Commentary, Equipment & Gear, Exclusives

EMS Lawline: Legal Questions Arise in EMS Drone Use

This article expertly sums up some of the unresolved – and in some cases still unpredictable – legal, ethical and operational issues that will present themselves as the use of drones increases throughout society. Though the article looks more at commercial issues than issues of public safety, drones can ultimately have many uses in EMS.

For instance, drones may be able to promptly deliver AEDs to cardiac arrest patients. The technology even exists for patient-worn devices to make those notifications automatically. Drones can survey potentially unsafe scenes before human resources are sent into harm’s way. Drone cameras can assist in documenting a scene or a specific patient encounter.

Though probably further in the future, drone technology could also be leveraged for patient transport in some cases, such as where rescuer access is limited, or ground resources are otherwise unavailable.

This article talks about issues such as ownership of the airspace above a private residence and the collection of data and information. Ultimately, Congress, state legislatures and the courts may be more willing to permit the use of drones to support EMS and public safety operations, even if they infringe on someone’s private airspace or incidentally collects data, images or information in the course of providing those services

Of course, as with virtually everything else in healthcare, what an EMS agency can or cannot do with that information may be subject to restrictions. Although many legal issues related to the use of drones are still – pardon the pun – “up in the air” – many existing legal authorities will still govern.

For instance, if an EMS agency were to deploy a drone over the scene of an incident to look for hazards unseen by responders on the ground, and that drone were to capture individually identifiable patient information (such as video of a patient, or audio of a patient’s name, or even the make, model and location of their car), HIPAA would apply to that protected health information, whether captured by drone, recorded by a body camera, or documented on a PCR.

The fact that the identifiable information was captured by a drone-mounted camera would not – as the law stands now – exempt it from HIPAA’s protections and limitations.

Another area that remains to be resolved is whether state EMS agencies or other branches of state or local governments will be able to regulate the use of drone technologies in EMS – or whether the FAA will take the position – as they do currently – that drones are aircraft and thus fall under their sole regulatory jurisdiction.

Right now, the use of drones is pretty much the “wild west” – much like the law didn’t quite know what to make of social media in the last decade. As these new technologies evolve, their deployment will no doubt outpace the ability of regulatory agencies and courts to lay the legal groundwork for their use.

This means that much will be made up as we go along. Ultimately, society will draw a line where the drawbacks outweigh the benefits. If drone users exploit personal data, violate reasonable expectations of privacy and flout accepted norms, they can expect heavy-handed public and regulatory responses.

On the other hand, if these technologies are used in a  way that benefits society – and the patients we serve in EMS – expect regulators and judges to be more tolerant of their use as a reflection of society’s acceptance.

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Doug Wolfberg

Doug Wolfberg is a founding partner of Page, Wolfberg & Wirth, and one of the best known EMS attorneys and consultants in the United States. Widely regarded as the nation’s leading EMS law firm, PWW represents private, public and non-profit EMS organizations, as well as billing companies, software manufacturers and others that serve the nation’s ambulance industry. Doug answered his first ambulance call in 1978 and has been involved in EMS ever since. Doug became an EMT at age 16, and worked as an EMS provider in numerous volunteer and paid systems over the decades. Doug also served as an EMS educator and instructor for many years. Doug can be reached at [email protected].

For 20 years, PWW has been the nation’s leading EMS industry law firm. PWW attorneys and consultants have decades of hands-on experience providing EMS, managing ambulance services and advising public, private and nonprofit clients across the U.S. PWW helps EMS agencies with reimbursement, compliance, HR, privacy and business issues, and provides training on documentation, liability, leadership, reimbursement and more. Visit the firm’s website at www.pwwemslaw.com.