Legal Lesson of the Month: Severed Arm Not Medical, Not Private

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: Omero Ortiz v. Anthony Renteria, Christopher Calhoun, Town of Cicero (Ill.), and Metro Paramedic Services, Inc.

Decided: November 2021

Verdict: U.S. District Court Judge Gary Feinerman of the Northern District of Illinois (Eastern Division) granted the Town of Cicero’s motion to dismiss it, and also dismissed the paramedics and their employer, from Ortiz’s federal lawsuit.

Facts: On July 4, 2020, Ortiz was lighting fireworks when one accidentally exploded… The explosion resulted in the amputation of Ortiz’s left hand from his arm and his left arm from his body… Cicero paramedics Renteria and Calhoun arrived, placed Ortiz onto a gurney, and put him into an ambulance… Before the ambulance left for the hospital, Renteria and Calhoun took photographs of Ortiz’s severed hand and the left side of his body without his consent and then posted the photographs on Snapchat accompanied by the caption, “Feeling blessed” and several emojis.

Ortiz alleged the defendants’ conduct violated his “right to medical privacy” and substantive due process rights under the 14th Amendment’s due process clause. He may refile the lawsuit in state court.

Key quote: “Cicero does not argue that the public interest justified Renteria and Calhoun’s publication of the photographs of his injuries on Snapchat. Thus, the question whether Ortiz states a due process medical privacy claim turns on whether the photographs disclosed his private medical information…

“First, the fact that Ortiz was harmed in a ‘horrific accident’ is not private medical information because it is not medical. Rather, it concerned a traumatic event—akin to a traffic accident or a shooting—and the consequences of that event—akin to a broken arm caused by a traffic accident or a bullet wound caused by a shooting.

“Second, at least on the facts alleged, the fact that Ortiz lost his left arm is not private medical information because it is not private. As the Seventh Circuit has explained, ‘the existence and extent of constitutional protection for confidential information [turns on] the type of information involved and the reasonable expectation that that information would remain confidential,’ and ‘medical information may be a form of protected confidential information because of its intimate and personal nature…’ That Ortiz lost his left arm may be medical information, but it is not private medical information, as it is a readily observable condition.”

Legal lesson: EMS departments should have a policy prohibiting photographs of patients except for those needed to show mechanism of injury or other medical reasons, with copies provided only to the hospital and the department.