What you can do to prevent patient claims of contracted illness
We’ve all heard the saying, “Cleanliness is next to godliness.” But in healthcare, it also can be considered a legal obligation. This month, we examine the potential liability of an EMS agency to a patient claiming harm from contamination in an ambulance.
In over 20 years as an EMS attorney, I’ve never had to defend a client in a lawsuit by a patient claiming to have been harmed by a contaminated ambulance. Nobody in our firm has had to defend such a case.
Since I’d like to think our EMS law practice at Page, Wolfberg & Wirth is a microcosm of what’s happening in EMS, anecdotally I’d conclude that liability for alleged ambulance contamination is extremely rare.
But, in my experience, I’ve also found that it’s the exceedingly rare type of liability for which many EMS agencies are underprepared and lax in their vigilance.
It’s important to remember that a patient claiming harm from ambulance contamination would have the burden of proof in any lawsuit. This means that the plaintiff would have to prove-by a preponderance of the evidence-that it’s more likely than not that their harm was caused by your contaminated ambulance. Proving “proximate causation,” as the law refers to it, is always one of the toughest hurdles for a plaintiff; in a case alleging ambulance contamination, it would be a particularly uphill battle.
Nevertheless, one can imagine a scenario in which a plaintiff is able to obtain expert testimony from a communicable disease or decontamination expert witness supporting a claim-and then you’re off to the races. Then it will be up to you and your lawyers to demonstrate that your agency met the legal standard of care.
The legal standard of care is that conduct is objectively reasonable under the circumstances. Since the standard of care is always dependent upon the circumstances, that means the standard of care might differ based on the facts presented.
Consider these contrasting examples: If your agency transports an elderly patient for shortness of breath-and the patient has no medical history of any communicable disease-and during transport there are no indications of bloodborne or airborne contamination other than the occasional cough or sneeze, then preparing the ambulance for the next call might only reasonably require changing the linens on the stretcher, restocking any disposable supplies and cleaning any visibly contaminated surfaces.
The standard of care likely wouldn’t require a complete decontamination of the ambulance, which after all isn’t presented to the public as a sterile treatment facility-nor is it required to be.
Contrast that example with this one: Your agency transports a patient who recently traveled to Central America and returned home complaining of a rapid onset of flu-like symptoms. Known cases of an insect-borne communicable bloodborne disease have been reported by the Centers for Disease Control and Prevention among known travelers to this country. Your patient’s symptoms are consistent with exposure to this highly communicable and serious disease.
In this case, the standard of care for preparing the ambulance for its next patient would likely not be as straightforward as in the first example. Here, complete decontamination of all exposed surfaces and equipment using bleach-based cleaners would likely be necessary. Disposal of exposed items-even if not used by the patient-might also be required. Proper decontamination of clothing worn by EMS practitioners might be necessary. Strict adherence to any decontamination guidelines issued by the CDC, the state health department, or other public health authorities specific to the potential pathogen would have to be followed-and documented.
Because the standard of care is situational, and dependent on whether the defendant acted reasonably under the circumstances presented, it’s rarely a one-size-fits-all proposition. Nevertheless, EMS agencies should acquaint themselves with best practices for ambulance decontamination-both on a routine basis, and following known exposures to airborne or bloodborne pathogens.