The Legal Shield: Does standard protection of EMS preclude its responsibility? - Administration and Leadership - @

The Legal Shield: Does standard protection of EMS preclude its responsibility?

EMS and the Law


W. Ann "Winnie" Maggiore, JD, NREMT-P | | Tuesday, June 26, 2007

A recent decision from the Court of Appeals of Ohio illustrates the standard a plaintiff must meet in many states to prove negligence by EMS providers. In Mitchell v. Norwalk Area Health Services, the trial court found that the plaintiff had failed to show that the EMTs acted in a manner that rose to the level of willful and wanton and dismissed the case. The Court of Appeals agreed and affirmed the trial court s decision.

There's always great debate over whether it s ultimately helpful to EMS quality assurance when states provide a high level of statutory immunity to EMS providers. Although it may deter frivolous lawsuits, it also shields EMS providers who are negligent from taking legal responsibility for their actions. In Ohio, a plaintiff must show that EMTs intentionally injured a patient before a court will find liability. This high level of protection makes it extremely difficult for a plaintiff to win a case against EMS, even if negligence is present, because the plaintiff must show far more than ordinary negligence for a court to find liability.

The case was filed by the widow of a man who had gone into cardiac arrest at home. She alleged that the EMTs attempted to use a non-functional ZOLL defibrillator, that they continued to try to use the ZOLL defibrillator even after a second crew had arrived with a LIFEPAK defibrillator, and that too much time had elapsed before EMS delivered a shock, resulting in her husband s death.

Initially, Deborah Mitchell called 9-1-1 to report that her husband was having trouble breathing. He had been sitting in their living room watching television when she was awakened by sounds of him gasping for breath. Dispatch sent the EMS units out on a trouble breathing call. Apparently, shortly after the initial EMS unit began responding, Mrs. Mitchell called 9-1-1 again, this time reporting that her husband was no longer breathing. She sent her 15-year-old son to find a neighbor who knew CPR, but he was unsuccessful. Then Mrs. Mitchell, who was not trained in CPR, and her son placed the patient on the floor and began chest compressions. She was unable to locate a pulse, and testified that her husband was stiff and foaming at the mouth.

Mrs. Mitchell said that when police and paramedics arrived, the EMTs put a bag over his mouth and took over chest compressions. She said she saw a defibrillator there as soon as they arrived, and that they placed defibrillator pads on her husband s chest. She then testified that they tried to defibrillate, but that she didn t see anything happen, and that one of the EMTs said that they couldn t get a connection or something. She said that the EMTs tried a second time to deliver a shock. At that time, the police officer offered to drive her and her son to the hospital and they left the scene.

The EMTs account of the events differed somewhat. The initial responding unit did not receive the secondary dispatch information saying that the patient was no longer breathing, and on arrival still thought they were responding to a trouble breathing call. The paramedic testified that she had not brought the ZOLL defibrillator in immediately because the dispatch was for a trouble breathing call. However, she immediately recognized the full arrest, called for a second EMS crew for assistance and asked her partner to retrieve the defibrillator from the unit. She performed CPR until her partner returned with the device.

After placing the defibrillator pads, the ZOLL unit failed to deliver a shock. The appellate opinion, unfortunately, loses some detail, and it s unclear what the patient s cardiac rhythm was or whether the ZOLL was a semiautomatic unit that did not display a rhythm. At deposition, the paramedic was unable to recall whether the ZOLL displayed an error message. She and her partner had checked the cables, leads and pad placement while the police officer continued CPR. She had tried to deliver a shock a second time, and again nothing happened.

However, the paramedic testified that Mr. Mitchell was not in ventricular fibrillation and that this must have been the explanation for the failure to shock. At deposition she acknowledged that the system protocol required all EMS squads to keep two sets of defibrillator pads on the truck at all times, but on this run only one set of pads could be located. No rhythm strips were generated, however, and she testified that she could not be sure what the cardiac rhythm actually was.

The paramedic further testified that she had never used the ZOLL unit to deliver a shock before, she had not been trained to troubleshoot it, and that she was unfamiliar with the messages it displayed or what they meant. She agreed that defibrillation was important, and that it should be done within four to six minutes of cardiac arrest.

When the second squad arrived, they did not bring in their defibrillator, but they did retrieve it from the truck at some point. However, the plaintiff alleged that the paramedics continued to try to shock with the ZOLL unit even after the LIFEPAK arrived. Twenty-one minutes had elapsed before the LIFEPAK was used to deliver three shocks.

Plaintiffs alleged that the failure to immediately use the second defibrillator on its arrival constituted willful and wanton conduct on the part of the EMTs, and that they should be found liable. Their expert witness testified that the delay in delivering the shocks could have been avoided if there had been a second set of defibrillator pads, and that they should have immediately attempted to use the LIFEPAK once it arrived instead of delaying further.

Experts for the defense said the EMS personnel were not trained to troubleshoot mechanical problems with the defibrillator, and that he would not expect them to be able to. He did acknowledge that shocks should be delivered as soon as possible, and that if a functioning, second device was available, it should have been used.

The court analyzed the meaning of willful and wanton conduct, and found that the behavior of the EMTs in this case did not rise to the level. The court said that willful acts are different from negligent acts, not in degree, but in kind. Although synonyms for negligence are heedlessness, thoughtlessness, inattention, inadvertence and oversight, willfulness is defined as design, a set purpose, intention or deliberation. The court stated that even the most gross negligence, resulting in dire consequences, does not rise to the level of intent and purpose necessary to proving willfulness.

Ultimately, the court held in favor of the EMS personnel, and held that the statutory immunity Ohio provides for all but willful and wanton conduct protected these EMTs from liability.

Even though the EMS personnel in this case escaped liability, the patient did not escape his fate. This case points out the importance of carefully checking equipment at the beginning of each shift and of being familiar with your equipment. No equipment is infallible, and even when we perform all of the necessary checks, equipment can fail. It s important to have an emergency plan in place.


1. 2005 WL2415995, Ct. App. Ohio, Sixth District.

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Related Topics: Administration and Leadership, Legal and Ethical, Operations and Protcols

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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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