Does the Public Have a Right to EMS? Part I


 
 

Howard Rodenberg, MD, MPH, Dip(FM) | | Monday, December 3, 2007


One of the hot topics in Florida this past election season concerned the State Constitution. It seems that if you're not a well-placed lobbyist, you need a grass-roots constitutional amendment to get the legislature's attention. But "our" (quotes intentional) representatives in Tallahassee still don't get the hint. Since the last revision of Florida's Constitution in 1968, the voters have given the legislature almost 200 "suggestions" ranging from limiting school class sizes, to building a high-speed train, to the confinement of pregnant pigs. Given our track record down here, it's miraculous that the Constitution of the United States has survived more than 200 years with only 27 amendments (and ten of them, The Bill of Rights, were passed within the first three years).

My case of Constitution-on-the-brain piqued my interest in a recent online discussion about a supposed right to EMS. A Federal Court of Appeals in Philadelphia was confronted by a case in which a child was alleged to have died because of a failure of EMS response and training. The case was brought to the federal level under the 14th Amendment to the U.S. Constitution, which prevents the states from impinging upon life, liberty or property without due process of the law. The plaintiff contended that the failure of the EMS system represented a lack of due process in that EMS failed to act as expected (to exercise the "due process" expected in EMS operations).

(For the record, this is by no means an obscure clause in the Constitution. The entire concept of due process is being taken to task in the name of homeland security, and numerous legal challenges to the indiscriminate use of police powers are currently underway. This hits close to home as well: An emergency department nurse a gentleman of Pakistani descent who went to college here in town, married a local girl, and worked for years as a trusted member of the ED team has been subject to two FBI visits and a request to look at his e-mails. A Middle Eastern man who ran a local family restaurant for 20 years was held for months by the government without charges. Meanwhile, has anyone noticed that the only American who was public charged with fighting for the Taliban was a Caucasian youth from California?)

In the Philadelphia Federal Court of Appeals case, the court ruled that constitutional claims against both the city government and individual EMTs should be dismissed. The court found no evidence of "deliberate indifference" on anyone's part. But more importantly, the opinion's author noted that states are not constitutionally required to provide rescue services, nor are they constitutionally required to provide competent services when they undertake this task. The judge cited as precedent a 1989 decision of the United States Supreme Court that the government is not required to provide intervention or rescue services, as well as supporting precedents from other federal appellate courts. (At press time, the decision is being reviewed by the same court).

The concept that the government is not required to provide competent services when it chooses to create EMS systems may seem puzzling at first. On the surface, this seems contradictory. The problem is resolved if we recall that we're dealing with constitutional law not civil or criminal law. Constitutional law tries to define what the Constitution does or doesn't say. It only overrules civil or criminal law when such legislation conflicts with the Constitution. It does not mean the civil or criminal laws found consistent with constitutional principles may be ignored, nor that anyone is immune from charges of malpractice or negligence when EMS systems are established by state or local rule. An EMS system or an individual EMT might still be liable for damages, or subject to penalty for violating state EMS statutes, but not for denying the patient a federal right to prehospital care. No such right exists in the Constitution.

A bit of history influences the debate. Some might think the Declaration of Independence applies to this scenario. But while Jefferson was quite correct in noting that all men are " endowed by their creator with certain unalienable rights; that among these are life, liberty, and the pursuit of happiness," it's important to note that these are not legal rights. The Declaration was an explanation to the world of why the Colonies were separating from England. It was not the legal act that severed the bond, nor did it serve as a blueprint for government. The Constitution is the practical manifestation of this philosophy and represents the rules of the road. And no matter how hard you look within the Constitution, you'll find no specific right to EMS services, fire protection, or health care in general. A state certainly has the right to make such provisions in its constitution, as long as such provisions do not violate the tenets of the federal document. In theory, a state could manifest a right to health care or EMS services within its founding documents. In reality, very few actually do so, relying on legislation to do the job.

While there appears to be no right to EMS, this does not mean that government cannot legislate such an entitlement. Many states require specific forms of governmental jurisdictions to provide EMS services. But it's crucial to note that legislation may be altered, appealed and revoked. That's part of the democratic process. Laws change to meet new circumstances and realities.

The mutability of law represents a potential threat to EMS. If EMS cannot prove its worth, the money spent on this service will be directed elsewhere. There is no shortage of places where the money might be spent (and a few where it might arguably be better spent). It's incumbent upon EMS providers to demonstrate to their communities a need for perceived cost leaders, such as multiple unit dispatch and two-tier systems. These services must also take cost-cutting measures now to avoid being labeled fat and happy when other public services suffer a lack of resources. If EMS and dispatch agencies can be consolidated to provide better service, if multiple parties can purchase supplies in bulk, if training and medical direction efforts within a region can be unified, the savings in cost and operational efficiency will allow EMS to be seen as part of the solution rather than the focus of the problem. It's a painful task, but a necessary one. As the saying goes, if we don't do it, someone else will.

I'd be remiss if I didn't note that EMS often feels immune to public pressure. In many cases, EMS holds tangible political power. Simply the presence of ambulances comforts the public, and only a rash public official would advocate the complete abolition of EMS. It would also be foolish to ignore the fact that some EMS workers are unionized, and that unions carry particular weight in electoral politics. But true immunity from further rule and regulation is directly dependent upon the position EMS holds within society. This is reflected in the degree to which public officials are concerned about backlash from taking on members of the EMS community. If EMS services are seen as fractious, causing dissent, and out for themselves rather than for the patients, there will be minimal cost for the official who aims to control the beast. If EMS is perceived as destructive rather than constructive, they will subject themselves to further ordinance and statute. It's just as easy to legislate out as it is to legislate in, and even easier to cut a budget (ever heard of the unfunded mandate?).

For readers outside of the United States, I'll plead ignorance of other constitutional structures. I do know that some countries, such as the United Kingdom, actually have no constitution as we think of it here in the United States. Perhaps some of them do enshrine health care as a right. As a clinician, I think it's not such a bad thing to do. And if we're going to be more philosophical about the problem, we could likely argue that when Rousseau and others were writing about natural rights, the right to health care would be included as a means to maximize the potential of natural man. But that's one of those let's-have-a-beer-and-talk-now-because-we'll-forget-it-in-the-morning conversations. Or maybe I'll just have one myself, and write about it next time. Yeah, that's the ticket.


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