What you should know about negligence
Many of us have heard the highly sensationalized stories of patients being assessed by EMS as deceased, who ultimately turn out to still be alive. A North Carolina Court of Appeals case published in 2011 demonstrates how one court handled such a case when an accident victim brought a suit against volunteer EMS providers, alleging that he had suffered a permanent, severe injury as a result of a failure to discover that the accident in which he had been involved did not kill him.1
On January 24, 2005, at approximately 8:53 p.m., EMS was dispatched to a pedestrian accident in which Larry Green suffered an open head wound.
Wade R. Kearney, II, with the Epsom Fire Department, arrived first and checked Green for vital signs. Finding none, Kearney didn’t initiate resuscitation. Several minutes later, additional EMS providers arrived, and Kearney asked one of them to verify that Green was without a pulse. The second EMT declined to do so, and together they placed a white sheet over Green’s body.
At approximately 9 p.m., personnel from a third EMS agency arrived. After being informed by the first EMTs that Green was dead, they didn’t check for vital signs. At approximately 9:31 p.m., the Franklin County medical examiner, J.B. Perdue, MD, arrived on scene.
He first surveyed the scene and the condition of the vehicle that had struck Green. The Crime Investigation Unit arrived, and he began to inspect Green’s body. At that time, eight different people saw movement in Green’s chest and abdomen, but the medical examiner indicated that “it’s only air escaping from the body.” He directed that Green be taken to the morgue that was located at the Franklin County jail.
At approximately 10:06 p.m., Perdue examined Green at the morgue. He lifted Green’s eyelids, smelled around his mouth to see if there was an odor of alcohol, and drew blood. As he drew blood, he and others observed twitching in Green’s upper right eyelid. One of the EMTs asked if Perdue was certain that Green was dead, and he responded that the twitching was a muscle spasm.
One of the EMTs was uncomfortable with this response and asked again whether Perdue was certain. Green was placed in a refrigeration drawer until around 11:23 p.m. when State Highway Patrolman Tyrone Hunt called Perdue to ask about the direction from which Green had been struck. Perdue removed Green from the drawer and unzipped the body bag in which he was sealed. Perdue then noticed movement in Green’s abdomen and summoned EMS. Green was transported to the hospital, where he remained until March. At the time suit was brought, Green was still alive.
North Carolina allows suits against volunteer EMS providers only in limited circumstances: When it’s established that the injuries or death were caused by gross negligence, wanton conduct or intentional wrongdoing on the part of the person rendering care. In order to prevail in a lawsuit, the plaintiff would have to allege, and subsequently prove, that the negligence rose to this level.
The requisite conduct falls somewhere between ordinary negligence and intentional conduct. Courts have defined gross negligence as wanton conduct done with conscious or reckless disregard for the rights and safety of others.
An act is wanton when it’s done out of a wicked purpose, or done needlessly, manifesting a reckless indifference to the rights of others. Will full negligence is further defined as an act done purposely and deliberately, without yielding to reason.
The court discussed the difference between ordinary and gross negligence as not in the degree or magnitude or inadvertence or carelessness, but the intentional wrongdoing or deliberate misconduct affecting the safety of others. The act must be done purposely and with the knowledge that it’s a breach of duty to others and a conscious disregard for the safety of others.
The court evaluated the various rules and protocols that each of the defendants was subject to that set forth the standards for the medical care to be provided to a person in a plaintiff’s situation.
The situation presented to each of the responding EMTs was different as they arrived, and the court noted that “emergency situations are often fraught with tension, confusion, and as here, difficult physical locations for giving medical care.”
In this case, although the court found that the acts and omissions of the defendants in this case, resulting in the plaintiff’s being erroneously declared dead and denied resuscitation, could be characterized as inadvertence or carelessness of a very high degree of magnitude. However, the court found that evidence of “intentional wrongdoing or deliberate misconduct” were simply not there.
This case illustrates the high level of immunity afforded to EMS providers in some states. A prior lawsuit against Perdue had also failed for lack of sufficient evidence to penetrate the immunity provided.
Whether this generous immunity ultimately helps the provision of EMS or hinders quality assurance, is a subject of some debate.
References
- Larry Donnell Green, through his Guardian ad Litem Sharon Crudup, v. Kearney, et al. No. COA11-439 (Nov. 15,2011)