Legal issues
W. Ann “Winnie” Maggiore
Search for more papers by this authorW. Ann “Winnie” Maggiore
Search for more papers by this authorDavid C. Cone MD
Professor of Emergency Medicine
Yale University School of Medicine, New Haven, Connecticut
Search for more papers by this authorJane H. Brice MD, MPH
Professor of Emergency Medicine
University of North Carolina at Chapel Hill, Chapel Hill, North Carolina
Search for more papers by this authorTheodore R. Delbridge MD, MPH
Executive Director
Maryland Institute for Emergency Medical Services Systems, Baltimore, Maryland
Search for more papers by this authorJ. Brent Myers MD, MPH
Chief Medical Officer ESO Associate Medical Director
Wake County EMS, Raleigh, North Carolina
Search for more papers by this authorSummary
The legal framework of the relationship between the EMS medical director and the prehospital clinician is now well defined. Physician medical directors have a supervisory relationship with the clinicians; the clinicians are not their agents for liability purposes. This chapter shows how the legal side of EMS continues to unfold and explains the sources of the medical director's authority. It also discusses how states and courts may differ in how they view liability areas. By understanding the legal relationship and how the legal system is likely to view various issues in EMS, medical directors can engage in risk management activities to limit liability for errors in EMS care and system issues.
References
- American College of Emergency Physicians . Policy statement—medical direction of emergency medical services . Ann Emerg Med . 1998 ; 31 : 152 .
- Anonymous . The ambulance in American cities . [editorial] JAMA . 1987 ; 258 : 36 – 7 .
- Kowalski v. Gratopp , 442 N.W.2d 682 , 1989 .
- Page I. The Paramedics . Norristown, PA : Backdraft Publications , 1979 .
- Highway Safety Program Standard Number 11: Emergency Medical Services . 23 CFR 1205.4 , November 14, 1968 .
- Norris JA . Current status and utility of emergency medical care liability law . Forum . 1980 ; 15 : 377 – 405 .
- Anderson v. Little & Davenport , 251 S.E.2d 250 , 1978 .
- Hindmand R , Maggiore W . Medical control of emergency medical services . J Health Life Sciences Law . 2011 ; 4 ( 2 ).
- National Association of EMS Physicians . Expert witness qualifications and ethical guidelines for issues related to emergency medical services litigation . Prehosp Emerg Care . 2009 ; 13 : 370 .
- Page JO . Whose license is it anyway? JEMS . 1999 ; 24 : 92 .
- Mix v. Romstadt , 2015 WL 628343 .
- Black's Law Dictionary . 6th ed. Eagan, MN : Thomson West , 1990 .
- Texas Occupations Code Annotated Ch. 155-156, 22 TAC Part 9 Ch. 197 Rule 197.2 .
- Rubin v. Fox , 60 A.3d 179 , Pa. 2010 .
- Minnesota 144E.265 .
- NMAC 7.27.3.9(I) .
- Weigand v. Spadt 317 F . Supp. 2d 1129 (D. Neb. 2012 ).
- Local 311 Association of Firefighters v. Sun Prairie , 382 Wis. 2d, 831, 917 NW 2d 233 .
- County of Hennepin v. Hennepin County Association of Paramedics and Emergency Medical Technicians , 464 N.W.2d 578 , 1990 .
- Harris v. Forklift Systems Inc ., 114 S. Ct. 367 ( 1993 ).
- The pertinent part of the False Claims Act (31 USC 3730) reads: “Any person who—(1) knowingly presents, or causes to be presented, to an officer or employee of the United States Government or a member of the Armed Forces of the United States a false or fraudulent claim for payment or approval; (2) knowingly makes, uses, or causes to be made or used, a false record or statement to get a false or fraudulent claim paid or approved by the Government; (3) conspires to defraud the Government by getting a false or fraudulent claim allowed or paid; … is liable to the United States Government for a civil penalty of not less than $5,000 and not more than $10,000, plus 3 times the amount of damages which the Government sustains because of the act of that person.”
- The pertinent part of the Medicare law dealing with fraud (42 USC 1320a) reads: “Any person (including an organization, agency, or other entity, but excluding a beneficiary, as defined in subsection (i) (5) of this section) that—(1) presents or causes to be presented to an officer, employee, or agent of the United States, or of any department or agency thereof, or of any State agency, a claim that the Secretary determines—(A) is for a medical or other item or service that the person knows or should know was not provided as claimed, (B) is for a medical or other item or service and the person knows or should know the claim is false or fraudulent, … shall be subject, in addition to any other penalties that may be prescribed by law, to a civil money penalty of not more than $2,000 for each item or service. In addition, such a person shall be subject to an assessment of not more than twice the amount claimed for each such item or service in lieu of damages sustained by the United States or a State agency because of such claim. In addition the Secretary may make a determination in the same proceeding to exclude the person from participation in the programs under subchapter XVIII of this chapter and to direct the appropriate State agency to exclude the person from participation in any State health care program.”
- Federal Register , September 12, 2000 , 65 ( 177 ): 55077 – 55100 .
- Federal Register , January 25, 1999 ; 64 ( 15 ): 3637 – 3650 .
- Federal Register , December 28, 2000 ; 65 ( 250 ): 82461 – 82829 .
- The full statute reads: “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.”
- 729 F. Supp 376 , 1990 .
- 826 F.2d 1030 , 1987 .
- 764 F. Supp 1510 , 1991 .
- Atwater v. Caruana , United States District Court of the District of New Mexico, No. CIV 96-1218JP. The case was settled before a decision was made by a judge on the merits of the action .
- 29 U.S.C . §2601.
- Hagan v. Anderson , United States District Court for the Eastern District of Kentucky, No. 99-11, filed August 3 , 2000 .
- 29 U.S.C . §706(8)(D).
- Wydro GC , Cone DC , Davidson SJ . Legislative and regulatory description of EMS medical direction: a survey of states . Prehosp Emerg Care . 1997 ; 1 : 233 – 7 .
- Florida Public Health Law 401.265.
- Board of Medical Examiners . Oregon administrative rule 847-35-025 .
- Washington statute RCW 18.71, WAC 246-976920 , revised 1990 .
- Board of Medical Examiners . Oregon administrative rule, Ambulances and Emergency Medical Personnel , 847-35-020(2).
- Missouri Rule, 19 CSR 30-40.160 , updated Feb 25, 1995 .
- §9.3.2, 7 NMAC 27.3, Medical Direction for Emergency Medical Services , 1996 .
- U.S. Department of Health , Education and Welfare Report, Credentialing Health Manpower . US Government Printing Office, 1977 .
- Fullmer v. USA , U.S. 10th Circuit Court of Appeals, No. 97-4136 , http://laws.findlaw.com/10th/974136.html .
- Murphy v. Board of Medical Examiners of the State of Arizona (BOMEX) , 95-0327 and 1 CA-CV 95-0182 (Consolidated) , filed July 15, 1997. Arizona Supreme Court denied cert.
- For example, Washington, RCW 18.71.215 provides that “The Department of Health shall defend and hold harmless any approved medical program director, delegate, or agent, including, but not limited to, hospitals and hospital personnel in their capacity of training EMS personnel for certification or recertification, provided that their acts or omissions were committed in good faith in the performance of their duties.”
- A review of immunities is available at 16 ALR5th 605, Liability for Negligence of Ambulance Attendants, Emergency Medical Technicians, and the Like, Rendering Emergency Medical Care Outside Hospital.
- Malone v. City of Seattle , 600 P.2d 647 , 1979 .
- Marthaller v. Kings County Hospital , Court of Appeals of the State of Washington, No. 41288-4-I , filed March 29, 1999 .
- Bush v. Community Care Ambulance Network , 2012 WL4481299 (Ohio App 11 Dist).
- Sadler v. New Castle County , 524 A.2d 18 , 1987 .
- Mooney v. Sneed , Supreme Court of Tennessee, No. W1997-00089-SC-R11-CV , filed October 13, 2000 .
- Tenn . Code Ann. §29-20-310(b) (Supp. 1999 ).
- 28 U.S.C. §1326 allows claims against the United States, for money damages, accruing on and after January 1, 1945, for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.
- 28 U.S.C . §2680.
- Fang v. U.S. , U.S. 9th Circuit Court of Appeals , March 31, 1998 , http://laws.findlaw.com/9th/9656800.html .
- Frey V. The scope of Good Samaritan legislation . Med Trial Technique Q . 1994 ; 40 : 159 – 69 .
- Arizona, for example, in Guerrero v. Copper Queen Hospital , 537 P.2d 1329, 1975 .
- California, for example, in McKenna v. Cedars of Lebanon Hospital , 155 Cal.Rptr. 631, 1979 .
- Alabama , Colorado , Georgia , Utah , Washington, and Wyoming. Frey V. The scope of Good Samaritan legislation . Med Trial Technique Q . 1994 ; 40 : 169 .
- For example Arizona, Ariz Rev Stat Ann §32-1471, provides that “Any health care provider licensed or certified to practice as such in this state or elsewhere, or a licensed ambulance attendant, driver or pilot as defined in §41-1831, or any other person who renders emergency care at a public gathering or at the scene of an emergency occurrence gratuitously and in good faith shall not be liable for any civil or other damages as a result of any act or failure to act to provide or arrange for further medical treatment or care for the injured persons, unless such person, while rendering such emergency care, is guilty of gross negligence.”
-
American College of Emergency Physicians
.
Good Samaritan protection
.
Ann Emerg Med
.
2000
;
35
:
640
.
10.1016/S0196-0644(00)70041-2 Google Scholar
- Chase v. Mayor and City Council of Baltimore , May 26, 1999, No. 677, Court of Special Appeals of Maryland . See also Fogelson RJ. Legal immunity dwindles for EMS providers. EMS Insider. 1999; 26: 6.
- Mayor and City Council of Baltimore , et al. v. Sharon E. Chase, July 27, 2000, No. 77, Court of Appeals of Maryland .
- Public Law 105-170 §5(b) . This includes “any person who is licensed, certified, or otherwise qualified to provide medical care in a State, including a physician, nurse, physician assistant, paramedic, and emergency medical technician.”
- Tallahassee Regional Medical Center, Inc. v. Meeks , 543 So.2d 770 , 1989 .
- Tallahassee Regional Medical Center, Inc. v. Meeks , 560 So.2d 778 , 1991 .
- Gore CL. A physician's liability for mistakes of a physician assistant . J Legal Med 2000 ; 21 : 125 – 42 .
- Mozingo v. Pitt County Memorial Hospital , 415 S.E.2d 341, 347 (N.C. Sup. Ct. 1992 ).
- Mozingo v. Pitt County Memorial Hospital , 415 S.E.2d . (N.C. Sup. Ct. 1992). For a good review of this case, see Glenn SM. Liability in the absence of a traditional physician-patient relationship: what every “on call” doctor should know: Spec Law Dig Health Care Law . 1994 ; (187): 9 – 36 .
- Rivera v. Prince George's County Health Department , 649 A.2d 1212 (Md. App. 1994).
- Millard v. Corrado , Missouri Court of Appeals Eastern District , No. ED75420, Filed 14 December 1999.
- Diggs v. Arizona Cardiologists, Ltd ., Arizona Court of Appeals Division 1 , 1 CA-CV 99-0508, filed August 8, 2000 .
- 464 A.2d 578 , 1990 .
- Rubin v. Fox , 60 A3d 179 .
- Rinehart v. City of Greenfield . US District Court of Indiana , # 1:06-cv-0688-DFH-TAB.
- Smith v. City of New Smyrna Beach 2012 WL 6721002 (M.D. Fla).
- Falkowski v. Maurus , 637 So. 2d 522 , 1993 .
- De Long v. County of Erie , 457 N.E.2d 717 , 1983 .
- Johnson v. District of Columbia , 580 A.2d 141 , 1990 .
- Cuffy v. City of New York , 513 N.Y.S.2d 372 , 1987 .
- Wanzer v. District of Columbia , 580 A.2D 127 , 1990 .
- St. George v. City of Deerfield Beach , 568 So.2d 931 , 1990 .
- Schear v. Board of County Commissioners , 687 P.2d 728 , 1984 .
- American National Bank & Trust Co. of Chicago v. The City of Chicago , No. 1-97-1212, Appellate Court of Illinois, First Judicial District , filed July 24, 1998 .
- American National Bank & Trust Co. of Chicago v. The City of Chicago , Docket No. 86215-Agenda 14- November 1999, Supreme Court of Illinois, filed August 10, 2000 .
- Ma v. City and County of San Francisco City & County of S.F . Super. Ct. No. 998809 .
- Eastburn v. Regional Fire Protection Authority . California Fourth District Court of Appeals .
- Hill v. East Baton Rouge Parish Department of EMS 925 So.2d 17, 2005-1236 (La. App. 1 Cir. 12/22/05).
- Estate of Morgan v. Mayor and City Council of Hampton, Virginia , 1996 U.S. Dist. Lexis 519 (E. D. Va.).
- Jackson v. Byrne , 738 F.2d at 1446 .
- Cooper v. City of Honolulu , 1st Cir. Ct . (Haw. 1992 ).
- Harvey AL , et al. Actual vs. perceived EMS response time . Prehosp Emerg Care . 1999 ; 3 : 11 – 4 .
- Steve Forry, VFIS/AIS, personal communication .
- Whiting JD , Dunn K , March JA , Brown LH . EMT knowledge of ambulance traffic laws . Prehosp Emerg Care . 1998 ; 2 : 136 – 40 .
- 475 A.2d 1319 , 1985 .
- Overman v. Occoquan , Woodbridge, Lorton Volunteer Fire Department, District Court , 90-42A, 1990 .
- 447 A.2d 860 , 1989 .
- Malcom v. City of East Detroit , 468 N.W.2d 479 , 1991 .
- Otero v. City of Albuquerque , et al., CV 94-10501, Second Judicial District Court , County of Bernalillo, New Mexico .
- 29 CFR §§1910.120 and 1926.25 .
- Standard 1561: Standard on emergency services incident management system and command safety . Quincy, MA : National Fire Protection Association , 2020 .
- Borrego v. City of El Paso , TC# 92-10222, County Court at Law No. 4, El Paso County , Texas .
- USFA/FEMA . Firefighter Fatalities in the United States in 1997 . 1998 : 31 .
- Hospital Authority of Gwinnett County and Gwinnett Ambulance Services Inc. v. Jones , 386 S.E 2d 120, Supreme Court of the State of Georgia, Brief of Appellee , 1989 .
- Smith v. Medical Center East , 585 So.2d 1325 , 1991 .
- Entrican v. Ming 962 So. 2d 28 S.Ct . Miss 2007 .
- Johnson v. Univ. Of Chicago , 982 F.2d 230 , 1992 .
- Davis v. Johns Hopkins Hospital , 585 A.2d 841 , 1991 .
- 42 C.F.R. §489.249(b). “Comes to the emergency department” means, with respect to an individual requesting examination or treatment, that the individual is on the hospital property (property includes ambulances owned and operated by the hospital, even if the ambulance is not on hospital grounds). An individual in a nonhospital-owned ambulance on hospital property is considered to have come to the hospital's emergency department. An individual in a nonhospital-owned ambulance off hospital property is not considered to have come to the hospital's emergency department, even if a member of the ambulance staff contacts the hospital by telephone or telemetry communications and informs the hospital that they want to transport the individual to the hospital for examination and treatment. In such situations, the hospital may deny access if it is in “diversionary status,” that is, it does not have the staff or facilities to accept any additional emergency patients. If, however, the ambulance staff disregards the hospital's instructions and transports the individual onto hospital property, the individual is considered to have come to the emergency department.
- Arrington v. Wong , United States Court of Appeals for the Ninth Circuit , Opinion No. 98-17135, filed January 22, 2001 .
- Center for Medicare/Medicaid Services , Survey & Certification Group, S&C06-21 , July 13, 2006 .
-
Selden BS
,
Schnitzer PG
,
Nolan FX
,
Veronesi JF
.
The “no-patient” run: 2,698 patients evaluated but not transported by paramedics
.
Prehosp Disaster Med
.
1991
;
6
:
135
–
142
.
10.1017/S1049023X00028259 Google Scholar
- Handler H , Vice President, The American Agency, 1988, and Forry S, Director of EMS Programs, VFIS/AIS , 1997 .
-
Sucov A
,
Verdile VP
,
Garettson D
,
Paris PM
.
The outcome of patients refusing prehospital transportation
.
Prehosp Disaster Med
.
1992
;
7
:
365
–
71
.
10.1017/S1049023X00039789 Google Scholar
-
Zachariah BS
,
Bryan D
,
Pepe PE
,
Griffin M
.
Follow-up and outcome of patients who decline or are denied transport by EMS
.
Prehosp Disaster Med
.
1992
;
7
:
359
–
64
.
10.1017/S1049023X00039777 Google Scholar
- Anonymous . Albuquerque providers paid to evaluate: transport unnecessary for reimbursement . EMS Insider . 1998 ; 25 : 8 .
- Schmidt T , Atcheson R , Federiuk C , et al. Evaluation of protocols allowing emergency medical technicians to determine need for treatment and transport . Acad Emerg Med . 2000 ; 7 : 663 – 9 .
- Schmidt T , Atcheson R , Federiuk C , et al. Hospital follow-up of patients categorized as not needing an ambulance using a set of emergency medical technician protocols . Prehosp Emerg Care . 2001 ; 5 : 366 – 70 .
- Hauswald M . Can paramedics safely decide which patients do not need ambulance transport or emergency department care? Prehosp Emerg Care . 2002 ; 6 : 383 – 6 .
- Silvestri S , Rothrock SG , Kennedy D , Ladde J , Bryant M , Pagane J . Can paramedics accurately identify patients who do not require emergency department care? Prehosp Emerg Care . 2002 ; 6 : 387 – 90 .
- Canterbury v. Spence , 464 F.2d 772 (cert denied 409 US 1064), 1972 .
- Lemann v. City of Baton Rouge EMS , 923 So. 2d 627 (La. 2006 ).
- Holt v. City of Memphis , 2001 WL 846081 (Tn. Ct. App.).
- Kyser v. Metro Ambulance , 764 So.2d 215 (La. App. 2000 ).
- Schloendorff v. The Society of New York Hospital , 105 N.E. 92 , 1914 . 105 .
- Salazar v. City of Chicago , 840 F.2d 233 , 1991 .
- Smith v. Medical Center East , 585 So.2d 1325 , 1991 .
- Kaplan K , Price M . The clinician's role on competency evaluations . Gen Hosp Psychiatry . 1989 ; 11 : 397 – 403 .
- Zun L. A survey of the form of the mental status examination administered by emergency physicians . Ann Emerg Med . 1986 ; 15 : 916 – 22 .
- Abbott JL , Birnbaum G. Current practices of emergency health service providers in the acquisition of informed consent . Unpublished data from presentation at ACLM annual meeting, March 2000 .
- St. John v. Pope , 901 S.W.2d 420 , 1995 .
- Holroyd B , Shalit M , Kallsen G , Culhand D , Knopp R . Prehospital patients refusing care . Ann Emerg Med . 1988 ; 17 : 957 – 63 .
- 268 A.2d 309 , 1990 .
- 665 S.W.2d 567 , 1984 .
- 466 So.2d 1127 , 1985 .
- Ambrose v. New Orleans Police Department Ambulance Service , 627 So2d 233 , 1993 .
- Lane v. Candura , 376 N.E.2d 1232 , 1978 .
- 568 So.2d 931 , 1990 .
- Reviewed in §19.01[3][c] Statutes Permitting General Consent to Treatment, in Treatise on Health Care Law (Matthew Bender, 1996). For example, Alabama allows consent at 14, Oregon at 15, Kansas at 16.
- Threadgill v. Peabody Coal Co ., 526 P.2d 676 , 1974 .
- Vasquez v. Board of Regents , State of Florida, 548 So.2d 251 , 1989 .
- Shanaberger CJ . Why releases don't work . JEMS . 1988 ; 13 : 47 – 9 .
- Wideman v. DeKalb County , 409 A.2d 537 , 1991 .
- Blackman v. Rifkin , 759 P.2d 54 , 1988 .
- Shine v. Vega , 429 Mass. 456, 709 N.E.2d 58 .
- Florida statutes , Section 396.072(1), 1979 .
- §24-10B-9.1 NMSA 1978 .
- Moore v. Wyoming Medical Center , 825 F.Supp 1531 , 1993 .
- Mistelle Cathey v. City of Louisville , Joseph Schiess , and Lee Schmid , 1999 Ky. App. LEXIS 108.
- American College of Emergency Physicians . Policy statement—medical direction of interfacility patient transfers . Ann Emerg Med . 1998 ; 31 : 154 .
- Martin G , et al. Prospective analysis of rural interhospital transfer of injured patients to a referral trauma center . J Trauma . 1990 ; 30 : 1014 – 9 .
- Guidelines for the transfer of critically ill patients . Guidelines Committee of the American College of Critical Care Medicine; Society of Critical Care Medicine and American Association of Critical-Care Nurses Transfer Guidelines Task Force . Crit Care Med . 1993 ; 21 : 931 – 7 .
- 462 A.2d 680 , 1983 .
- 42 U.S.C. 1395dd .
- 42 U.S.C. 1395dd(c)(2) .
- Lelis L . Jury awards $10 million in ambulance birth . Orlando Sentinel , April 5, 2010 . http://articles.orlandosentinel.com/2010-04-05/news/os-multimillion-verdict-evac-ambulance-20100405_1_jury-awards-cerebral-palsy-birth , accessed 21 Jan 2014.
- 573 P.2d 559 , 1977 .
- United States v. Gieger , S.D. Miss, No. 3:97214cvLN, 9/24/98 .
- 42 USC 1320. This states (in part): “Any person (including an organization, agency, or other entity, but excluding a beneficiary, as defined in subsection (i) (5) of this section) that—(1) presents or causes to be presented to an officer, employee, or agent of the United States, or of any department or agency thereof, of any State agency (as defined in subsection (i) (1) of this section), a claim (as defined in subsection (i) (2) of this section) that the Secretary determines—(A) is for a medical or other item or service that the person knows or should know was not provided as claimed, … shall be subject, in addition to any other penalties that may be prescribed by law, to a civil money penalty of not more than $2,000 for each item or service (or, in cases under paragraph (3), $15,000 for each individual with respect to whom false or misleading information was given). In addition, such a person shall be subject to an assessment of not more than twice the amount claimed for each such item or service in lieu of damages sustained by the United States or a State agency because of such claim. In addition, the Secretary may make a determination in the same proceeding to exclude the person from participation in the programs under subchapter XVIII of this chapter and to direct the appropriate State agency to exclude the person from participation in any State health care program.”
- 31 USC 3730, which states: “any person that—(2) knowingly makes, uses, or causes to be made or used, a false record or statement to get a false or fraudulent claim paid or approved by the Government; … is liable to the United States Government for a civil penalty of not less than $5,000 and not more than $10,000, plus 3 times the amount of damages which the Government sustains because of the act of that person.”
- Big EMS systems go paperless … pen-based computing comes of age . EMS Insider . 1998 ; 25 :1, 3 – 4 .
- Rosen P , Dinerman N , Pons P , et al. The technical imperative: its definition and an application to prehospital care . Topics Emerg Med. 1981 ; 79 – 85 .
- Lyons by Lyons v. Hasbro Industries and Arrow Medical Services , 509 N.E.2d 702 , 1987 .