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Immunity Statutes: How State Laws Protect EMS Providers
State laws regulate prehospital care services in 50 different ways. To encourage individuals to both volunteer and work in the EMS field, many state governments have passed immunity laws aimed at limiting the possibility of recovering damages from such providers in a lawsuit. However, the laws vary widely and are anything but uniform in their construction and coverage. Given the difficulty of providing care in emergency situations, the gist of many state statutes is that immunity from malpractice covers all actions except those performed “willfully” and/or “wantonly.” Although immunity statutes are widespread across the United States, they are not universally available.
Purposes and Applications
An immunity statute does not stop someone from filing a lawsuit; it simply makes it more difficult for an allegedly wronged party to recover. An immunity statute raises the threshold the plaintiff must meet to prove the elements of negligence in his or her case. If there is no immunity statute, then ordinary principles of negligence apply. That is, an EMT’s professional actions will be viewed no differently than those of any motorist driving down the highway.
Negligence, as a legal standard, is based on what a reasonable person would do under the same or similar circumstances. Every person has a duty to “exercise due care in his conduct toward others from which injury may result.”1 Whether a person has been negligent is usually a question of fact for a judge or jury to decide.
The tort of negligence consists of four elements: duty, breach of duty (standard of care), proximate cause and damages. Each element must be proven by the plaintiff by a preponderance of the evidence, also called the 51% standard. The 51% standard is a term of art used by trial lawyers to show that their burden of proof is not very high.
An immunity statute does not change the basic elements of the tort of negligence; it raises the standard required for EMS providers to be considered negligent. In other words, it compels the plaintiff to prove that the defendant’s conduct was even more extreme than would otherwise be considered negligent.2 States have defined this heightened category of negligence using a variety of terms, including gross negligence, gross/intentional conduct, willful/wanton negligence and reckless disregard or misconduct. These are terms used to clarify degrees of negligence, not legal categories, and thus are not a consistent way of defining what actions would constitute negligence in a particular EMS malpractice case. Additionally, some states cover EMS dispatch systems and the driving of EMS vehicles under the immunity statutes, while others do not. That is, some states place more than just medical practice under the protection of their EMS immunity statutes.
So how does an immunity statute work? Say an EMS provider is sued for malpractice over some action taken in the course of providing medical care. Once a lawsuit has been filed, the employee’s defense counsel will review the complaint to determine whether they wish to file a motion to dismiss. A motion to dismiss argues to the court that under the allegations of the complaint, no legitimate cause of action has been stated. Most complaints should withstand a motion to dismiss. The case will then proceed to the discovery period, during which depositions will be taken and documentary evidence gathered. The EMS provider’s defense counsel will try to elicit testimony that supports his position: that the actions taken by the EMS provider did not rise to the level of negligence required under the immunity statute. As stated, each jurisdiction’s laws cover these matters a bit differently, but any type of immunity statute provides some measure of defense.
Who Is Covered?
In response to an increasing number of lawsuits and to encourage citizens to aid each other without fear of repercussion, states began to enact “Good Samaritan” laws, which protect those who assist others in emergency situations. However, in most cases these laws only applied to people who did not have medical backgrounds. For example, Wisconsin’s law specifically states that to be protected, such a person may not be a medical professional.3 States that wished to immunize professionals in the medical fields had to pass laws that expressly covered them if their Good Samaritan statutes did not.
How can an EMS provider or employee determine if he or she is covered by an immunity statute? It depends on their jurisdiction. Generally speaking, the EMS immunity statute will likely be found in a state’s Emergency Medical Services Act.4 There are three broad categories for coverage under the immunity statutes. These are listed below, with language of a representative statute:
1. All licensed EMS providers are covered (24 jurisdictions).
California: “Neither a public entity nor emergency rescue personnel shall be liable for any injury caused by an action taken by the emergency rescue personnel acting within the scope of their employment…unless the action taken was performed in bad faith or in a grossly negligent manner.”5
2. Only governmental and/or nonprofit and/or volunteer EMS providers are covered (nine jurisdictions).
Virginia: “Any person who…[i]s an emergency medical care attendant or technician…who in good faith renders emergency care or assistance…without compensation…shall not be liable for any civil damages.”6 The term compensation, it adds, “shall not be construed to include (i) the salaries of police, fire or other public officials or personnel who render such emergency assistance.”6
3. Coverage for gratuitous providers (without compensation for services)—i.e., those who are not on duty at the time of assistance (18 jurisdictions).
Florida: “Any person, including those licensed to practice medicine, who gratuitously and in good faith renders emergency care or treatment…shall not be held liable for any civil damages…where the person acts as an ordinary, reasonably prudent person would have acted under the same or similar circumstances.”7
Some jurisdictions in the latter two categories specify that EMS personnel will not be immunized if their services are provided for “remuneration” or “compensation.”8 While at first glance these terms would seem to prevent anyone paid for his or her services from claiming immunity under the statute, some states have attributed specific meanings to the terms. Washington, on the far end of the spectrum, has a very clear statute: “[A]ny person rendering emergency care during the course of regular employment and receiving compensation or expecting to receive compensation for rendering such care is excluded from the protection” of its immunity statute.9 Compare this to Delaware’s statute: It provides immunity only for those who render aid “voluntarily, without the expectation of monetary or other compensation from the person aided or treated,” but also specifies that it covers those who are “members or employees of nonprofit volunteer or governmental” providers “whether or not a user or service fee may be charged…and whether or not the members or employees receive salaries or other compensation.”10 However, both of these categories still leave private EMS employees and providers unprotected from malpractice suits.
Types of Actions Covered
As stated, states use a wide variety of terms to describe the standard of care that their particular statutes protect (or do not protect). Indiana, for example, allows immunity for EMS personnel unless actions were the “result of negligence or willful misconduct.”11 Legally, negligence can be something as simple as carelessness. Ohio, whose statute provides the broadest immunity for all types of EMS personnel, protects all actions except those taken “in a manner that constitutes willful or wanton misconduct.”12 Willful/wanton negligence or misconduct usually means a “reckless disregard” or “a conscious indifference to the consequences” of one’s actions.4 This protection is so extensive that it rises almost to the level of protecting dangerous actions taken intentionally.
EMS requires quick thinking and action, and split-second decisions are easy to second-guess by a judge or jury later. So, we believe this profession merits a well-crafted immunity statute in each state to protect those acts and decisions. In order for EMS providers to be sufficiently protected from lawsuit, be they public, private or volunteer, states should provide immunity for all conduct except that rising to the level of willful/wanton negligence or misconduct. One standard throughout the United States makes sense.
Good Faith
Twenty-eight jurisdictions require that EMS services be administered in “good faith” for defendants to be eligible for immunity under the law. Like the negligence categories, good faith is a term of art without any specific legal meaning, but is generally regarded as requiring honest intentions and an absence of malice.13 However, it is a flexible term and may be stretched to fit almost any situation. Thus good faith is a dangerous phrase to include in a statute whose meanings must be interpreted by judges and juries. Even certain states whose statutes seem to provide near-full immunity also include a requirement of good faith.14
Good faith is a common and often overused phrase that can be applied to almost any transaction or area of law. It may be that this term was inserted in some statutes haphazardly, or as a result of its appearing elsewhere. States frequently look to other states’ laws as guidance, and phrasing and terms can be recycled in the process. Whatever the reason, legislatures would be wise to carefully examine the effects of phrases such as these—phrases that seem to be throwaway expressions, but can be manipulated easily. Good faith is a nondescript term that adds nothing to guide EMS professionals in their conduct, but may serve to hurt their defense. You should be aware of the meaning that courts in your state have attached to the concept of good faith so that your conduct meets this standard.
Although a party may argue for differing interpretations of the statutes, uncertainty regarding immunity and standards of care results in confusion, and ultimately may have economic and employment-related repercussions. Jurisdictions in which only public employees are immune may effectively deter or prevent private EMS. Jurisdictions in which only volunteers are immune may deter paid and possibly better-trained EMS. And jurisdictions in which only off-duty or “Good Samaritan” EMS is immune may deter any EMS personnel from either practicing in that jurisdiction or simply assisting people in need, thus depriving the jurisdiction’s citizens of quality care.
Do You Need Your Own Lawyer?
Sometimes it helps to know another language, and in this case it’s Latin. Under the law, an employer is responsible for an employee’s actions if those actions were taken in furtherance of the employer’s interests. The Latin term for this legal concept is respondeat superior.
Thus, an employer should only be liable in tort if the employee were found liable. So, an employer’s and an employee’s interests can be served by the same lawyer. It would be a most unusual situation where an EMT could not rely upon the services of the employer’s lawyer in the defense of a negligence action.
Conclusion
EMS providers can be protected from claims of malpractice under their states’ immunity laws, but such laws can differ widely in their construction and effect. You should know whether your state has immunity laws for EMS actions. If your states’ immunity provisions are weak, you should consider becoming advocates and finding ways to strengthen the protections those in EMS deserve.
References
1. Black’s Law Dictionary, 6th ed., p. 1032.
2. For example, under ordinary negligence principles, a plaintiff’s counsel would have to prove nothing more than a deviation from the standard of care. Under gross-negligence standards, the plaintiff’s burden would be to show that the deviation from the standard of care was great and lacking in any thought regarding the consequences.
3. “This immunity does not extend when employees trained in health care or health care professionals render emergency care for compensation and within the scope of their usual and customary employment.” WSA 895.48 (current through 2003, Act 137, published 3/4/04).
4. An easy way to determine the type and scope of any EMS immunity statute providing you with liability protection would be to contact your state EMS office.
5. West’s Ann. Cal. Health & Safety Code §1799.107 (current through 2004, Ch. 33 & Res. Ch. 1 of reg. sess).
6. VA?Code Ann. §8.01-225 (current through end of 2003 regular session).
7. West’s FSA §768.13 (current with 2004 legislation, effective through 4/27/2004).
8. See, e.g., GA?Code Ann. §31-11-8 (current through end of regular 2003 session); MD?Code, Courts and Judicial Proceedings §5-603 (current with laws from the 2004 regular session, effective through 3/5/2004).
9. West’s RCWA 4.24.300 (current with 2004 legislation, effective through 3/31/2004).
10. 16 Del. C. §6801(a) (current through end of 2003 regular session).
11. IC 16-31-6-3 (current through P.L. 1 of 2004 second regular session).
12. Ohio RC §4765.49 (current through 2004), File 68 of the 125th GA (2003–2004), apv. by 3/29/04.
13. Black’s Law Dictionary, 6th ed., p. 1034.
14. See 210 ILCS 50/3.10, which covers “a[ny] person, agency or governmental body” unless actions constitute “willful and wanton misconduct,” but which also requires services to be provided in “good faith” (current through P.A. 93-672 of the 2004 reg. sess.).
