Administration and Leadership, Columns

Pro Bono: Liability of Paramedics on BLS-equipped Ambulances

Issue 6 and Volume 39.

We’re frequently asked about the liability of a paramedic responding on an ambulance that’s only equipped to the BLS level. ALS providers can find themselves on ambulances that are only BLS-capable for many reasons. For instance, the EMS agency may have a mix of BLS and ALS units, and the medic may be deployed on a strictly BLS ambulance. In some cases, ALS equipment might be out of service or otherwise unavailable.

First, we must address the agency’s liability in these situations. If a vehicle is licensed with the state EMS agency as an ALS vehicle, that agency is likely required by state EMS laws or regulations to have certain equipment, supplies and personnel on that vehicle at all times. If the vehicle is insufficiently stocked or equipped for any reason (e.g., the monitor/defibrillator is out of service, the drug box was lost or stolen), then the agency first must consult its state EMS requirements to determine its options or responsibilities. State law or regulations may require the unit be taken out of service altogether, or it may permit the unit to be operated as a BLS vehicle in the absence of the required ALS equipment and supplies. It isn’t possible for us to generalize about the law in this situation, as every state may have its own rules when this occurs.

In addition to the potential liability of the agency if it fails to properly stock or equip an ambulance, the individual medic could face liability in the event that such a shortcoming was due to a failure of the medic to follow a rule or policy. For instance, if the rules of the agency require that a medic do a pre-shift inspection and sign out a drug box at the start of a shift, and the medic fails to do so and responds to an ALS call without the drug box, the medic (and the agency) could face liability.

Simply stated, the point is this: If the agency and/or the medic are at fault for an ALS ambulance not being supplied or equipped as required, both could face civil liability in a negligence case if a patient suffers harm as a result of such failure. Keep in mind that state EMS laws or regulations may also impose administrative liability on the agency and/or the medic in such cases. For instance, the state EMS agency could impose penalties, or suspend or revoke a license or certification for violating such requirements, to the extent the law in your state allows for the imposition of such sanctions.

Those issues aside, what’s the potential liability of a medic who’s functioning without any ALS gear? Again, presuming the medic bears no fault for the lack of ALS equipment and is placed in a situation where only BLS equipment is available, how would a case unfold if it went to court? First, the appropriate standard of care would have to be decided by the court. A judge would have to decide if the medic’s conduct would be examined under a BLS or ALS standard of care. The court may even want to hear expert testimony on that question. At the end of the day, in our view it’s likely that a paramedic functioning with only BLS equipment would not “revert” to the BLS standard of care. Even without ALS equipment, a medic receives more education than a basic EMT with regard to anatomy, physiology and other subjects that give the medic a different skill set than an EMT when it comes to patient assessment and management.

So, in our view it’s likely that a medic would still be judged under ALS standards of care even when no ALS equipment was available, but a court would have to account for the lack of ALS equipment. It could do so by phrasing the applicable standard of care along these lines: “How would a reasonably prudent paramedic, acting without access to any advanced life support equipment or supplies, act in similar circumstances?” There’s some precedent for this approach in medical malpractice cases, for instance, when courts allow for a so-called “resource-based caveat” to national standards of care, reflecting that a provider may not have access to all necessary equipment to accommodate the patient’s condition.

In summary, as long as a medic acting without ALS equipment still acts in a reasonable and prudent manner, using the equipment that’s available in a proper and appropriate manner, and isn’t in any way at fault for lacking the ALS equipment in the first place, there’s no reason to expect that his or her liability is any greater than in any other situation.

Pro Bono was written by attorneys Doug Wolfberg and Steve Wirth of Page, Wolfberg & Wirth LLC, a national EMS-industry law firm. Visit the firm’s website at www.pwwemslaw.com  for more EMS law information.

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QUICK TAKE: NHTSA Grant Opportunities

Two new opportunities for competitive cooperative agreements from the National Highway Traffic Safety Administration (NHTSA) Office of EMS were recently announced:

Promoting Innovation in EMS: This project will assist state and local EMS systems to innovate by developing model legal, regulatory and financial frameworks they may subsequently implement to encourage pilot programs that will test new delivery models. State oversight of innovative demonstration programs will help ensure consistent quality and safety controls, medical direction, data collection, and eventually financing, among other system components. The federal government will not fund individual pilots or demonstrations as part of this project. Amounts up to $225,000 will be awarded, and applications are due on June 6.

To apply or learn more, go to www.grants.gov  and search for funding opportunity DTNH22-14-R-00029.

Advanced Automatic Collision Notification for Medical Directors: This project will produce and promote the development of an educational product that teaches EMS and 9-1-1 medical directors the connection between motor vehicle crash kinematics and resultant injury, and the benefit of incorporating the use of AACN data into existing dispatch and triage protocols. NHTSA will support the grantee in the implementation of that goal. Amounts up to $250,000 will be awarded, and applications are due on June 9.

To apply or learn more, go to www.grants.gov; click on “Applicants” on the top bar; click on “Apply for Grant Opportunities”; click on “Download a Grant Application Package”; and search for funding opportunity DTNH22-14-R-00010.