Legal Matters
John R. Clark, JD, MBA, NREMT-P, FP-C, CCP-C, CFC, CMTE
It’s Good to Be the King A flight nurse friend called me at home 1 evening after she had arrived at work and said, “I have a legal question.” I always love phone calls like this because it always ends up being the jurisprudence version of, “Hey, hold my beer . . .” She and her partner were discussing what potential adventures they might expect overnight and asked me if they hypothetically were to respond to a scene flight involving a very pregnant woman with fatal injuries that included the potential for them to do a postmortem cesarean section, would they be legally protected if they performed a crash section to preserve the life of the fetus? My default answer is “maybe,” but there are so many variations to the scenario that there is no way to tell the outcome until it went in front of a jury. Therefore, I suggested that they might want to run it by their medical control doctor before touching the scalpel to skin. Certainly, there are reported cases of field cesarean sections being performed (eg, a 1997 New Jersey case involving 2 paramedics who performed an emergency cesarean section to deliver the baby of a woman who was in cardiac arrest and could not be revived). The paramedics acted while consulting online medical control for guidance. The paramedics were sanctioned because New Jersey regulations forbid them from performing “surgical operations,”1 but the devil is always in the details. So, although the temptation to explore this question was great, the larger question that it raised in my mind was how do emergency medical service (EMS) immunity laws (and their partner Good Samaritan laws) help protect us when things stray a little bit from the ordinary? As I started my immunity research, a case kept popping up about a $1.75 million settlement in a Chicago fire case involving the death of a 13-year-old girl who died of an asthma attack in 2002. According to a summary of the lawsuit,2 the plaintiff’s attorney says the first mistake was an esophageal intubation that was followed by a second mistake when the paramedic failed to follow a “standard medical order” of the fire department that required visual reassessment of the endotracheal tube placement if a person’s condition worsens. While dealing with a deteriorating patient and an alleged failed airway, the ambulance was involved in a “fender bender” en route to the hospital and chose to follow what the plaintiff’s attorney characterized as a “ridiculous general order” that requires a fire department apparatus involved in an accident in which there is property damage to remain on the scene. This mistake was mitigated by the dispatch of a second ambulance to complete the transport. At the end of this cascade of events, the patient was pronounced dead 19 minutes after arriving at the hospital, 25 minutes after being improperly intubated and about 40 minutes after the first call was made to 911. 250
Both of these issues, the postmortem cesarean section and the unrecognized esophageal intubation, are potential litigation hazards at opposite ends of the spectrum; they do have a potential similar defense—immunity. Without an immunity statute, the 4 prongs of general negligence apply: duty, breach, causation, and damages.3 Using the WestLaw legal database and using the keyword "ambulance" as a search term, my friend and colleague Matt Streger ran a query of all 50 states and all federal courts for an 18-month period from January 1, 2013, through June 30, 2014, that yielded only 26 cases of negligence in the provision of EMS care. Of those 26 cases that made it to some level of appellate review, 5 were pure malpractice, 10 involved driving of an emergency vehicle, and 11 turned on a question of immunity and/or procedure. We live in a litigious society, and no one wants to operate under a cloud of fear of a lawsuit, so many of these United States have enacted immunity statues aimed at limiting the breadth and depth of lawsuits so as to encourage citizens to both volunteer and work in public safety. There are 2 categories of immunity that are germane to this discussion. First is that of sovereign immunity. Stated generally, the government is immune from lawsuits or other legal actions except when it consents to them. Historically, the doctrine has its roots in the law of feudal England and is based on the tenet that the King can do no wrong. As the laws of the United States evolved from English common law, the doctrine held federal, state, and even local governments immune from tort liability arising from governmental activities. This is often the defense raised when a municipal EMS service is named in a lawsuit. More broadly is the concept of generalized immunity. The basic immunity protection is designed to shield EMS workers from claims of negligence that were committed while acting at an emergency situation when acting in good faith. The majority of EMS immunity laws grant protection from civil liability unless the care was “grossly negligent,” “reckless,” or performed with “willful and wanton misconduct.”4 Although the courts use the terms interchangeably, they all agree that they describe something worse than ordinary negligence. An immunity statute doesn’t mean you won’t be sued, but it significantly raises the bar the plaintiff must meet to prove negligence. Your defense will focus on proving that the alleged actions outlined in the complaint did not occur at all, or, if they did, they did not rise to the level of negligence required under the immunity statute. One of the strongest EMS immunity statues may be in Arkansas. Their statute reads “No cause of action shall arise against a certificate holder pursuant to this subchapter or against the issuing physician for any act or Air Medical Journal 33:6
omission when acting in good faith pursuant to the authority granted by this subchapter, except when the conduct amounts to gross negligence.”5 Depending on the state in which you practice, specific EMS immunity laws may coexist with Good Samaritan laws. The Good Samaritan laws generally protect lay people who assist in an emergency, but in some states the Good Samaritan laws also cover EMS actions. In Wisconsin, the Good Samaritan law specifically states that the statute does not apply to medical professionals (Editorial commentary). In Maryland, the Good Samaritan law protects volunteers who respond to the scene of an emergency but does not apply to paid EMS crews. In Utah, their state’s Good Samaritan law explicitly covers EMS workers (Editorial commentary). So, where does this leave us with both of these cases? In the Chicago fire case, it is pretty clear that the actor is a governmental agency. Would it be possible to just use a sovereign immunity defense and simply say, “We were wrong, but you can’t sue the King?” In Chicago, the family of the deceased girl asked for $6 million in damages, and the city settled the case out of court for $1.75 million.2 This is interesting because Illinois medical malpractice suits don’t award punitive damages and there is a $500,000 cap on noneconomic damages, so the city must have anticipated that a potential jury award for compensatory damages would be greater than $1.75 million. Compensatory damages here would have included everything from hospital bills and other medical expenses, future lost wages, and court fees but most impressive would have been the award for the pain and suffering and emotional distress suffered by the family. Although I am unaware of the litigation strategy by the plaintiff and have no insider information from the city, I can only offer my opinion that an immunity defense in this case would have been difficult to mount because of the potential for a jury to find that the paramedic’s conduct was “grossly negligent,” “reckless,” or performed with “willful and wanton misconduct.” In the case of the roadside cesarean section, because the helicopter service was a private company, the sovereign immunity defense really isn’t possible because although some may think cash is King, it’s not the government. So, my scalpel-wielding friend would have to rely on a general immunity statute and prove that, although the procedure may be outside of the scope of practice, the procedure was not performed in a “grossly negligent” or “reckless” manner nor was it done with “willful and wanton misconduct” but instead, after careful consideration of the clinical condition of both the mother and the fetus and done with appropriate involvement of online medical control, the cesarean section was a good faith attempt to rescue the baby from certain death. I would think that a sympathetic jury would be hard-pressed to find negligence. As a caveat to the immunity defense, one of my favorite cases that shows that sometimes the judge gets it right is the case of De Tarquino v Jersey City.6 In this case, the decedent suffered fatal injuries as a result of an assault by a November-December 2014
Jersey City police officer. EMS called to the police station failed to share with the hospital staff that while Mr De Tarquino was in their care he vomited and omitted that detail on the run sheet; in fact, it included the notation “N/V,” which the defendants acknowledged means “negative for nausea/vomiting.” After a few hours of observation, the emergency department staff concluded that the decedent was not seriously injured and discharged him to the police where he was returned to jail. Six hours later, the decedent began experiencing seizures and was transported again to Jersey City Medical Center. Shortly thereafter, he became comatose and was subsequently declared brain-dead. Autopsy revealed that the cause of death was an epidural hematoma. The hospital and treating staff members were released from the case after successfully raising a defense that demonstrated they were not negligent because without the trigger of vomiting, they followed their head injury observation policy and did not find anything other signs of a problem. If the EMS crew had informed them that the patient had vomited and possibly exhibited other signs of a head injury, they would have followed their head injury protocol and sent him for a computed tomographic scan. The EMS crew attempted to establish a qualified immunity defense under New Jersey’s Good Samaritan statute7 that states “those who perform medical services at the scene of emergencies, such as airway clearance, cardiopulmonary resuscitation and cardiac defibrillation, recognizes that such emergency services pose a higher risk of error than the performance of the same services by a licensed physician in a hospital and therefore that emergency medical personnel should not be inhibited in performing those services by fear of tort liability.” The judge in the case agreed that the legislature wanted to protect EMS workers while caring for patients in difficult emergency situations and explicitly limited the immunity to negligence “committed while in training for or in the rendering of intermediate life support services in good faith and in accordance with this act”; however, he correctly held that the “completion of an accurate report concerning those medical services and the observations of a patient’s condition does not involve the same difficulties as the actual performance of EMS outside a hospital. In the end, there was no immunity, sovereign, or otherwise for the Jersey City EMS providers, and for the first time, negligence was found in the guise of improper documentation.
References 1. Chen D. Two paramedics face inquiry over surgery in emergency. New York Times. September 27, 1997. http://www.nytimes.com/1997/09/27/nyregion/2-paramedicsface-inquiry-over-surgery-in-emergency.html. Accessed July 25, 2014 2. Spielman F. Paramedics alleged mistakes in girls death likely to cost taxpayers. Chicago Sun Times. March 15, 2012. http://www.suntimes.com/news/metro/10623 309-418/paramedics-alleged-mistakes-in-girls-death-likely-to-cost-taxpayers.html#.U97yOlZMbRo. Accessed July 25, 2014. 3. Black’s Law Dictionary. 6th ed. Egan, MN:West Publishing; 1990: 1032. 4. Harper FV, James F, Gray OS. On the Law of Torts. 3rd ed. Vol. 4. New York, NY: Aspen Publishers; 2007;10-18.
251
5. Arkansas Code, Title 20, Public Health And Welfare, Subtitle 2, Health and Safety, Chapter 13, Emergency Medical Services, Subchapter 6, Nerve Agents Emergency Treatment Act, §20-13-606, Immunity. 6. De Tarquino v Jersey City, 352 NJ. Super 450, 800 A.2d 255 (App Div 2002). 7. New Jersey Permanent Statutes, Title 26 Health and Vital Statistics, 26:2K-29. Immunity, L. 1985, c. 351, s. 10.
John R. Clark, JD, MBA, NREMT-P, FP-C,CCP-C, CFC, CMTE, is a member of the board of directors for the Board for Critical Care Transport Paramedic Certification (BCCTPC) and legal advisor and member of the board of directors for the International Association of Flight and Critical Care Paramedics (IAFCCP).
252
Editor’s Note: While the information in this article deals with legal issues, it does not constitute legal advice. If you have specific questions related to this topic, you are encouraged to consult an attorney who can investigate the particular circumstances of your individual situation. If you have an issue you would like to see addressed in a future issue of AMJ, please contact the author at [email protected] to suggest a topic. 1067-991X/$36.00 Copyright 2014 by Air Medical Journal Associates http://dx.doi.org/:10.1016/j.amj.2014.08.003
Air Medical Journal 33:6
John R. Clark, JD, MBA, NREMT-P, FP-C, CCP-C, CFC, CMTE
It’s Good to Be the King A flight nurse friend called me at home 1 evening after she had arrived at work and said, “I have a legal question.” I always love phone calls like this because it always ends up being the jurisprudence version of, “Hey, hold my beer . . .” She and her partner were discussing what potential adventures they might expect overnight and asked me if they hypothetically were to respond to a scene flight involving a very pregnant woman with fatal injuries that included the potential for them to do a postmortem cesarean section, would they be legally protected if they performed a crash section to preserve the life of the fetus? My default answer is “maybe,” but there are so many variations to the scenario that there is no way to tell the outcome until it went in front of a jury. Therefore, I suggested that they might want to run it by their medical control doctor before touching the scalpel to skin. Certainly, there are reported cases of field cesarean sections being performed (eg, a 1997 New Jersey case involving 2 paramedics who performed an emergency cesarean section to deliver the baby of a woman who was in cardiac arrest and could not be revived). The paramedics acted while consulting online medical control for guidance. The paramedics were sanctioned because New Jersey regulations forbid them from performing “surgical operations,”1 but the devil is always in the details. So, although the temptation to explore this question was great, the larger question that it raised in my mind was how do emergency medical service (EMS) immunity laws (and their partner Good Samaritan laws) help protect us when things stray a little bit from the ordinary? As I started my immunity research, a case kept popping up about a $1.75 million settlement in a Chicago fire case involving the death of a 13-year-old girl who died of an asthma attack in 2002. According to a summary of the lawsuit,2 the plaintiff’s attorney says the first mistake was an esophageal intubation that was followed by a second mistake when the paramedic failed to follow a “standard medical order” of the fire department that required visual reassessment of the endotracheal tube placement if a person’s condition worsens. While dealing with a deteriorating patient and an alleged failed airway, the ambulance was involved in a “fender bender” en route to the hospital and chose to follow what the plaintiff’s attorney characterized as a “ridiculous general order” that requires a fire department apparatus involved in an accident in which there is property damage to remain on the scene. This mistake was mitigated by the dispatch of a second ambulance to complete the transport. At the end of this cascade of events, the patient was pronounced dead 19 minutes after arriving at the hospital, 25 minutes after being improperly intubated and about 40 minutes after the first call was made to 911. 250
Both of these issues, the postmortem cesarean section and the unrecognized esophageal intubation, are potential litigation hazards at opposite ends of the spectrum; they do have a potential similar defense—immunity. Without an immunity statute, the 4 prongs of general negligence apply: duty, breach, causation, and damages.3 Using the WestLaw legal database and using the keyword "ambulance" as a search term, my friend and colleague Matt Streger ran a query of all 50 states and all federal courts for an 18-month period from January 1, 2013, through June 30, 2014, that yielded only 26 cases of negligence in the provision of EMS care. Of those 26 cases that made it to some level of appellate review, 5 were pure malpractice, 10 involved driving of an emergency vehicle, and 11 turned on a question of immunity and/or procedure. We live in a litigious society, and no one wants to operate under a cloud of fear of a lawsuit, so many of these United States have enacted immunity statues aimed at limiting the breadth and depth of lawsuits so as to encourage citizens to both volunteer and work in public safety. There are 2 categories of immunity that are germane to this discussion. First is that of sovereign immunity. Stated generally, the government is immune from lawsuits or other legal actions except when it consents to them. Historically, the doctrine has its roots in the law of feudal England and is based on the tenet that the King can do no wrong. As the laws of the United States evolved from English common law, the doctrine held federal, state, and even local governments immune from tort liability arising from governmental activities. This is often the defense raised when a municipal EMS service is named in a lawsuit. More broadly is the concept of generalized immunity. The basic immunity protection is designed to shield EMS workers from claims of negligence that were committed while acting at an emergency situation when acting in good faith. The majority of EMS immunity laws grant protection from civil liability unless the care was “grossly negligent,” “reckless,” or performed with “willful and wanton misconduct.”4 Although the courts use the terms interchangeably, they all agree that they describe something worse than ordinary negligence. An immunity statute doesn’t mean you won’t be sued, but it significantly raises the bar the plaintiff must meet to prove negligence. Your defense will focus on proving that the alleged actions outlined in the complaint did not occur at all, or, if they did, they did not rise to the level of negligence required under the immunity statute. One of the strongest EMS immunity statues may be in Arkansas. Their statute reads “No cause of action shall arise against a certificate holder pursuant to this subchapter or against the issuing physician for any act or Air Medical Journal 33:6
omission when acting in good faith pursuant to the authority granted by this subchapter, except when the conduct amounts to gross negligence.”5 Depending on the state in which you practice, specific EMS immunity laws may coexist with Good Samaritan laws. The Good Samaritan laws generally protect lay people who assist in an emergency, but in some states the Good Samaritan laws also cover EMS actions. In Wisconsin, the Good Samaritan law specifically states that the statute does not apply to medical professionals (Editorial commentary). In Maryland, the Good Samaritan law protects volunteers who respond to the scene of an emergency but does not apply to paid EMS crews. In Utah, their state’s Good Samaritan law explicitly covers EMS workers (Editorial commentary). So, where does this leave us with both of these cases? In the Chicago fire case, it is pretty clear that the actor is a governmental agency. Would it be possible to just use a sovereign immunity defense and simply say, “We were wrong, but you can’t sue the King?” In Chicago, the family of the deceased girl asked for $6 million in damages, and the city settled the case out of court for $1.75 million.2 This is interesting because Illinois medical malpractice suits don’t award punitive damages and there is a $500,000 cap on noneconomic damages, so the city must have anticipated that a potential jury award for compensatory damages would be greater than $1.75 million. Compensatory damages here would have included everything from hospital bills and other medical expenses, future lost wages, and court fees but most impressive would have been the award for the pain and suffering and emotional distress suffered by the family. Although I am unaware of the litigation strategy by the plaintiff and have no insider information from the city, I can only offer my opinion that an immunity defense in this case would have been difficult to mount because of the potential for a jury to find that the paramedic’s conduct was “grossly negligent,” “reckless,” or performed with “willful and wanton misconduct.” In the case of the roadside cesarean section, because the helicopter service was a private company, the sovereign immunity defense really isn’t possible because although some may think cash is King, it’s not the government. So, my scalpel-wielding friend would have to rely on a general immunity statute and prove that, although the procedure may be outside of the scope of practice, the procedure was not performed in a “grossly negligent” or “reckless” manner nor was it done with “willful and wanton misconduct” but instead, after careful consideration of the clinical condition of both the mother and the fetus and done with appropriate involvement of online medical control, the cesarean section was a good faith attempt to rescue the baby from certain death. I would think that a sympathetic jury would be hard-pressed to find negligence. As a caveat to the immunity defense, one of my favorite cases that shows that sometimes the judge gets it right is the case of De Tarquino v Jersey City.6 In this case, the decedent suffered fatal injuries as a result of an assault by a November-December 2014
Jersey City police officer. EMS called to the police station failed to share with the hospital staff that while Mr De Tarquino was in their care he vomited and omitted that detail on the run sheet; in fact, it included the notation “N/V,” which the defendants acknowledged means “negative for nausea/vomiting.” After a few hours of observation, the emergency department staff concluded that the decedent was not seriously injured and discharged him to the police where he was returned to jail. Six hours later, the decedent began experiencing seizures and was transported again to Jersey City Medical Center. Shortly thereafter, he became comatose and was subsequently declared brain-dead. Autopsy revealed that the cause of death was an epidural hematoma. The hospital and treating staff members were released from the case after successfully raising a defense that demonstrated they were not negligent because without the trigger of vomiting, they followed their head injury observation policy and did not find anything other signs of a problem. If the EMS crew had informed them that the patient had vomited and possibly exhibited other signs of a head injury, they would have followed their head injury protocol and sent him for a computed tomographic scan. The EMS crew attempted to establish a qualified immunity defense under New Jersey’s Good Samaritan statute7 that states “those who perform medical services at the scene of emergencies, such as airway clearance, cardiopulmonary resuscitation and cardiac defibrillation, recognizes that such emergency services pose a higher risk of error than the performance of the same services by a licensed physician in a hospital and therefore that emergency medical personnel should not be inhibited in performing those services by fear of tort liability.” The judge in the case agreed that the legislature wanted to protect EMS workers while caring for patients in difficult emergency situations and explicitly limited the immunity to negligence “committed while in training for or in the rendering of intermediate life support services in good faith and in accordance with this act”; however, he correctly held that the “completion of an accurate report concerning those medical services and the observations of a patient’s condition does not involve the same difficulties as the actual performance of EMS outside a hospital. In the end, there was no immunity, sovereign, or otherwise for the Jersey City EMS providers, and for the first time, negligence was found in the guise of improper documentation.
References 1. Chen D. Two paramedics face inquiry over surgery in emergency. New York Times. September 27, 1997. http://www.nytimes.com/1997/09/27/nyregion/2-paramedicsface-inquiry-over-surgery-in-emergency.html. Accessed July 25, 2014 2. Spielman F. Paramedics alleged mistakes in girls death likely to cost taxpayers. Chicago Sun Times. March 15, 2012. http://www.suntimes.com/news/metro/10623 309-418/paramedics-alleged-mistakes-in-girls-death-likely-to-cost-taxpayers.html#.U97yOlZMbRo. Accessed July 25, 2014. 3. Black’s Law Dictionary. 6th ed. Egan, MN:West Publishing; 1990: 1032. 4. Harper FV, James F, Gray OS. On the Law of Torts. 3rd ed. Vol. 4. New York, NY: Aspen Publishers; 2007;10-18.
251
5. Arkansas Code, Title 20, Public Health And Welfare, Subtitle 2, Health and Safety, Chapter 13, Emergency Medical Services, Subchapter 6, Nerve Agents Emergency Treatment Act, §20-13-606, Immunity. 6. De Tarquino v Jersey City, 352 NJ. Super 450, 800 A.2d 255 (App Div 2002). 7. New Jersey Permanent Statutes, Title 26 Health and Vital Statistics, 26:2K-29. Immunity, L. 1985, c. 351, s. 10.
John R. Clark, JD, MBA, NREMT-P, FP-C,CCP-C, CFC, CMTE, is a member of the board of directors for the Board for Critical Care Transport Paramedic Certification (BCCTPC) and legal advisor and member of the board of directors for the International Association of Flight and Critical Care Paramedics (IAFCCP).
252
Editor’s Note: While the information in this article deals with legal issues, it does not constitute legal advice. If you have specific questions related to this topic, you are encouraged to consult an attorney who can investigate the particular circumstances of your individual situation. If you have an issue you would like to see addressed in a future issue of AMJ, please contact the author at [email protected] to suggest a topic. 1067-991X/$36.00 Copyright 2014 by Air Medical Journal Associates http://dx.doi.org/:10.1016/j.amj.2014.08.003
Air Medical Journal 33:6
