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By Jay C. Weaver, ALB, JD, EMT-P, Attorney, Adjunct Faculty, Northeastern University Institute for Emergency Medical Services, Boston
Emergency department (ED) physicians and nurses, like most health care providers, tend to think of hands-on treatment as their only source of civil liability. This is understandable, given the fact that plaintiffs in medical malpractice actions usually base their claims on negligent diagnosis, negligent performance of a procedure, or both. But today’s ED professional is responsible for more than just examining patients and suturing lacerations. At all levels — from resident to department head, staff nurse to head nurse — ED professionals function, at least to some extent, as supervisors. Often they train, supervise, or write policies for other health care providers. As a result, emergency physicians and nurses may find themselves exposed to civil liability not only for the treatment they render, but for their administrative activities as well.
Some of the most sweeping changes in the responsibilities of the emergency physician and the nurse counterpart, the "mobile intensive care nurse" (MICN), have occurred in the area of pre-hospital medical oversight. During the past several decades, emergency medical technicians (EMTs) and paramedics have performed increasingly sophisticated procedures. Ambulances in most parts of the United States now carry an extensive array of medications, and the personnel who staff these vehicles routinely perform diagnostic and therapeutic procedures that once were performed only within the hospital. In most jurisdictions, these activities would constitute the illegal practice of medicine if not supervised by a qualified physician.1 Supervision may take the form of direct contact via radio communication, or indirect contact in the form of standing orders or protocols. This supervision is known in various parts of the country as "medical control," "medical direction," "medical supervision," or "medical oversight."2
Patients often do not bring legal action directly against medical control physicians or MICNs. As the number and complexity of procedures performed by emergency medical services (EMS) systems increase, however, the frequency of actions brought against medical control providers for negligence and malpractice may increase. Physicians and nurses who work closely with EMS systems and personnel also might incur liability for their supervisory, training, and policy-making activities. In all cases, medical control physicians and nurses can limit their exposure to liability by familiarizing themselves with relevant medical control and immunity statutes, by carefully adhering to medically acceptable standards of care, and by closely monitoring the activities of the EMS personnel they oversee.
Patients who suffer harm as a result of pre-hospital emergency medical care rarely sue the physician or MICN who provided medical direction to the EMS personnel. Instead, they almost always initiate negligence actions against the EMTs or paramedics who treated them or, under a vicarious liability theory, against the employer of the EMS personnel.3 Due to the paucity of appellate case law on the subject, the precise nature and extent of medical control liability remains somewhat uncertain. Physicians and MICNs should bear in mind, however, that medical direction of EMS personnel always entails some exposure to potential liability. In fact, the legislatures of at least 17 states have deemed this risk substantial enough to warrant the passage of medical control immunity statutes.4
Medical malpractice is a form of negligence.5 It has been defined as the failure of a health care provider to exercise the reasonable "care, skill, and diligence" that a similarly situated professional would ordinarily exercise under like circumstances.6 To prevail in this type of action, the plaintiff must show that: 1) a physician-patient relationship existed;7 2) the physician did not conform to accepted medical standards in performing his or her duties to the patient;8 and 3) damage resulted from the physician’s failure to conform.9 A medical malpractice action differs from a general negligence action in two significant ways. First, a professional relationship must exist between the physician and the patient.10 Second, the defendant, to avoid liability, must adhere to a higher standard than the "ordinary care of a reasonable person" demanded in a general negligence action.11 Since most jurisdictions have embraced a national standard for specialists,12 a physician in a medical control liability case likely would be held to the standard of care of the average board-certified emergency physician.13
The act of providing medical direction to EMS personnel in the field appears to satisfy the "professional relationship" requirement of a medical malpractice action. This is true, notwithstanding the indirect nature of the relationship between the physician and the patient. Courts have generally held that a similar indirect relationship — one in which a specialist participates in diagnosis or recommends a course of treatment to an attending physician by telephone — will support a medical malpractice action by the patient against the specialist.14 Since a medical control physician might recommend a course of treatment to the EMS personnel treating the patient, the requisite "professional relationship" appears to exist as well between a physician providing medical direction and the patient in the field.
This 1992 medical malpractice decision, rendered by the Supreme Judicial Court of Massachusetts, demonstrates that even the most routine communication between an ED physician and EMS field personnel might expose the physician to malpractice liability.
In Perez, EMTs of Bay State Ambulance responded to the home of Juan Perez, a 71-year-old man who complained of a fever. The EMTs checked Mr. Perez’s vital signs and transported him to Baystate Medical Center in Springfield (Baystate).16
Baystate’s ED physician, Dr. David Doyle, examined Mr. Perez and diagnosed him as having "general weakness, a high temp, and flu x 3 days." The ED provided Mr. Perez with some medication and a prescription for medication to treat a urinary tract infection. Mr. Perez returned home later that same evening.17
At 2:30 the next morning, the Perez family placed a second call to Bay State Ambulance, and the same EMTs responded. Again they checked Mr. Perez’s vital signs, and they determined that his condition had not changed significantly. Relatives requested the EMTs return Mr. Perez to Baystate so he could fill his prescriptions. The EMTs contacted the hospital by radio and passed the relatives’ request on to Dr. Doyle via a nurse. Dr. Doyle offered to re-examine Mr. Perez, but informed the EMTs that Mr. Perez would have to fill his prescription at a pharmacy. The EMTs had Mr. Perez sign a release-of-liability form and left.18
Four hours later, Bay State Ambulance responded to a third call from the Perez family. This time the EMTs found Mr. Perez unresponsive with no pulse or respirations. They initiated cardiopulmonary resuscitation and transported him to Baystate. Dr. Doyle continued the resuscitation effort, but the measures proved unsuccessful, and Dr. Doyle declared Mr. Perez dead at 7:30 a.m.19
The administratrix of Mr. Perez’s estate brought a medical malpractice action against Bay State Ambulance, Baystate, and Dr. Doyle.20 The judge convened a "medical tribunal," a three-member forum responsible under Massachusetts law for determining whether a plaintiff’s offer of proof in a malpractice case "raises a legitimate question of liability appropriate for judicial inquiry." The tribunal ruled that the plaintiff’s evidence was sufficient against Bay State Ambulance, but not against Baystate or Dr. Doyle.21
On appeal, the Supreme Judicial Court held that a commercial ambulance company is not a "health care provider" as defined by the Massachusetts medical malpractice statute, and that, accordingly, the plaintiff’s claim against Bay State should have proceeded to trial as a general negligence action without consideration by the tribunal.22
More significantly, the court affirmed the tribunal’s ruling that the plaintiff had failed to raise a legitimate question of liability with regard to Dr. Doyle or the hospital. In her offer of proof, the plaintiff relied heavily on a letter written by an expert witness. An "emergency room may accept the findings of the ambulance crew," the expert wrote, "unless there is reason to discount those findings based on experience, or other reasons to believe the emergency crew may be in error." At the same time, the expert commented somewhat inconsistently that Dr. Doyle should not have relied completely on the findings of the EMTs in making his recommendation to accept Mr. Perez’s refusal of transport, since EMTs do not possess sufficient training to make a diagnosis. Dr. Doyle had acted negligently, the expert concluded, in relying on "inadequately trained personnel."23
The court disagreed. To the contrary, it found no evidence that the EMTs were inadequately trained to check vital signs or that they had made a diagnosis. Rather, the court held that Dr. Doyle’s reliance on the EMTs’ radio report conformed to accepted medical standards.24 For the same reasons, the court affirmed the tribunal’s decision as to Baystate Medical Center.25
As this case so clearly illustrates, patients do occasionally sue physicians over their medical control activities. Emergency physicians and MICNs must remain cognizant of this fact and approach their prehospital medical direction duties with appropriate diligence. ED physicians must listen carefully to the radio or telephone reports of EMTs and paramedics. They should paraphrase and repeat pertinent facts over the radio or telephone to the EMTs to ensure accuracy, and they should request additional details when the report seems incomplete. Medical control providers also should familiarize themselves with the capabilities of the EMS personnel to whom they will provide medical direction. (See risk management suggestions, below.)
Strategies for Avoiding Medical Control Liability
|1.||When providing medical control, devote appropriate attention to cases involving emergency medical services (EMS). Patients in the field deserve no less attention than those actually in the ED.|
|2.||Demand adequate patient reports from EMS personnel in the field. Repeat crucial information over the radio or telephone to minimize the likelihood of misinterpretation. Ask questions if the report seems unclear or incomplete.|
|3.||Ensure the competence of EMS personnel under your control through appropriate training, testing, and supervision.|
|4.||Acquaint yourself with the EMS personnel to whom you will provide medical direction. Learn their strengths and weaknesses. Familiarize yourself with the EMS system, its capabilities, and limitations. Remember that EMTs and paramedics often must provide emergency care under less-than-optimal conditions.|
|5.||Require appropriate documentation.|
|6.||Familiarize yourself with the EMS statutes and regulations of the jurisdiction in which you will provide medical control. Pay particular attention to EMS treatment protocols, so as not to recommend treatment that falls outside the scope of practice of the EMTs or paramedics.|
|7.||Adhere at all times to the relevant standard of care.|
|8.||Remember that your actions as a provider of medical control might create civil liability not only for you, but also for the EMS system, the hospital in which you practice, and the EMS personnel.|
In addition to formulating a preliminary diagnosis and recommending a treatment plan to EMS personnel, medical control physicians frequently are asked to recommend an appropriate destination for the patient. As the following case illustrates, this action also can expose the emergency physician to malpractice liability.
Seventeen-year-old Victor Smith was traveling as a passenger in an automobile driven by his girlfriend, Tammy Graves, when the couple was involved in a two-vehicle collision. Victor sustained blunt trauma to his chest and abdomen, while Tammy’s injuries were initially considered nonlife-threatening. Because Victor appeared to be more severely injured than Tammy, the responding EMTs decided to transport them to different destinations. One ambulance would transport Victor to Carraway Methodist Medical Center (Carraway), a Level I trauma center, while another ambulance would transport Tammy to Medical Center East, a Level II facility.27
Upon hearing of this plan, Victor requested that he, too, receive treatment at Medical Center East, because he wished to remain with his girlfriend. The EMTs advised Victor that, because of the potential severity of his injuries, and because Level I trauma centers can better treat seriously injured trauma patients, Victor would benefit from transport to Carraway. Victor demanded transport to Medical Center East, and the EMTs finally agreed to transport him there. One of the EMTs, Anthony Whalen, communicated by radio with Dr. R.W. Berry, the emergency physician on call at Carraway. He explained to Dr. Berry that Victor had sustained blunt trauma to the chest and abdomen; that Mr. Smith had insisted upon transport to Medical Center East rather than Carraway; and that the ambulance was transporting Mr. Smith to Medical Center East. Dr. Berry did not order the EMTs to change their destination.28
Victor arrived at Medical Center East at 2:50 p.m., some 50 minutes after the EMTs had established radio contact with Carraway. Dr. William Fialkowski treated Victor in the Medical Center East ED, where an X-ray of Victor’s chest revealed a widening of the mediastinum. At the time, Victor appeared "grayish and dusky," and his heart rate and blood pressure were both abnormal. Based on these findings, Dr. Fialkowski concluded that Victor had suffered a tear of his aorta.29
At 3 p.m., Dr. Fialkowski telephoned Dr. Rollins, a general surgeon who was physically present at Medical Center East at the time. After consultation, Dr. Rollins agreed with Dr. Fialkowski’s diagnosis. The doctors further agreed that Victor urgently needed a thoracic surgeon.30 The ED secretary placed a series of telephone calls and finally reached the on-call thoracic surgeon, Dr. John Harlan. Dr. Fialkowski reported Victor’s condition to Dr. Harlan, who requested that a radiologist perform an arch arteriogram, a diagnostic procedure intended to reveal the presence or absence of an aortic tear. The purpose of the arteriogram was to ascertain the precise location of the tear so that it could be reached quickly during surgery.31
Ms. Walker telephoned a radiologist who responded to the ED from outside the hospital. Before the radiologist arrived, Victor lost his pulse and blood pressure, and he suffered a cardiac arrest. Victor had indeed suffered a ruptured aorta, and he was bleeding profusely into his chest. Dr. Fialkowski and the ED staff attempted to resuscitate Victor. They transfused 10 units of blood, but the resuscitation effort failed, and Dr. Fialkowski declared Victor dead at 4:50 p.m.32
Victor’s father, Calvin Smith, filed a wrongful death action on behalf of his son against several defendants, including Medical Center East, Carraway, and Doctors Berry and Harlan.33 With respect to Dr. Berry and Carraway, Calvin Smith alleged that Carraway proximately caused his son’s death because Dr. Berry had failed to order the EMTs to transport Mr. Smith to Carraway.34 In support of his argument, Mr. Smith produced the deposition of a physician expert witness. This witness testified that, given Dr. Berry’s knowledge of the serious nature of Mr. Smith’s condition — as reported over the radio by EMT Whalen — Dr. Berry should have instructed the EMS personnel to transport Victor to Carraway, regardless of Victor’s objections.35
In response, Carraway produced regulations promulgated by the Birmingham Regional Emergency Medical Services System, an agency established by the Alabama Department of Public Health. These regulations specified that, as long as adult patients can speak and appear capable of making a decision, EMS personnel must transport them to the facility of their choice. The EMTs present at the scene of the accident offered undisputed testimony that Victor could speak and appeared capable of making a decision. In light of this evidence, the trial court held that Dr. Berry and Carraway were entitled to summary judgment as to the malpractice claim.36
The plaintiff also claimed that the on-call thoracic surgeon, Dr. Harlan, negligently failed to change Victor’s destination to a Level I trauma center upon learning of the serious nature of Victor’s condition. Failure to do so, the plaintiff alleged, proximately caused Mr. Smith’s death.37 In support of this allegation, Mr. Smith relied on the deposition testimony of an expert witness, Dr. Jonathan Alexander. According to Dr. Alexander, 90%-95% of patients who suffer ruptured aortas die from these injuries. To survive, he testified, Victor would have required an immediate thoracotomy and repair of his aorta. Such a procedure must be performed in an operating room where an aortogram, anesthesia, and surgical support are available. On cross-examination, Dr. Alexander first maintained that such a procedure, performed under the right conditions and in a timely fashion, "may have" saved Victor’s life. He then admitted, however, that he could not "even state that in all probability" the surgery would have prevented Victor from dying.38
After considering this testimony, the trial court concluded that Dr. Harlan’s refusal to intervene in the destination controversy had not proximately caused the death of Victor. Dr. Harlan’s motion for summary judgment was granted. The Supreme Court of Alabama later affirmed this decision and held that Mr. Smith had failed to present "even a scintilla of evidence" that the alleged negligence of Doctors Berry and Harlan had proximately caused his son’s death.39
While surgical specialists such as Dr. Harlan do not often find themselves embroiled in pre-hospital transport controversies, the dilemma that confronted Dr. Berry is not uncommon. EMS personnel rely on medical control physicians to provide guidance on a host of patient care issues. It is not unusual, then, for EMTs and paramedics to call upon medical control physicians to make judgment calls as to ambulance destination.
In the past, EMS personnel rarely consulted with physicians on triage issues, since one hospital generally provided the same range of services as the next. Today, though, all medical facilities clearly are not equal. Smith represents the destination dilemma most likely to confront today’s medical control provider, namely, a choice between trauma centers of various levels. Should the medical control provider recommend that EMTs transport an injured patient to the closest hospital? Or to a more distant, yet better-equipped trauma center? The answer, of course, depends upon many factors — the patient’s condition, the mechanism of injury, the relative difference in transport times, and the capabilities of the EMS personnel tending to the patient all warrant consideration. Given that the physician must make this decision without personally examining the patient, the potential to make a mistake — and thereby incur negligence liability — seems obvious.
Editor’s note: Destinations, particularly for major trauma victims, now are often set by county protocol.
In the future, medical control providers undoubtedly will face even greater challenges in this area. Controversy already has erupted where EMS personnel have bypassed a community hospital in favor of a more distant facility with the capability of performing angioplasty and open-heart surgery on patients experiencing myocardial infarction.40 Similarly, EMS personnel in some cities now must decide whether to bring stroke victims to the closest hospital or to a more distant "stroke center," where specialized diagnostic procedures, such as computerized tomography or magnetic resonance imaging, are available around the clock.41
Another triage decision that might expose medical control physicians to liability involves bypass or diversion. The decision to place the ED on "divert" status often falls on the same physician who provides medical control. A federal Court of Appeals case, Johnson v. University of Chicago Hospitals,42 illustrates how these decisions can expose the medical control provider to liability.
On Feb. 2, 1990, a 1-month-old infant, Lenise Nelson, stopped breathing. The infant’s mother, Emerald Johnson, summoned paramedics of the Chicago Fire Department, who received medical direction in their resuscitation efforts from a specially trained nurse at the University of Chicago Hospitals (UCH), Denise McCall. The paramedics informed Nurse McCall that they were approximately five blocks from UCH, but because UCH had no open beds in its pediatric intensive care unit, Nurse McCall ordered the paramedics to bypass UCH in favor of a more distant facility. The infant received treatment in the ED of St. Bernard’s Hospital, which lacked a pediatric intensive care unit, and subsequently was transferred to a third facility, Cook County Hospital, where she died.43
Ms. Johnson filed suit for negligence and wrongful death against UCH, Nurse McCall, and the physician under whose authority Nurse McCall had acted, Dr. James Walters. In her complaint, Ms. Johnson alleged that the "bypass" declared by UCH applied only to its pediatric intensive care unit and that the defendants had been negligent in refusing to treat her child in the ED.44 She further alleged that the defendants were negligent in diverting the ambulance to a hospital without a pediatric intensive care unit.45 Finally, she claimed that the defendant’s violated the Emergency Medical Treatment and Active Labor Act (EMTALA)46 by transferring her child without first stabilizing the infant’s condition.47 EMTALA imposes upon all Medicare participating hospitals with an ED, an obligation to provide a medical screening examination and stabilization, within the capability of the hospital, to every individual who comes to the hospital requesting such treatment.
The federal district court dismissed all of Ms. Johnson’s claims against UCH and held that a "resource hospital" owes no duty of care to prospective patients and that the infant had never "come to" UCH seeking treatment so as to trigger EMTALA.48 On appeal, the Seventh Circuit reversed the dismissal of the negligence claims and commented that liability may arise from the negligent performance of a voluntary undertaking, including the provision of medical control.49 The appeals court affirmed the dismissal of the EMTALA claim, however, and noted that Lenise Nelson had received "treatment" from UCH’s medical control, but not from the hospital’s ED.50 This holding — which suggests that a patient treated by EMS personnel does not come under the care of a hospital for EMTALA purposes merely because that hospital has provided medical control — comports with 1997 federal regulations which define "comes to the ED" as meaning "on the hospital property."51 These regulations further define "on the property" as including ambulances owned and operated by the hospital, regardless of the ambulance’s location.52 Accordingly, a medical control physician might run afoul of EMTALA by diverting to some other hospital an ambulance owned and operated by the hospital. The same physician would likely incur no liability, however, for diverting away from his or her ED a privately owned commercial ambulance, even if the EMS personnel already have contacted the hospital and announced their intention to have the patient treated there, so long as the ambulance has not reached the hospital’s property.53
Editor’s note: Note, however, that earlier this year, the Ninth Circuit Court of Appeals held that a patient in a nonhospital-owned ambulance that was diverted from the nearest hospital by a medical control physician at the nearest hospital, might be able to state an EMTALA claim.54 The court held that "comes to the ED" includes "moving toward" the ED, and it was not clear that Congress did not intend this broader definition of "comes to the ED." This case will be discussed in greater detail in the annual EMTALA update in the December 2001 issue of ED Legal Letter.
Medical control providers can best avoid liability for pre-hospital triage decisions by familiarizing themselves with the capabilities of all local medical facilities and by remembering that the closest hospital is not necessarily the most appropriate destination for some patients. Because physicians might incur liability under EMTALA for inappropriately diverting a patient away from their emergency departments, they must thoroughly familiarize themselves with the provisions of this act.
In the United States, adult, mentally competent patients have a well-established right to accept or reject medical treatment as they see fit.55 This is true even when the physician feels that the patient will die unless treated.56 The right to refuse care may be abrogated, however, when the patient is unable to make rational decisions due to immaturity or mental defect, or in a life-threatening emergency when the health care provider has insufficient time to explain the ramifications to the patient.57
For EMS personnel, an individual’s refusal of treatment can pose a serious dilemma. Forcing a patient to accept unwanted emergency medical treatment may lead to allegations of assault, battery, or even wrongful imprisonment.58 Failure to transport a reluctant patient, on the other hand, may give rise to a claim of negligence.59 This is especially true when the patient’s condition deteriorates after the EMS personnel have left the scene.
Because EMS personnel often rely on medical control for guidance in such situations,60 determinations as to the need for compulsory emergency care create a dilemma for physicians and MICNs as well. Under select circumstances — as, for example, when a patient poses a threat to himself or others as a result of mental illness — a physician may possess statutory authority to compel hospitalization.61 For the most part, though, physicians have no more authority to compel transport than the EMTs or paramedics whose activities they direct. When recommending a course of action to EMS personnel, the physician must, therefore, weigh the consequences carefully. While medical control physicians should not necessarily order involuntary transport by rote, great care must be taken in allowing patients to refuse care. If it is not absolutely clear that the patient is fully competent, the patient should not be given the opportunity to refuse transport.
The following two cases involve the involuntary transport of a patient. In McCabe v. Life-Line Ambulance Service Inc.,62 a jury awarded $850,000 in damages against a municipality and $500,000 in damages against a commercial ambulance company for assault, battery, negligence, and civil rights violations after police officers and EMTs, acting under instructions from a psychiatrist, entered the apartment of a 64-year-old woman, dragged her down a flight of stairs, and strapped her face-down to a stretcher, where she turned blue and died. The decision was overturned on appeal, but by that time, the psychiatrist had already settled with the estate for all claims against him.63
Shine v. Vega arose from the death of a young asthmatic. On a Sunday morning in 1990, 29-year-old Catherine Shine arrived in the ED of the Massachusetts General Hospital seeking treatment for asthma. The attending physician, Dr. Jose Vega, concluded that Ms. Shine would die without endotracheal intubation and, despite the patient’s vigorous objections, he restrained her and performed the procedure. Ms. Shine survived this episode, but the ordeal allegedly traumatized her so severely that she resisted hospitalization during a subsequent asthma attack to the point that she died. Her father subsequently brought actions for assault, battery, false imprisonment, intentional infliction of emotional distress, and civil rights violations against Dr. Vega and the hospital.64
McCabe and Shine both serve to dispel the myth that lawsuits arise only from a failure to treat. Like the defendant physicians in these cases, medical control physicians must often decide whether treatment and transport should be forced on an unwilling patient. While medical control providers most often will recommend treatment and transportation, the prudent physician and MICN will proceed with some caution in the absence of consent.
EMS literature frequently describes EMS personnel as "working under the license of a doctor" and, as a result, medical control physicians sometimes express concern that the negligence of EMTs and paramedics will be imputed to them. This concern is probably generally unjustified. Courts traditionally have held that one individual is liable for the negligence of another in his charge only when a true employer-employee relationship exists, or when the employer creates the appearance of such a relationship through its actions.65 To the contrary, employers generally do not incur liability even for the negligence of independent contractors they have hired.66 Since medical control physicians rarely, if ever, employ the EMS personnel they direct, the courts should be unlikely to impute the negligence of an EMT or paramedic to the physician who provides EMS personnel with medical direction.
Under a principle known as "vicarious liability," an employer may incur liability for the negligence of an employee, even when the employer has not itself acted negligently.67 A crucial issue in the imposition of vicarious liability, however, is control. To be held vicariously liable, the employer must possess the right to control the actions of the employee whether such control is actually exercised.68 This principle has been applied frequently to relationships within the hospital setting.69 Physicians who act in a supervisory role, who direct and control the actions of other physicians, have been held liable for negligent treatment rendered by those physicians.70 At the same time, though, courts have generally held that a physician who exercises due care does not incur liability for the negligent acts of hospital personnel not employed by him or her.71
To date, the applicability of the vicarious liability doctrine to the relationship between a medical control physician and EMS personnel has not been considered by any appellate court. In the most analogous hospital case, however, the Colorado Supreme Court in Adams v. Leidholt explicitly held that a physician does not incur liability for the negligence of a hospital employee simply because he or she issued instructions to that employee.72 Accordingly, it seems that a medical control physician should not incur vicarious liability for the negligence of an EMT or paramedic, but rather, might be liable only if he or she is directly negligent in some way (e.g., by providing improper medical advice).
In many EMS systems, the medical control physician plays a significant role in training and/or supervising EMS personnel, and in writing policies other than standing orders. These activities, too, might expose the medical control physician to liability.
Courts generally view the failure of an employer to properly supervise its employees as a form of negligence. In the health care setting, claims for negligence in selecting, training, or supervising medical personnel generally are brought against the hospitals in which those personnel work.73 Hospitals have a well-established, nondelegable duty of care to their patients.74 This duty of care includes a duty to properly select and monitor hospital staff.75 More specifically, most jurisdictions have held that hospitals have a duty to take reasonable steps to ensure the competence of their physicians76 and to properly supervise the care they render.77 Whether a physician incurs individual liability in this regard is less well-established.
While no appellate court apparently has ever considered the issue, one might argue that a physician charged with supervising the activities of EMS personnel assumes common law duties similar to that of a hospital. A physician, like a hospital, has a nondelegable duty of care to his patients.78 Thus, assuming that a physician-patient relationship exists by virtue of the medical control physician’s role in making a diagnosis and recommending treatment, the physician may have a duty to properly supervise the EMTs and paramedics who provide that treatment. Failure to do so could potentially give rise to a claim of negligent supervision. This is especially true when the physician’s job description expressly includes responsibility for training or supervising EMS personnel. Currently, there appear to be no reported cases in which a patient has advanced a claim of negligent EMS supervision against a medical control physician. Such claims have been brought against municipal employers, however.79 Medical control physicians, therefore, must remember that their actions might result in liability for their employer, if not individual liability, should they fail to properly supervise the EMS personnel under their control.
Some states confer upon physicians a statutory duty to ensure the proficiency of the EMS personnel they supervise. Section 401.265 of the Florida Statutes, for example, provides that:
"[E]ach medical director shall establish a quality assurance committee to provide for quality assurance review of all emergency medical technicians and paramedics operating under his or her supervision. If the medical director has reasonable belief that conduct by an emergency medical technician or paramedic may constitute one or more grounds for discipline as provided by this part, he or she shall document facts and other information related to the alleged violation. The medical director shall report to the department [of health] any emergency medical technician or paramedic whom the medical director reasonably believes to have acted in a manner which might constitute grounds for disciplinary action."80
The potential for incurring civil liability in the course of supervising EMS personnel also is reflected in the fact that some states have conferred immunity on physicians and other individuals who participate on EMS review boards.81 In some jurisdictions, physicians hold statutory immunity as well for civil liability that arises in connection with EMS training.82 State legislatures have deemed these grants of immunity necessary in light of concern over physician liability for EMS training and supervision.
Physicians must concern themselves with liability as well when they engage in EMS policy-making. EMS policies take many forms, including system and regional treatment protocols, standing orders for the administration of medications, and procedural regulations. The extent to which these policies might give rise to litigation recently was highlighted in Boston, where officials of a community hospital publicly accused city EMS personnel of unnecessarily bypassing their facility.83 For years, the city’s EMS administration had permitted EMTs and paramedics to decide for themselves whether to transport cardiac patients to the closest hospital — which often lacked the capability of performing emergency coronary angioplasty— or to continue on to a more distant, but better-equipped, teaching hospital. Controversy erupted when a patient died of a myocardial infarction after being transported by Boston EMS to one of the teaching hospitals. The director of emergency services at a community hospital suggested that the patient should have been transported to his facility and, because Boston EMS had never adopted a policy addressing the destination of ambulances transporting cardiac patients, the EMTs found themselves unable to defend their triage decision satisfactorily. Referring to the absence of a pre-hospital cardiac triage policy, the system’s medical director later admitted, "I’ve got to come up with a clearer message, because we’re putting [the EMTs] in the middle."40
While the situation in Boston has not yet resulted in litigation, it is easy to see how the failure of an EMS system to adopt appropriate policies might lead to liability. A more widespread example of an EMS policy dilemma exists with regard to patients who refuse care. A recent survey of major EMS systems revealed that while 91% of these systems had adopted policies intended to guide field personnel in dealing with reluctant patients, less than a third of those policies conformed to the standards universally recommended in the legal and medical literature.84 Clearly, EMS systems lacking adequate refusal-of-care policies face greater liability exposure than systems that have adopted such policies.
When creating EMS policies, medical control physicians must take special care not to place EMTs and paramedics in jeopardy of exceeding their scope of practice. In Hospital Corp. of Northwest Inc. v. Arizona Dept. of Health Services,85 a hospital was accused of violating the state’s EMS Act by adopting a policy under which paramedics working in an ED could administer aspirin, antacids, and other medications not approved by the state for administration in the field. The hospital ceased the disputed practice at the request of the state, but it subsequently filed a motion for declaratory judgment on the issue. The hospital argued that Arizona’s Administrative Code § R9-25-608, which empowers paramedics to administer certain medications, did not apply to paramedics working under the supervision of a physician in the ED. The court disagreed and held that the state could properly regulate the activities of paramedics both inside and outside of the hospital.86 While Northwest did not involve the individual liability of a physician, it nevertheless highlights the difficulties that can arise as a result of ill-considered policies involving EMTs and paramedics.
Physicians and nurses whose duties include the creation of EMS policies must constantly monitor not only the activities of the EMS personnel they oversee, but also the nature of emergency care in general. Pre-hospital emergency medicine is a dynamic, rapidly evolving discipline, and changes in the standard of care are constant. Physicians and nurses must remain cognizant of this fact, and they should constantly evaluate the adequacy of the policies utilized by the EMS systems they direct.87 These principles apply as well to physicians and nurses who serve on state or regional EMS councils. Even if physicians and nurses do not incur personal liability for their policy-making activities, they must bear in mind that failure to establish appropriate medical and operational policies may create unnecessary liability exposure for the EMS system under their control, as well as for the EMTs and paramedics who work in those systems.
Recognizing that exposure to liability might render many physicians reluctant to provide medical control to EMS systems,88 a number of states have adopted legislation that confers immunity for medical control activities.89 Some of these medical control immunity statutes confer blanket immunity; that is, a physician is immune from civil liability for all EMS medical control activities, no matter how negligent the physician might have been.90 For the most part, though, these statutes require good faith on the part of the physician and provide no immunity for intentional harm or gross negligence.91 Physicians employed by governmental hospitals or EMS agencies also may enjoy governmental immunity,92 while those employed by not-for-profit hospitals may, in rare instances, benefit from "charitable immunity."93
When relying upon these immunity statutes, the physician must understand that they provide immunity from liability, but not necessarily immunity from lawsuit. A patient who alleges harm as a result of negligent medical control activities, therefore may bring a civil action against the physician, but as long as the physician’s actions fall within the scope of the immunity statute, the action will fail. The distinction is an important one, because a physician accused of medical control negligence might be forced to spend thousands of dollars in legal fees simply to prove that an immunity statute shields him from liability. Physicians should remember this fact when consenting to perform such duties.
Editor’s note: Before performing medical control duties, physicians should consult with experienced legal counsel as to the extent of their potential liability, the effect of immunity statutes, their malpractice coverage, and the possibility of being protected by an indemnity provision.
Physicians also must bear in mind that the extent of the immunity conferred varies widely from one state to the next. Some states have enacted statutes that provide for immunity specifically when providing medical control to EMS personnel.94 Forty-nine states have passed broader statutes, commonly known as "Good Samaritan" statutes, which protect physicians who render medical treatment in an emergency.95 Because the various legislatures intended those statutes to encourage physicians and other health care providers to render emergency aid in the absence of a duty to act, they often provide immunity only for treatment provided voluntarily.96 For the same reason, many of these statutes confer immunity only for treatment rendered at the scene of an emergency, rather than in a hospital.97 Whether medical control provided over a radio or telephone to EMS personnel in the field constitutes "treatment at the scene of an emergency" is a matter left open to interpretation by the courts, and "Good Samaritan" statutes might not apply to medical control activities.
Physicians and MICNs who practice in states that do not confer immunity for medical control activities can best protect themselves from civil liability by strictly adhering to the standard of care. Medical control physicians who become defendants in civil litigation most often are sued for negligence, but without a breach of the standard of care, the plaintiff cannot prevail. By adhering to medically accepted standards of care, the physician or nurse might avoid liability even in the absence of statutory immunity.
Physicians who provide medical direction to EMS systems generally fare well in civil litigation. Patients who allege harm as a result of pre-hospital emergency care rarely name the medical control physician as a defendant in their lawsuits and, even when they do, the physician tends to prevail.
Medical control providers must not be complacent, however. Provision of medical control always entails the risk of civil liability to one extent or another. Physicians in some jurisdictions enjoy statutory immunity for their medical control activities, but these statutes rarely cover all acts, and they never apply to all situations. Medical control physicians and MICNs should not rely on these statutes to shield them from immunity. Instead, they should familiarize themselves with the capabilities of local medical facilities and EMS systems, as well as the laws and regulations that pertain to the provision of medical control in the jurisdiction in which they practice. They must remember, too, that through their actions they might expose not only themselves to civil liability, but also the hospital or agency that employs them, as well as the EMS systems under their control. In all cases, physicians and nurses can best defend themselves against civil liability through rigid adherence to accepted medical practices.
1. See, e.g., Ala. Code § 22-18-41 (providing that EMTs may administer drugs only pursuant to the order of a state-licensed physician, and that such action does not constitute the illegal practice of medicine).
2. See Tex. Code Ann. § 773.003, defining "medical supervision" as "direction given to emergency medical services personnel by a licensed physician under the Medical Practice Act."
3. See, e.g., Guillen v. City of San Antonio, 13 S.W.3d 428 (Tex. Ct. Apps. 2000); Kyser v. Metro Ambulance Inc., 764 So.2d 215 (La. Ct. App. 2000); Wideman v. DeKalb County, 409 S.E.2d 537 (Ga. Ct. App. 1991).
4. See, e.g., Alaska Stat. § 18.08.086 (2001).
5. Regula v. Bettigole, 425 N.E.2d 768 (Mass. 1981).
6. Bardessono v. Michels, 478 P.2d 480, 484 (Cal. 1970); Alabama Medical Liability Act, Ala. Code § 6-5-548(a) (2000).
7. Greenburg, 845 P.2d at 530.
8. Martin v. East Jefferson Gen. Hosp., 582 So.2d 1272 (La. 1991); Delaney v. Rosenthall (196 N.E.2d 878, 880 (Mass. 1964); Riggs v. Christie, 173 N.E.2d 610, 613 (Mass. 1961).
9. Perez v. Bay State Ambulance & Hosp. Serv. Inc. 602 N.E.2d 570 (Mass. 1992), relying on Kapp v. Ballantine, 402 N.E.2d 463 (Mass. 1980); see also Mass. Gen. L. ch. 231 § 60B (2000).
10. Greenburg, 845 P.2d at 530; Perez, 602 N.E.2d at 570.
11. Delaney, 196 N.E.2d at 880; Riggs, 173 N.E.2d at 613.
12. See, e.g., Bates v. Meyer, 565 So.2d 134 (Ala. 1990).
13. See, e.g., Zintek v. Perchik, 471 N.W.2d 522, 530 (Wisc. Ct. App. 1991). But see Hall v. Hilbun 466 So.2d 856, 872-3 (Miss. 1985) (holding that defendants in medical malpractice actions should be compared to "minimally competent physicians in the same specialty").
14. Cogswell v. Chapman, 672 N.Y.S.2d 460 (N.Y. App. Div. 1998); Bienz v. Central Suffolk Hosp. 557 N.Y.S.2d 139 (1990).
15. 602 N.E.2d 570 (Mass. 1992).
16. Perez, 602 N.E.2d at 571.
18. Id. at 572.
19. Id. at 572.
20. Id. at 571.
22. Id. at 573. See also Mass. Gen. L. ch. 231 § 60B (2000).
23. Perez, 602 N.E.2d at 572.
24. Id. at 573.
26. 585 So.2d 1325 (Ala. 1991).
27. Smith, 585 So.2d at 1326.
28. Id. at 1326.
29. Id. at 1327.
33. Id. at 1325.
34. Id. at 1327.
36. Id. at 1328.
38. Id. at 1329.
39. Id. at 1330.
40. See Tye L, Patients say EMTs often skip Carney. Boston Globe, Nov. 22, 2000, at 1.
41. See Boston Public Health Commission, Boston EMS Internal Memorandum, Jan. 26, 2001, mandating transport of patients demonstrating stroke characteristics to a particular campus of the Boston Medical Center.
42. 982 F.2d 230 (7th Cir. 1992).
43. Johnson v. University of Chicago Hospitals, 982 F.2d 230 (7th Cir. 1992).
44. Id. at 231.
45. Johnson v. University of Chicago Hospitals, 774 F.Supp. 510, 511 (N.D.Ill. 1991).
47. 42 U.S.C. § 1395 dd (2000).
48. Johnson, 774 F.Supp. at 513.
50. Johnson, 982 F.2d at 233.
51. 42 C.F.R. § 498.24(b) (2000). See Hernandez v. Starr County Hosp. District, 30 F.Supp.2d 970 (S.D. Tex. 1999).
52. 42 C.F.R. § 498.24(b) (2000).
54. Arrington v Wong, 237 F.3d 1066 (9th Cir. 2001)
55. Cruzan v. Director, Missouri Dept. of Health, 110 S.Ct. 2851 (1990); Griswold v. Connecticut, 381 U.S. 479 (1965); Superintendent of Belchertown State School v. Saikewicz, 370 N.E.2d 417 (Mass. 1977); In re Quinlan, 70 N.J. 10 (1976); Schloendorff v. Society of New York Hospital, 105 N.E. 9 (N.Y. 1914).
56. Norwood Hospital v. Munoz, 564 N.E.2d 1017, 1021 (Mass. 1991).
57. Jackovach v. Yocom, 237 N.W. 444 (Iowa 1931).
58. E.g., Wideman v. DeKalb County, 409 S.E.2d 537 (Ga. Ct. App. 1991); Shine v. Vega, SJC-07807, slip op. at 1 (Mass. 1999).
59. E.g., Fuson v. City of Cincinnati, 633 N.E.2d 612 (Ohio Ct. App. 1993); Pavlov v. Community Emergency Medical Service, Inc., 491 N.W.2d 874 (Mich. Ct. App. 1992).
60. Weaver J, Brinsfield K, Dalphond, D. Pre-hospital Refusal-of-Care Policies: Adequate Legal Protection? Prehospital Emergency Care 2000; 4:53, 54 (policy survey reflecting that 15% of America’s major urban EMS systems require field personnel to contact a medical control physician prior to accepting a patient’s refusal of care).
61. See e.g., Mass. Gen. L. ch. 123 §12 (2000).
62. 77 F.3d 540 (1st Cir. 1996).
63. McCabe v. Life-Line Ambulance Service Inc., 77 F.3d 540, 543 (1st Cir. 1996).
64. Shine, SJC-07807, slip op. at 1.
65. Petrovich v. Share Health Plan of Illinois Inc., 719 N.E.2d 756, (Ill. 1999).
67. Prosser W, Keeton WP, and Dobbs DB. Prosser and Keeton on the Law of Torts. 69 (Fifth ed. 1984).
68. Campbell v. Hospital Serv. Dist. No. 1, 768 So.2d 803 (La. Ct. App. 2000).
69. See generally, Southwick AF. The Law of Hospital and Health Care Administration, Ch. XIV (2d ed. 1988).
70. McCullough v. Hutzel Hospital, 276 N.W.2d 569 (Mich. 1979).
71. Stephens v. Williams, 147 So. 608 (Ala. 1933).
72. 579 P.2d 618 (Colo. 1978).
73. E.g., Darling v. Charleston Community Memorial Hosp., 211 N.E.2d 253 (Ill. 1965).
74. Moser v. Heistand, 681 A.2d 1322 (Pa. 1996).
75. See generally, Griffith RL and Parker JM. With malice Toward None: The Metamorphosis of Statutory and Common Law Protections for Physicians and Hospitals in Negligent Credentialing Litigation, 22 Texas Tech. L.R. 157 (1991).
76. See e.g., Welsh v. Bulger, 698 A.2d 581 (Pa. 1997).
77. Darling, 211 N.E.2d at 253.
78. Boyd v. Badenhausen, 556 S.W.2d 896 (Ky. 1977); Orozco v. Henry Ford Hospital, 290 N.W.2d 363 (Mich. 1980).
79. Regalbuto v. City of Philadelphia, 937 F.Sup. 374 (E.D.Pa. 1995).
80. Fla. Stat. § 401.265 (2000).
81. E.g., Fla. Stat. s. 401.425(3)(a) (2000).§
82. See e.g., Wash. Rev. Code §. 18.71.215 (2000) (providing that the department of health shall hold harmless "approved medical program directors, delegates, or agents" for good-faith negligent acts or omissions occurring in connection with the training of EMS personnel).
84. Weaver J, supra at 53, 56.
85. 988 P.2d 168 (Ariz. 1999).
86. Hospital Corp. of Northwest Inc. v. Arizona Dept. of Health Services, 988 P.2d 168 (Ariz. 1999).
87. The State of California imposes upon EMS medical directors a statutory duty to address policy concerns. California Health and Safety Code § 1798(c), provides that "[I]n the event a medical director of a base station questions the medical effect of a policy of a local EMS agency, the medical director of the base station shall submit a written statement to the medical director of the local EMS agency requesting a review by a panel of medical directors of other base stations. Upon receipt of the request, the medical director of a local EMS agency shall promptly convene a panel of medical directors of base stations to evaluate the written statement."
88. See Mason RA. Good Samaritan Laws — Legal Disarray: An Update. 38 Mercer L. Rev. 1439 (1988).
89. E.g., Me. Rev. Stat. Ann. tit. 32 § 93-A (West 1999); Fla. Stat. ch. 401.265 (2000).
90. E.g., N.D. Cent. Code § 23-01.2-02 (1999) (providing, without limitation, that "[a] physician is immune from liability while providing voluntary medical direction").
91. E.g., R.I. Gen. Laws § 23-4.1-12.
92. Taplin v. Town of Chatham, 453 N.E.2d 421 (Mass. 1983).
93. See e.g., Weiss v. Goldfarb, 713 A.2d 427 (N.J. 1998); Etheridge v. Medical Center Hospitals, 376 S.E.2d 525 (Va. 1989).
94. E.g., N.D. Cent. Code §. 23-01.2-02 (1999).
95. E.g., Haw. Rev. Stat. §. 663-1.5 (2000) (providing immunity to physicians who render care at emergency scenes, or serve on a "rescue team," or provide medical direction).
96. E.g., Minn. Stat. §. 604A.01 (2000).
97. E.g., Cal. Bus. and Prof. Code §. 2395 (providing immunity from civil liability to those rendering "emergency care at the scene of an emergency").