In this module, we will be discussing legal and ethical issues as they apply to the practice of emergency medicine. Once completed with this module, you should be able to: Define the EMT scope of practice. Explain the rationale for the need, benefits, and use of advance directives as they pertain to EMS. Define consent. Discuss methods of obtaining consent. Differentiate between expressed and implied consent. Explain the role of consent in providing care to minors.
Discuss the implications for the EMT in patient refusal of care and/or transport. Discuss the concepts of abandonment, negligence, assault, battery, and false imprisonment. State the conditions necessary for an EMT to have a duty to act. Explain the importance, necessity, and legality of patient confidentiality. Discuss the considerations of the EMT in issues of organ retrieval. Differentiate the actions that an EMT should take to assist in the preservation of a crime scene. State the conditions that require an EMT to notify local law enforcement officials (mandatory reporting). You will also be able to: Explain the role of EMS and the EMT regarding patients with DNR orders. Explain the rationale for the needs, benefits, and usage of advance directives. Explain the rationale for the concept of varying degrees of DNR orders.
Value the importance of maintaining patient confidentiality. Before we begin this lesson, it is important to know that many of the matters to be discussed in this module are not always black-and-white issues with absolute, clear answers. We are dealing with legal issues as they impact emergency care providers in an emergency setting, and how the law is applied to a certain set of circumstances can fluctuate given the specific facts associated with those particular circumstances. Additionally, while the law as it applies at the time this presentation was created will be discussed, there is no guarantee that the law will not or has not changed subsequent to the production of this presentation, either by legislative action or by the interpretation of the law by the courts.
There are also differences in adopted law from state-to-state. This presentation is designed to encompass broad topics that apply in most jurisdictions, but there is also some Wisconsin-specific information included, which may not necessarily apply if practicing in another state. When practicing emergency medicine in the field, remember to follow your local protocols and do not hesitate to contact medical control for assistance. This presentation is informative only and is not designed to provide qualified legal advice on these topics. Be certain to obtain qualified, legal advice from an attorney licensed to practice in your jurisdiction if the need for legal advice ever arises. Working with people is at the heart of what an EMT does. We are called to help people in need and, in providing our care, must evaluate patients, obtain vitals, move patients, and provide care, sometimes invasively. In brief, an EMT must physically touch the patient.
The law within the United States, however, recognizes the right of people to be secure in their person and possessions. Individuals have the right to enjoy their personal autonomy, which includes the right to not be touched by others. This is where the legal concept of consent comes into the picture. We can touch, evaluate, and treat patients without fear of a lawsuit or criminal charges because they provide their permission, their consent, to do so. At the most basic level, consent must be informed to be valid. The EMT cannot trick the patient into allowing the EMT to touch him or her. The person granting the consent must be aware of what is happening and what will be happening if consent is granted.
Within a medical context, the patient must be informed of the nature of their illness, the recommended treatment, the risks to not obtaining treatment, and other alternatives to the treatment being suggested. To look at this a different way, just think about any one of the medications you see advertised on television. The medication vendor goes to great lengths to inform the consumer about the risks associated with the medication, along with the potential benefits. On a more personal level, think about a conversation with your personal physician, or a dentist, or any other type of healthcare provider you may see. Your physician should be telling you about your health, what should be done to improve it, and what the risks are if you do not follow the physician’s advice. Hopefully, the physician also gives you alternative treatments that may be available as well. If not, there is always the opportunity to seek a second opinion for more information. With that being said, you may already have some questions. What happens if the patient is unconscious? What if I cannot effectively communicate with the patient, maybe due to a language barrier or because the patient simply does not understand? To what length must I go to obtain consent and what information must be conveyed to the patient? Is it reasonable to expect an EMT to provide all of this information during an emergency? To answer these questions, let’s first identify different types of consent recognized by the law and how consent typically works for emergency medical technicians in the field.
Expressed consent is the purest, most formal type of consent. Expressed consent occurs when an adult consciously chooses to allow touching and treatment, and conveys his or her permission to the healthcare provider. In order for such consent to be valid, however, it must also be informed. As mentioned previously, informed consent requires that the patient understand the benefits, risks, and alternatives associated with their medical condition and potential treatment. It is the duty of the healthcare provider to provide that information to the patient if expressed consent is desired. If expressed consent sounds cumbersome given that such consent must be informed, you are correct. Just imagine the time necessary to inform the average patient as to the benefits and risks associated with having an EMT obtain a blood pressure or a pulse, or to obtain expressed consent for each individual procedure, such as spinal immobilization, wound care, obtaining vitals, etc.
Considering that the patient is usually the one who called for help, is it really necessary to obtain this expressed consent? If they did not want our help, they would not have called, right? This is where implied consent factors into the equation. The legal doctrine of implied consent creates a presumption that the patient, or that patient’s guardian, would want the EMT to provide the care and treatment necessary to help the person with their medical emergency. This is sometimes referred to as the emergency doctrine. In an emergency, when expressed consent is not practical or available (in the case of an unconscious patient, for instance) EMTs can presume the patient would want help. To go a step further, however, the doctrine of implied consent goes well beyond emergency scenarios in which there may be a physical or mental incapacitation to apply in most of our routine patient interactions. Unless a patient actually objects to a touching or procedure, the EMT can assume the patient provides his or her consent.
Stated another way, unless the patient stops you, his or her consent is implied. Implied consent also can apply when someone lacks the legal capacity to make healthcare decisions for him or herself, such as a child, a severely intoxicated patient, or an individual with psychological issues. Implied consent is very powerful and important to emergency medical providers as it is used in most of our patient interactions. We must be aware, however, that there are limits to the doctrine of implied consent. Implied consent applies to actions that are required to assess, diagnose, and treat the immediate problem. In treating an unconscious patient, for instance, the EMT cannot decide to administer an intranasal flu vaccination as a preventative measure. The implied consent allows the EMT to take vitals, check blood sugar, move the patient for transport, etc. The EMT can take actions to assess, diagnose, and treat the patient’s altered mental status. Actions beyond that, however, are not within the scope of implied consent. Again, the consent is limited to the patient’s immediate medical needs.
Along similar lines, the patient may also limit the scope of the implied consent by telling you he or she does not want specific interventions to be performed. The conscious patient with difficulty breathing may allow oxygen therapy, but refuse the administration of a breathing treatment for whatever reason. It may not make sense to the treating EMT and it may be detrimental to the patient; but, the patient with capacity to make his or her own health care decisions has that right. If the patient goes unconscious after making his or her wishes clear, that does not mean implied consent now kicks in to allow the EMT to treat however he or she sees fit. The EMT must still abide by the patient’s wishes. Admittedly, instances of this nature are very, very rare. Most patients are more than happy to allow the EMT to provide treatment to help the patient.
Be aware, however, that some religions and personal value systems frown upon medical interventions. (We will discuss ethics later in this module, but this is a substantial ethical quandary that you, as an EMT, may face within your practice. If a patient insists on not receiving life-saving medical treatment, the EMT is required to comply. Is that ethical, however? This is something to consider when we visit the topics of morals and ethics a little later.) There are also instances in which the law recognizes a duty to protect a person or the public from his or her own actions, even when the individual does not want to be touched, protected, or restrained. Such consent is called involuntary consent because the patient has no choice as to the care or pending restraint. This occurs most frequently when a person is arrested and resists that arrest. The police are privileged by law to use force to subdue, control, and restrain that person.
There are instances in which EMS providers must similarly control a patient for the safety of the public, the crew, and the patient. In Wisconsin, Chapter 55 is the statute that provides for the emergency and temporary application of protective placement and services. Emergency medical personnel must be wary, however, because the statute refers specifically to police officers and firefighters, not emergency medical technicians. When involuntary consent is used in cases involving the mental health of a patient, law enforcement should be involved in that protective action. Related to involuntary consent, the subject of medical restraint is an emerging topic given the availability of medications that can be used as a form of chemical restraint, as opposed to more traditional physical restraint techniques.
If a patient needs to be restrained to prevent further harm to him or herself, the restraint must be reasonable, humane, and non-punitive (it is not the EMT’s job or place to “punish” a patient for bad actions by the use of restraints). Depending on the reason for the restraint, it may be beneficial for the EMT to involve law enforcement. Another thing to keep in mind is that restraints cannot prevent or impede patient care, and there may be instances in which restraints need to be removed to accommodate that care. If a patient is handcuffed, the transporting EMT should have keys to those handcuffs or the police officer responsible for the restraint should ride along in the back of the ambulance during the transport.
Also be aware of potential positional asphyxia. The patient should not be restrained in such a way that may compromise the patient’s airway. In discussing consent, the most frequent instances where consent may be an issue is the treatment of minors. Unless you are practicing in a state where the law stipulates otherwise, anyone under the age of 18 years old is considered to be a minor, thus lacking legal capacity to participate in some adult activities. For our purposes, this means that a minor cannot technically consent to treatment. In the inverse, it also means that minor cannot refuse treatment either. When dealing with minors, healthcare decisions are to be made by their legal guardians. Problems typically arise, however, when the minor’s parents are not available. The law addresses these problems first through the doctrine of in loco parentis. In loco parentis is Latin for “in the place of the parent,” meaning that someone else is standing in the place of the child’s parents when making healthcare decisions.
That person may be grandparents, a babysitter, a school teacher, or someone else in whom the child’s parents have imbued their trust. Permission to treat a minor patient by someone acting in loco parentis (in the place of the child’s parents) is a valid form of expressed consent. The emergency doctrine, or implied consent, is the second mechanism by which minor patients can be treated without the expressed consent of their parents. As with implied consent for an adult, the law presumes that the child’s guardians or parents would want the child treated appropriately to prevent further harm.
One difficult concept to grasp regarding consent as it relates to minors is that their guardians or parents have the right to withhold medical treatment as well. While virtually all states prohibit parents from withholding lifesaving treatment from their children when death is imminent given the lack of such treatment, there are obviously shades of grey. In such instances, the EMT should follow their employer’s protocols. Do not underestimate the value of being persuasive as well. There may be times when an EMT has to talk a patient or a parent into seeking further care. Do not underestimate the value of persuasion in such circumstances. There are also instances where a minor has been emancipated, meaning a court has formally declared the individual to be an adult, thus personally responsible for all aspects of his or her life, including medical care. In many areas, emancipation is presumed to occur when a minor is married, becomes a parent, or serves in the military. Please be aware, however, that the state of Wisconsin does not formally recognize emancipation as some other states do. The only place emancipation is covered in state statutes relates to abortions. Additionally, the sparse case law on the topic illustrates that emancipation is commonly a proclamation made by a court after some event occurs.
Minors typically are not emancipated proactively, if you will, within the state. The courts have also said that, just because a minor is emancipated does not mean the minor has full capacity as an adult. In brief, while EMS providers in general should know what it means to be an emancipated minor, it is something not commonly encountered in Wisconsin. A unique twist on that, however, is that where the parent of the minor patient is a minor him or herself.
While the 16 year old mother may be considered a minor and not able to make healthcare decisions for herself, she is still the patient’s mother and, as such, is entitled to make healthcare decisions for her child. These consent issues can admittedly be confusing and there is a lot of room for interpretation, second-guessing, and trying to preplan “what-if” scenarios. As a soon-to-be EMT, rest assured that consent issues very rarely arise out in the field.
Consent is usually pretty straightforward and, in instances where consent may be an issue, a little persuasion and effective communication can go a long way to alleviating any problems. If problems do arise in the field, however, remember that you are not alone. Your service will have protocols that should define how you should treat a given situation. If there is a question, you can always contact your medical control or, depending on the circumstances, local law enforcement. If consent is rarely an issue in practice, one might wonder why so much time is devoted to discussing the topic as a part of the course. The reason is pretty simple. If there is an instance where things go horribly wrong with consent, the EMT may be sued civilly or charged with a crime. Touching a person without their consent is commonly considered battery. Putting that person in apprehension of the nonconsensual touching would be assault. If the nonconsensual touching involves the patient’s genitals, buttocks, or breasts, a sexual assault may have occurred.
Confining a person against their will is false imprisonment. Moving them during that false imprisonment, potentially in the back of an ambulance, is kidnapping. If the EMT fails to treat someone because there was a mistaken believe that consent (expressed, implied, or otherwise) was not provided, abandonment may have occurred. Aside from the fact that our patients should be comfortable with what we are doing, and should consent to our care, consent is an important issue because a lack of consent and subsequent touching, evaluation, or treatment may expose the EMT and his or her service to serious liability. Another potential area for significant liability occurs when a patient refuses our care.
There are many instances in which this may occur. Someone else may have called for assistance that the patient did not want. The patient may be afraid of the bill associated with seeking medical care, including the cost of the ambulance ride. The patient may not perceive the incident as a true emergency and plans on following up with a personal physician later. Ultimately, if the patient has capacity to make healthcare decisions and does not want to receive care or be transported (which can be two different things), the EMT cannot make the patient accept care or transport. This referred to as refusal of care and/or transport. The area where liability arises is when the patient’s decision to not seek further care is based upon a lack of information and that patient later suffers harm that may have been prevented if only the EMS crew shared that information.
Risk of liability can also occur if an EMT releases a person who did not have the legal capacity to make such a decision, such as a minor, a severely intoxicated patient, or a person with cognitive disabilities. To minimize this potential liability associated with the refusal of care and/or transport, EMTs should first ensure their patient has the capacity to make healthcare decisions. This means that the patient must be at least 18 years of age, is alert and oriented, and is not suffering from a mental or psychological impairment that would bring the patient’s capacity into question. If the patient has capacity, the next thing the EMT needs to do is ensure the risks of not seeking further care are shared with the patient. The EMTs should also inform the patient to call back or seek further medical attention if the problems return, persist, or increase in severity. The most important thing in all of this is to document adequately, especially if the patient refused care and/or transportation against the advice of the EMS personnel on scene. Aside from the fact that no-transports are required to be documented and reported to the Wisconsin Ambulance Run Data System (“WARDS”), having adequate documentation of the facts and circumstances surrounding a non-transport run is absolutely vital to defend against a potential lawsuit if the patient suffers harm because he or she did not seek further care or treatment beyond that person’s contact with your ambulance crew.
Your service should have protocols regarding patient refusals of care and/or transport, along with special forms or paperwork to be completed and, typically, signed by the patient. If your form provides space for a narrative, be certain to include objective information regarding the call, especially as it relates to the patient’s condition, the treatment provided, the treatment that was refused, the advice provided to the patient, the risks of which the patient was informed, and any other pertinent information.
If the patient refuses care and/or transport, and the EMT suspects the patient will suffer greater harm as a result, it is important to show that the EMT made every effort to persuade the patient into being treated and transported. The EMT, this on-scene healthcare provider, must exercise due diligence to inform the patient of the need to seek further treatment and the risks associated with refusing further care. Unless the patient lacks capacity or there is an emergency detention need, the EMT cannot force the patient to do something he or she does not want to do. At that point, all we can do is make sure the patient is making an informed decision and then we document adequately.
If it is not already clear given our discussions, the law considers emergency medical technicians to be healthcare providers. As a result, the EMT must be wary about other legal provisions that commonly impact healthcare providers. The first such consideration is that of patient privacy. We, as EMS providers, have an obligation to respect our patient’s privacy and their information. Probably the largest legislation affecting us in this realm is that of the Health Information Portability and Accountability Act of 1996, otherwise referred to as HIPAA. Updated in 2009 by the American Recovery and Reinvestment Act, HIPAA contains several provisions designed to allow for the transportability of patient information while also protecting that patient’s privacy. The law applies to healthcare providers who maintain or work with electronic patient records, which covers every EMT within Wisconsin. Aside from logistical requirements including the need to have a privacy officer, procedures to follow when information is requested, and a mechanism to provide notices to previous patients in the event of a privacy breach, the law also speaks directly to the EMT by mandating the patient’s health information remain confidential.
With a few exceptions that will be named momentarily, an EMT cannot share a patient’s health information, including health history, assessment findings, and treatment provided with anyone not involved in that patient’s care. The state of Wisconsin also has a patient confidentiality law that protects patient privacy. These confidentiality requirements are similar to that which exists between a physician and patient. In many states, the law recognizes a formal physician-patient relationship that not only protects patient privacy and prevents a physician from sharing patient health information with third parties, but goes a step further and protects those communications from some legal proceedings as well. Whether or not EMTs are considered to fall under the requirements of a formal physician-patient relationship depends on the state. Within Wisconsin, EMTs are not considered to be physicians for the purpose of this doctrine and the communications that occur between a patient and an EMT are protected only to the extent provided by HIPAA and the state’s confidentiality law.
This means that the exceptions provided within HIPAA and the state’s confidentiality law still apply to EMS providers. These provisions allow us to share information with other healthcare providers involved in the patient’s care, along with billing agencies and insurance companies. We are able to share information for limited law enforcement purposes and we can discuss our patient interactions as part of our service’s continuous quality improvement process. Patient information can be shared for educational purposes as well. Additionally, HIPAA does not trump open records laws as enacted by the various states, and it recognizes instances in which the law mandates reporting of certain circumstances to law enforcement agencies (such as cases of suspected child or geriatric physical or sexual assault or abuse) or public health agencies (in the event of a pandemic or other public health emergency).
HIPAA also recognizes something referred to as an incidental disclosure. While EMS providers must be mindful of patient privacy and take reasonable steps to ensure that privacy, there are many instances in the field where it is not always possible to ensure complete privacy, especially when responding to crowded events or populated areas. Even when responding to a residence, it is not unlikely for friends or family members to be present along with the patient while the EMT is performing an assessment and obtaining a detailed history. Incidental disclosure is also the provision in HIPAA that allows us to transport more than one patient in an ambulance, if need be, especially in the case of mass casualty incidents where resources, such as ambulances, may be limited.
Patient confidentiality is an important topic, not just because maintaining an individual’s right to privacy is the right thing to do, but because there are very substantial penalties associated with a breach of patient confidentiality. These penalties can range from fines and civil liability to criminal culpability. Aside from a patient alleging defamation by virtue of libel or slander, a violation of HIPAA or the state’s patient confidentiality law can be alleged, giving the plaintiff several avenues for a lawsuit. The provider him or herself can also be found personally responsible for a breach, meaning you, as the EMT, can be sued directly by a former patient, or incarcerated for a criminal breach of HIPAA. In 1990, Congress passed the Patient Self-Determination Act. This act required hospitals and some other healthcare facilities to provide patients with information pertaining to their healthcare decision-making rights and the policies the facility follows pertinent to recognizing advanced directives.
While not a healthcare facility, ambulance services are frequently required to service patients who have advanced directives in place. Knowing how to handle these interactions is vital to an EMT. Advanced directives, in a healthcare context, are simply health care directives, drafted in advance, designed to address health care decisions if the patient is unable to personally convey those wishes at the time of a health crisis. The state of Wisconsin recognizes all three of the health care directives recognized within the National Emergency Medical Technician Educational Standards, and these three advanced directives will be discussed in turn. The first type of directive with which an EMT must be familiar is that of a do not resuscitate (DNR) order. DNR orders are available only for non-pregnant individuals over the age of 18 years old with a terminal illness. Two types of ready notification are available for use; both are bracelets available only by prescription, one is a medic alert bracelet and the other is a piece of paper (similar to that on the screen) contained within a plastic hospital bracelet.
If a patient is wearing one of these bracelets, the EMT is required to abide by the patient’s wishes and is forbidden from doing CPR compressions, intubation, use of nonvisualized airways (advanced airway management), defibrillation, and the administration of cardiac resuscitation medications. Performance of comfort care measures, such as oxygen administration, bleeding control, splinting, clearing the airway (i.e. Heimlich maneuver), and pain control are still permissible. Living wills (or declarations to physicians, as they are formally called in Wisconsin) are documents prepared in advance by the patient to convey healthcare wishes in the event of a catastrophic health problem. Living wills typically contain detailed instructions that extend well beyond simply do not resuscitate wishes to encompass comas, persistent vegetative states, and other ailments that would affect the ability of the individual to convey his or her healthcare treatment wishes. Durable power of attorney, or power of attorney for healthcare, invests the authority to make healthcare decisions for a patient into the hands of a third party, typically a close friend or family member. In many instances, these powers of attorney are written in such a fashion that they are considered “springing” powers of attorney; meaning they “spring” into effect when some bad event occurs that impacts the patient’s ability to make healthcare decisions for him or herself.
While most EMS providers fixate upon DNR bracelets, there are numerous ways in which a patient can express his or her desires to not be resuscitated. Unfortunately, in many instances, EMTs lack the time to refer to lengthy legal documents to determine the patient’s wishes. One other interesting wrinkle is that do not resuscitate orders are designed to address the natural process of dying. Affirmative actions intended to cause death (suicide) are not protected under DNR orders. DNR bracelets are simple and easy to recognize, and state law in Wisconsin protects the emergency care worker against legal liability for following the order. A patient, at any time, can also revoke the DNR order by destroying or removing the bracelet, or by expressing his or her wishes verbally to the EMT. When in doubt, an EMT can seek input and guidance from their service’s protocols and medical director.
Wisconsin law allows medical directors to honor other types of do not resuscitate orders besides the Wisconsin-approved bracelets. Do not hesitate to contact your medical director if there is a question. One of the challenges in providing emergency care to a terminal patient with advanced directives is that the EMT must be certain he or she is following the wishes of the patient, not the patient’s family. In some instances, family members may want resuscitation performed even though the patient is wearing a DNR bracelet.
Inversely, there are instances in which family members may insist that you leave the patient alone, even though there is no clear indication that is what the patient wanted (assuming the patient is still viable and a candidate for resuscitative efforts, of course). As difficult as it may be at times, you must always remember that you are there for the patient first. If the patient’s wishes are clear, they should typically be followed.
While each set of circumstances may be different, the law recognizes and protects the good faith efforts of the EMT as it relates to treating, or not treating, a person with advanced directives. Do not hesitate to contact you service’s medical direction if there are questions in the field. If time is short and there is confusion surrounding the patient’s wishes regarding a do not resuscitate order, it is always easier to stop resuscitative efforts when clarification is obtained than it is to make up for lost time if resuscitative efforts were mistakenly withheld before such clarification was obtained.
In addition to everything discussed thus far, the EMT must also be aware of criminal actions that may be brought against him or her for breaches of professional conduct. As discussed previously, functioning without the patient’s consent may give rise to criminal culpability, such as assault, battery, and kidnapping. Aside from crimes related to functioning with a lack of consent, EMTs are commonly called upon to respond to victims of crimes. Some crimes, such as sexual assaults or child abuse, are very sensitive crimes that may require special handling by the EMS crew. In the case of a female sexual assault victim, for instance, it may be necessary to arrange for a female EMT to transport with the victimized patient. Some states require mandatory reporting of healthcare providers if the patient was stabbed or shot, or if there is evidence of abuse or neglect of children or the elderly.
While not necessarily criminal, some states also require EMS providers to report certain communicable diseases or animal bites to a public health or other appropriate agency. When dealing with individuals who are victims or perpetrators of crime, is important for the EMT to be increasingly mindful of his or her own safety. When treating a victim, be wary of the perpetrator attempting another attack.
When treating a suspected criminal, ensure that law enforcement is present to control the situation and possibly transport with the ambulance crew. In discussing legal issues as they pertain to EMS providers, the area of civil tort draws a great deal of notoriety. A civil tort is defined as a civil wrong or offense. When someone commits a crime, the harm committed is said to be against society as a whole. That is why the prosecutor brings charges against the alleged perpetrator on behalf of the state, the commonwealth, the government, or the people. A civil wrong, however, is between individuals or entities, not society as a whole. The mechanism for bringing a civil tort claim forward, for making a civil claim against another, is a lawsuit. Everyone knows about lawsuits and much of the discussion held throughout this module was held for the purposes of helping you, as an EMT, reduce your risk of exposure to lawsuits.
Some civil torts are based on intentional acts, such as battery, assault, and false imprisonment. As you may have noticed, these acts constitute crimes in some circumstances as well. Abandonment was mentioned previously related to issues of consent. Abandonment can also occur when an EMT terminates care without ensuring the patient is receiving the same or higher level of care. As EMS providers, some of our greatest exposure to lawsuits comes not from intentional acts, however, but from negligent acts. Simply stated, negligence is the failure to act reasonably, which causes damages to another. To break this down further, there are essentially four practical elements to negligence.
These elements are: duty to act, breach of duty, proximate causation, and damages. To establish negligence, a plaintiff must first show that the defendant had a duty to act. A duty to act exists when there is a special relationship between the parties; it is an obligation recognized by law for a person to affirmatively do something, to perform some act. The classic example is that of a lifeguard at a pool. If someone needs help in a pool, the lifeguard has a duty to provide that assistance. An on-duty EMT must respond when called and provide care for his or her patient. That is our legal duty. The next element required to establish negligence is a breach of that duty. A breach can be either an act or omission. Not responding to a run is an omission; accidentally pushing the wrong medication is an affirmative act. Establishing a breach of duty is typically the crux of a negligence case. Establishing a duty and causation of damages is usually (not always) relatively simple. Proving that a breach occurred can be more challenging.
To establish a breach of duty, the plaintiff must show the defendant failed to act reasonably. So what is a reasonable action? That could very well depend on who we are asking. To establish a better means of determining whether or not a breach occurred, courts will apply objective standards. How would a reasonable person have responded or reacted in similar circumstances? In the instance of a defendant EMT, the court will ask how a reasonable EMT, with similar training, education, and experience, would have performed. That reasonable EMT is subsequently defined by what is known as the standard of care.
Within this course, you will learn about the standard of care to treat and mitigate various ailments and emergencies (as recognized by the state of Wisconsin-approved curriculum). If you, as an EMT, breach that standard of care and cause damages to a patient, you may very well be negligent in your practice of emergency medicine. In discussing breaches of duty, there is a legal concept called res ipsa loquitur that we must discuss.
Res ipsa loquitur is a Latin term for “the thing speaks for itself.” What this means is that there are instances in which no direct evidence of a breach exists, yet we know that a breach occurred by virtue of the incident itself. A classic example of res ipsa loquitur comes from an 1863 case in which a barrel of flour fell from a second-story window and hit the plaintiff on the head. The plaintiff in the case was unable to produce evidence that the person responsible for the barrel breached his duty of care.
Stated another way, the plaintiff was unable to show the defendant acted unreasonably. The court decided, however, that the barrel could not have fallen all on its own unless someone did fail to act reasonably. So, why is this important to EMS providers? There are conceivably instances in which a patient can be hurt and the only way it could have occurred is through a failure to act reasonably. Dropping a patient, for instance, could be one of these instances. If an EMT drops a patient, by the very nature of the incident, the court may stop any argument as to breach by establishing a failure to act reasonably through the doctrine of res ipsa loquitur. Believe it or not, this does not automatically make the defendant negligent, as some textbooks may imply.
The plaintiff must still establish the other elements of negligence, particularly that the breach caused damages. As the major hurdle in proving negligence is establishing a breach in the standard of care, however, a determination of res ipsa loquitur can be the death knell to a defendant’s case. There is also something known as negligence per se. Negligence per se occurs when a law is broken, resulting in an incident giving rise to negligent conduct. Causing a motor vehicle accident while driving intoxicated would be an example where the defendant can be found negligent per se. In those instances, the duty and breach are already established and the plaintiff just has to prove the last two elements of negligence, that the defendant was the cause of his or her damages. The third element is causation. This simply means that the defendant, and not some other factor, was the cause of the incident.
This requires not only a but-for determination where, but-for the actions of the defendant, the incident never would have occurred; but, it also requires a showing of proximate cause. The defendant’s action (or lack thereof) must be proximately related to the incident in question. If a motorist changes lanes and strikes another vehicle that was rightfully in the adjacent lane, there is causation there. Given the same incident, is the defendant therefore liable in negligence to an emergency responder who is injured when another motorist drives by the accident and strikes the responder with his or her automobile due to a lack of attention given the distraction created by the original accident? In this instance, the original incident was not proximate to the second in which the emergency responder was injured.
Surely it was a but-for cause, but-for the original incident the second never would have occurred. Despite that, however, it was too far removed in time from the second incident. The last element of negligence is that the plaintiff must have suffered some actual damages, such as a physical injury or emotional harm. Once that harm is shown, along with the other elements, the defendant will have to pay compensatory damages to compensate the plaintiff for his or her actual losses. There are also instances in which negligent conduct is so bad that the court also awards punitive damages to “punish” the wrongdoing defendant. Our last civil tort to discuss is known as failure to report, where a healthcare provider fails to report a crime as required by law, such as child or elder abuse, and the patient suffers greater harm that could arguably have been prevented if only the healthcare provider reported the incident to law enforcement as required by the law.
If an EMT is required to report a crime, it is in his or her best interests to do so as some of the defenses we are about to discuss may not protect the EMT from liability for failing to report a crime. The first such protection against civil liability are Good Samaritan laws. These laws protect individuals who try to help others in the event of an emergency. Within Wisconsin, a person rendering care in good faith for no compensation is considered a Good Samaritan and is immune from civil liability if the patient is harmed by the Good Samaritan’s care. If the EMT is compensated for his or her time, then the EMT is not a Good Samaritan under the law. The law also stipulates that an EMT using a defibrillator is not shielded from liability by this provision. Many states also recognize immunity for governmental actors. Within Wisconsin, a governmental entity may be sued, but there are limits as to how much money may be recovered.
Generally speaking, these caps are $25,000 for volunteer fire departments, $250,000 if the claim involves a motor vehicle accident, and $50,000 for all other claims. There are also laws that provide for time limits in which to bring a lawsuit. The law recognizes that it becomes more difficult to defend against a lawsuit with the passage of time. There is also a certain point at which a prospective defendant should no longer have to worry about being sued for a negligent or bad act that occurred a long time ago (relatively speaking). Within Wisconsin, these time limits are three years for personal injury, three to five years for medical malpractice (depending on the circumstances), and possibly longer if the claim involves a minor.
In cases involving negligence, states also have something known as either comparative or contributory negligence. The theory behind both concepts is that a person should not be able to recover for damages, or should receive reduced damages, from another party if that plaintiff is somehow responsible for his or her own injuries. While the terms are somewhat used interchangeably, they are two separate things. A state with contributory negligence forbids a plaintiff from collecting anything in damages if that person contributes to his or her own injuries, even if such contribution is only marginal.
Say, for instance, that a jury decides a plaintiff is 1% at fault for his or her injuries (making the defendant 99% responsible) within a contributory negligence jurisdiction. Within that jurisdiction, the plaintiff cannot recover one penny because he or she contributed to his injuries, even if only marginally. Because this result is obviously very harsh, most jurisdictions use something called comparative negligence. In this type of system, the negligence of the two parties (plaintiff and defendant) are compared and the plaintiff’s recovery is reduced accordingly.
Given the same previous example in a comparative negligence state, the plaintiff would have his or her recovery reduced by 1%. If the plaintiff had damages of $100,000, for instance, the recovery would be reduced by $1,000, making the defendant responsible for $99,000. Depending on the state, comparative negligence can be one of two kinds, either pure or modified. Under pure comparative negligence, if the plaintiff is predominantly responsible for his or her injuries, meaning he or she is more than half responsible, the plaintiff can still recover.
From the previous example, if the responsibility was reversed and the plaintiff is 99% responsible for his or her injuries totaling $100,000, the plaintiff can still recover $1,000 from the defendant. Within Wisconsin, we have modified comparative negligence in which a plaintiff cannot recover against a defendant if that plaintiff is more than half responsible for his or her injuries. If there is a case in which a jury determines a plaintiff was 51% (or more) responsible for his or her injuries, there can be no recovery against the defendant as the plaintiff was more responsible for his or her own damages.
If the defenses listed above do not apply, or only mitigate the claimed damages, there are other means to proactively protect oneself from civil liability. Respondeat superior is a legal doctrine that holds an employer responsible for the actions of its employees. Say, for instance, that an EMT negligently causes a motor vehicle accident while driving an ambulance. In a subsequent lawsuit, the employer is responsible for the negligent actions of the employee, meaning the employer will have to pay any damages awarded in the lawsuit.
The caveat to this doctrine is that the employee must have been acting within the scope of his or her employment. If the employer can show the employee was on a frolic, not functioning within the scope of his or her employment, the employer may be able to remove itself from liability, thus shifting the burden of any damages back to the employee. Along similar lines, Wisconsin statute 8stipulates that a governmental entity is responsible for any judgments against its officers or employees. If an EMT is working for a public agency, this law provides another layer of protection for the EMT. (As a note of caution, a civil rights violation can follow different rules and many of the defenses listed above may not apply.
As it is not a subject for discussion within the Educational Standards, this area of constitutional law will not be discussed further. It is important to understand, however, that violating an individual’s constitutional rights can have grave consequences for the wrongdoer that are not necessarily mitigated by the defenses discussed in this module. Also keep in mind that some of these defenses, such as governmental immunity and state statute 895.46, pertain to governmental employees only. If you eventually obtain employment with a private ambulance service or other non-governmental entity, your protections against civil liability are not as broad.) To avoid civil liability to begin with, EMS providers should function at all times with professionalism within their standard of care. If an EMT is following the standard of care, It will be extraordinarily difficult for a plaintiff to show a breach of duty. Being an EMS professional also includes educating one’s self about new standards, which means that continuing education is more important than just taking a refresher every two years to maintain your license. As an EMT, life long learning must be a part of your vernacular, your lifestyle, as medicine is not a static field; the practice of medicine changes all the time as new studies, practices, techniques, and medications are made available.
Professionalism also involves empathy for the patient and having a good bedside manner. Showing professional behavior in court gives the EMT greater credibility and makes your actions more defensible. EMS providers and individual EMTs may also purchase liability or medical malpractice insurance. While insurance does not prevent the harm from occurring, it does protect the defendant against a potentially significant financial loss in court. When practicing in the field, it is important to remember that EMTs must often work in areas that are considered crime scenes. In such instances, your personal safety must be first and foremost in your mind. Ensure the scene is safe before entering. Once the scene is safe, it then becomes imperative for the EMT to be mindful of the evidence that exists at a crime scene, and make efforts to not disturb evidence that may exist. While treating the patient is of primary importance, we also want to ensure that we do not inadvertently destroy evidence that may allow the perpetrator to avoid criminal culpability for the actions that require us to treat the patient in the first place.
In the event of an attempted suicide, that evidence may be necessary to help law enforcement obtain the psychological help the patient needs. So how do we protect evidence as EMS providers? When responding to car accidents, park the ambulance in a location that not only protects the scene for the emergency workers, but also avoids parking over skid marks and debris. When approaching a scene, make mental notes of how you find everything. Was the door to the apartment open or closed? Did it show signs of forced entry when you arrived, or did you have to force entry? How did you find the patient? Was he unconscious? Was she holding a potential weapon? Were items disturbed, potentially leaving fingerprint evidence that we do not want to smudge, smear, or otherwise destroy? If you need to cut clothing, do not cut through a bullet or knife hole; cut around it. Be sure to objectively document what you observed; things you saw, heard, felt, or touched.
Work with law enforcement on the scene and do not disturb anything unnecessarily. These are all some quick tips to keep in mind when working on a crime scene. Observe, document, and minimize your impact on the crime scene. While it is important to preserve evidence, always remember that our first priority is to treat and care for the patient. Evidence preservation is secondary to protecting the life of the patient. Aside from the topics discussed thus far, each state has its own statutory provisions that define the duties, rights, and responsibilities of EMS providers. Within Wisconsin, the governing law for EMS primarily rests in state statute 256, which covers emergency medical services.
This law provides definitions, establishes the EMS Board, delineates licensure requirements, outlines requirements for the state’s emergency medical services plan, vests rulemaking authority in the Department of Health Services, and provides for EMS patient confidentiality (referring as well to state statute 146). Of even greater interest to most EMS providers in the state is DHS 110, the administrative rule that governs the practice of EMS within the state. This rule is where the proverbial rubber hits the road. Where state statute 256 creates EMS in the state, DHS 110 tells us how EMS is run within the state with provisions pertaining to education and training, licensure, service provider requirements, and so on.
Wisconsin also has what is known as a safe haven law. State statute 48.195 stipulates that an EMT must take custody of any baby he or she reasonably believes to be 72 hours old or younger when the parent of such child relinquishes custody to the EMT. When that occurs, the EMT has 24 hours to deliver the child to an intake worker and must file a birth certificate within five days. This law was created because there were instances in which babies were found abandoned by their mothers; in many instances the babies were either dead or in significant need of care having been abandoned for a period of time. This law allows that parent (and anyone who assists her) to relinquish custody of the child to an EMT without revealing his or her identity (unless the EMT has reasonable cause to suspect the child has been the victim of abuse or neglect, or that any person assisting the parent is coercing him or her into relinquishing custody of her child).
While these laws specifically considered emergency medical technicians when drafted and enacted, there are other laws that have tremendous impact as well, even though EMS may not have been a primary consideration when drafted. State statutes 340 and 346 are laws that govern the rules of the road and, more importantly to us, the rights and responsibilities afforded to ambulances and other emergency vehicles. State statutes 893 and 895 deal with governmental immunity and Good Samaritan protections, respectively. State statute 345 is where we find the provision that raises governmental liability caps in cases involving motor vehicle accidents.
State statute 154 and HFS 125 govern do not resuscitate orders and other advanced directives. State statute 55 provides for protective custody of a mentally-ill patient. There are other state laws that cover material we have already discussed, such as tort and criminal law. If an EMT reasonably believes an individual to be dead or near death, state statute 157.06(12) states the EMT shall make a reasonable search of the individual for a record of an anatomical gift (or a refusal to make an anatomical gift). If such evidence is found and the individual is transported to the hospital, the EMT is required to provide the record or refusal of the anatomical gift to the hospital. While the statute does not impose any civil or criminal liability for failing to discharge this duty, an administrative sanction may be levied against the EMT. In addition to our state laws, there are federal laws that also govern EMS either directly or indirectly. HIPAA addresses patient confidentiality, OSHA regulates workplace safety, the DOT mandates the wearing of reflective vests when exposed to vehicle traffic on federally-funded highways, the FCC governs the use of radios on ambulances, Medicare impacts ambulance service billing, and so on.
Needless to say, EMS as a profession is highly regulated. No one can be expected to remember every law, rule, and provision that governs the practice of emergency medicine; yet, we cannot simply plead that we did not know when confronted with the knowledge that we broke a law. Ultimately, EMTs are expected to act reasonably and professionally. Follow your protocols and seek advice from your medical director or service director when needed. By following those simple guidelines, an EMT can strive for a long career without paralyzing fear of negative legal repercussions for wrongful acts or omissions. To wrap up this legal discussion, we need to address the concepts of morals and ethics. Morals are simply an individual’s beliefs as to what is right or wrong. Morals, these concepts of right and wrong, can vary from person-to-person, they are subjective. Some believe abortion is wrong; others do not.
Ethics, on the other hand, are broader than morals, if you will. Ethics is a branch of philosophy that studies morality. Regardless of whether you believe abortion is moral, right or wrong, the ethical discussion forces us to answer why. It is the rationalization for our morals. In many instances, ethics can be much more objective in that society as a whole (or within a profession) tends to determine what conduct is ethical for other members of society (or within said profession). Within EMS, this can lead to a discussion about applied ethics, where we look at very controversial topic grounded in strong moral principles.
One example may be assisted suicide or euthanasia. Is it morally wrong to end one’s life and, subsequently, to provide assistance to that person? Many say yes; others disagree. What if the person has a terminal illness? Then is it okay? It is only a few shades of grey between a valid do not resuscitate order and an affirmative, illegal, act to assist someone in ending his or her own life. This and other highly controversial topics grounded in moral principles are the basis for the field of applied ethics. The tie-in to the material in this chapter is that the law often tries to govern morality. Society believes it is wrong to kill another person, thus it is illegal. This also gives rise to an ethical discussion because that same government that makes it illegal to kill another also supports a military force or national guard that participates in lethal actions. Just because something is immoral does not make it illegal, and vice versa. Just because something is not illegal does not make ethical. Because morals and ethics can be subjective, it is important to recognize the laws that apply to EMS providers because an EMT’s personal value system, his or her moral system of right and wrong and the ethical application of those morals, may not necessarily correlate with what the law requires.
Inversely, there are ethical dilemmas faced by EMS that have no clear legal guidance. Futility of care is one such topic. If you are reasonably certain that your actions as an EMT are futile, that they will not make one bit of difference in the patient’s eventual outcome, should you still follow those protocols? An example is a seasoned EMT performing CPR on a person he or she knows is dead. Because there are no obvious signs of death and the body is still warm, however, the EMT’s protocols require the patient be treated and transported.
As a result, the crew drives red light and siren to the hospital doing CPR all the way, only for the ED physician to ultimately declare the patient dead. The problem within the scenario is that the crew and public was exposed to greater risk of a motor vehicle accident by driving on an emergency basis to the hospital. The decedent’s estate also just bought an expensive ambulance trip and a hospital ED bill. Families and friends may have also received false hope that maybe something could be done. All for what? When do we stop providing what is considered futile care? How is that even defined? If a procedure helps one in five patients in a similar circumstance, is it futile? How about one in ten, one in a hundred, one in a thousand, etc.? Medial Rationing is also an emerging topic, especially when emergency managers have to develop plans to address potential pandemics.
With limited resources, how do we provide the greatest good to the most people, and how do we rationalize withholding care from others who do not meet our criteria for service or are simply not lucky enough to be at the right place at the right time to receive EMS services? Professional misconduct is a substantial issue as well. Some misconduct is clearly wrong, morally speaking. Stealing items from the house of a patient is a moral issue that most people would hold as inherently wrong. Some other misconduct may not be so clear or may not strike a deep moral fiber. Is it ethical for an EMT to decide where a patient should be transported based upon the perks provided to the EMT by the receiving hospital? Sounds like a pretty straightforward ethical issue, yet there are hospitals that provide free food, snacks, and beverages to EMS providers with the specific intent to obtain more patients through the ED (thus increasing their level of billable services).
What about the paramedic who uses a larger gauge needle on a patient because the patient is uncooperative and the paramedic knows the larger needle will hurt more upon insertion? While this sounds wrong to most, it is a practice that has been known to occur. From the financial side of the house, is it right to triage or prioritize patients based upon their financial resources or their ability to pay? In the business world, it is commonplace to not provide services to people who do not pay or to prioritize entities that pay promptly. Think about the waitress that provides better service to a customer she knows is a good tipper, as opposed to the service she provides to a notoriously poor tipper. Can EMS providers function similarly? What about for-profit EMS providers? This may sound far fetched, but this used to be a problem with hospitals that would refuse to treat patients who could not pay for services.
Congress actually stepped in with the Emergency Medical Treatment and Active Labor Act (EMTALA) of 1986, which requires hospitals to treat patients on an emergency basis regardless of their ability to pay. Prior to EMTALA, there was a lot of “patient dumping,” as it is called, where hospitals would take patients in, not treat them, and throw them outside or transport them somewhere else. As an EMT, there will be many instances in which your moral fiber and ethical values may be challenged.
When those instances intersect with the law, it is important to behave morally, ethically, and in compliance with applicable laws. Failure to do so could result in substantial repercussions. Hopefully the information provided within this module will assist you, as a future EMS provider, in following that narrow path through an arguably convoluted legal landscape. Given your completion of this module, you should now be able to: Define the EMT scope of practice. Explain the rationale for the need, benefits, and use of advance directives as they pertain to EMS. Define consent. Discuss methods of obtaining consent. Differentiate between expressed and implied consent. Explain the role of consent in providing care to minors. Discuss the implications for the EMT in patient refusal of care and/or transport. Discuss the concepts of abandonment, negligence, assault, battery, and false imprisonment. State the conditions necessary for an EMT to have a duty to act. Explain the importance, necessity, and legality of patient confidentiality. Discuss the considerations of the EMT in issues of organ retrieval. Differentiate the actions that an EMT should take to assist in the preservation of a crime scene.
State the conditions that require an EMT to notify local law enforcement officials (mandatory reporting). You should also be able to: Explain the role of EMS and the EMT regarding patients with DNR orders. Explain the rationale for the needs, benefits, and usage of advance directives. Explain the rationale for the concept of varying degrees of DNR orders. Value the importance of maintaining patient confidentiality. That concludes this module on legal and ethical issues in EMS. Please contact your course instructor with any questions you may have regarding the material in this module. This presentation was created by Waukesha County Technical College with grant funding from the Wisconsin Technical College System. .