Liability Basics for Instructors: Tips for preventing lawsuits in the educational setting

 

 
 
 

Alan J. Azzara, JD, EMT-P | W. Ann "Winnie" Maggiore, JD, NREMT-P | From the September 2008 Issue | Monday, September 15, 2008


During a practical-skills session conducted as part of an EMT-B class, a student who volunteered to act as a spinal immobilization victim is dropped by her classmates while being moved to a stretcher and sustains a laceration to her forehead.

A paramedic student performing his clinical ride time with a private ambulance service accidentally administers a dose of epinephrine 1:1000 intravenously (IV) rather than intramuscularly (IM) and causes the patient to sustain a tachyarrhythmia that requires hospital admission.

A female student in a first-responder class sponsored by a municipal fire department resigns from the class and files a complaint alleging sexual harassment by her instructor.

All of the above situations could arise during the course of EMS instruction. The ultimate question is whether the instructor or training facility is liable.

Everyone inEMS has received some training in liability issues associated with the delivery of patient care; legal issues are incorporated into the DOT curriculum at all levels of practice. But few of us who have become instructors have received any training regarding legal issues related toEMS education.

Fortunately, litigation in this area is extremely rare, but remaining proactive in regard to potential legal issues will help avoid them and, in fact, contribute toward better instruction. Areas of potential liability include: 1) contractual liability; 2) negligent classroom supervision; 3) negligent clinical supervision; 4) discrimination and harassment claims; and 5) miscellaneous claims. Instructors and training facilities can be vulnerable to these claims, so know the preventive steps to take now.

1. Contractual Liability

EMS courses are unique whether they're taught in a college, through a local training center or elsewhere. An EMS student expects their program courses to meet state requirements for licensure or certification with respect to curriculum and instructional hours.

If a program fails to meet expectations and the student discovers a course deficiency that denies them the opportunity to receive or test for a state license or certificate, they may claim breach of contract. The two most common deficiencies involve failure to meet curriculum standards or the minimum number of hours required for a certain program.

Even if no written contract existed between the student and the instructor or training facility, a court of law may still conclude a contract did exist. A few basic elements are necessary to prove a contract: offer, acceptance and consideration. An offer may be inferred if the training facility posted a course announcement or listed the course in its brochure or catalog. Acceptance may be the act of completing a course registration form. And consideration would be the fee that the student paid and the training facility accepted. When all of these elements can be established, contractually liability may be considered present.

In a recent case in Maine, an entire class of EMT-B refresher students was unable to meet relicensure requirements because the refresher course taught by the instructor fell short of the state's minimum hour requirements. The students received supplemental instruction at no cost, and the instructor was subjected to disciplinary action and was suspended from teaching for a period of time. The case was settled at the Maine EMS regional level and was never litigated.

Tips for Prevention: Liability

Carefully plan your course curriculum and ensure it meets state and/or DOT requirements for hours and subject matter;

Schedule extra class hours beyond the minimum requirement so that an unavoidable cancellation won't leave you short;

Make up cancelled classes and require students to attend;

Maintain an accurate record of class materials, such as lesson plans, handouts and tests, so you can easily document that all subject matter was covered; and

Keep accurate attendance records of all students and maintain a record of any other instructors who assisted you.

2. Negligent Classroom Supervision

Almost all EMS classes contain a component where students learn and practice skills, which may include spinal immobilization, splinting, handling of stretchers and starting IVs. Even when carried out in the field by experienced providers, many of these skills can potentially cause injury when performed incorrectly.

Students need instruction and supervision. If the student referred to in the opening scenario received a laceration to her forehead during skills practice in your class, would you have a reasonable defense? Probably not. Your potential for liability would be even greater if the activity leading to the injury was unsupervised. Such an injury could easily result in a claim being filed against the instructor or teaching entity.

If you're functioning as an instructor in an educational institution, always remain aware of what coverage you and your students have in the event a student is injured during class. Many educational institutions use liability releases, in which students acknowledge potential inherent risks associated with the performance of certain skills in the curriculum and whereby they agree not to file suit in the event of an injury. Such releases, however, often don't survive legal scrutiny and may be disregarded by a court, holding the instructors or teaching entity accountable for their actions or inactions.

In the event of an injury, the educational institution and the instructor will probably be named as defendants.1 Further, a student who's injured during class and doesn't have medical insurance may feel compelled to seek compensation for medical bills from the educational institution and/or the instructor. In some cases, low-cost medical insurance may be available through the educational institution. Students may have coverage for injuries through worker's compensation. This applies if the class is sponsored by the employer or the student is taking the course as a condition of employment and the employer is paying for the course.

Don't assume all your students are covered by medical insurance. Inquire about it before class starts. Some educational institutions require proof of insurance as a prerequisite to enrollment in EMS courses.

Tips for Prevention: Classroom

Consider using liability release forms to inform students of the risks associated with the course;

Consider if proof of insurance should be a prerequisite;

Consider whether it's appropriate to have students demonstrate physical ability before participating in the course;

Establish written rules so students clearly understand they aren't permitted to practice certain skills without your permission and only when appropriately supervised;

Establish student-faculty ratios for skills practice. Different skills will require different levels of supervision; and

Document skills sessions, including dates, topics covered, and names of students and assistant instructors in attendance.

3. Negligent Clinical Supervision

Many EMS classes contain a clinical component where students can observe patient care and practice certain skills they learn in class on real patients. Typically these clinical experiences take place in a hospital or within an EMS agency. Without question, such experiences are invaluable, but they're not without the potential for liability.

Suppose one of your EMT-I students is involved in clinical time at the emergency department (ED) of a local hospital. A patient comes into the ED experiencing what appears to be an allergic reaction to a recently prescribed antibiotic. After successfully starting an IV, your student is directed by an RN to administer an IM injection of epinephrine 1:1000. Before anyone can stop her, she administers the drug IV rather than IM, and the patient immediately develops a severe tachyarrhythmia and shortness of breath, and requires admission to the special care unit.

LocalEMS protocols require that this concentration of epinephrine be administered IM. As the student's instructor, are you potentially liable for this error? Probably. You'd certainly be among those included in the plaintiff's lawsuit. When filing a claim, attorneys will generally include any and all parties with potential liability.

In this case, the hospital, the ED physician, the RN, the student and the student's instructor would most likely be named in a suit. A court might conclude that the student's failure to follow the RN's direction and the departure from EMS protocols resulted from inadequate training and/or negligent supervision over students involved in clinical assignments.

Tips for Prevention: Clinical

Establish clinical guidelines that identify skills students are permitted to perform at each clinical site. Provide students with a copy and require them to sign, indicating they fully understand all clinical expectations;

Put all agreements with clinical sites in writing and provide a list of precisely what skills students are expected to observe and/or practice, and who's responsible for supervising students. These agreements should also identify who's legally responsible for any errors committed by students during clinical rotations and set forth any requirements regarding liability insurance or indemnification;

Require each clinical site to provide you with a written evaluation of each student's clinical experience;

Require students to document everything they observed and/or performed, along with the name of the supervisor and the dates and times of their clinical experiences; and

Visit clinical sites to observe firsthand what students are doing and the level of supervision being provided.

4. Discrimination & Harassment Claims

Instructors and program administrators must also be mindful of the potential for claims of discrimination and harassment in the educational setting. Although such claims are rare, they can occur.

Potential claims might include the following: A 64-year-old male complains he was the victim of age discrimination when he was not allowed to enroll in an EMT-B class sponsored by a municipal fire department; a student missing two fingers from his right hand is dismissed from an EMT-I course because the instructor believes the student will be unable to effectively start an IV or intubate; two female students in a paramedic class file a claim of sexual harassment when they're subjected to inappropriate sexual remarks by other students and their instructor fails to take action; and an Iranian EMT student drops out of a class and files a complaint alleging the instructor made several offensive remarks about him during class, including asking, albeit jokingly, if he had any relatives in the World Trade Center attacks.

Substantial damages might be awarded to the plaintiffs of these cases, pursuant to any number of federal, state or local laws. Relevant federal laws include the following: Title VI of the Federal Civil Rights Act, which prohibits discrimination based on race, color or national origin in any program receiving federal assistance or funding; Title IX, which prohibits discrimination based on sex and sexual harassment in educational programs receiving federal assistance or funding; and the Americans with Disabilities Act, which prohibits discrimination based on disability.2-4

In addition, all states and many local municipalities anti-discrimination laws may provide for courses of action not available under federal law. New York has a very broad Human Rights Law that prohibits discrimination in employment, housing, places of public accommodation and education.5

A number of factors will determine whether your educational program is subject to anti-discrimination laws. The most significant factor is often whether your program receives any federal or state funding, and almost all public schools and colleges do. Determining which laws may apply to any given educational program can be confusing and should be referred to an attorney specializing in this area.

This topic would be incomplete without mentioning another form of harassment embedded in our culture --hazing. It often occurs in an EMT class, with more experienced students putting the newer ones through their paces. What begins as an innocent prank can turn into a disaster -- and a lawsuit -- particularly if the subject of the hazing is a member of a minority group or a student is injured.

Tips for Prevention: Harassment

Establish clear, objective standards for program admission. Include physical requirements necessary to perform the job of an EMT or a paramedic;

Make admission decisions without regard to race, creed, color, religion, national origin, sex, age and sexual orientation;

Base any decisions regarding students who have requested disability accommodations on an individual assessment and in consultation with an attorney;

Ensure standards for grading and attendance are clear and in writing, and present them on the first day of class;

Advise students in writing on the first day of class that any form of hazing or harassment won't be tolerated;

Establish a complaint policy so students can report any form of harassment, and be sure to take prompt action in investigating and resolving such complaints;

Maintain clear documentation of all disciplinary matters and meetings where students receive remedial counseling; and

Retain all documentation of attendance, grades and course lesson plans for at least three years.

5. Miscellaneous Claims

Several other potential, yet rare, legal claims are possible. These include legal challenges to grading and dismissals based on disciplinary action. In most cases, unless discrimination issues are raised, courts won't entertain such claims, but instructors should nonetheless be prepared to defend such cases should they arise. It's also possible that claims of this nature may be filed with your state or regional EMS office for review.

Tips for Prevention: Other Claims

Ensure good documentation of academic and behavioral concerns; and

Maintain defined standards of conduct and performance.

Conclusion

As noted, claims arising out of instruction in EMS are rare, and few instructors will ever find themselves defending a lawsuit from a student. By following the suggestions offered in this article, instructors will reduce their risk of legal action and, should a claim arise, be in a better position to defend that claim. JEMS

Alan J. Azzara, JD, EMT-P, has been involved in EMS for more than 20 years as a paramedic, instructor and manager. He's the vice president of human resources and general counsel for North East Mobile Health Services in Maine. He frequently writes and lectures on a wide variety of EMS issues and is the co-author of Legal Aspects of Emergency Medical Services. Contact him at medlawaa@aol.com.

W. Ann Maggiore, JD, NREMT-P, has been a full-time paramedic, an assistant fire chief, a state EMS administrator and a criminal prosecutor. She practices law full time in Albuquerque, N.M., defending physicians, dentists, nurses, law enforcement and EMS personnel against lawsuits. She also teaches legal issues to faculty, residents and paramedic students at the University of New Mexico School of Medicine, where she holds a volunteer faculty appointment.

References

1. Hays v. Stockhoff, D-1333-CV-9900160. (Thirteenth Judicial District, New Mexico, 1999).

2. 42 U.S.C. Sections 2000 (d) et seq.

3. 20 U.S.C. Sections 1681-1688.

4. 42 U.S.C. Sections 12101 et seq.

5. Executive Law, Article 15, Section 291.




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Related Topics: Administration and Leadership, Leadership and Professionalism, Legal and Ethical, Training, Jems Features

 

Alan J. Azzara, JD, EMT-PAlan J. Azzara, JD, EMT-P, has been involved in EMS for more than 20 years as a paramedic, instructor and manager. He’s the vice president of human resources and general counsel for North East Mobile Health Services in Maine. Contact him at medlawaa@aol.com.

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W. Ann "Winnie" Maggiore, JD, NREMT-PWinnie Maggiore is an attorney and paramedic in Albuquerque. She is a shareholder at the law firm of Butt, Thornton & Baehr, PC where she defends physicians, dentists, oral surgeons, nurses, paramedics and other health care providers, as well as law enforcement officers, against lawsuits and administrative enforcement actions. She is an author of many EMS legal publications, a member of the JEMS editorial board, and holds a volunteer faculty position in the Department of Emergency Medicine at the University of New Mexico.

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