Every EMS response raises the potential concern for liability—including in a mass casualty incident (MCI). The primary concerns are related to patient care and the potential for a negligence action against the EMS provider or the EMS agency. Fortunately, every state has some liability protection for EMS providers in the form of “qualified immunity” that the law provides to prevent liability based on “ordinary negligence.” Ordinary negligence is a legal way of saying “making a mistake.” It’s the failure to act as a reasonably prudent person would act given a similar situation. In EMS, the “reasonably prudent person” is an EMS provider who’s functioning at his or her level of certification in accordance with treatment protocols and sound principles of medical care.
Qualified immunities contained in state EMS laws prevent liability unless there’s gross negligence and/or willful and wanton conduct or intentional harm by the EMS provider. The burden of proof is on the plaintiff to show by a preponderance of the evidence that the EMS provider was grossly negligent.
Gross negligence is most often described as doing something (or failing to do something) that harms a patient that’s the result of much more than a simple mistake or oversight in treatment. It’s very hard to prove. These qualified immunities are excellent legal protection for the individual EMS provider, but unfortunately the higher standard of proof for gross negligence usually doesn’t apply to the EMS agency itself, which will usually be subject to the ordinary negligence standard.
To reduce legal risk, and to ensure good patient care, the question every EMS provider should ask when making a triage or treatment decision is: Is what I’m doing consistent with what other EMS providers would do in this situation? That same question should be asked in an MCI—even though there may be greater legal protections from a negligence claim in the form of qualified immunities. The good news is that the law recognizes that normal EMS operations and treatment protocols may not be possible to follow when our resources are inadequate, the situation poses great risk of harm to EMS providers, or there are more patients than can be treated in a typical one- or two-patient situation. Many states haves laws that provide stronger immunities in a declared disaster or extend immunity in situations where you’re called out of state to assist.
Here are five steps you can take to help prevent a negligence claim against you or your agency based on your conduct at an MCI:
1. Always function within the scope of practice for your certification level. Even though some state laws may “relax” scope of practice during an MCI in certain situations, EMS providers get in trouble when they start to freelance or do things outside of their realm of certification. Never take advantage of a unique situation to “test” skills you wouldn’t ordinarily use.
2. Function in accordance with your protocols. Today, the standard of care is being increasingly driven by reference to your own organization’s operational and treatment protocols. Every EMS agency should have an MCI protocol in place to provide guidance to all providers. There should be well-documented reasons for stepping outside of those protocols in the event that the situation arises where you must do so.
3. Follow the incident command system (ICS). FEMA has developed the ICS to aid response agencies in functioning at the highest possible level in an MCI. ICS has become the standard by which you will be judged if there are communication or operational failures. All responding providers should be functioning under a common ICS and stay within it.
4. Train, train and train! The key to a successful MCI response is a well-trained team. MCIs present the problem of being a high-risk event that occurs at low frequency. We’re naturally better at the things we do all the time. Since we don’t respond to MCIs that often, we must train regularly to make up for the lack of ongoing experience we have with our routine EMS responses.
5. Critique and learn from mistakes. MCIs don’t happen very often, and when they do, they provide an opportunity to learn how to do a better job the next time. In the event of a lawsuit, questions will be asked about your past experience with MCIs and what you and your agency did to improve from the last time.
This month’s Pro Bono was written by Steve Wirth, Esq., EMT-P, an attorney and founding partner of Page, Wolfberg & Wirth, The National EMS Industry Law Firm. Visit the firm’s website at www.pwwemslaw.com or find them on Facebook, Twitter or LinkedIn.