When Every Second Counts

Reprinted with permission of TRIAL (May 2003)
Copyright the Association of Trial Lawyers of America

Mary Blatz had trouble catching her breath one sunny Father's Day morning, for no known reason.  Her husband promptly called 911.  Within a few minutes, a deputy sheriff arrived with his oxygen tank and kit—but by then Mary had stopped breathing.

The deputy had failed to check the kit's contents that morning, contrary to his department's policy, and he did not have the necessary oxygen mask.  He told her husband not to worry because a private ambulance also had been dispatched and would arrive in moments.  He was wrong.

While this otherwise healthy, 45-year-old woman lay breathless on the floor, the paramedics in the ambulance drove within feet of Mary's mailbox, clearly marked with her address, and the sheriff's car in her driveway.  But they turned around, believing – for reasons they would never explain – that they were lost.  Precious minutes elapsed before they returned.  When they did arrive, they revived Mary with oxygen.  Unfortunately, their delay left her with severe and permanent brain damage.  She now requires 24-hour care, but she still recalls her past.

This Minnesota case, in which a jury verdict for the plaintiff was affirmed on appeal,^[1] highlights several issues that typically arise in cases of wrongdoing by emergency medical service (EMS) personnel: Does a cause of action exist?  Who are the defendants?  What theories of liability apply?  What is the legal standard by which the defendants' conduct will be judged?  What is the burden of proof?

The answers vary, depending on the law of the state where the claim is brought.  However, certain general principles will guide you in evaluating potential EMS liability cases.

“Emergency medical services” is a broad term that state laws may apply to volunteer firefighters, police officers, ambulance drivers, paramedics, 911 dispatchers, and even nurses and doctors.  States have different licensure and certification requirements for emergency personnel, depending on their classification.^[2]  You will need to identify the status of the negligent provider and review his or her training to determine the applicable standard of care.

Personnel providing emergency services may be government employees, private-company employees, or a combination.  For example, the 911 dispatcher may be a government employee who dispatches police and fire assistance as well as a privately owned ambulance.  Private providers may be under contract to the city or county, or may act independently.^[3]

Many EMS cases are complicated by issues of sovereign immunity.  Some states provide almost blanket immunity to certain emergency personnel or agencies.^[4]  In others, whether immunity applies depends on the nature of the allegedly negligent conduct.  In most states, the EMS provider will be held liable if the negligent act is considered “ministerial” (involving “minor decision-making”) and will be immune if the act is “discretionary” (involving “significant decision-making and . . . personal deliberation, decision, and judgment”).^[5]

Did the 911 dispatcher send services in a timely manner and to the correct address?  Did the dispatcher relay the appropriate information to the EMS workers?

Liability theories

Cases against EMS personnel can be based not only on their conduct at the time of the emergency, but also on negligence that occurred months or even years earlier.

Negligent medical care.  Probably the most common claim against EMS personnel arises from the negligent provision of emergency medical care.  Applicable theories include failure to properly assess, intubate, or stabilize the patient (for example, neglecting to secure a patient with a back or neck injury on a backboard).  Other treatment-related claims involve medication errors.

In many cases, EMS personnel at the emergency scene are in radio or telephone contact with a health care provider at a medical facility.  The physician may instruct EMS workers on how to care for the patient.  In investigating the case, determine whether the on-scene personnel gave the physician complete and accurate information and whether the physician gave the appropriate instructions for care.  The physician may also be a defendant.

What is the standard by which EMS workers' provision of medical services will be judged?  Usually, the EMS provider is liable if the conduct was “negligent.”^[6]  However, many states impose an onerous burden on plaintiffs, requiring them to prove that the defendant's conduct amounted to a “crime,” “fraud,”^[7] or ‘‘willful and wanton misconduct”^[8]—or that the conduct was “performed in bad faith or in a grossly negligent manner.”^[9]

Negligent hiring, training, and supervision.  Negligence in these managerial areas may result in injury years later.  Investigate the employer's procedures for hiring, training, and supervising EMS workers.  Did the employer verify prospective employees' credentials?  Did it ensure that its staff kept abreast of current medical practices and procedures?  Did it adequately train EMS employees to use new equipment?

In one case, a fire department supplied paramedics with new defibrillators that required the EMS worker to hold paddles on the patient's chest; the earlier version had adhesive pads.  When the paramedics tried to use the new equipment during an emergency, they twice held the paddles a few feet in the air above the patient, failing to administer the intended charge.  They claimed that no one had ever showed them how to use the new device.^[10]

If inadequate training is a potential liability theory in your case, determine what training is required in your jurisdiction.  These requirements are often detailed in rules promulgated under state statutes or in EMS policy and procedure manuals.

Equipment and supply failures.  The EMS defendant may be liable for failing to properly stock or adequately inspect, maintain, and test the equipment and supplies taken to the emergency scene.  Again, check state rules and EMS policy and procedure manuals.  Such sources include checklists noting every item to be kept in an EMS vehicle, many of which require regular maintenance.  For example, defibrillator batteries must be fully charged, and medications must be discarded when they expire.

Delayed response.  Causes of action often arise from events that transpire shortly after the call for help is made.  Many such claims are related to how EMS personnel were dispatched to the emergency.  Did the 911 dispatcher send services in a timely manner and to the correct address?  Did the dispatcher relay the appropriate information to the EMS workers?

Keep in mind that a 911 call may involve more than one dispatcher.  A government employee at a police or fire station or other government building usually takes the initial call.  If a private ambulance company serves the area, the government dispatcher may call that company's dispatcher, who in turn sends the EMS personnel.  In such a case, evaluate the conduct of both dispatchers to identify the appropriate defendants.

Look for other explanations for dispatch problems.  For example, did the 911 call go to the appropriate jurisdiction?  In a recent case, a 911 call from one town was directly connected to a dispatcher in a distant town.  The telephone company is one of the defendants in the delayed-response case.^[11]

Some EMS systems set response-time standards or goals.  In Mary's case, for example, the EMS computer system had “red-flagged” the response time because it was slower than expected.  Ultimately, the reason for the delay will govern whether a court will consider the delay reasonable.  The Minnesota Court of Appeals, reviewing Mary's case, applied a “reasonable person” standard—as opposed to a “reasonable paramedic” standard—because the delay resulted from the paramedics' failure to find the address, a task understandable to most jurors.^[12]

Was a delay in response time the result of how the EMS system allocated its resources?  Many systems use computer software to analyze the history of calls in the area, which are used to determine where to locate ambulances and personnel.  Did the EMS system use appropriate tools to assess resource allocation?

A related issue is EMS delay in transporting a patient from the emergency scene to a hospital.  If the delay is caused by improper driving, the EMS personnel's conduct would be judged by a reasonable-person standard.^[13]

Vicarious liability.  Who is vicariously liable for emergency services negligence?  The most obvious answer is the entity employing the paramedic or other EMS worker.  However, the negligent worker may be someone else's agent.

For example, in a case involving a county-employed paramedic, the privately employed supervising physician testified that EMS personnel performed emergency medical services under the doctor's license.”^[14]  Arguably, a doctor who has such a relationship with EMS personnel is vicariously liable for their negligence.  Also, even if an individual EMS worker is immune from personal liability, the employer may still be vicariously responsible for his or her conduct.^[15]

Causation

Often, the most complex issue in EMS litigation is causation.  Its resolution depends on the facts of the case.

In Mary's lawsuit, for example, the primary battle at trial was not whether the paramedics' delay in arriving at the scene was negligent, but rather whether the delay was a direct cause of her catastrophic injuries.  Mary alleged that if the paramedics had not turned around immediately before reaching her home, they would have arrived in time to prevent her injuries—that is, within the five-minute window of opportunity to reoxygenate an adult before permanent brain damage occurs.

The corporation employing the paramedics claimed that she would have suffered her injuries even in the absence of their negligence and that, in fact, they saved her life.  Evidence from the medical literature and expert testimony persuaded the jury that the paramedics' negligence was a direct cause of her injuries.

Discovery

Certain types of evidence will help you build a compelling liability case.  Begin where your client did:  with the 911 call.

Conversations from 911 calls are routinely recorded and stored in analog or digital form.  You may need to obtain recordings from more than one source.  In Mary's case, both the county dispatcher's office and the private ambulance company recorded calls between Mary's family and the two dispatchers, between the two dispatchers, and between the company dispatcher and the ambulance en route to Mary's home.  It did not help the defendant that one of the dispatchers was laughing when told about Mary's severe distress.

Most public and private EMS services have a policy of destroying these recordings after a certain period of time, so it is important to demand recordings of any conversations relevant to your client's case as early as possible.  If the defendant has already destroyed them, even in accordance with its own policy, the court may allow an inference favoring the plaintiff.^[16]

Dispatchers are usually trained to triage 911 calls.  They refer to a book or, more often, a computer program to guide them in interrogating a 911 caller to assess the call's urgency.  Obtain and review the book or software to determine whether the call was handled appropriately.  With the help of an expert, also assess whether the book or program was properly prepared.

EMS systems also use computers to record and store key information.  Be sure to request all electronic data in addition to written documents.

Much of the information you obtain will indicate the time at which important events occurred.  Be aware that more than one clock may have been used.  In Mary's case, times from six different clocks were recorded in the documents obtained from the county and the private ambulance company.  Experts had to “synchronize” the clocks to accurately assess the paramedics' exact delay.

Sovereign immunity

The most unfortunate aspect of EMS litigation is that all too often, the plaintiff will have to fight a sovereign immunity defense because many EMS personnel are government employees.  If immunity applies, a cause of action may not exist; if it does, the victim's right to obtain full compensation will be significantly limited.

Some states immunize even private EMS companies from liability, except for an act or omission that is a result of gross or willful misconduct.^[17]  In at least one state, however,—Tennessee—government-employed paramedics are not protected by sovereign immunity because they are considered health care providers.^[18]

Determine whether state law provides for a waiver of immunity under the circumstances of your client's case—for example, if EMS personnel operate a motor vehicle improperly.^[19]  Courts have also held that immunity is waived in cases of “malicious conduct,”^[20] “bad faith,”^[21] or “willful or wanton misconduct.”^[22]

Moreover, there may be no immunity if there was no emergency.  For example, in City of East Chicago v. Litera, the plaintiffs were evacuated from their home three times because of a major fire nearby.^[23]  Joseph Litera was wheelchair-bound, and paramedics carried him to and from the home.  Returning after the last evacuation, the paramedic fell, injuring Joseph.  Although the Indiana statute provided for immunity for EMS providers during an emergency,^[24] the court determined that the Literas' return to their home was not an emergency, and therefore immunity did not apply.

EMS defendants may be able to avoid responsibility under “Good Samaritan” statutes—again, depending on state law.  In some states, EMS workers are protected if the services were rendered without charge.^[25]  In others, Good Samaritan statutes do not protect EMS personnel.^[26]

Federal claims

Does federal law provide a remedy for EMS wrongdoing?  The Third Circuit recently said no, holding that the Constitution does not guarantee a right to competent emergency medical services.^[27]

The plaintiff in Brown v. Pennsylvania Department of Health Emergency Medical Services Training Institute brought a civil rights claim under 42 U.S.C. §1983 and the substantive component of the Fourteenth Amendment's Due Process Clause.  The case involved a one-year-old boy who choked on a grape.  The ambulance arrived 10 minutes after his grandmother made the first of three 911 calls.  As a direct result of the delay, the child died of asphyxia.

Given the court's statement that “this case presents another example of a trend among plaintiffs who try to transmute their garden-variety torts into cases of federal constitutional dimension,”^[28] the decision was predictable.  The court held that no person has a “constitutional right to rescue services, competent or otherwise.”^[29]  More specifically, the court held that no one has a “constitutional right to be rescued from choking on a grape.”^[30]

The Third Circuit did recognize an exception to the rule that the state owes no duty in EMS cases:  A duty arises when “the state caused the harm or made someone more vulnerable to an existing harm.”^[31]  The boy's family claimed that this exception applied because the ambulance's delay “created and/or increased a danger . . . that otherwise would not have existed.”^[32]  Without analysis, the court summarily concluded that the grape, not the conduct of the EMS providers, created the danger.

Although the court vacated this ruling shortly after rendering it, the same three-judge panel affirmed dismissal of the case on rehearing, stating that “in cases where the state actor is acting with urgency, the standard is whether the actions shock the conscience of the court.”^[33]  The court concluded that the defendant's conduct in this case did not rise to that level.

The complex medical and legal issues that arise in EMS cases present many potential land mines for plaintiff attorneys.  A thorough and comprehensive analysis of these issues is essential before you pursue a case.  With the right facts, you can use state law to remedy the wrong.