Read Part One and Part Three.
With a critically ill pediatric burn patient on-board, the two EMS providers was feverishly trying to control the patients pain. They gave dose, after dose, after dose, of fentanyl – with no response. Then, it happened. One of the EMS providers broke down in tears, “it’s all saline!” the EMS provider exclaimed. The EMS provider had been diverting fentanyl and replacing it with saline. In one action, this EMS provider now faced all three – criminal, civil, and administrative action –buckets of liability.
Understanding Actual Legal Risk: The Three Buckets
When we hear about “legal issues” in EMS, they usually fall into one of three buckets – criminal, civil, and administrative. Depending on the situation, it may fall into one, two, or all three of these buckets. However, if a situation falls into the criminal bucket, it almost certainly can cascade right into the civil and administrative bucket.
Criminal
When this article was first ready to publish, the case involving two paramedics charged with the criminally negligent homicide of Elijah McClain had not yet been decided. With the verdict now freshly in the minds of EMS providers, the need to address the criminal aspect of liability in patient care is increased. While certain negligent acts where one acts with a conscious disregard for their actions or the consequences of their actions can in most states result in liability, more often than not criminal liability is predicated on an action that one intended to take.1
While the thought of making an error and ending up on trial for a crime is scary, it is fortunately exceptionally rare. Several reputable EMS legal articles have been written specifically on the Elijah McClain verdict, criminal liability in EMS, and its impact on EMS providers. These articles can provide insight for EMS providers seeking to learn more about this specific situation and criminal liability.2
Criminal cases generally require a “mesa rea” or guilty mind. Cal.3 Criminal acts are about what you intended to do, not what you may have failed to do with an important exception. In a criminal case, charges are brought by the state or federal government on behalf of the People or the state, not by an individual person. Charges can vary in severity from infractions to misdemeanors to felonies.
Criminal charges can carry incarceration, financial penalties, and a misdemeanors or felony conviction will often trigger action against one’s license or certification. Criminal cases must be proven to a very high stand, that is, “beyond a reasonable doubt.”4If one commits a criminal act – think assaulting a patient or kidnapping them – it is highly likely they have also committed a tort (civil liability) and will also face administrative action against their license or certification.
As the public saw in the case of Tennessee v. RaDonda L. Vaught (an RN bypassed multiple safety measures and administered Vecuronium instead of versed to an un-intubated patient who was not being properly monitored and subsequently died) extreme reckless or a conscious disregard for a substantial and unjustifiable risk, can result in criminal liability.
In the above example, the paramedic knew that what they were administering was not actually fentanyl – and they intended to do so. This would almost certainly fit the definition of poisoning.5 Additionally, they were likely obtaining controlled substances by fraud, a federal offense under 21 USC § 843(a)(3), (d) (1) and tampering with a consumer product, a federal offense under 18 USC § 1365(a).
Civil
Civil liability occurs when one commits a tort. A tort is a wrongful act or an infringement of a right (other than under a contract) leading to civil legal liability. While many crimes are also torts (think assault, battery, kidnapping), the penalties and burden of proof are different. The most common tort that we address in EMS in negligence.
Negligence requires establishing that one had a duty (established by the EMS provider beginning care), that one breached that duty by falling below the standard of care, that the breach of duty by falling below the standard of care actually caused harm, that the harm caused was of the type that could have reasonably been foreseen by that action, and that that harm actually resulted in damages.6 While most torts that are also crimes are referred to as “intentional” torts, negligence does not require intent.
Civil cases are brought by an individual party referred to as a “plaintiff.” In a civil matter the primary, and in many cases, exclusive, remedy in monetary damages. Unlike in criminal cases which have to be proven “beyond a reasonable doubt” civil matters only have to be proven to a “preponderance of the evidence” (think 51%).7 Torts require that the plaintiff have sustained actual damages. In the above example, while there is civil liability for battery, whether or not the paramedic was negligent would likely hinge on establishing damages.
Administrative Actions
Administrative actions are a broad bucket of actions that a government entity may take against one’s license, certification or permitting. These are separate and distinct from actions that employers may choose to take. Such employment actions are governed by various state and federal employment laws.
In many cases, administrative actions can carry civil penalties (think monetary fines) but they are not crimes. Decisions in these cases are often handled by an administrative law judge. No intent is generally required, rather the violation alone can be enough if proven to the applicable burden of proof. Unlike negligence which requires actual harm to have occurred, a regulatory body need not to demonstrate actual harm in most statutes.
Administrative matters may also be handled with varying degrees of formality ranging from a review before a licensing officer to a formal case presented to an administrate law judge. In all cases, the defendant must be entitled to due process under the law. That is, a defendant must be entitled to a hearing before an unbiased party and an opportunity to present evidence.
In most administrative matters, the burden of proof is to “clear and convincing evidence.” While taking definitive administrative action (e.g. revocation or suspension for cause) requires due process, taking an immediate action such as temporary suspension generally requires no more than a set of articulable facts that lead the suspending official to believe that the EMS provider has engaged in conduct which may pose an “immediate threat to public health and safety.”
In the above situation, establishing that the paramedic violated administrative regulations would likely be straightforward and would warrant revocation of their paramedic license under Cal. Health & Safety Code § 1797.200, et seq.8
Putting it All Together
Consider a situation where a provider makes an unintentional medication error that, while significant, posed no actual harm to the patient. Here – unless there was the rare case of some form of extreme recklessness or a conscious disregard for a substantial risk – there is likely no criminal element as there was no intent. There would likely be no professional negligence as there are no damages, that is, harm, to the patient. Yet, the administrative body may still take action against one’s license on the basis that they violated administrative regulations.
However, if that same medication error resulted in the patient requiring hospitalization, the action now would likely hit the civil bucket as negligence as there are damages present. Those damages, when coupled with the EMS providers breach of their duty by falling below the standard of care, actual causation and proximate causation form the basis for negligence.
Taken one step further, if the provider intended to actually administer the wrong dose of the medication, there would also be a criminal element – whether battery, poisoning, or another crime. (See Cal. Penal Code § 347; § 242).9 If such intent establishing a criminal act was present, even if there were no damages (and hence no negligence), the EMS provider could still face civil liability for civil assault.
Be Reasonable, Be Kind
Ultimately, there is no panacea for avoiding all liability and risk. EMS providers must make constant judgement calls in situations that are often rapidly evolving and with imperfect information. This nature of operations means that mistakes will happen. While good documentation, following all policies and procedures, ensuring that you are actively licensed or certified in all required areas, and following all of your employer’s rules are essential, that’s likely only a smaller percentage of what truly protects people from liability.
Ultimately, most issues of people being sued, arrested, or otherwise getting in trouble come down to two simple questions – were you reasonable and were you kind.
In part three of this series, we’ll dive into the concept of being reasonable and being kind as a primary shield against liability in all forms.
Nothing in this article is legal advice and there is no attorney-client relationship that is being created. You should consult with a licensed attorney in your state of practice on any principles discussed herein and must not make reliance on any of this content without consulting with a licensed attorney in your state. Any situations stated should be presumed to not part of any singular incident and have been adapted for this presentation. In most cases, California law is cited for reference. While many general legal theories are the same state to state, laws and their application vary state to state.
This commentary reflects the opinion of the author and does not necessarily reflect the opinions of JEMS.
References
1. Wirth S. Wolfberg, D. ‘Problem or Patient?’ What the Paramedic Verdicts in the Elijah McClain Case Can Teach Us All. Journal of Emergency Medical Services. 2023 December 22 (Accessed on 2024 January 16). Available at: https://www.jems.com/commentary/what-paramedic-verdicts-elijah-mcclain-case-can-teach-us-all/
2. Lawrence Rob. Navigating criminal liability: Lessons from the Elijah McClain case. EMS1. 2024 January 11 (Accessed on 2024 January 16). Available at: https://www.ems1.com/legal/navigating-criminal-liability-lessons-from-the-elijah-mcclain-case?fbclid=IwAR3JEt1sEde1yzEjUrZYIhDtSHq4TSmXlLUbanKuiibUdmWjcOaA8ObOmlk
3. Penal Code § 20; see also Model Penal Code § 2.02.
4. Cal. Penal Code § 1096
5. Cal. Penal Code § 347
6. Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 1138, 1450-1460.
7. Weiner v. Fleischman (1991) 54Cal.3d 476, 483 [286 Cal.Rptr. 40, 816 P.2d 892
8. Cal. Health & Safety Code § 1797.200, et seq.
9. Cal. Penal Code § 347; § 242.
