Surviving a Lawsuit

     After 25 years in EMS, Bob Morley has come to expect certain hazards. Wayward bullets, patients with knives, burning cars, contaminated needles-at one time or another, he has encountered all of these dangers. Recently, though, Morley faced a threat from an entirely unexpected source-a telephone conversation that posed all sorts of bizarre questions: How much money do you make? How often do you work overtime? Do you own your house or rent it? The man on the other end of the phone was a lawyer. Morley was being sued.

     "It caught me off guard," recalls Morley, a paramedic with Boston EMS. "While responding to a call, we'd been involved in a collision. Nobody seemed to be hurt, and it was no big deal. But then, all of a sudden I get this call, and I learn I've been named as a defendant. When the lawyer asked about my finances, I hung up on him. Then I placed some calls of my own-one to the lawyer who represents my department, and another to the lawyer who represents our union."

     Morley was fortunate. He was dismissed as a defendant. However, his experience is hardly an uncommon one. In 2006, more than 30 EMS-related lawsuits reached the appellate level. Hundreds more were decided at trial or settled out of court. Patients and their families have sued EMTs and paramedics for virtually every EMS activity, from negligent ambulance operation to the improper performance of medical procedures. Paid and volunteer organizations alike have been sued, mostly for the acts of their employees, but also for providing insufficient training or failing to adequately supervise personnel in the field.

     Standing on the defendant's side of a courtroom is a nerve-wracking experience. With juries sometimes awarding millions of dollars to victims of medical negligence, it can be an expensive one as well. In today's litigious society, EMS personnel cannot totally eliminate the risk of liability. By learning something about defense strategies, however, you can make better decisions-decisions that will not only reduce the likelihood of a lawsuit, but improve your chances of winning if you do become a defendant.

Avoidance: The BEST Defense
     Some lawsuits are decided by long, complicated trials. Others are dismissed almost immediately. No matter how frivolous the claim might seem, EMTs and paramedics should never seek dismissal on their own. With so much at stake, a motion for dismissal should be prepared and presented to the court by an experienced trial attorney.

     Unfortunately, this costs a fair amount of money. Lawyers typically charge between $100-$200 a hour, with large firms in major cities demanding even more. These rates apply not only to time spent in court, but to all work performed on the client's behalf. In the case of an EMT or paramedic hoping to have a lawsuit dismissed, this means several hours of research, followed by several hours to draft the motion. Bills of $10,000 or more are not unusual.

     You won't have to pay anything, of course, if a lawsuit is never filed. The goal of every EMT and paramedic, then, should be to avoid litigation altogether. Studies have shown that patients are less likely to sue healthcare providers who disclose their mistakes and apologize for them, rather than ignoring them or trying to cover them up. Simply put, when you make a mistake, an apology and a professional attitude may spare you thousands of dollars in legal fees, and perhaps a costly jury award as well.

Loose Lips Sink Suits
     Lawyers are often portrayed as sleazy liars who break the law to win cases. While this characterization makes for great jokes, it's not really accurate. Lawyers in every state must adhere to a strict code of ethics, with violators facing hefty fines and loss of the right to practice.

     This doesn't stop lawyers from taking advantage of technicalities, of course. Knowing that they may not communicate directly with a defendant represented by counsel, personal injury lawyers often contact defendants early, to gather as much information as possible before the defendant seeks representation. While underhanded in appearance, this tactic is legal and comports with state ethics codes.

     It's not unusual, then, for EMS personnel to receive calls like the one Morley recalls so vividly. The caller will not always identify himself as a lawyer, and when asked about his involvement with the emergency, he might give a vague answer, such as, "I'm conducting an investigation. There's nothing to worry about." This is legal, as long as the lawyer does not make untruthful statements. Thinking you're speaking to an insurance adjuster or someone else who represents your interests, you might be tempted to volunteer damaging information.

     In general, you should not answer any questions about a particular incident until you've first verified the identity and motives of the caller. This is especially true when the questions pertain to patient care, since the release of such information might constitute a HIPAA violation. Instead, obtain the name, contact information and professional affiliation of the caller-without answering any questions-and seek the advice of a supervisor or EMS legal counsel before returning the call. EMS managers, in turn, should develop strict guidelines for the conditions under which their employees may divulge operational and patient care information.

     Lawyers sometimes have legitimate reasons for contacting EMS personnel. A prosecutor might need you to appear as a witness in a criminal case, for example, or you may be required to testify in a civil action about something you witnessed on the job. Properly served with a summons or subpoena, you cannot refuse. At times, your employer may send an attorney to court with you. While this may prove helpful in shielding you from improper questions, you have to remember that this lawyer represents your employer's interests, which are not necessarily the same as yours. If you have any doubt as to your own liability, consult with an attorney hired by you or your labor union before testifying.

Know Your Job
     If you get sued for anything as an EMT or paramedic, it will probably be for negligence. To win such a lawsuit, the party claiming injury, known as the plaintiff, must prove four things. First, he must demonstrate that you owed him a duty of some kind. Second, he must show that you breached this duty-either by doing something you shouldn't have, or by failing to do something you should have. Third, the plaintiff must show that he suffered harm. And finally, the plaintiff must show that your breach of duty caused his harm.

     Since the plaintiff has a burden to prove all four of these elements, you can escape negligence liability by disproving any one of them. As an EMT, you might show, for example, that you had no duty to attempt a dangerous rescue. That's what happened in Shehaiber v. University of Medicine and Dentistry, where an EMT was found not liable after refusing to dive into a cesspool.¹ Likewise, as a paramedic, you might show that your failure to administer a particular medication did not constitute a breach of duty, because no reasonable paramedic would have done so under the circumstances.

     This is where standard of care comes in. Intended to reflect what a reasonable EMT or paramedic would have done in a similar situation, this standard defines the duty of EMS personnel by establishing an acceptable level of behavior. At trial, the plaintiff tries to prove that your actions as an EMT or paramedic fell below the standard of care, thereby constituting a breach of duty to him. Your goal is to convince the jury that you met this standard.

     Standard of care does not arise from any single source. Rather, both parties introduce evidence that supports their position. A plaintiff might show the jury a treatment protocol, for example, and argue that by deviating from it, you breached the standard of care. Textbooks, training curricula and position papers from professional organizations serve a similar purpose. Generally, though, the most persuasive evidence comes from expert witnesses, who offer testimony based on professional opinion. For proof, look no further than Ambrose v. New Orleans Police Department, where a physician convinced a jury that EMTs had acted reasonably in delaying transport for 20 minutes while starting an IV on a critically ill cardiac patient, even though the EMTs had no ability to administer medications through it.²

     To avoid breaching your duties as an EMT or paramedic, you must understand what those duties entail. This is best accomplished by studying all relevant documents, including job descriptions, treatment protocols, administrative policies and motor vehicle laws. No employee can memorize all of this material, of course, but by becoming familiar with it, you will increase your likelihood of adhering to the standard of care and avoiding lawsuits.

Above All Else, Document Care
     Most EMS personnel have heard the old medical adage "If it isn't written down, it wasn't done." And it's true. An EMT might take five sets of vital signs, but if only one of those sets makes its way onto the patient care report, it will appear at trial that only one set was taken.

     EMTs and paramedics should become familiar with an adage from the legal world: "It's not what happened that matters; it's what you can prove." In court, medical documents carry a lot of weight. Forced to choose between a written document and the testimony of a witness, juries tend to believe what's written down.

     Take, for example, Perez v. Bay State Ambulance, in which EMTs transported an elderly man with a fever to a local hospital. The next day, the patient's family called 9-1-1 again, this time seeking assistance in filling a prescription. The responding EMTs contacted a physician, who agreed to examine the patient, but told the family to obtain the medication from a pharmacy. The family declined transport. The following morning, the patient died.

     The family later sued the ambulance company, claiming that the EMTs had never given them the option of a trip to the hospital. In response, the ambulance company produced a waiver, signed by a household member at the time of the EMTs' visit, stating that transport had been offered and declined. This form contradicted the family's verbal contention that the patient had been denied transport, and for this and other reasons, the ambulance company was quickly dismissed as a defendant.³

     Another case, Rahilly v. North Adams Regional Hospital, shows what can happen when documentation isn't handled properly. An EMS helicopter crew transported a head-injured boy from a community hospital to one that had a pediatric intensive-care unit. Because they did not bring the transferring facility's documentation along with the patient, diagnostic procedures had to be repeated, thereby delaying treatment. Finding that this delay may have contributed to the boy's death, a screening panel allowed the claim to proceed to trial not only against the transferring hospital, but against the EMS helicopter service as well.⁴

     At times, we all feel as if our documentation has no value. It's difficult to watch ED staff toss our reports into a file without even looking at them. Don't let this keep you from writing thorough, accurate records. While documentation can be tedious, it's often the only thing that shields you from a successful lawsuit.

Statutory Immunity
     Every state has at least one law that confers immunity on those who provide emergency care. Originally, these "Good Samaritan" statutes applied only to volunteers, to encourage trained individuals to help at roadside emergencies by alleviating fear of lawsuits. Today, many states extend this protection to paid EMS personnel as well.

     Some Good Samaritan statutes grant immunity for all forms of negligence. Others employ a "gross negligence" standard, protecting those who commit ordinary negligence, but not recklessness. Because Good Samaritan immunity varies so widely from one jurisdiction to another, you might want to contact your organization's legal counsel or state EMS office to determine what type of protection you enjoy.

     Employees of government EMS systems, including municipal and county EMTs and paramedics, enjoy another type of statutory protection, called sovereign immunity. In most states, sovereign immunity statutes mirror the language of the Federal Tort Claims Act, which requires the U.S. government to indemnify EMS personnel for negligent acts, while imposing a limit of $100,000 on damages. Thus, in most states, a patient who sues a municipal EMT for negligence may collect up to $100,000 from the city in which the incident occurred, but nothing from the EMT personally.

     Note that these statutes provide immunity from liability, not from lawsuits. In other words, they do not keep plaintiffs from hauling EMTs and paramedics into court, even though a judge may ultimately dismiss the claim. Because the defendant may incur significant legal expenses in the process, it's better to avoid the lawsuit entirely, and to rely on statutory immunity only as a last line of defense.

     You should realize, too, that neither Good Samaritan protection nor sovereign immunity insulates EMS personnel from civil rights claims. Defined as a "violation of the rights, privileges or immunities of the Constitution or laws of the United States," a civil rights action is a creature of federal law, not state law. State legislatures therefore have no authority to grant immunity against this type of claim. Because these defenses do not apply to civil rights actions, and because there is no monetary limit on them, this is one wrong, above all others, that EMTs and paramedics should take care not to commit.

Managers, Manage
     For EMS managers and supervisors, establishing appropriate policies and keeping an eye on field personnel doesn't just constitute good business practice; it's a legal necessity.

     When EMTs or paramedics are sued, the EMS organization that employs them is almost always named as a codefendant. Under the legal doctrine of respondeat superior-Latin for "the master answers for the servant"-an employer incurs liability for the wrongful acts of its employees. Commercial ambulance companies and local governments tend to have vastly greater financial assets than any EMT or paramedic, so it makes sense for plaintiffs to go after these organizations. Unfortunately, even volunteer ambulance services make good targets.

     Patients and their families have sued EMS organizations under two other theories: negligent training and failure to supervise. The best way to avoid a claim of negligent training, obviously, is to ensure that your EMTs and paramedics hold proper certification or licensure, and that you provide them with training that meets or exceeds contemporary standards for the jobs they perform. Similarly, the establishment of a clearly defined chain of command, accompanied by comprehensive, legally sound policies and regulations, can help defeat failure-to-supervise claims.

     A small number of jurisdictions have conferred civil immunity on government entities and other organizations that operate EMS systems, similar to the immunity enjoyed by EMS personnel. The California legislature, for example, has enacted a statute that protects everything and everyone involved in EMS training, including state and local governments, EMS agencies, doctors and nurses.⁵ Not many states offer this kind of blanket institutional immunity, however, which means that EMS managers must do the job themselves, protecting their organizations from liability through careful oversight, attention to detail and sound policy development.

Insurance
     Professional liability insurance for EMS personnel remains a controversial subject. In states that confer comprehensive Good Samaritan immunity, you probably will not find much occasion to use it. In Massachusetts, for example, where EMTs and paramedics enjoy immunity for all EMS activities performed in good faith, lawsuits against these individuals almost always fail, as long as no intentional harm occurs. Still, the defendant will have to rely on an attorney to have the claim dismissed, and liability insurance generally covers this.

     Insurance proves more useful in states with weaker Good Samaritan laws. Even then, relatively few EMTs and paramedics ever get named personally as defendants. You must therefore decide for yourself whether the protection afforded by such insurance justifies its cost.

Conclusion
     Hundreds of lawsuits are filed against EMS providers each year. Even if a defendant succeeds in having a claim dismissed, legal fees often run into thousands of dollars. Losing a lawsuit represents an even greater disaster. A successful lawsuit can ruin the life of an EMT or paramedic, and for commercial ambulance companies it may spell bankruptcy.

     As an EMS provider or manager, you should strive to avoid lawsuits altogether. Some lawsuits cannot be avoided. By understanding the manner in which EMS lawsuits are defended, however, you can help to protect yourself and your organization.

References

1. Shehaiber v. University of Medicine and Dentistry of New Jersey, 823 A.2d 61 (NJ Super AD 2003).
2. Ambrose v. New Orleans Police Department, 627 So.2d 233 (La. 1993).
3. Perez v. Bay State Ambulance, 602 N.E.2d 570 (Mass. 1992).
4. Rahilly v. North Adams Regional Hospital, 636 N.E.2d 280 (Mass. App. Ct. 1994).
5. Calif. Health & Safety Code § 1799.100.

Jay Weaver has been a paramedic with the city of Boston for more than 20 years. A graduate of Harvard University and Suffolk University Law School, he is also an attorney specializing in healthcare law. He serves on the adjunct faculty at Northeastern University and lectures frequently on prehospital law and ethics.