Legal Lesson of the Month: Presuit Requirements Sink EMT’s Injury Claim

EMS can be full of interesting and tricky legal scenarios. While you can’t have an attorney ride with you, it behooves providers to have at least some familiarity with the principles, precedents, and major issues of EMS law. To that end EMS World is pleased to offer the EMS Legal Lesson of the Month.

These cases are presented by prominent attorneys in the EMS field. This month’s comes from Larry Bennett, program chair for fire science and emergency management at the University of Cincinnati. Bennett’s department publishes a monthly Fire & EMS and Safety Law newsletter; subscribe to that by e-mailing Lawrence.bennett@uc.edu or read the latest edition here. Find this case and more in his newsletter archive. 

Case: Crystal G. Brown and Tri-State Ambulance, Inc. v. Ohio Valley Health Services & Education Corp., Ohio Valley Medical Center, et al.

Decided: May 2021

Verdict: The West Virginia Supreme Court held 3–0 that the lawsuit by Brown, et al., was properly dismissed since the West Virginia code of medical professional liability requires both patients and others who sue a healthcare provider to provide 30 days’ written notice and a certificate of merit from another qualified healthcare provider.

Facts: On December 16, 2016 Brown, an emergency medical technician employed by Tri-State Ambulance, Inc., was required to transport a patient from Ohio Valley Medical Center (OVMC) to a hospital in Columbus, Ohio. On the way to Ohio, due to adverse weather conditions, Brown wrecked. Two passengers in the ambulance—the patient and another employee of Tri-State—were killed.

The petitioners filed suit in December 2018, asserting causes of action for “negligence, carelessness, and/or recklessness” and equitable subrogation (a legal doctrine that allows a party that has made payments on behalf of another party to lay claim to the recovery of damages from a third party). They alleged OVMC knew but failed to disclose that transporting the patient was not medically necessary to save his life and that dangerous weather conditions were approaching. This failure to disclose deprived Brown of the information necessary to determine whether the trip should have been made that night. Brown alleged that as a result, she suffered bodily injury and physical and mental pain and will continue to endure physical and mental pain and suffering and emotional distress. She also claimed lost wages and loss of earning capacity.

In support of the subrogation claim, Tri-State alleged it incurred losses by paying its deductible to its insurer and attorney’s fees and costs in connection with litigation initiated by other passengers in the ambulance. Because Tri-State’s insurer settled the lawsuits, Tri-State claimed its insurer is a partially subrogated insurer entitled to reimbursement by respondents.

The respondents filed an answer and served discovery, then, in June 2019, moved to dismiss the petitioners’ complaint. They argued dismissal was proper because the petitioners’ claims were governed by the Medical Professional Liability Act (MPLA) and the petitioners failed to comply with the act’s presuit notice requirements. Further, with regard to the equitable subrogation claim, they argued the petitioners failed to join the insurer in prior lawsuits, so the petitioners had no right to subrogation.

The petitioners argued in response that their claims were not covered by the MPLA; rather, liability was alleged to “stem from the working conditions [respondents] created by utilizing emergency services in severe weather when no emergency actually existed.”

Following a hearing in December 2019, the circuit court granted the respondents’ motion to dismiss, finding the circumstance that set the events into motion was a decision by one or more of the [respondent] healthcare providers—a healthcare decision and thus within the definition of healthcare provided in the MPLA. The petitioners were therefore required to have complied with the MPLA’s presuit notice requirements, and their failure to do so deprived the court of subject matter jurisdiction.

Key quote: “Petitioners’ negligence claim is predicated on respondents’ decision to transport the patient to another healthcare facility… The act specifically includes ‘medical transport’ within the definition of ‘healthcare.’ And, as the act includes within the definition of ‘medical professional liability’ those claims that ‘may be contemporaneous to or related to the alleged tort or breach of contract or otherwise provided, all in the context of rendering healthcare services,’ petitioners’ equitable subrogation claim, arising from these same circumstances, also falls within its ambit.”

Legal lesson: The suit was dismissed because Brown, et al., didn’t provide the notice and certificate of merit required by her state’s medical professional liability statute. Similar statutes can be found throughout U.S.