EMS and the Law Monograph 3 - · PDF fileEMS and The Law Monograph 3 ... Failure to report these cases may be grounds for civil and/or criminal punishment, depending on state laws

I A F F

International Associationof Fire Fighters®

EMERGENCY MEDICAL SERVICESEMS and the Law

Monograph 3

i

Emergency Medical ServicesEMS and The LawMonograph 3

Department of Emergency Medical ServicesInternational Association of Fire Fighters, AFL-CIO, CLC

Copyright © 1997 by the International Association of Fire Fighters.® This publication

is protected by copyright. No part of it may be reproduced, stored in a retrieval system,or transmitted in any form or by any means, electronic, mechanical, photocopying,recording, or otherwise without written permission from the International Associationof Fire Fighters, Department of Emergency Medical Services.

International Standard Book Number: 0-942920-24-4

Foreword

Harold A. ScaitbergerGeneral President

Today more than 80 percent of fire departments perform some level of emergencymedical services (EMS), making professional fire fighters the largest group of providersof prehospital emergency care in North America. No other organization – public orprivate – is capable of providing prehospital emergency response as efficiently andeffectively as fire departments. Fire department operations are geared to rapidresponse, whether it is for EMS or fire suppression. Cross-trained/dual-role fire fightersare trained to aggressively attack their work whether it involves a fire, a rescue, or amedical emergency. It is no surprise that study after study has shown that firedepartment-based prehospital emergency medical care systems are superior to otherprovider types.

However, as we look into the future of prehospital emergency medical care, we arecalled upon to evaluate our role and the possible need for change in the context of arapidly evolving medical care system. We must look at what we have learned during thepast century and create a vision for the future of fire-based EMS. This vision mustaddress necessary legislation for the protection of fire-based systems. It must addresspublic education, prevention, and the possible expansion of the scope of practice forparamedics. This vision must consider the effects of managed care organizations onprehospital EMS, as well as revenue recovery for the services fire fighters perform. Itmust also protect fire-based systems from the threat of privatization, as well as protectthe citizens we serve by preserving the nation's universal emergency access number,9-1-1. The information in this series of monographs is designed to guide local firedepartment leaders through the process of developing a vision for the future of a fire-based EMS system. As fire department leaders develop their vision for the future,outside challenges will occur. Many of these challenges will involve legal threats. Thismonograph is the third in the series and contains information concerning the types oflitigation that may be brought against individual EMS providers and administrators of fire-based EMS systems.

The role of the professional fire fighter is constantly changing. We are called uponto act as multi-faceted first responders answering not only fire calls but rescue,hazardous materials, and emergency medical calls. By answering the challenge ofchange, we can continue to meet the needs of the communities we serve and do whatwe do best –– protect property and save lives.

Acknowledgments

IAFF DEPARTMENT OF EMERGENCY MEDICAL SERVICES

Lori Moore, MPH, EMT-P, Director

The IAFF would like to acknowledge the Department of EmergencyMedical Services staff, specifically Jonathan Moore and Sandy Miller, fortheir work in the development of this publication.

The IAFF also wishes to recognize the members of the IAFF EMSCommittee for their editorial review and support:

James L. Hill, District 7 Vice President, Co-ChairDominick F. Barbera, District 12 Vice President, Co-ChairRobert B. McCarthy, President, PFF of MassachusettsPatrick Cantelme, President, IAFF Local 493, Phoenix, AZDan Fabrizio, President, IAFF Local 2, Chicago, ILMark A. Lloyd, President, IAFF Local 385, Omaha, NERichard L. Mayberry, President, IAFF Local 522, Sacramento, CAGary Rainey, Secretary, IAFF Local 1403, Metro-Dade Co., FLRonald L. Saathoff, President, IAFF Local 145, San Diego, CA

International Association of Fire Fighters® AFL-CIO, CLC

Department of Emergency Medical Services

1750 New York Avenue, NW

Washington, DC 20006

(202) 737-8484

(202) 737-8418 (FAX)

EMS and The LawTable of Contents

INTRODUCTION ..........................................................................1

I. EMS PROVIDER MEDICAL-LEGAL ISSUES ........................3

IMMUNITY FROM LIABILITY .........................................................3Good Samaritan Laws...............................................................3Governmental Immunity ..............................................................4Statutory Immunity for Emergency Medical Providers .................4

CIVIL LIABILITY ACTIONS ...........................................................5

LIABILITY PROTECTION ..............................................................6Liability Insurance ......................................................................6Risk Management .....................................................................6

II. EMS SYSTEM ADMINISTRATIVE LEGAL ISSUES..............7

ANTITRUST LITIGATION ..............................................................8The Gold Cross Case ................................................................9Parker Immunity .......................................................................10The Sacramento Case ............................................................14

JURISDICTIONAL RIGHTS TO PROVIDE ..................................15The San Bernardino Case .......................................................16The Santa Clara City Case ......................................................18

QUI TAM LITIGATION ................................................................20The Mason County Fire District 5 Case ...................................21

CONCLUSION ...........................................................................22

Appendix 1. EMS ProviderImmunity

Appendix 2. Medical-Legal Concerns of Prehospital EMSProviders

i

1

INTRODUCTION

During the early years of emergency medical services (EMS) system

development, there were few concerns about medical-legal issues. More

recently, however, there have been increasing numbers of cases brought

against prehospital providers (EMTs and paramedics)and against system

administrators (municipalities and fire departments). As a result, those

involved in EMS today must be informed and concerned about medical-

legal issues surrounding the provision of emergency medical services.

Before discussing specific legal issues that confront EMS providers and

administrators, it is important to define specific parts of the legal system

that are relevant – criminal and civil terms.

• Criminal law refers to conduct or offenses that have been established

in statutes by the legislature as “public wrongs” or “crimes against the

state.” Therefore, such conduct is prohibited and deemed inappropriate

for the betterment of society.1 Wrongs are usually prosecuted by the

State or another public governmental entity. Violations of criminal law

may be punishable by imprisonment.

• Civil law refers to private law, as between two recognizable parties,

which may include a corporation. A plaintiff may seek recovery of

money or other forms of relief from the defendant. Civil law includes

actions based on tort or contract. A tort is a legal term referring to a

wrongful act done by a person in a negligent or willful manner against

another person causing injury. For example, a claim of injury in a

medical malpractice case is a tort action. Contract actions are

brought when there are disagreements over a promise or transaction

between two or more individuals.

2

• Administrative law is an area of civil law that pertains to the

government’s authority to enforce its rules, regulations, and statutes

through the action of agencies. For example, a paramedic is granted

a certification or license by the state. Any violation of the conditions of

that certification or licensure would be conducted as an administrative

proceeding.

These laws create liabilities or obligations to do or refrain EMS providers

from doing something. In America, there are several sources of law.

• Constitutional sources include the United States Constitution

describing fundamental rights and state constitutions which may

guarantee additional rights.

• Statutes which are simply laws passed by legislatures and approved

by the government executive (the President, or governors). Counties

and cities may also make laws, ordinances, or other rules governing

the locality. Where these laws conflict with one another, the law from

the highest government level typically is the ruling law.

• Common law, “case law,” or “judge-made” law, meaning decisions

that have resulted from court cases, which interpret statutes and

constitutions in the context of specific disagreements. This law may be

changed or “overturned” by a court with higher authority or by the same

court at a later time.

• Administrative regulations which are created by federal or state

agencies as authorized by statute. Typically, these regulations “have

the force of law,” meaning that violations of regulations can be punished

by civil or even criminal penalties.

3

WHAT ISHAT IS

whatWHAT

I. EMS PROVIDER MEDICAL-LEGAL ISSUES

A. IMMUNITY FROM LIABILITY

The profession of emergency medical technicians (EMTs) and paramedic

can only function by virtue of statutory authority provided by the state. Each

state statute should define specific “acts allowed.” It is a violation of civil

law to act beyond or in violation of these provisions.

Most states also have statutes requiring that certain categories of health

care providers report suspect cases of specific injuries or diseases, such

as child or elderly abuse, some communicable diseases, rape, animal

bites, and gunshot wounds. Failure to report these cases may be grounds

for civil and/or criminal punishment, depending on state laws.

With the state of California being the first, every state in the United States

has passed legislation of some form that is designed to grant immunity

from liability for certain individuals who render care in an emergency

situation. The concept of the Good Samaritan Law is that reducing the

liability of the rescuer removes a barrier that might prevent people from

providing on-scene medical assistance to the injured. Typically, as long as

a “Good Samaritan” does not seek compensation, act recklessly, or

intentionally do wrong, any harm caused by such assistance is not

actionable. In most states, the Good Samaritan Law is a defense that must

be presented in court and does not automatically prevent a suit from being

filed.

Some states expressly reject the use of Good Samaritan laws by someone

who has a pre-existing duty to provide care to injured victims. Other states

have specifically limited the environment (for example, outside a hospital)

GOOD SAMARITAN

LAWS

4

or type of provider (i.e., volunteer) to which the law applies. For example,

Texas’ Good Samaritan statute covered all people except those who work

in an emergency department until the statute was recently amended to

cover everyone. In Pennsylvania, one section of the state’s Good Samaritan

statute covers medical personnel and another section covers lay persons.

Most Good Samaritan statutes excuse liability only for acts done “in good

faith.” This means acts done in a reasonable manner, without malicious

intent, or reckless disregard for the injured person. Before any EMS

provider relies on a Good Samaritan Law as a basis for avoiding liability,

relevant state statutes should be reviewed and interpreted by an attorney.

The doctrine of governmental immunity, also known as “qualified” or

“sovereign immunity,” once was a strong protection from liability for

government employees. However, this principle has been abandoned in

some states and severely limited in others. For example, the states of

Arizona and Louisiana specifically exclude EMTs, EMT-Intermediates,

and paramedics from immunity from liability while operating a motor

vehicle. The state of Wisconsin specifically excludes a paramedic from

governmental immunity because of a “ministerial duty to act.” In states that

still maintain governmental immunity, a public employee may be relieved

from certain liabilities related to negligence but they should not assume

the doctrine to be a shield against all liabilities.

Some state legislatures have enacted statutes that specifically provide

immunity for EMS providers. These statutes were enacted to ensure the

availability of adequate emergency care for the ill and injured. These

statutes are similar to sovereign immunity provisions and have similar

restrictions. For example, the state of Ohio has implemented statutes to

protect individuals providing emergency medical care. The state of New

York’s statutes protect only volunteer EMTs, while statutes in the state of

Michigan protect any public or private EMT.2

GOVERNMENTAL

IMMUNITY

STATUTORY IMMUNITY

FOR EMERGENCY MEDICAL

PROVIDERS

5

Because patients may be entitled to monetary compensation for injuries

caused by careless acts of emergency care providers, an EMT or

paramedic may become a defendant in a civil suit. Two terms must be

defined with regards to this type of action — standard of care and

malpractice.

The “standard of care” is the basis for evaluating a claim of negligence.

The standard of care is determined by what a reasonable, prudent EMS

provider of similar training, skills, and experience would do in like

circumstances.

“Malpractice” usually refers to negligent conduct by a professional in the

performance of duty. To win a case alleging malpractice, the plaintiff must

prove each of the following four elements by a preponderance (more than

50%) of the evidence:

1. The defendant had a duty to act according to the standard of

care;

2. A breach of that duty occurred;

3. The breach of duty caused the injury; and

4. The patient’s/plaintiff’s injury can be assessed monetarily.

Another common basis for civil cases against EMS providers is

“abandonment” which is the unilateral termination of a provider/patient

relationship when the patient still needs care, but provision is not made for

that care and an injury results. Refusal to transport a patient or talking a

patient out of being transported to a hospital is an invitation for an

abandonment claim.

Other EMS provider liability claims may include battery, assault, false

imprisonment, libel, or slander.

B. CIVIL LIABILITY ACTIONS

6

Liability insurance is not a means to avoid liability itself. Rather, it

provides payment for legal representation and damage awards entered

against the policy holder. Because the provision of EMS is unique and

considered a specialized aspect of medical care, paramedics may

consider seeking malpractice coverage with an insurance company

familiar with EMS procedures. At the very least, EMS providers should

clearly understand what protections their employers will provide should a

lawsuit be brought against them for actions in the course of employment.

There are various ways that providers can reduce their exposure to

lawsuits. First, EMS providers must pay strict attention to patient run

report documentation. A properly documented run report can diffuse

potential lawsuits. In addition, preparation and prevention may provide

some liability protection, particularly in situations involving emergency

vehicle operations. Defensive driving or emergency vehicle operations

courses may avoid the incidents that bring litigation. Training records

must be up to date and skills must meet, at a minimum, current guidelines

and practices in the industry.

There have been few studies of litigation involving EMS providers. One

such study was conducted in 1993 and published in Prehospital and

Disaster Medicine in 1994.3 This retrospective study analyzed cases

obtained from a computer database of trial court cases filed against EMS

agencies nationwide (between 1987-1992). The study revealed that half

of the cases recorded involved an ambulance collision, and the remainder

involved alleged negligence of a patient care provider. Negligence

allegations were based on arrival delays, inadequate assessment,

inadequate treatment, patient transport delays, and no patient transport.

Researchers concluded that EMS systems should include a risk

management component that focuses on reducing the legal risk to EMS

agencies and prehospital care providers. Risk management activities

may be conducted within the quality assurance/quality improvement or

training components of EMS systems.

C. LIABILITY PROTECTION

LIABILITY

INSURANCE

RISK MANAGEMENT

7

II. EMS SYSTEM ADMINISTRATIVE LEGAL ISSUES

Just as the individual providers of emergency medical services may be

vulnerable to litigation resulting from patient encounters, the administrative

entities of EMS systems are vulnerable to litigation, for example, from

outside agents seeking to compete for the revenue producing piece of an

EMS system. This section discusses statutes and case law that may

impact the EMS system provider. This system provider is defined as a

governmental entity: city, county, fire district, or fire department.

The 1973 Emergency Medical Services Systems Act (Public Law 93-

154) defined EMS as

a system which provides for the arrangement of personnel, facilities,

and equipment for the effective and coordinated delivery, in an

appropriate geographical area, of health care services under

emergency conditions occurring either as a result of the patient’s

condition or of natural disasters or similar situations and which is

administered by a public or non-profit entity which has the authority

and the resources to provide effective administration of the system.

(emphasis added)

As universal emergency access through the 9-1-1 system is nearing

completion, local governments are becoming increasingly more

accountable politically and legally for providing emergency medical

services. While most governments choose to provide EMS “in-house”

some choose to contract with a private company or other non-governmental

entity for these services.

Some governments that have historically contracted with a private

ambulance company for EMS provision and are deciding to bring that

8

service back in-house are facing litigation challenging their right to do so.4

In recent years, three types of litigation have been filed in an attempt to

prevent a municipality from providing its own emergency medical services

— antitrust litigation, jurisdictional right to provide, and qui tam suits.

The aim of the nation’s anti-trust laws is to promote competition within

industries. Economic theory suggests that, the greater number of firms

within an industry and the fewer the impediments to firms that would like to

enter that industry, the more competitive the industry will be.5

Under Section 1 of the Sherman Act, “[E]very contract, combination in the

form of trust or otherwise, or conspiracy, in restraint of trade or commerce...is

illegal.” Section 2 of the Act states that “[E]very person who shall

monopolize, or attempt to monopolize, or combine or conspire with any

other person or persons, to monopolize any part of the trade or

commerce...shall be deemed guilty...”

Two additional major antitrust laws have been passed since the Sherman

Act. Major provisions of the Clayton Act, passed in 1914, were intended

to prohibit price discrimination in which sellers “discriminate in price

between different purchasers of commodities of like grade and quality”

(Section 2) and to eliminate mergers that “lessen competition or tend to

create a monopoly” (Section 7).6

The Federal Trade Commission Act was also passed in 1914. Section

5 of this act forbade “unfair methods of competition” and created a new

agency, the Federal Trade Commission, to help enforce the antitrust laws.

Antitrust suits may be brought both by the Federal Trade Commission and

by the US. Department of Justice, although only the Justice Department

can bring suits that involve Sherman Act violations in criminal proceedings.

Private plaintiffs and state antitrust authorities may also bring antitrust

A. ANTITRUST LITIGATION

9

suits, although these suits tend to be of lesser importance. 7 Litigation

costs in antitrust cases can be substantial. Firms found in violation of the

Sherman Act may be fined “treble damages,” an amount equal to three

times the damages of the antitrust action.

Kansas City, for many years, provided emergency ambulance services to

its citizens by operating a public ambulance system through the Kansas

City General Hospital and, later, through the city fire department. In the

early 1970s, however, Kansas City began to contract with five competing,

private companies for emergency ambulance service. A central dispatch

center allocated calls among the various companies on a “round-robin”

basis. In 1973, the dispatch center adopted a policy of dispatching the

closest available ambulance to the scene of the accident, regardless of

which company owned the vehicle.

In 1978, controversy arose concerning the slow response time by the

private ambulance companies to emergency calls. As a result, the city

formed a Public Safety Improvement Committee to investigate alternatives

for improving emergency medical service. The Committee reported its

findings to the city council on March 21, 1979, and recommended that the

city adopt a publicly controlled ambulance system with a single provider

for both emergency and non-emergency services. Within two weeks, the

city council approved a resolution committing Kansas City to such a

system.

In September 1979, the Kansas City council passed an ordinance

formally adopting the public utility model for city ambulance service and

creating a nonprofit public trust, MAST, to implement and manage the new

system. Several problems prevented Kansas City from implementing its

plan. First, Missouri law requires all ambulance service operators to have

a state-issued license, which MAST did not possess. Moreover, MAST

did not own the equipment necessary to provide full ambulance service to

the city. Thus, MAST could not provide a bidder with either the license or

THE GOLD CROSS

CASE

10

the equipment necessary to implement the public utility model.

Consequently, in October 1979, the city council repealed its September

ordinance. The successor ordinance, while retreating from full

implementation of the public utility model, reiterated Kansas City’s

commitment to the concept. Thereafter, MAST contracted with ASI, a

private company that possessed the requisite state license and

equipment, to provide the city’s ambulance service. MAST apparently

issued the exclusive municipal license to ASI without complying with the

competitive bidding procedures required by city ordinance. According

to Kansas City, ASI received the license because ASI was the only

state-licensed company in the area that possessed sufficient equipment

to provide ambulance service on a single-provider basis.

Eventually, in December 1980, the city council directed MAST to fully

implement the public utility model. In September 1981, MAST purchased

all of ASI’s outstanding stock, thereby obtaining the company’s equipment

and state license. Thereafter, on December 17, 1981, the city council

passed Ordinance 53539, which directed MAST to fully implement the

public utility model. Shortly thereafter, the private ambulance companies,

Gold Cross and Transfer and Standby Service, Inc., filed a lawsuit

contending that Kansas City and other defendants violated the federal

and state antitrust laws and the United States Constitution by

implementing a publicly controlled, single-operator ambulance system.

The defendant’s case was built on case law known as Parker immunity.

Parker v. Brown (317 U.S. 341) is a U.S. Supreme Court case that

serves as the starting point for any case involving state-action immunity

doctrine.

In Parker, the Supreme Court relied on principles of federalism and

state sovereignty to hold that Congress did not intend the Sherman Act

to restrain a state, its officers, or its agents from activities directed by its

legislature that restrict or otherwise regulate competition. Therefore, if

PARKER IMMUNITY

11

a particular act is an action of the state, it is generally exempt from the

operation of federal antitrust laws. For example, actions of state legislatures

and decisions of the highest state courts have been held exempt from

antitrust liability as state action. However, when the anti-competitive

activity in question is not directly that of the state legislature or the highest

court, but is carried out by others pursuant to state authorization, additional

analysis is required to determine whether the activity is attributable to the

state and whether state-action immunity applies.8

Parker immunity was cited in a recent case, Shepard Ambulance, Inc. v.

Pierce County Fire District 6 d/b/a Central Pierce Fire and Rescue, in

which a federal district court denied a motion for preliminary injunction

stating that the plaintiff had failed to adequately demonstrate that the

defendant is not entitled to Parker immunity. The core issue in this case

was the decrease of emergency calls to Shepard Ambulance, Inc. if the

defendants, the county fire and rescue service, provided EMS service.

Here, the court held that the Washington statute at issue gives the

defendant broad power to directly provide emergency services, or to

contract for the provision of those services.9

An expression of state policy that is sufficient to establish Parker immunity

is comprised of two elements: 1) the legislature must have authorized the

challenged activity, and 2) it must have done so with an intent to displace

competition.

The first element of this test was plainly satisfied in the Gold Cross case.

The Missouri legislature enacted a comprehensive regulatory scheme

which expressly authorized the various elements of the single-operator

ambulance system adopted by Kansas City. The state permits cities to

provide ambulance service to its citizens, to acquire the necessary

equipment, to “contract with one or more” operators to provide the

ambulance service, and to promulgate rules to regulate the provision of

that service (Mo. Rev. Stat. Sec. 67.300).

12

Section 67.300 of Missouri Revised Statutes provides:

1. Any county, city, town or village may provide a general ambulance

service for the purpose of transporting sick or injured persons to a

hospital, clinic, sanitarium or other place for treatment of the illness

or injury, and for that purpose may

(1) Acquire by gift or purchase one or more motor vehicles suitable

for such purpose and may supply and equip the same with such

materials and facilities as are necessary for emergency treatment,

and may operate, maintain, repair and replace such vehicles,

supplies and equipment;

(2) Contract with one or more individuals, municipalities, counties,

associations or other organizations for the operation, maintenance

and repair of such vehicles and for the furnishing of emergency

treatment;

(3) Employ any combination of the methods authorized in

subdivisions (1) and (2) of this section.

2. The municipality or county shall formulate rules and regulations for

the use of the equipment and may fix a schedule of fees or charges

to be paid by persons requesting the use of the facilities and

provide for the collection thereof.

The state enacted additional laws concerning ambulance service,

permitting municipalities to impose their own restrictions on ambulance

service in addition to those imposed by the state. Section 190.105.4 of

Missouri’s statutes provides that the issuance of a state license does not

authorize operation of an ambulance “without a franchise in any county,

municipality or political subdivision which has enacted an ordinance

making it unlawful to do so.” Section 190.105.5 provides that municipalities

may adopt ambulance service ordinances that do not conflict with state

law.

13

Continuing to apply the Parker doctrine, the second and more difficult

question was whether Missouri intended to displace competition with

regulation or monopoly service. The district court found that such an intent

existed, stating that “the state’s policy [was] to place anti competitive

restraints on ambulance service” and that its regulatory scheme “clearly

indicates an intent to regulate the provision of ambulance service on the

basis of public need rather than to allow unbridled competition.”

Moreover, the state enacted its own anti competitive scheme for regulating

ambulance service in Missouri, which applies in addition to any municipal

regulation. (Mo. Rev. Stat. Sections 190.100 et seq.) This chapter

requires all ambulance operators and vehicles to be licensed by the state,

details the types of records that all ambulances must keep, and provides

that no ambulance may be licensed without an annual determination by the

state license officer that “public convenience and necessity require the

proposed ambulance service.”

The Decision:

The district court found that the state action doctrine shielded the defendants

from liability under the federal antitrust laws. The district court held that

because the state action doctrine exempted the defendants from liability

under the federal antitrust laws, it also exempted them under Missouri’s

antitrust statutes. 10

An appellate court later upheld the district court’s decision stating:

The issue we face here is whether the City of Kansas City, the

Metropolitan Ambulance Services Trust (MAST), and various other

defendants violated the federal and state antitrust laws and the

United States Constitution by implementing a single-operator

ambulance system to provide all of the city’s emergency and non-

14

emergency service. We hold that Kansas City, MAST, and the

consultants they retained are shielded from federal and state

antitrust liability because they established the municipal ambulance

system pursuant to state authorization and a clearly articulated

and affirmatively expressed state policy to displace free competition

in the ambulance business. We further hold that none of the

defendants deprived the plaintiffs of their constitutional rights to

due process. The district court’s judgment, therefore, is affirmed.11

In May 1994, American Medical Response of Sacramento, California

brought a lawsuit in federal district court against six fire districts and the

regional emergency communications center for allegedly using their

control over the 9-1-1 access and communication system to restrain

unlawful competition in the local EMS market. AMR representatives

stated that the fire departments had fragmented the EMS system in

Sacramento County and adversely impacted the delivery of medical

treatment to the citizens and taxpayers. They stated that the departments

acted without authorization from Sacramento County, diverting request

for assistance to their own ambulance operations, and preventing AMR

from having access to those calls that they needed to serve the community

and save lives. AMR claimed the fire departments were using their

control over the 9-1-1 system to establish an illegal monopoly.

This suit followed earlier litigation by Sacramento County to prevent

other agencies (cities and fire districts) from usurping its authority by

providing their own EMS services. In November 1993, the Sacramento

County suit came before Judge Ronald B. Robie who ruled that the fire

districts and the cities have the right to operate emergency ambulances

without county approval. Judge Robie made several points relevant to

fire agencies statewide.

• The California Health and Safety code sets the level of prehospital

emergency medical service that cities and fire districts were providing

THE SACRAMENTO CASE

15

on June 1, 1980, as the minimum service level. The code also

prohibits counties from restricting cities and fire districts from providing

that minimum level of service. In addition, cities and fire districts do not

lose their right to provide these services, if the level of service is

increased beyond that established on June 1, 1980.

• Nothing in the code can be interpreted as prohibiting a city or fire

district from increasing their level of emergency medical services.

• Entering into an agreement with the county does not terminate the right

of cities or fire districts to continue providing prehospital emergency

medical services at the level established on June 1, 1980. The 1980

level of service is a minimum, therefore, it can only be increased by

Sacramento County, not decreased.

• The state EMS Act gives counties the authority to supervise EMS

services but does not give authority to take over, control, or stop

prehospital emergency medical services provided by cities or fire

districts.12

Following this decision, the County terminated its contract with AMR, and

AMR filed an appeal, claiming an antitrust violation.

The Decision:

In November 1994, a three judge panel unanimously ruled that the appeal

was moot (that is, it could not be judged), stating that, because the county

had terminated AMR’s contract before the appeal was heard, AMR had

no standing, or stake in the case.

In the past, several county governments in California had taken on the

responsibility of providing or contracting to provide emergency medical

B. JURISDICTIONAL RIGHTS TO PROVIDE

16

services for cities and fire districts within their counties. In more recent

years, fire districts and various cities have elected to provide their own

EMS services including transport. Such action has been met with

litigation questioning the various jurisdictions’ rights to do so. These

decisions by cities and fire districts have been questioned not only by

county governments but also by private companies contracting with county

governments to provide services.

These cases have centered around a California state law known as the

EMS Act, a division of the California Health and Safety Code. The

sections relevant to the following cases include general provisions,

definitions, state administration, local administration, and medical control

chapters. However, it is the local administration chapter, Section 1797.201,

that is of primary importance. This section provides that:

...upon the request of a city or fire district that contracted for or

provided, as of June 1, 1980, prehospital emergency medical

services, a county shall enter into a written agreement with the city or

fire district regarding the provision of prehospital emergency medical

services for that city or fire district. Until such time that an agreement

is reached, prehospital emergency medical services shall be

continued at not less than the existing level, and the administration

of prehospital EMS by cities and fire districts presently providing

such services shall be retained by those cities and fire districts,

except the level of prehospital EMS may be reduced where the city

council, or the governing body of a fire district, pursuant to public

hearing, determines that the reduction is necessary.

The controversy began in August 1991. At that time, both a private

ambulance company and city of San Bernardino’s Fire Department were

providing paramedic services. The private company, however, was the

only provider of ambulance transport in city.

THE SAN BERNARDINO

CASE

17

The County of San Bernardino filed a lawsuit in April 1992, against the

City of San Bernardino, alleging that: (1)the County has the sole power

and authority under the EMS Act to adopt local regulations and ordinances

pertaining to emergency medical services within the County; (2) the EMS

Act preempts the regulation of emergency medical services by any local

entities, such as the City of San Bernardino; and, (3) the City must comply

with all County protocols, policies and procedures pertaining to all aspects

of emergency medical services.

Specifically, the County alleged that it had issued two protocols that the

City was refusing to follow. The first, called the Patient Management

Protocol, had been issued on November 1, 1991. It provides that, “in the

event that both public and private emergency medical personnel arrive on

the scene with the same qualifications, patient management responsibility

will rest with the first to arrive.” The second, called the Dispatch Protocol,

concerned the method of dispatching emergency medical vehicles. The

Dispatch Protocol forbids the City’s alleged practice of delaying the

arrival of ambulances at the scene of medical emergencies.

The County further alleged that the City was refusing to comply with either

protocol, and that it was manipulating its dispatch procedures to assure

that paramedics on City fire engines arrived first at the scene of an

emergency. The private company that joined the County in the lawsuit

argued that the City was attempting to drive it out of business in San

Bernardino, despite its designation by the County as the exclusive

provider of ambulance transportation services in the City.

The City responded that the County did not have any “authority to dispatch,

regulate or authorize ambulance or other emergency medical care

providers to operate within the City limits of the City of San Bernardino.”13

The trial court specifically agreed with the City’s interpretation of Section

1797.201 and found that the County’s jurisdiction over the City was limited

18

to medical control, as specified. The trial court also found that, since the

City retained management and control over prehospital EMS within its

boundaries, the County had no authority to dispatch, regulate, or authorize

providers to operate within the City. The County appealed this decision.

The Decision:

The appellate court in California which heard the case decided in the

City’s favor on all issues. Specifically, the court held that: The County had

no authority to dispatch, regulate, or authorize providers within cities; the

City did not need any agreement from the County regarding contracting for

services; and, the EMS Act does not override local regulation of prehospital

EMS.

The County appealed this decision, and the case was heard before the

California Supreme Court in April 1997. The final decision is pending.

The City of Santa Clara, CA made a decision to cease relying on the

County of Santa Clara to provide EMS services, electing instead to

provide EMS by the Santa Clara City Fire Department. Following this

decision, American Medical Response (AMR), the contracted provider in

the County, filed a lawsuit. However, the judge refused to hear the case,

stating that only the County, and not AMR, could file such a suit against the

City. The County filed suit, and a temporary restraining order was issued

against the City, preventing the City from providing EMS by the fire

department. A hearing was held on the issue in July 1996 in which the

judge upheld the temporary restraining order pending the resolution of the

San Bernardino case, described above.

To intercede on behalf of the members of Local 1171 in this case, IAFF

General President Alfred K. Whitehead wrote the following letter to the

THE SANTA CLARA CITY

CASE

19

members of the Santa Clara County Board of Supervisors:

November 8, 1996

Dear Supervisor :

I write on behalf of the International Association of Fire Fighters and its 200,000members throughout the United States and Canada including those employed bythe City of Santa Clara and affiliated with this Union as Local 1171 in support of theCity of Santa Clara’s right to commence operations of an ambulance transportparamedic service under the California Pre-Hospital Emergency Medical ServicesAct, California Health and Safety Code sections 1797, et seq.

The County of Santa Clara has opposed establishment of this service to the citizensof the City of Santa Clara and has obtained an injunction preventing the City fromproviding such services pending the resolution by the California Supreme Court ofCounty of San Bernardino, et al. v. City of San Bernardino. The IAFF and its affiliatedstate organization, the California Professional Firefighters, has filed an amicus briefin support of the City of San Bernardino in that case.

We want to reaffirm and restate our position that the cities and special districtswithin the State of California have the legal authority to provide the much needed andvalued ambulance transport paramedic service to citizens without approval fromcounty governmental entities.In our view, the California Legislature established a system for coordination andintegration of pre-hospital emergency medical services (“EMS”), utilizing allresources available and, where resources are inadequate to achieve those goals,providing a mechanism to enhance services in order to “ensure the provision ofeffective and efficient emergency medical care.” (California Health and Safety Code,Subsec. 1797.6(a).) The legislature recognized the value and the necessity of theprovision and administration of EMS by cities and fire districts that had historicallyprovided such services on the most local level. Accordingly, the legislature gaveexplicit authorization for such local governmental entities to continue providing andadministering those services, subject only to training and certification standards aswell as medical control procedures as set forth elsewhere in the Act. (Health andSafety Code, Subsec. 1797.201.)

Under the EMS Act, cities and fire districts that historically provided prehospitalemergency medical services are not only permitted, but required to continue theprovision and administration of such services until such time as they take theappropriate steps under the Act to relinquish their responsibilities, thus shifting theburden of protecting the health and safety of their citizens to the counties.

Section 1797.201 of the Act preserves local administration and provision of EMS.When a county seeks to implement an EMS plan in a jurisdiction where amunicipality is already providing the services, for example, in Santa Clara County,it is incumbent upon the County to incorporate and coordinate the existing providerinto the overall system, while respecting the municipalities’ legislatively grantedautonomy.

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There is no genuine conflict between local control of emergency medical servicesand the legislative schema which invests a measure of control over aspects of thoseservices in county administrations. Municipal control of emergency medicalservices does not displace or override any authority maintained by the State in theEMS Act.

There are strong policy reasons for maintenance of a vital local presence in theprovision and administration of prehospital EMS. Preserving a role for cities and firedistricts in the EMS system reduces a county’s responsibilities and even liabilityexposure while accommodating local preferences regarding ambulance services.

In our view, there is no principled reason, if local emergency medical services meetexacting standards of training, certification, and preparedness, that they should besubordinate to the County of Santa Clara. The EMS Act does not preempt localcontrol over prehospital emergency medical services and preserves the balancebetween matters of state-wide concern and the particular democratic grass rootsneeds of the local citizenry.

Here, the local citizenry has determined that the City of Santa Clara shouldcommence provision of ambulance transport paramedic service, consistent with theprehospital EMS services historically and previously provided by the City of SantaClara. Because we believe that the City of Santa Clara has the right to engage insuch services we respectfully request the Board of Supervisors reexamine andreconsider the need for an injunction prohibiting the City from providing ambulancetransport services pending the resolution of theSan Bernardino case.

Your kind attention and consideration of this matter is anticipated and appreciated.

The City of Santa Clara, anticipating the removal of the restraining order,

has gone forward with plans to implement a full fire department-based

EMS system, including transport. The system will be operational pending

the resolution of the San Bernardino case.

Another type of litigation that may confront EMS system providers is qui

tam suits under the false claims act of federal Medicare laws. “Qui tam”

is an abbreviation of a latin phrase meaning “who sues on behalf of the

King as well as for himself.” It is an action brought by an informer, under

a statute which establishes a penalty for the commission or ommission of

a certain act, and provides that the same shall be recoverable in a civil

action, part of the penalty to go to any person who will bring such action,

and the remainder to the state or some other institution.14

C. QUI TAM LITIGATION

21

These suits allow private citizens to receive a portion of any fines collected

by the federal government if defendants are found liable for false claims.

Once the private individual files the lawsuit, the federal government may

bring its own suit, take over the original suit filed, or file criminal charges.

Fire departments in various parts of the United States, particularly in the

northwest, have been targeted in lawsuits filed by private ambulance

companies or individuals intent on forcing departments to curtail their

provision of ambulance transport services.

In June of 1995, a former ambulance company owner, who had become

an expert in Medicare regulations, filed a qui tam suit under the False

Claims Act, claiming that a fire protection district in rural Washington had

violated federal Medicare laws. The suit claimed that Mason County Fire

Protection District 5 had waived Medicare co-payments for all taxpayers

in that district and two other districts. The suit also claimed that the district

had billed for ALS services when only BLS services were necessary and

that Fire District 5 had billed for services provided in their district by other

departments.

Settlement:

On April 1, 1996, the U.S. Department of Justice approved a settlement

in the case. The Fire Protection District settled by agreeing to pay at least

three times the amount billed for approximately 700 Medicare claims

dating back to 1989. Had the case gone to court and the District been

found guilty, it could have been liable for monetary damages for each

claim in addition to the treble damages paid at settlement.

Fire departments who provide EMS inclusive of transport services must

constantly monitor changes in local, state, and federal laws that may

impact those services. Accurate documentation and billing for transport

services are essential.

THE MASON COUNTY FIRE

DISTRICT 5 CASE15

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CONCLUSION

Fire department leaders and individual EMS providers must be

knowledgeable of statutes that affect the provision of emergency medical

services in their state, county, or city. Fire department leaders should also

initiate efforts to pass or protect laws, ordinances, policies, procedures,

and protocols to protect EMS system providers and EMS system

administrators. Additionally, a knowledgeable attorney should be involved

in any issue that may have legal or medical-legal ramifications.

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1 MEDICAL AND LEGAL CONSIDERATIONS, ADVANCED EMERGENCY CARE FOR

PARAMEDIC PRACTICE, J.B. LIPPINCOTT COMPANY, PHILADELPHIA, PA, 1992.2 MORGAN, D., ET AL., “LIABILITY IMMUNITY AS A LEGAL DEFENSE FOR RECENT

EMERGENCY MEDICAL SERVICES SYSTEM LITIGATION,” PREHOSPITAL AND DISASTER

MEDICINE, APRIL-JUNE 1985.3 MORGAN, D., ET AL., “EMERGENCY MEDICAL SERVICES LIABILITY LITIGATION IN THE

UNITED STATES,” PREHOSPITAL AND DISASTER MEDICINE, OCTOBER-DECEMBER

1994, PP. 24-221.4 “LAWSUITS ATTEMPT TO LIMIT FIRE SERVICE EMS,” EMS INSIDER, 23:5, MAY

1996.5 GREENBERG, W., COMPETITION, REGULATION, AND RATIONING IN HEALTH CARE,HEALTH ADMINISTRATION PRESS, ANN ARBOR, MI, 1991, PP. 111-126.6 IBID.7 IBID.8 ELECTRICAL CONTRACTORS V. FORREST, ANTITRUST LAWS, 127 LRRM2684 (9TH CIR. 1988).9 SHEPARD AMBULANCE, INC. V. PIERCE COUNTY; ORDER DENYING MOTION FOR

PRELIMINARY INJUNCTION, U.S. DISTRICT COURT, WESTERN DISTRICT OF WASHINGTON,NO. C96-5074FDB, FEBRUARY 23, 1996; STATUTE CITED IS WASH. REV.CODE SEC. 52.2.031(3).10 GOLD CROSS AMBULANCE AND TRANSFER AND STANDBY SERVICE, INC. V.CITY OF KANSAS CITY, ET AL., 705 F.2D 005; 983- TRADE CAS. (CCH) 65-339 (8TH CIR. 1983).11 IBID.12 “SACRAMENTO FIRE FIGHTERS WIN AMBULANCE SERVICE,” INTERNATIONAL

FIREFIGHTER, MAY/JUNE 1994.13 COUNTY OF SAN BERNARDINO, ET AL., V. CITY OF SAN BERNARDINO;TENTATIVE OPINION, SUPERIOR COURT NO. 224288.14 BLACKS LAW DICTIONARY, 6TH EDITION, WEST PUBLISHING COMPANY, ST.PAUL, MINNESOTA, 1990, P. 1251.15 “LAWSUITS ATTEMPT TO LIMIT FIRE-SERVICE EMS,” EMS INSIDER, MAY 1996.

ENDNOTES

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GLOSSARY

Emergency Medical Services (EMS) – The provision of services to

patients with medical emergencies. EMS has emerged as as field

whose purpose is to reduce the incidence of preventable life-threatening

and disabling injuries and acute illness whenever possible, and to

minimize the physical and emotional impact of injuries and illnesses

which do occur. The EMS field derives its origins and body of scientific

knowledge from the related fields of medicine, public health, health care

systems administration, and public safety.

EMS System – A comprehensive, coordinated arrangement of resources

and functions which are organized to respond in a timely, staged manner

to targeted medical emergencies, regardless of their cause and the

patient’s ability to pay, and to minimize their physical and emotional

impact.

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APPENDIX 2. MEDICAL-LEGAL CONCERNS OF PREHOSPITAL EMS PROVIDERS

1. The primary sources of law are constitutional, statutory, and common law. 2. Statutory law or legislative law, usually interpreted by regulations, deals with the fundamental legal

issues that regulate society and also commonly is referred to as police powers. 3. Common law, also known as case law, is a sum total of court rulings on earlier and similar cases. 4. State laws and case rulings may vary considerably from location to location across the country. 5. Negligence is a form of common law and includes medical malpractice. To prove negligence

(malpractice), the plaintiff (patient) must prove that the defendant (physician, nurse, etc.) had a duty to the patient, the defendant breached that duty by not observing the standard of care required, and the failure of the defendant to comply with the standard of care was the cause of damage or injury to the patient.

6. If the plaintiff (patient) received no injury, negligence cannot be proved. 7. EMS personnel have a duty to act, that is a duty to evaluate all patients requesting treatment

because they hold themselves out as providing that service. 8. The standard of care for a prehospital emergency medical care provider is determined at the state

level and may vary state to state. 9. Negligence may occur in three forms: malfeasance, misfeasance, or nonfeasance. 10. Malfeasance is where the defendant performed an act that violated a standard or law. 11. Nonfeasance is where the defendant failed to act where required (act of omission). 12. Malfeasance and nonfeasance (misfeasance) apply the "reasonable person" standard that asks

whether the defendant failed to provide the care that a reasonable person in the same circumstances would have provided.

13. Gross negligence is severe violation of the standard expected of a reasonable provider and is essentially similar to recklessness and willful and wanton misconduct.

14. Willful and wanton misconduct shows a reckless disregard for safety and is similar to gross negligence and recklessness.

15. Willful (knowing) misconduct is when the defendant is consciously aware of the potential outcome of his or her conduct.

16. Wanton (recklessness) misconduct is when a person disregards a substantial and unjustifiable risk, and such disregard constituted a gross deviation from the standard of care expected from a reasonable provider.

17. Proximate cause means there is some cause-and-effect relation between the action of the defendant and the damages sustained by the patient.

2

18. Regarding injury, a defendant must prove that he or she sustained either physical or psychological injury.

19. Psychological injury alone is difficult to evaluate, but in some states patient can receive compensation by this type of injury.

20. Contributory negligence means the patient must prove he or she did nothing to cause or contribute to his or her own injury. This doctrine has been variously interpreted but is sometimes used as a successful defense in malpractice cases.

21. Comparative negligence provides that each defendant pay for the injuries or damage of the other party in the same proportion as his or her responsibility for the injury.

22. Abandonment means termination of medical care without legal excuse or turning the patient over to lesser-qualified personnel, thereby injuring the patient.

23. Battery is physical contact with a person without his or her consent and without legal justification. It may be a consideration when dealing with intoxicated or incompetent patients.

24. The plaintiff may recover damages for battery without proving the elements of negligence. 25. Implied consent means the law will presume that an unconscious or incompetent person would

consent to life-saving care. 26. Refusal of treatment means a competent, conscious adult has the right to refuse to consent to

medical care. 27. Res ipsa loquitor ("the thing speaks for itself") is a legal concept used when the circumstances of

the case make it impossible to prove all the elements of negligence and shifts the burden of proof from the patient to the defendant to prove that he or she was not negligent.

28. The elements of res ipsa loquitor dictate that the injury would not have occurred in the absence of someone's negligence, that the cause of the injury was under the exclusive control of the defendant at all times, and that the patient did nothing that would have contributed to his or her own injury.

29. Vicarious liability (respondeat superior) is when an employer is held liable for the negligence of his or her employees. Under this doctrine, the fire department may be sued for the provider's negligent actions. Also, a physician acting as medical director of an emergency squad may be held liable for the actions of paramedics operating under his or her license, if it were found that the physician condoned an action that proved to be negligent.

30. Defense in malpractice cases includes statute of limitations (generally two or three years), Good Samaritan laws that protect the prehospital provider when providing emergency care, and government immunity usually reserved for employees of a government body.

31. Good Samaritan law limits liability of certain groups of health care providers for injuries caused to patients. Coverage may be denied to anyone who cannot meet all the literal requirements of the act.

3

32. Consent to treat is required before a patient receives medical treatment. This consent may be either express or implied.

33. Informed consent is consent obtained from a patient after explaining all facts necessary for a reasonable patient to make a decision.

34. Express consent is when a patient gives explicit consent to a provider to provide treatment. 35. Implied consent is when a patient conveys consent to treatment by actions or when the patient is

not mentally capable of giving consent during an emergency situation. 36. Consent to treat is specific, therefore, consent to treat may not include consent to draw a blood

alcohol level. Treatment without consent could lead to accusations of assault (threat to person) and battery (unlawful touching).

37. Patients under arrest may also accept or refuse treatment. 38. Against medical advice means the patient may withdraw consent to treat at any time, but the

provider should first ascertain that the patient is capable of making this decision, is not mentally impaired, truly understands the risks of refusing treatment, and then have the patient sign out of treatment "AMA."

39. Minors lack legal competence to consent to treatment, and authorization is required from the legal guardian of the minor.

40. A patient that admits to attempting to commit suicide does not have the mental capacity to give consent, and treatment is required under the emergency doctrine (even if this involves restraint of the patient).

41. EMS professionals may be required to report certain conditions to the proper authorities, including child abuse, alleged sexual assault, venereal or communicable diseases, animal bites, gun-shot and other violent wounds, poisoning, injuries caused by unlawful acts, and statutory rape.

42. If the paramedic turns the care of the patient over to a person with lesser level of capability, he or she may be responsible for abandonment should the patient encounter any difficulties during the transfer.

43. "Do not resuscitate" orders should be respected when current, written, and signed by the patient's private physician. EMS providers should check state laws specific to this issue.

44. If CPR, ALS, or both were initiated in the prehospital phase, CPR should be continued until the patient has been pronounced dead by a licensed physician (or by a person recognized by law as being capable or permitted to pronounce death).

SOURCE: "Medical-Legal Concerns of EMS," Principals of EMS Systems, 2nd Edition, American College of Emergency Physicians, 1994.