The 'Gross Negligence' Standard and EMS - Administration and Leadership - @

The 'Gross Negligence' Standard and EMS

EMS and the Law


W. Ann "Winnie" Maggiore, JD, NREMT-P | | Wednesday, June 27, 2007

A recent unreported case from the Michigan appellate court demonstrates the standard a court will use to evaluate the care given by EMS in a state that uses the "gross negligence" standard.

Case background

Roland Herrington was on a business trip and staying at a hotel when he suffered an asthma attack. He called the hotel's front desk, told them he was having an asthma attack and requested directions to the nearest hospital. The front desk instead called 9-1-1. The responding EMTs provided a nebulizer, gave Epinephrine and assisted his respirations with a bag valve mask. When Herrington became unresponsive, the EMTs first inserted a combitube and then performed endotracheal intubation. Afterward, Herrington was transported to Borgess Hospital, where he was pronounced dead.

His estate sued Lifecare Ambulance Service and named the EMTs who provided care to the decedent. The suit claimed that the EMTs were grossly negligent for failing to place the combitube a sufficient distance from Herrington's teeth, causing the balloon to rupture. The estate further alleged that the EMTs failed to confirm the proper placement of the combitube by auscultating lung and epigastric sounds, and that they failed to properly ventilate him. The plaintiffs also claimed that the EMTs failed to follow their protocols for airway management. They argued that the EMTs used the combitube before attempting endotracheal intubation.

Dr. William Fales, medical director for the Kalamazoo County Medical Control Authority, provided expert testimony on behalf of the EMTs. He testified that the protocol is simply a guideline, and that paramedics are not expected to follow the protocols verbatim, or in any sequential order. Instead, Fales testified that the paramedics are not only permitted, but encouraged, to use professional judgment in determining how to proceed. He also testified that nothing in the protocol prohibits the use of a combitube as a primary airway adjunct, but noted that it is not unusual for the balloon on a combitube to be punctured by a patient's teeth. The court excluded the testimony of the plaintiff's expert witness paramedic, John Grady, because his testimony failed to conclusively establish gross negligence.

Michigan law provides immunity for EMS providers absent "conduct that is so reckless as to demonstrate a substantial lack of concern for whether an injury results." The responding EMT, John Scott, gave a number of reasons for choosing the combitube, including his ability to establish an airway more quickly than with endotracheal intubation, and because the decedent had a short, muscular neck. Scott also testified that he listened for lung sounds after placing the combitube and assessed lung compliance by feeling the bag.

The court also excluded the testimony of another plaintiff's expert, Dr. Tucker Bierbaum, finding that because local medical control authorities governed the EMS system, the applicable standard of care was a local one. The court found that the plaintiffs presented no evidence that Dr. Bierbaum was familiar with the standard of practice in Kalamazoo County or a similar community.

The court found that Scott's decision to use the combitube was based on his professional judgment and assessment of the emergency medical care needed, and that the plaintiff had not demonstrated reckless conduct with respect to use of the combitube. Further, the court found that he had appropriately assessed placement of the tube.


Although the EMTs prevailed in this litigation, it went on for six years before the appellate opinion put an end to it. This case shows that even when EMS has done nothing wrong, litigation may ensue, and that it can be difficult, expensive and stressful for the providers involved.

It is also noteworthy that the EMS medical director came forward as an expert witness in support of the EMTs in this case, and he was able to successfully convince the court that the care rendered was within the protocols he had established for the area. In addition, the case underscores a familiar theme in EMS litigation: an attempt by plaintiffs to show that a protocol is "set in stone" and must be followed to the letter, while EMS medical directors encourage paramedics to use professional judgment.

This case also demonstrates the difficulty encountered by plaintiffs who attempt to sue EMS providers in states that provide statutory immunity for all but the most grossly negligent care. The trial court rejected both of the plaintiff's experts, and the appellate court upheld the decision to do so. Nothing in the appellate opinion speaks to any serious deviation from the standard of care, and we are left to wonder why this lawsuit was filed.

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

Author Thumb

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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