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Asleep at the Wheel: Fatigue & Liability In EMS
Accidents happen. You’ve dealt with them before—with and without patients on board. Usually, the first question after an accident is, “Is everyone all right?” But as night follows day, the next one is “Whose fault was it?” Because, as the one with an eye on the bottom line knows all too well, “accidents” are rarely purely accidental—someone was negligent, negligence leads to fault and fault will cost you money.
Even when an ambulance is involved, which party is at fault depends on who was negligent. It may be another motorist who disregarded the lights and siren; it may be the EMT driving the ambulance too fast for road conditions; or it may be the manager of the company that put the ambulance on the road with an unsafe driver in the first place—or any combination of these. “Unsafe” can describe a driver whom management knows has a bad driving record, or it can describe a good driver whom management should know (because of the length of his or her shift) is too worn out to be driving.
Careless driving, driving too fast and even mechanical problems (such as brake failure or a flat tire) can cause a wreck. But just as dangerous as these is fatigue. Fatigue causes automobile accidents and results in injuries every day. In fact, because of the danger of sleepy drivers, many states are implementing laws against driving tired. But how does carelessness or fatigue figure into negligence and fault? If someone is driving a car, and he knows he is getting tired and his eyelids are getting heavy, yet he continues to drive, then he is taking a known risk. And when his eyes close and he drifts into another lane, causing a wreck, it is that negligence—driving when he knew he might fall asleep—that caused the wreck. That defines fault.
So if your drivers are at fault, to whom are they—and you—liable? That is, who can sue the company for the damages your ambulance caused to them? First, we need to understand a little more about “fault” and negligence. As I mentioned above, it can be a combination of factors that determines the fault of one or more parties in an automobile collision. Weighing these factors is referred to as “comparing fault” or “comparative fault” in legalese. Depending on state law, a driver’s fault may be measured against the fault of other motorists.
For example, in a situation like the one above, where a driver nods off and crosses over into another lane (let’s assume the driver drifts to the right), if the other motorist was passing on the right in violation of state law, then that driver might also be partially at fault. If a jury decides that the other motorist’s damages and injuries are worth $100,000, but that driver was only 10% at fault in the accident, then the sleeping driver would have to pay 90% of the damages. Again, “comparative fault” varies from state to state, but this gives you a general idea.
The other issue that comes up when a driver is working for someone else and is on the job at the time of the accident (as opposed to someone driving themselves on a personal errand) is: Who is liable, the employee or the company? Again, it depends on the state in which the accident occurs, but in general an employer will be liable for the damages caused by its employee and the employee will also be personally liable for the damages. This is referred to as “joint and several liability.”
But if your drivers are thinking, “Good, my employer can pay for my part,” they are not quite right. Even though the injured party might be able to recover damages from either the company or the employee (usually choosing to go after the company because it would presumably have “deeper pockets” than the employee), the company can usually collect from the employee his part of the damages. This would be referred to as “contribution.”
Of course, this is only likely to come into play if there is no insurance or when insurance does not cover the full amount of the damages. To further complicate things, state laws and employee contracts might make specific provision for these situations, which would throw any general rule out the window.
Suffice it to say that liability issues for auto accidents are much more complex than can be addressed in a short article. But, as an abbreviated “crash course” in automobile collision law, let’s consider the various situations of Who Owes Whom What after figuring out who was at fault in a wreck.
1. The EMS agency and its driver may both be liable to the patient. Unless the accident was entirely the fault of the other motorist/s (0% fault attributed to the ambulance), then both company and EMT will be liable to the patient, each for their portion of fault in the accident. If the accident was caused by the EMS driver falling asleep, then the ambulance company and the driver will be at fault. The driver is at fault for driving while sleeping and risking a crash, and the company is liable either because management put a driver on the road that it knew to be working a long shift and/or because companies are responsible for the conduct of their employees.
2. The EMS company and the driver may also be liable to third-party motorists who were partially at fault. As was discussed above, comparative fault may leave the company/driver liable even to a third party who was partially at fault in the accident, as long as the fault of the company/driver was greater. Going back to the example of falling asleep at the wheel, if the fault of the driver who fell asleep was 90% and the other motorist who was passing on the right was 10% at fault, then in most states the other motorist can still recover damages from the driver and his employer.
3. Both may be liable to other employees in the vehicle as well, but under separate theories. The company, regardless of its role (or its percentage of fault), will likely be liable to the other employee (EMT or paramedic) under worker’s compensation law, since the injury occurred in the course of employment. The driver may also be personally liable to the other employee under general theories of negligence. This might or might not be covered under the company’s insurance policy.
4. Finally, even if the driver is judged to be “at fault” after doing a comparative fault analysis, the company may also be liable to the driver under worker’s compensation law. In some cases, where the employee is acting outside the scope of his employment (i.e., he or she has done something illegal such as drinking and driving), the employer might not be liable. However, for purposes of our discussion, if the employee is fatigued due to his duties for the service, then the service will likely be liable to that EMT under the state’s worker’s compensation law.
What a tangled and potentially costly web you weave when you send your crews onto the streets, especially if you have not done everything you can to limit the ambulance share of the fault in the case of an automobile accident. Insurance premiums being what they are, worker’s comp and automobile liability claims are something to avoid if at all possible. And the way to avoid them is to make your place as safe to work in as possible, even if that place is on wheels. Making sure that your vehicles are well maintained and your drivers well trained and rested are keys to limiting the costly results of automobile accidents in the EMS world.
Nothing in this article is intended to be legal advice. Tort law (including liability issues like those discussed in this article) is complex and varies greatly from state to state. For up-to-date, specific legal advice about the laws mentioned in this article or about your state’s laws, you should consult an attorney.
