Administration and Leadership, Columns

Pro Bono: Liability of Onboard Passengers

Issue 7 and Volume 39.

This month we answer two common questions: 1) What concerns are there when allowing a passenger to accompany the patient in your ambulance? and 2) What are the legal responsibilities, risks and steps you can take to minimize risk?

There are essentially two types of EMS passengers: 1) those you know about in advance of a call, who are “preapproved” by your agency; and 2) those you don’t know about in advance. Those you know about in advance usually include EMT and paramedic students or other official ride-alongs who are there to learn or observe your activities for a specific purpose and have advance approval of the agency. Those who aren’t preapproved to ride along are usually family members, friends or other healthcare providers or public safety personnel at the scene, who you decide at the time of transport may ride on the ambulance with the patient.

Individuals preapproved to be a passenger should be required to go through basic patient privacy orientation (in accordance with the HIPAA regulations) as they would likely be considered part of the broad definition of “workforce” under HIPAA—and it also just makes good sense. A simple orientation program and providing a copy of your ride-along policy (outlining what the passenger can and can’t do) will usually suffice for this training. It’s important to have these individuals sign a confidentiality agreement that they’ll keep all patient information confidential and follow your policy and direction at all times. That agreement doesn’t need to be complicated and could also include a release of liability and indemnification provision in case they were to get hurt while on your ambulance. More detail about official ride-along programs can be found in the full-length feature article in the January 2006 issue of JEMS (“Do EMS Ride-Along Programs Violate Patient Privacy? How to ensure your program measures up to HIPAA’s privacy rule”).

The riders you don’t know about in advance pose the greatest risk to you and your agency since you don’t have the time to fully assess them as passengers and they aren’t oriented in advance to your rules and procedures. It’s often a hectic situation at the scene when you have to decide whether to let them on your ambulance or not. Here are some suggestions in managing these on-scene persons who want, or need, to be onboard:

1. Assess their demeanor. Never let anyone board your ambulance who’s under the influence of alcohol, drugs, or is argumentative or uncooperative. You don’t want to deal with a difficult passenger when you have a patient onboard.

2. Tell them you’re the boss. Make sure you clearly state to the passenger that you’re in charge and that they must follow your instructions at all times.

3. Let them ride up front. It’s usually best to keep the person buckled up in the front passenger seat, and to not let them near the patient (with exceptions, of course, typically for parents of small children or in cases where you’re pretty confident the passenger won’t interfere with patient care and could help keep the patient calm).

4. Consider a “Miranda”-type card. Giving the passenger a preprinted card that lays out the “rules” for the privilege of being a passenger serves as notice you informed them of the rules and can give the passenger something to focus on while in your ambulance.

5. Consider a signed release. Passengers with a need to be in your ambulance are generally assuming the risk of doing so. It may be impractical to ask the spontaneous passenger to sign a release, but if you can get one it could help protect your agency from a lawsuit if the passenger is injured. If you’re taking on additional personnel, such as hospital staff who are caring for the patient or assisting your crew, the responsibilities and liability issues are best addressed in advance through a written agreement between your agency and the hospital providing the staff.

Accepting passengers on your ambulance who aren’t patients should generally be avoided wherever possible. Passengers in addition to the patient, with your limited staff and often under difficult circumstances, simply add to your risk and can distract you from focusing on either driving safely or taking care of the patient. And if you do take a passenger, make sure they’re individuals whose presence is absolutely necessary. Otherwise, they should seek other transportation to the destination.

Pro Bono is written by attorneys Doug Wolfberg and Steve Wirth, founding partners of Page, Wolf-berg & Wirth (PWW), a national EMS industry law firm. Visit the firm’s website at www.pwwemslaw.com.

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