Liability Outside of the Ambulance
Through mobile integrated healthcare (MIH) and community paramedic (CP) programs, many EMS agencies are now offering new options to patients. With new options come new challenges and new avenues for potential liability. To limit the potential for liability, EMS agencies must first do their homework and make sure their programs align with their state’s laws and regulations. Let’s ask—and answer—some questions to better understand the issue and how to address it.
Doesn’t statutory immunity protect EMS agencies from liability?
Most states have some form of statutory immunity for EMS agencies or other healthcare providers who are offering emergency services, sometimes referred to as “good Samaritan laws.” By nature, most MIH/CP programs are not providing “emergency” care, but may be more appropriately considered general “healthcare providers.” If that is the case, then the language of your state’s statute limiting liability for EMS may not apply to your MIH/CP program. Again, it is necessary to do your homework and look at that legislation to determine if liability may attach to your agency or your individual clinicians when not operating in the EMS setting, and purchase insurance you may not have typically considered to cover such liability.
How is a regulatory analysis related to liability?
In healthcare, liability for poor patient outcomes is usually determined by whether the healthcare provider followed the “standard of care,” not the outcome itself. In other words, if you do the best that you can and follow recognized practices, then even if there is a bad outcome, the clinician is not responsible.
Who determines the standard of care?
The answer to this is a bit more complex, but in general standard-of-care is based on what a competent clinician would do in similar circumstances in the same or similar geographic region. In EMS, that is often found by reviewing clinician licensure, medical protocols, and scope-of-practice. In other words, if the clinician has been licensed or certified as an EMS clinician, is providing the care that their medical director outlined, and is staying within the scope of practice allowed for their level of certification according to the state, then it is likely that they are following the standard-of-care.
If following regulations and state rules are part of following the “standard-of-care,” then what happens if regulations are not being followed?
In making the argument that an EMS clinician has violated the standard of care, injury lawyers will look to the statues, rules, and regulations. So, for example, if the statutes in your state indicate that EMS personnel may act only in the EMS setting, or only in response to calls for an ambulance, or only inside an ambulance, then there may be a claim that MIH/CP encounters are outside of what the law, or the standard-of-care, allows. In other words, if the clinician is not licensed and allowed to provide in-home care but is only trained and allowed to take patients to the hospital, then that is all they should be doing, and by providing other types of care, they may be found to have put the patient at risk and are therefore responsible for harm to the patient. Of course, this is a ridiculous argument from my perspective and yours. We understand the training that our staff goes through and the protocols that they adhere to, but keep in mind that a jury is not made up of people that understand what “ambulance drivers” do, so convincing them that we have violated the standard of care because we have not acted in compliance with an official state rule is not a stretch.
Where should I look to make sure that this type of allegation can’t be made against my EMS agency regarding our MIH/CP program?
Start with reading your state’s EMS act, and make sure there are not limits to where EMS clinicians can work imbedded into that statute. Assuming that the language is vague and leaves most of the regulation to a state board (which is common), search your state’s EMS administrative rules or regulations for limits to the scope or place of patient care. Finally, look at your state EMS scope-of-practice, and determine if there are clinical or geographic limits noted in that document.
If I find language that seems to limit what EMS personnel can do in my state, what do I do?
First, let me be clear that it is not just one place or another that should allow the care anticipated by your MIH/CP program. All statutes, rules, and regulations should allow it, and you may be surprised to find how often these are inconsistent with each other. Remember, these rules were not all created at the same time or with MIH/CP in mind, so you should expect to find inconsistencies.
With that said, you should advocate for change when you find anything that doesn’t allow for MIH/CP programs. For statutes, that change will require discussions with your state legislators. For administrative rules and regulations, you may need to go before your state board of EMS. For protocols or scope-of-practice issues, it may be the state EMS medical director who can approve those changes. Regardless of the audience, or audiences, their primary focus is going to be on taking care of the patient, so be ready to explain how EMS clinicians can safely provide the care anticipated by your model. Once the rules clearly allow, and preferably speak specifically to MIH/CP care, then it will be easier to show that you have not violated the standard of care, which in turn limits the potential for care-related liability claims.
Legal Lesson is a regular column on regulatory matters of significance to prehospital providers by EMS World Editorial Advisory Board Member Christopher Kelly. This article is not intended as legal advice. Adam Parker also contributed to this article.
