1991. It provides that, in the event that both public and private emergency medical personnel arrive on the scene with the same qualifications, patient management responsibility will rest with the first to arrive. The second, called the Dispatch Protocol, concerned the method of dispatching emergency medical vehicles. The Dispatch Protocol forbids the City s alleged practice of delaying the arrival of ambulances at the scene of medical emergencies. The County further alleged that the City was refusing to comply with either protocol, and that it was manipulating its dispatch procedures to assure that paramedics on City fire engines arrived first at the scene of an emergency. The private company that joined the County in the lawsuit argued that the City was attempting to drive it out of business in San Bernardino, despite its designation by the County as the exclusive provider of ambulance transportation services in the City. The City responded that the County did not have any authority to dispatch, regulate or authorize ambulance or other emergency medical care providers to operate within the City limits of the City of San Bernardino. 13 The trial court specifically agreed with the City s interpretation of Section 1797.201 and found that the County s jurisdiction over the City was limited 17

to medical control, as specified. The trial court also found that, since the City retained management and control over prehospital EMS within its boundaries, the County had no authority to dispatch, regulate, or authorize providers to operate within the City. The County appealed this decision. The Decision: The appellate court in California which heard the case decided in the City s favor on all issues. Specifically, the court held that: The County had no authority to dispatch, regulate, or authorize providers within cities; the City did not need any agreement from the County regarding contracting for services; and, the EMS Act does not override local regulation of prehospital EMS. The County appealed this decision, and the case was heard before the California Supreme Court in April 1997. The final decision is pending. THE SANTA CLARA CITY CASE The City of Santa Clara, CA made a decision to cease relying on the County of Santa Clara to provide EMS services, electing instead to provide EMS by the Santa Clara City Fire Department. Following this decision, American Medical Response (AMR), the contracted provider in the County, filed a lawsuit. However, the judge refused to hear the case, stating that only the County, and not AMR, could file such a suit against the City. The County filed suit, and a temporary restraining order was issued against the City, preventing the City from providing EMS by the fire department. A hearing was held on the issue in July 1996 in which the judge upheld the temporary restraining order pending the resolution of the San Bernardino case, described above. To intercede on behalf of the members of Local 1171 in this case, IAFF General President Alfred K. Whitehead wrote the following letter to the 18

members of the Santa Clara County Board of Supervisors: November 8, 1996 Dear Supervisor : I write on behalf of the International Association of Fire Fighters and its 200,000 members throughout the United States and Canada including those employed by the City of Santa Clara and affiliated with this Union as Local 1171 in support of the City of Santa Clara s right to commence operations of an ambulance transport paramedic service under the California Pre-Hospital Emergency Medical Services Act, California Health and Safety Code sections 1797, et seq. The County of Santa Clara has opposed establishment of this service to the citizens of the City of Santa Clara and has obtained an injunction preventing the City from providing such services pending the resolution by the California Supreme Court of County of San Bernardino, et al. v. City of San Bernardino. The IAFF and its affiliated state organization, the California Professional Firefighters, has filed an amicus brief in support of the City of San Bernardino in that case. We want to reaffirm and restate our position that the cities and special districts within the State of California have the legal authority to provide the much needed and valued ambulance transport paramedic service to citizens without approval from county governmental entities. In our view, the California Legislature established a system for coordination and integration of pre-hospital emergency medical services ( EMS ), utilizing all resources available and, where resources are inadequate to achieve those goals, providing a mechanism to enhance services in order to ensure the provision of effective and efficient emergency medical care. (California Health and Safety Code, Subsec. 1797.6(a).) The legislature recognized the value and the necessity of the provision and administration of EMS by cities and fire districts that had historically provided such services on the most local level. Accordingly, the legislature gave explicit authorization for such local governmental entities to continue providing and administering those services, subject only to training and certification standards as well as medical control procedures as set forth elsewhere in the Act. (Health and Safety Code, Subsec. 1797.201.) Under the EMS Act, cities and fire districts that historically provided prehospital emergency medical services are not only permitted, but required to continue the provision and administration of such services until such time as they take the appropriate steps under the Act to relinquish their responsibilities, thus shifting the burden of protecting the health and safety of their citizens to the counties. Section 1797.201 of the Act preserves local administration and provision of EMS. When a county seeks to implement an EMS plan in a jurisdiction where a municipality is already providing the services, for example, in Santa Clara County, it is incumbent upon the County to incorporate and coordinate the existing provider into the overall system, while respecting the municipalities legislatively granted autonomy. 19

There is no genuine conflict between local control of emergency medical services and the legislative schema which invests a measure of control over aspects of those services in county administrations. Municipal control of emergency medical services does not displace or override any authority maintained by the State in the EMS Act. There are strong policy reasons for maintenance of a vital local presence in the provision and administration of prehospital EMS. Preserving a role for cities and fire districts in the EMS system reduces a county s responsibilities and even liability exposure while accommodating local preferences regarding ambulance services. In our view, there is no principled reason, if local emergency medical services meet exacting standards of training, certification, and preparedness, that they should be subordinate to the County of Santa Clara. The EMS Act does not preempt local control over prehospital emergency medical services and preserves the balance between matters of state-wide concern and the particular democratic grass roots needs of the local citizenry. Here, the local citizenry has determined that the City of Santa Clara should commence provision of ambulance transport paramedic service, consistent with the prehospital EMS services historically and previously provided by the City of Santa Clara. Because we believe that the City of Santa Clara has the right to engage in such services we respectfully request the Board of Supervisors reexamine and reconsider the need for an injunction prohibiting the City from providing ambulance transport services pending the resolution of thesan Bernardino case. Your kind attention and consideration of this matter is anticipated and appreciated. The City of Santa Clara, anticipating the removal of the restraining order, has gone forward with plans to implement a full fire department-based EMS system, including transport. The system will be operational pending the resolution of the San Bernardino case. C. QUI TAM LITIGATION Another type of litigation that may confront EMS system providers is qui tam suits under the false claims act of federal Medicare laws. Qui tam is an abbreviation of a latin phrase meaning who sues on behalf of the King as well as for himself. It is an action brought by an informer, under a statute which establishes a penalty for the commission or ommission of a certain act, and provides that the same shall be recoverable in a civil action, part of the penalty to go to any person who will bring such action, and the remainder to the state or some other institution. 14 20

These suits allow private citizens to receive a portion of any fines collected by the federal government if defendants are found liable for false claims. Once the private individual files the lawsuit, the federal government may bring its own suit, take over the original suit filed, or file criminal charges. Fire departments in various parts of the United States, particularly in the northwest, have been targeted in lawsuits filed by private ambulance companies or individuals intent on forcing departments to curtail their provision of ambulance transport services. THE MASON COUNTY FIRE DISTRICT 5 CASE 15 In June of 1995, a former ambulance company owner, who had become an expert in Medicare regulations, filed a qui tam suit under the False Claims Act, claiming that a fire protection district in rural Washington had violated federal Medicare laws. The suit claimed that Mason County Fire Protection District 5 had waived Medicare co-payments for all taxpayers in that district and two other districts. The suit also claimed that the district had billed for ALS services when only BLS services were necessary and that Fire District 5 had billed for services provided in their district by other departments. Settlement: On April 1, 1996, the U.S. Department of Justice approved a settlement in the case. The Fire Protection District settled by agreeing to pay at least three times the amount billed for approximately 700 Medicare claims dating back to 1989. Had the case gone to court and the District been found guilty, it could have been liable for monetary damages for each claim in addition to the treble damages paid at settlement. Fire departments who provide EMS inclusive of transport services must constantly monitor changes in local, state, and federal laws that may impact those services. Accurate documentation and billing for transport services are essential. 21

CONCLUSION Fire department leaders and individual EMS providers must be knowledgeable of statutes that affect the provision of emergency medical services in their state, county, or city. Fire department leaders should also initiate efforts to pass or protect laws, ordinances, policies, procedures, and protocols to protect EMS system providers and EMS system administrators. Additionally, a knowledgeable attorney should be involved in any issue that may have legal or medical-legal ramifications. 22

ENDNOTES 1 MEDICAL AND LEGAL CONSIDERATIONS, ADVANCED EMERGENCY CARE FOR PARAMEDIC PRACTICE, J.B. LIPPINCOTT COMPANY, PHILADELPHIA, PA, 1992. 2 MORGAN, D., ET AL., LIABILITY IMMUNITY AS A LEGAL DEFENSE FOR RECENT EMERGENCY MEDICAL SERVICES SYSTEM LITIGATION, PREHOSPITAL AND DISASTER MEDICINE, APRIL-JUNE 1985. 3 MORGAN, D., ET AL., EMERGENCY MEDICAL SERVICES LIABILITY LITIGATION IN THE UNITED STATES, PREHOSPITAL AND DISASTER MEDICINE, OCTOBER-DECEMBER 1994, PP. 24-221. 4 LAWSUITS ATTEMPT TO LIMIT FIRE SERVICE EMS, EMS INSIDER, 23:5, MAY 1996. 5 GREENBERG, W., COMPETITION, REGULATION, AND RATIONING IN HEALTH CARE, HEALTH ADMINISTRATION PRESS, ANN ARBOR, MI, 1991, PP. 111-126. 6 IBID. 7 IBID. 8 ELECTRICAL CONTRACTORS V. FORREST, ANTITRUST LAWS, 127 LRRM 2684 (9TH CIR. 1988). 9 SHEPARD AMBULANCE, INC. V. PIERCE COUNTY; ORDER DENYING MOTION FOR PRELIMINARY INJUNCTION, U.S. DISTRICT COURT, WESTERN DISTRICT OF WASHINGTON, NO. C96-5074FDB, FEBRUARY 23, 1996; STATUTE CITED IS WASH. REV. CODE SEC. 52.2.031(3). 10 GOLD CROSS AMBULANCE AND TRANSFER AND STANDBY SERVICE, INC. V. CITY OF KANSAS CITY, ET AL., 705 F.2D 005; 983- TRADE CAS. (CCH) 65-339 (8TH CIR. 1983). 11 IBID. 12 SACRAMENTO FIRE FIGHTERS WIN AMBULANCE SERVICE, INTERNATIONAL FIREFIGHTER, MAY/JUNE 1994. 13 COUNTY OF SAN BERNARDINO, ET AL., V. CITY OF SAN BERNARDINO; TENTATIVE OPINION, SUPERIOR COURT NO. 224288. 14 BLACKS LAW DICTIONARY, 6TH EDITION, WEST PUBLISHING COMPANY, ST. PAUL, MINNESOTA, 1990, P. 1251. 15 LAWSUITS ATTEMPT TO LIMIT FIRE-SERVICE EMS, EMS INSIDER, MAY 1996. 23

GLOSSARY Emergency Medical Services (EMS) The provision of services to patients with medical emergencies. EMS has emerged as as field whose purpose is to reduce the incidence of preventable life-threatening and disabling injuries and acute illness whenever possible, and to minimize the physical and emotional impact of injuries and illnesses which do occur. The EMS field derives its origins and body of scientific knowledge from the related fields of medicine, public health, health care systems administration, and public safety. EMS System A comprehensive, coordinated arrangement of resources and functions which are organized to respond in a timely, staged manner to targeted medical emergencies, regardless of their cause and the patient s ability to pay, and to minimize their physical and emotional impact. 24

APPENDIX 2. MEDICAL-LEGAL CONCERNS OF PREHOSPITAL EMS PROVIDERS 1. The primary sources of law are constitutional, statutory, and common law. 2. Statutory law or legislative law, usually interpreted by regulations, deals with the fundamental legal issues that regulate society and also commonly is referred to as police powers. 3. Common law, also known as case law, is a sum total of court rulings on earlier and similar cases. 4. State laws and case rulings may vary considerably from location to location across the country. 5. Negligence is a form of common law and includes medical malpractice. To prove negligence (malpractice), the plaintiff (patient) must prove that the defendant (physician, nurse, etc.) had a duty to the patient, the defendant breached that duty by not observing the standard of care required, and the failure of the defendant to comply with the standard of care was the cause of damage or injury to the patient. 6. If the plaintiff (patient) received no injury, negligence cannot be proved. 7. EMS personnel have a duty to act, that is a duty to evaluate all patients requesting treatment because they hold themselves out as providing that service. 8. The standard of care for a prehospital emergency medical care provider is determined at the state level and may vary state to state. 9. Negligence may occur in three forms: malfeasance, misfeasance, or nonfeasance. 10. Malfeasance is where the defendant performed an act that violated a standard or law. 11. Nonfeasance is where the defendant failed to act where required (act of omission). 12. Malfeasance and nonfeasance (misfeasance) apply the "reasonable person" standard that asks whether the defendant failed to provide the care that a reasonable person in the same circumstances would have provided. 13. Gross negligence is severe violation of the standard expected of a reasonable provider and is essentially similar to recklessness and willful and wanton misconduct. 14. Willful and wanton misconduct shows a reckless disregard for safety and is similar to gross negligence and recklessness. 15. Willful (knowing) misconduct is when the defendant is consciously aware of the potential outcome of his or her conduct. 16. Wanton (recklessness) misconduct is when a person disregards a substantial and unjustifiable risk, and such disregard constituted a gross deviation from the standard of care expected from a reasonable provider. 17. Proximate cause means there is some cause-and-effect relation between the action of the defendant and the damages sustained by the patient. 1

18. Regarding injury, a defendant must prove that he or she sustained either physical or psychological injury. 19. Psychological injury alone is difficult to evaluate, but in some states patient can receive compensation by this type of injury. 20. Contributory negligence means the patient must prove he or she did nothing to cause or contribute to his or her own injury. This doctrine has been variously interpreted but is sometimes used as a successful defense in malpractice cases. 21. Comparative negligence provides that each defendant pay for the injuries or damage of the other party in the same proportion as his or her responsibility for the injury. 22. Abandonment means termination of medical care without legal excuse or turning the patient over to lesser-qualified personnel, thereby injuring the patient. 23. Battery is physical contact with a person without his or her consent and without legal justification. It may be a consideration when dealing with intoxicated or incompetent patients. 24. The plaintiff may recover damages for battery without proving the elements of negligence. 25. Implied consent means the law will presume that an unconscious or incompetent person would consent to life-saving care. 26. Refusal of treatment means a competent, conscious adult has the right to refuse to consent to medical care. 27. Res ipsa loquitor ("the thing speaks for itself") is a legal concept used when the circumstances of the case make it impossible to prove all the elements of negligence and shifts the burden of proof from the patient to the defendant to prove that he or she was not negligent. 28. The elements of res ipsa loquitor dictate that the injury would not have occurred in the absence of someone's negligence, that the cause of the injury was under the exclusive control of the defendant at all times, and that the patient did nothing that would have contributed to his or her own injury. 29. Vicarious liability (respondeat superior) is when an employer is held liable for the negligence of his or her employees. Under this doctrine, the fire department may be sued for the provider's negligent actions. Also, a physician acting as medical director of an emergency squad may be held liable for the actions of paramedics operating under his or her license, if it were found that the physician condoned an action that proved to be negligent. 30. Defense in malpractice cases includes statute of limitations (generally two or three years), Good Samaritan laws that protect the prehospital provider when providing emergency care, and government immunity usually reserved for employees of a government body. 31. Good Samaritan law limits liability of certain groups of health care providers for injuries caused to patients. Coverage may be denied to anyone who cannot meet all the literal requirements of the act. 2

32. Consent to treat is required before a patient receives medical treatment. This consent may be either express or implied. 33. Informed consent is consent obtained from a patient after explaining all facts necessary for a reasonable patient to make a decision. 34. Express consent is when a patient gives explicit consent to a provider to provide treatment. 35. Implied consent is when a patient conveys consent to treatment by actions or when the patient is not mentally capable of giving consent during an emergency situation. 36. Consent to treat is specific, therefore, consent to treat may not include consent to draw a blood alcohol level. Treatment without consent could lead to accusations of assault (threat to person) and battery (unlawful touching). 37. Patients under arrest may also accept or refuse treatment. 38. Against medical advice means the patient may withdraw consent to treat at any time, but the provider should first ascertain that the patient is capable of making this decision, is not mentally impaired, truly understands the risks of refusing treatment, and then have the patient sign out of treatment "AMA." 39. Minors lack legal competence to consent to treatment, and authorization is required from the legal guardian of the minor. 40. A patient that admits to attempting to commit suicide does not have the mental capacity to give consent, and treatment is required under the emergency doctrine (even if this involves restraint of the patient). 41. EMS professionals may be required to report certain conditions to the proper authorities, including child abuse, alleged sexual assault, venereal or communicable diseases, animal bites, gun-shot and other violent wounds, poisoning, injuries caused by unlawful acts, and statutory rape. 42. If the paramedic turns the care of the patient over to a person with lesser level of capability, he or she may be responsible for abandonment should the patient encounter any difficulties during the transfer. 43. "Do not resuscitate" orders should be respected when current, written, and signed by the patient's private physician. EMS providers should check state laws specific to this issue. 44. If CPR, ALS, or both were initiated in the prehospital phase, CPR should be continued until the patient has been pronounced dead by a licensed physician (or by a person recognized by law as being capable or permitted to pronounce death). SOURCE: "Medical-Legal Concerns of EMS," Principals of EMS Systems, 2nd Edition, American College of Emergency Physicians, 1994. 3