Administration and Leadership, Columns, Commentary

Pro Bono: Rapidly Evolving Treatment Protocols Can Impact Your Liability

Issue 5 and Volume 43.

Advances in treatment can impact your liability

Over the last few years, many rapidly changing medical advances and treatment methods for managing stroke and cardiac patients have challenged the status quo of traditional treatment, and are impacting how we assess and treat patients in the prehospital setting. Is there an obligation to keep up with these changes and adjust our treatment protocols consistent with these new modalities? Absolutely.

In a lawsuit alleging negligence, an essential aspect of the inquiry is to determine the standard of care for that patient situation.

Negligence or medical malpractice requires that four conditions be met before the plaintiff can recover damages: 1) duty; 2) breach of duty; 3) harm; and 4) causation. The standard of care is synonymous with the concept of breach of duty.

For example, if most healthcare providers treat a stroke or heart attack patient in a particular way, then that practice can be used to define how other reasonable healthcare providers would customarily treat patients in those situations. It becomes the standard.

We each have a professional, moral & legal obligation to keep up with advances.

Determining Standard of Care

In an EMS negligence case, juries determine the standard of care through textbooks, expert witness testimony and established clinical guidelines or treatment protocols.

It most frequently comes down to treatment protocols: Are they current and up to date? Were they followed? How would other reasonable EMS agencies and EMS practitioners treat the patient given the same or similar circumstance?

Once the standard of care is established, the jury must decide if deviation from that standard was unreasonable, and if that deviation caused the harm.

For example, failure to administer oxygen to a heart attack patient could be seen by a jury as a deviation from the standard of care.

The next question would be if the failure to administer oxygen was unreasonable and caused the patient harm.

Juries may consider other factors when determining if the deviation from the standard was unreasonable. If the patient transport was only a couple blocks to the hospital, and there were patient and crew safety issues at the scene that required rapid removal of the patient, the jury may determine that, considering those circumstances, a failure to administer oxygen wasn’t unreasonable.

An EMS agency can be negligent for failing to have treatment protocols consistent with the standard of care, or for failing to follow the treatment protocols in the first place.

In some cases, juries have even found negligence where the provider failed to administer a treatment that wasn’t the standard of care, but was considered reasonable.

Treatment Protocols

Increasingly, the inquiry in EMS negligence cases is on the treatment protocols and whether you followed them or not. That’s why treatment protocols must be kept up to date and consistent with recent advances in emergency medicine.

The key is to work closely with your medical director to keep protocols consistent with current EMS practice.

What can you do as an EMS practitioner? Stay on top of the latest developments in assessment and treatment and make suggestions for changing those protocols to keep up. One way to manage this is through the creation of a protocol development committee that meets a few times a year.

If you fail to follow the established, up-to-date treatment protocols, there better be a good reason. That’s why it’s essential for EMS practitioners to be well-versed in their treatment protocols and to make sure that all aspects of assessment and treatment are fully documented.

If the treatment was in the protocol and you performed the treatment, but your documentation provides no indication that the treatment was administered, a jury will likely assume that it simply wasn’t done.

Recent advances in medicine are nothing short of amazing. Regardless of our position, we each have a professional, moral, and legal obligation to keep up with these advances and to make sure that our prehospital care complements the hospital care and is documented, measured, and evaluated for its efficacy.


1. Moffett P, Moore G. The standard of care: Legal history and definitions: the bad and good news. West J Emerg Med. 2011;12(1):109–112.

Stephen R. Wirth

Stephen R. Wirth, Esq., EMT-P, is an EMS attorney and founding partner of Page, Wolfberg & Wirth, which represents EMS agencies throughout the United States. He’s one of the nation’s leading EMS attorneys and one of central Pennsylvania’s first paramedics. Steve has worked in EMS and the fire service in a variety of educational and leadership positions, and he regularly counsels agencies in a wide range of legal and operational issues.

Pro Bono is written by the attorneys at Page, Wolfberg & Wirth, The National EMS Industry Law Firm. Visit the firm’s website at or find them on Facebook, Twitter or LinkedIn.