I'm “The Legal Guardian”

EMS training programs, EMT & Paramedic alike, typically (and quickly) cover subjects of Legal Issues, like Negligence, in passing. It tends to be easiest to brush the material just enough to cover exam questions. In my own experience, far too little is done to instill a real, usable understanding of just how legal issues affect EMS Professionals; information without which providers unknowingly face potential peril at every turn.

It’s true that legal issues are not too exciting to most people, certainly not against the backdrop of emergency response, but the Law touches everyone, every day – especially Emergency Responders.

I don’t recal learning about negligence in EMT school. Then again, that was some 20 years ago; the collar was still turned up on my Polo shirt.

Later, when I became a Paramedic in 1989, I learned Negligence as the foul, but generally hidden monster that could kill my career. I vaguely recall the Negligence portion of the Medical/Legal lecture as being a stern, but not very well supported, warning to follow protocols and procedures or risk being sued.

I took from the class the notion that only Gross Negligence could bring me down. As far as I knew, good patient care alone would keep me insulated from the threat of any legal action. Now, having earned my Law Degree, I find that not only was I wrong, I was very, very wrong.

Knowing what I know now, I am both horrified and amazed when I think about what really went on and when I see what still goes on out there in EMS all across the United States.

Beginning here, and hopefully for a long time to come, I plan to share the kind of information that will not only keep providers safe, but will help to improve the quality of EMS as a whole and raise the bar for providers as Professionals.

My dry sense of humor may take some getting used to, but I hope to make the task of expanding your own understanding of the law more fun and more interesting so that you can (and will) use the tools I hope to provide.

“Negligence and the EMS Professional”

While a negligent act could certainly carry a devastating cost, understanding negligence and how it fits in to the daily life of a provider can help keep the monster at bay.

Simply stated, negligence arises where there is a duty to act, a breach of that duty, and that breach is the cause of damage to another.

DUTY

Each of us owes a general duty of care to everyone; the duty not to intentionally harm anybody and the duty to try to not do anything too stupid.

Legally speaking, there is a general duty not to behave in such a way as to endanger the wellbeing of others. I like my description better.

EMS Professionals, on the other hand, owe a much greater duty to the community as a whole while on the job—and even off.

In short, EMS providers have the duty to act as would a prudent, reasonable EMS provider with the same level of training, in the same community, and under similar circumstances. That’s the legal description.

As you can see, the duty is broad-reaching and subject to a great deal of interpretation, nevertheless it can be easily broken down:

1) Behave in such a way as to protect and defend those around you from harm,

2) Act within your scope of practice at all times,

3) Act in accordance with local protocols and procedures at all times,

4) Serve to maintain the dignity of each person with whom you come in contact,

and

5) Continuously repeat steps 1-4.

Duty, itself, is mostly about behavior – how an EMS Professional should behave. But the behavior to which Duty refers is not limited to just patient care.

Duty as an EMS provider extends to the patients and their families, to coworkers and guests, and to the community in general. Your patient care may be second to none, but how do you behave at the station or while driving around town in the ambulance or rescue squad? How clean is the ambulance? How well stocked is the medical box? How much oxygen do you have? The list is virtually endless, and all of it is your responsibility, your duty.

One of the toughest questions about Duty involves other providers. What is your individual duty when a fellow provider is utterly incompetent or worse…criminal? We will tuck that question away for another column. For now, just ponder those questions in light of what you learn today.

BREACH

The concept of breach is simple: You did something that you had a duty not to do, or you failed to do something that you had an absolute duty to do. There, that is breach.

Example: Let’s say that the law in your jurisdiction has established an affirmative duty for ALL emergency vehicle operators, even while operating with lights & sirens, to come to a complete stop at red traffic signals.

At 3:00AM you find yourself responding to the report of a cardiac arrest. There is not another vehicle as far as the eye can see, so you are flying down the road. Ahead there is an intersection. It is wide open and you can see for a quarter mile in both directions, not a car in sight. So you are going. Even thgouh the light is red, you can see with 100% certainty that the roadway is clear, so through the red light you go.

Have you breached your Duty? Yes.

The concept of breach does not care whether anyone was hurt or even affected by your act (or non-act). Breach only cares about your behavior relative to your duty. In the example above, there was a duty to stop, you didn’t, you breached.

Is there a negligence claim against you? No. A successful negligence claim requires that all for elements be present.

CAUSATION

Here is where things get a little sticky.

Where you breach a duty (as defined above) AND your breach is the direct cause of damage (I’ll get to that in a minute), then you will be considered a cause of the damage.

But, the Lawgenerally requires that you also be the proximate (most direct) cause. Thus, it is possible for your breach to cause damage, but if there are unforeseeable, superseding or intervening factors, you may not be completely liable or even negligent.

Example: You have a duty to check every drug prior to administration, but in one particular instance, you forget and administer a drug six months beyond the expiration date.

The patient has a violent reaction and is hospitalized for a month. At the moment, you are in deep trouble.

However, it turns out that the drug manufacturer mislabeled the vial and it contained a completely different drug. Did you err? Yes. But a Court would likely find that (because malpractice is presumed – I will talk about that in a minute also), the manufacturer was the most direct cause of the patient’s injury, thus relieving you of full responsibility, though not necessarily all responsibility.

That was fairly basic, it gets harder.

Anywhere a duty exists and you fail to comply with it, you become part of a potentially long chain of causation and your portion of the damage may be actionable.

Example: The negligent act of another causes harm to a victim. You respond to the victim and render care. During the course of rendering that care, you also act negligently and the patient’s harm or injury is worsened.

The law does not hold medical personell in very high regard, inasmuch as, under the law, malpractice is presumed – read: foreseeable – whenever someone seeks medical attention in response to the [negligence] of another.

In the example above, the original negligent act caused the original ham, but you made it worse. The law expects that and does not relieve the original negligent actor of his liability, but your own negligent act may still be actionable against you.

Yes, it gets even more confusing, but I will leave it at this:

For a negligence act to hold, the negligent act must CAUSE some harm or result in some damage to another. Where you run a stopsign without incident or negligently hang D5W instead of Normal Saline, but no harm is done, then no action for negligence will hold.

However, if you negligently run the stopsign or hang the wrong drug and even the most minute damage occurs, you will be liable for it – and the best excuse in the world will not likelyhelp you.

DAMAGES

Any physical, financial, and sometimes emotional injury caused by the breach of a duty can constitute this final element of negligence.

Damages could, conceivably, be as little as a fifty cent phone call; if that call had to be made directly because you breached your duty to the person who made the call — the plaintiff would be entitled to recover the four bits.

Medical expenses, lost wages, physical damage to property, and manifested emotional distress are all typical forms of damage for which a negligence action can be brought.

The important thing to know about Damage is this: the idea is to make the damaged person whole; to place him in the position he would be in absent the neglignet act. Civil law seeks to do that through cold, hard cash – your cold, hard cash.

If you are driving recklessly with your lights & sirens and you smash up someone’s brand new car, you just bought that car. If your failure to properly treat a spinal injury results in damage that would otherwise not have been sustained, it’s coming out of your pocket. If you negligently tell a family member that a loved one is dead… and they are not, you could be made to pay dearly.

FINALLY

To truly understand negligence, one must study volumes of text, review decades of case law, and comprehend complex legal theory.

You don’t need to do any of that.

To protect yourself against a negligence claim, simply do the following:

1) Behave in such a way as to protect and defend those around you from harm,

2) Act within your scope of practice at all times,

3) act in accordance with local protocols and procedures at all times,

4) serve to maintain the dignity of each person with whom you come in contact, and

5) continuously repeat steps 1-4.