Chapter 16 W. Ann “Winnie” Maggiore Medical oversight in prehospital care is distinctly different from any other supervisory activity performed by a physician. Although it is acknowledged as an integral element of an EMS system, medical over- sight has been a bit of a mystery to the law, the public, and the medical community [1]. Despite their immense responsibilities in providing medical oversight, medical directors were rarely defendants in litigation during the first 30 years of EMS. Although weakening, this trend continues. There have been obvious improvements in the sophistication of EMS systems since the early days of “invalid coaches” staffed by “ambulance drivers,” and a continued appreciation for “the speed with which the ambulances reach the sick and injured, bringing help that literally wrest the sufferer from the jaws of death, as the last flickering spark of life is leaving the body ” [2]. However, prehospital medical care is often misunderstood, and consequently the role of the medical director is often not understood by lawyers, citizens, bureaucrats, and even some physicians. As recently as 1989 an appellate court judge referred to an ambulance as a “medical taxicab” rather than a mobile intensive care unit [3]. Ignorance and misperceptions affect medical di- rectors. They face confusion, misconceptions and uncertainty in the day-to-day events of medical over- sight and in the legal crises that may erupt from those duties. The medical profession has had decades to develop standards and predictability in legal rulings involving medical malpractice. However, only recent- ly has a patchwork of legal decisions involving EMS activities solidified sufficiently to provide some predictability. In a few states, trends are evolving about liability issues that help define responsibilities of systems or prehospital care providers and interpret immunity statutes governing prehospital care. Medical directors may benefit from the few legal precedents established by other participants in this unique and developing area of medical care. However, any medical director, whether a novice or an expert, must keep in mind that there are many unresolved issues surround- ing medical oversight. In most states, the birth of EMS preceded the enactment of enabling legislation authorizing this unique delivery of medical care [4]. When federal highway grant funds were offered, every state eventually enacted EMS legislation to qualify; however, intense physician supervision was not necessarily mandated in these early statutes, many of which remain in effect more than three decades later [5]. During the development of EMS systems, immunity from liability for the rescuer gradually became a focus of many state legislatures. It was assumed that immunity was a prerequisite for volunteer (uncompensated), provider involvement in emergency response, although there was, and still is, no good evidence to substantiate this proposition [6]. In a 1978 appellate court ruling absolving from liability rescuers who failed to oxygenate a patient in cardiac arrest, the court reasoned that immunity laws were essential because of the difficulty in obtaining insurance and because unlimited liability could “be enough to drive many providers of ambulance service out of business and greatly discourage others from entering” [7]. Immunity for the prehospital care provider became common and remains rooted in EMS law. Eventually laws were passed to protect the trained rescuer and professional paid responder, as well as the “Good Samaritan.” Governmental immunity also became a strong shield from liability for the public agencies. Immunity for the Good Samaritan physician became commonplace, and immunity for the supervising physician was seen as early as 1976. Medical oversight as a necessary component of a system has not been recognized with uniform enthusiasm in legislation. Although physician participation (often side by side with paramedic personnel) existed in the early mobile cardiac care units, legislative mandates for physician involvement varied tremendously from state to state. Physician involvement commenced only at the hospital door for the majority of volunteer basic life support units that covered the expanse of highways and hillsides across the country. Even as EMS entered the 21st century, medical directors still were not required to supervise the medical care of many non-paramedic services, particularly in rural, nontransporting EMS services. Despite the years of muted development of medical oversight, the silence of the courts regarding the role of the prehospital medical director has begun to change. Medical oversight will become increasingly recognized in the legal arena as a fundamental component of quality prehospital care, especially as medical directors become more active and more informed, and the level of care delivered by EMS providers becomes more complex. Potential liability is the inevitable corollary that shadows the development of responsibilities in medical oversight. With EMS becoming the sixth subspecialty of emergency medicine in September of 2010, awareness of the EMS medical director’s role is becoming more high profile. The responsibilities of EMS medical directors are being taken seriously by both the medical and legal professions. A recent health law publication recognized the medical legal position of the EMS medical director and its importance [8]. The role of the EMS physician as an expert witness in legal proceedings has been recently outlined in a position paper by NAEMSP [9]. We have all heard that the relationship between the EMS medical director and the EMT is one in which the EMT is the “eyes, ears and hands of the physician” and that the EMT practices “under the license” of the physician. Although these phrases still find their way into texts and sometimes court rulings, they do not describe the legal relationship [10]. The legal relationship is one of supervision rather than agency. An “agent” is “a person authorized by another to act for him” [11]. In a supervisory relationship, the physician has the responsibility to properly oversee the practice of another health care provider, whereas in an agency relationship the health care provider is an employee or representative of a company or governmental department which is responsible for what its employee does under the legal principle of respondeat superior (“let the master answer”) and the agency is liable for the actions of its agent. Although EMTs are agents of the EMS institution that employs them, they are not the agents of the EMS medical director. Agency relationships in the law began with the relationship between master and servant, with the master being liable for any harm caused by the servant. Also known as “vicarious liability,” this is not the relationship between the medical director and EMT, because the medical director does not employ the EMT or otherwise function in a manner that would implicate the physician for errors made by the EMT. The term “delegated practice” had been widely used to describe the relationship between the physician and the EMT. However, in most states, there are no statutes that authorize a physician to “delegate” skills within his or her practice to another health care provider. Texas is a notable exception to this general rule [12]. Emergency medical technicians are either licensed or certified by the state or county in which they practice. The terms “license” and “certification” have been muddled and cause a great deal of confusion in EMS. A license is “permission from a competent authority to do an act which, without such permission, [would] be illegal” [10]. Certification is “the formal assertion of some fact” [10]. Therefore, even when it is called certification, EMTs who are permitted to practice by states and counties are actually licensed. They do not practice “under the license” of the physician, but instead under the physician’s supervision, with the permission of the governing body. The notion of “practicing under a physician’s license” actually grew out of the fact that EMS developed quickly, and the legal system took some time to catch up to the existence of this completely new health care provider. Although paramedics began practicing in the 1970s, many states did not have enabling EMS legislation until the mid-1980s [10]. The EMS medical director has responsibilities that, in and of themselves, may open him or her to liability for negligently training, supervising, or retaining an EMT. Similarly, the EMS medical director has the responsibility to develop and update protocols so that they are in step with current EMS practice, the medical standard of care, and the law. The EMS physician who simply signs off on an EMT’s competency without being intimately involved with medical oversight activities is opening himself to the scrutiny of the courts if an EMT under his supervision commits medical error. The role of the medical director encompasses multiple and diverse responsibilities. Aspects of administration, medical care, personnel management, and education occupy the daily activities of the medical director in the oversight of an EMS system. Consequently, liability concerns are also multifaceted. As with any form of medical practice, physician conduct must conform to accepted standards of care. Sources that define those standards are discussed here. Although EMS is almost exclusively under state and local law as a health and safety concern, medical directors need to be aware of several areas of federal law. If medical directors are part of the employment hierarchy, their actions may allow them to be named in lawsuits based on employment disputes. The number of such lawsuits is increasing yearly. Medical directors should recognize the newer definition of sexual harassment. Formerly, overt inappropriate action was required. Now, the creation or perpetuation of “an oppressive or hostile work environment” can constitute harassment [13]. There is continued tightening of safeguards against Medicare and Medicaid fraud and abuse. One of the areas being closely watched is the use of ambulance services, especially for transport. Physicians have been warned against easy certification of medical necessity for the use of ambulances when other avenues of transportation are available. Merely signing the medical necessity form stating the patient needs transport by ambulance could subject a physician to fines, damages, and civil monetary penalties under the False Claims Act and Medicare fraud and abuse regulations, which have been targeted by government investigators, including FBI task forces, in recent years [14,15]. New regulations for ambulance reimbursement have been drafted that state acceptable reimbursement levels for ambulances based on the condition of the patient [16]. Generally, the patient must demonstrate a need for ALS, such as abnormal vital signs or a need for medications, in order to qualify for ALS reimbursement. Additionally, final rules from the Department of Health and Human Services clarify “medical necessity,” provide minimum staffing levels for ambulances, and revise rules for physician certification of the need for ambulance transfer of patients [17]. Federal rules promulgated as part of the Health Insurance Portability and Accountability Act of 1996 (HIPAA) require the protection of any information collected, in electronic or paper form, by a health care provider that may “relate to the past, present, or future physical or mental health or condition of an individual; [describes] the provision of health care to an individual;” or “identifies the individual; or … can be used to identify the individual” [18] In response to these regulations, EMS services had to examine their record-keeping and consent procedures as well as those of the entities with which they commonly share information. A federal civil rights statute, 42 U.S.C. §1983, provides that “every person who . . . subjects, or causes to be subjected, any citizen . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law” [19]. The effect of this brief passage is significant. Any individual who believes that another has acted against him/her in violation of any law may choose to sue in federal court for a civil rights violation. Civil rights claims usually include claims of due process and equal protection violations as well. The Fourteenth Amendment of the U.S. Constitution states, “No person shall be deprived of life, liberty, and the pursuit of happiness, without due process of law.” This has been interpreted to provide a right for fundamental fairness requiring, at the minimum, “notice” and “an opportunity to be heard” before some right, such as a license, is taken away. Equal protection is the constitutional requirement that similarly situated individuals are treated similarly – this is why discrimination law- suits are civil rights questions as well. These claims are significant for a number of rea- sons. State immunity statutes do not affect the ability of the plaintiff to sue and seek damages in federal court, and there are no absolute federal immunities that apply to these types of cases (though there are qualified immunities). State damage caps, which may affect the maximum recovery in malpractice actions, do not apply. The successful plaintiff may recover punitive dam- ages and attorney’s fees. Often the individual charged does not have proper insurance coverage to indemnify him/her against the costs of the lawsuit, much less a damage award. A few examples demonstrate why these “1983 actions” can be significant in prehospital care. The decision of Doe v. Borough of Barrington, rendered in 1990 [20], ruled that a city violated a citizen’s rights because it failed to train police officers about AIDS and the need to keep confidential the identity of a person infected with HIV. Reasonably extrapolated to EMS agencies, failure to train public employee prehospital care providers about the transmission of AIDS and patient confidentiality may result in liability if medical treatment and confidentiality are not managed correctly because of ignorance on the part of the prehospital care providers. New HIPAA requirements directly address these issues. In Wideman v. Shallowford Community Hospital, Inc. [21], an obstetric patient argued that she had a constitutional right to direct a county ambulance to the hospital of her choice. The patient contended that when an ambulance transported her to a county hospital that was the direct medical oversight facility for the ambulance service, she was deprived of her “constitutional right to essential medical treatment.” However, the appellate court held that there is no constitutional right to prehospital treatment and transport to a facility of patient choice. Medical directors may face constitutional issues when a prehospital care provider contests termination from employment based on due process. Grievance procedures that involve the qualifications of personnel may involve the medical director. Understanding due process may prevent unnecessary review proceedings. For example, in Baxter v. Fulton-DeKalb Hospital Au- thority, a federal court ruled on the due process claim of a paramedic who had been cleared of misconduct in a hospital investigation of field performance [22]. The medical director, who was employed by the hospital and supervised the paramedic who was employed by a public hospital, refused to reinstate the paramedic, even though the paramedic had been cleared of misconduct. The court ruled that the paramedic’s claim against the hospital should not be dismissed because the hospital deprived the paramedic of due process by acquiescing to the decision of the medical director without holding a hearing. A New Mexico physician was charged with federal civil rights violations after he withdrew medical oversight from two providers who were suing him for medical malpractice [23]. The providers claimed that they had a “right” to medical oversight just by virtue of being EMTs, and sued for civil rights violations. A significant problem for this physician was the fact that his malpractice insurance did not indemnify him for civil rights lawsuits. A Kentucky physician was named as a defendant in a state lawsuit alleging violation of rights under the Family Medical Leave Act as well as for civil rights violations, because he withheld medical oversight for a paramedic in a delegated practice state [23,24]. The physician refused to extend medical oversight to the paramedic after the paramedic tried to return to work after treatment for alcoholism and depression; the medical director had a long list of prior complaints against this individual, unrelated to his illness, and was in the process of bringing them to the attention of the state licensing authority. Again, the physician’s insurance did not clearly cover the costs of his defense. This case is somewhat interesting because the plaintiff chose to bring it in state, rather than federal, court. A federal district court had already dismissed a related case brought by the same paramedic against an ambulance service, citing that the plaintiff had not proven his case under the Americans with Disabilities Act (ADA) [25–27]. Individuals such as medical directors are not subject to the ADA unless they are employers. Although the role of the medical director is complex, the statutory provisions that directly address the role are often brief. Each state statute has supplemental regulations concerning the responsibilities of medical directors to the EMS personnel they supervise or the EMS system in which they function. There are different regulatory structures and varying degrees of specificity in different jurisdictions [28]. For example, some state laws provide little more than a short definition of the medical director as a licensed physician responsible for the supervision and training of EMS personnel. Some regulations only state the responsibilities of the medical director in general terms, and it is assumed that the medical director will engage in certain supervisory activities. In other states, regulations identify the responsibilities of the medical director in detail. The Florida statute requires, for example, that the medical director “establish a quality assurance committee to provide for quality assurance review of all EMTs and paramedics under his supervision” [29]. Medical directors are encouraged to ride with the ambulance services in Oregon [30]. In Washington, rules expressly provide that the “medical program director” is certified by the EMS regulatory authority and can be terminated for failure to perform the du- ties of the position [31].Clearly, trends are emerging in the regulatory arena to abolish the “paper doc” and mandate quality supervision and involvement. Increasingly, states are attaching qualifications to the role of medical director beyond mere state licensure to practice medicine. In Oregon, the Board of Medical Examiners must review and approve an application for the position of prehospital medical director [32]. Board certification in emergency medicine, family practice, internal medicine, or surgery or certification in both advanced cardiac life support (ACLS) and advanced trauma life support (ATLS) is required in Missouri [33]. Now that medical director training is available at the national level, certain states now require their medical directors to be certified. New Mexico requires that new medical directors complete, within 2 years after appointment, either a nationally recognized EMS medical director course, a state-approved course, or local orientation provided by a regional or state medical director [34]. State regulations also cover the scope of practice, licensure or certification, and training of prehospital personnel. Licensure differs from certification in that certification by a state only recognizes that an EMS provider has achieved a certain level of training, but does not confer any right to practice based on that training [35]. Licensure by a state conveys a property interest, which requires due process in any proceeding to take away that license. These are both different from the “verification” given by training such as Advanced Hazmat Life Support and ATLS, which simply state a person has completed the education, but makes no representations about his or her ability to use the new skill. It is important to mention that some states use the term “certification” inappropriately, such as when the provider is actually licensed – it is important to look at the underlying rights associated with the position. At least one federal court has stated that state protocols, not the training of the EMT, dictate his duty [36]. In this case, a basic EMT who had ACLS training was faulted for not intubating a patient. Although he had been trained to do so in his ACLS class, intubation was not within his scope of practice and therefore he did not have a legal duty to intubate. State law determines the link between the medical director and the provider. The medical director must ensure that protocols articulate medical functions consistent with each prehospital care provider’s certification and training. On more than one occasion an unwary medical director has conceded to a provider’s request to perform a medical act not legally authorized by statute nor covered by that individual’s training. Some skills are subject to extra reporting requirements. In addition, specific testing or training requirements may exist for registered nurses who function in the prehospital setting, such as flight nurses who are often required to have significant critical care experience. The medical director should keep abreast of these regulatory provisions. Another common regulatory provision is the pre- requisite that the medical director provide written authorization for a provider to qualify for certification. Quite often the medical director signs a form, often the provider’s license application, making a statement such as, “I understand that I am legally and professionally responsible for the directed medical actions of this EMT-paramedic.” This language is quite explicit and may impose significant legal responsibilities on the medical director. The medical director who makes a commitment on paper must ensure that the prehospital care provider is capable and can practice with reasonable skill and safety. Available evaluation or risk management tools should be used. At the very least, documentation of proficiency or capability from reliable sources such as training institutions or employers should be provided. Medical directors must be aware of the regulatory constraints that define and affect their role. They should not rely on an apparent lack of enforcement by the state regulatory authority to justify ignoring legally imposed responsibilities. A shortage of prehospital care providers in a community should never be justification for authorizing practice by a person with serious deficiencies in skills or poor judgment. New medical directors are wise to contact state and local EMS offices early in their tenure to be sure that they are compliant with these matters. Veteran directors should have maintained communication channels that enable them to use regulatory agencies as a reliable resource. In addition, the physician remains accountable to the state licensing board for his medical oversight functions. A recent Arizona case held that a physician medical director for an insurance company who was engaged in making “medical decisions which could affect the health and safety of a patient or the public” was subject to the jurisdiction of the Board of Medical Examiners even though he had no direct physician–patient relationships [37]. Several state legislatures have attempted to put this responsibility into statute. The medical director will encounter additional layers of codifications in county and municipal government. City ordinances and county resolutions often target activities not addressed by state regulations. Such provisions can be very stringent and sometimes quite outdated. Although the sanctions imposed on ambulance services for violations are sometimes insignificant fines, misconduct may lead to revocation of an ambulance service permit to operate in the jurisdiction. These provisions may require proof of protocols, insurance, and proper staffing and may restrict the response activities of the ambulance service. Medical directors who give orders that conflict with local laws set their services up for trouble with city administrators. Local government politics can be a major source of consternation, and seemingly minor infractions can seriously complicate community relationships. County attorneys and plaintiff lawyers scrutinize the “black letter law” of these various codifications and hold the physician accountable to the “letter of the law” and the “spirit of the law” as circumstances warrant. The medical director must know and operate within these legal statutes, regulations, and codes. Sound legal advice should be sought if there is a question of interpretation or application, preferably before a legal conflict has materialized. Competent private counsel, city and county attorneys, and state regulatory boards can provide valuable guidance in medical director decision making. Some states have statutes that provide immunity from liability for acts performed by medical directors as long as they act in good faith or in a non-reckless manner [38]. The medical director immunity laws may therefore give a medical director a sense of comfort that the courts will forgive some misjudgments in medical oversight activities. These statutes have not yet been the subject of review at the appellate court level. However, the responsibilities of the medical director remain unchanged. Only the payment of damages is avoided; the medical director may still be responsible for attorney fees and court costs. Immunity laws are also venue specific: state immunity is good only in state courts. If the complaint involves a federal question, there is no immunity in the federal court system. There may be an ongoing tendency for courts to limit sovereign immunity [39]. Immunity statutes for EMS providers have successfully shielded providers from liability for simple negligent conduct, but providers typically still remain accountable for “grossly negligent or reckless” conduct [40]. For example, Washington paramedics were sued when a patient died after arrival at a hospital with an esophageal intubation [41]. They received immunity under Washington law, however, because “there [wa]s absolutely no evidence in the record to suggest that the paramedics acted without good faith.” An Ohio court recently upheld immunity for EMS providers when a bariatric patient fell from a stretcher as she was carried down some steps. The court found no “willful and wanton” misconduct even in the face of a protocol deviation regarding the use of specialized bariatric stretchers [42]. However, the existence of such immunity statutes can be a blessing as well as a curse. Medical directors should not be complacent in relying on the existence of immunity statutes to shield providers from liability for negligent acts. Many EMS services are run by a governmental subdivision such as a county or municipality. These generally benefit from sovereign immunity, which greatly limits actions for which governmental (that is, sovereign) agencies may be sued. Lawsuits generally require gross or willful negligence, although in some states, specific instrumentalities of the alleged negligence, such as the use of an automobile, may allow lawsuit. For example, a county and city ambulance service was sued by a patient who was allegedly rendered quadriplegic during a difficult extrication from a canyon [43]. All of the defendants were found to be immune from lawsuit under a sovereign immunity statute. Although the statute stated that immunity did not apply to the negligent use of “equipment,” the court determined that this did not include the equipment used in this rescue. Similarly, sovereign immunity has shielded municipalities from lawsuits for crashes involving ambulances [44]. A Tennessee court found that prehospital care providers were “health care practitioners” because they were licensed under state law, and as such were specifically exempted from the state tort claims act, which read, “No claim may be brought against an employee or judgment entered against an employee for damages for which the immunity of the governmental entity is removed by this chapter unless the claim is one for medical malpractice brought against a health care practitioner …” [44,45]. The role of the medical director is complex and demanding. The days of volunteer medical directors working without contractual agreements are gone. A contract sets out the framework of your relationship with the EMS agency. The physician newly recruited as a medical director can benefit from predecessors and peers. Accepting a position of responsibility for an EMS system and all patient care rendered within that system should be preceded by a frank and detailed discussion of everyone’s roles and responsibilities. The job is more manageable if medical directors have clear and unequivocal authority to accomplish the tasks with which they are charged. A contract in which the medical director’s responsibilities and authority are delineated and agreed on is not an unreasonable for- mality; it is an important source of the medical director’s legal authority. It is critical that medical directors have the authority to carry out their responsibilities. It is simply sound business practice. Beware of the service that approaches a physician for medical direction because its previous medical director left the position precipitously and it needs services immediately. These agencies will hand over a contract drafted by its own attorneys and ask for your immediate signature to remedy the situation. Be certain to take your time with the contract and have it reviewed by competent counsel – and find out exactly why the prior medical director left. Medical directors must acknowledge the fact that they are accountable regardless of how much time they devote to medical oversight and regardless of the number of field personnel they supervise. Medical directors must also realize the risks, the means, and the goals of the position and not hesitate to address these factors before accepting the position. Moreover, accepting the responsibility without any authority is an invitation for frustration, as well as risk. It is important to also recognize limitations that exist in the EMS system and negotiate the means and resources necessary to meet the goals of the job. For example, medical directors may insist that the fire department assume certain responsibilities in training and documentation and that practice restrictions invoked by the medical director be honored. They might insist that a coordinator position be established or equipment upgrades be made. If a private ambulance service has a contract with a city and has promised certain response times or other guarantees, potential medical directors must evaluate whether they can accept the constraints of that performance contract before they become the medical director for the ambulance service. It is likely that the medical director has implied authority to impose certain restrictions and standards despite the absence of a formal written contract. He or she may accomplish some goals by using written protocols or establishing a quality improvement program with per- formance standards. The case of County of Hennepin v. Hennepin County Association of Paramedics and Emergency Medical Technicians was the first to address the relationship between an EMS medical director and a paramedic in the context of a collective bargaining agreement. A state court ruled it is a matter of medical judgment for medical directors to determine who they would supervise. The employer or the paramedic union could not force the medical director to accept a paramedic the medical director felt was incapable of practicing with reasonable skill and safety [46]. Although many physicians have malpractice insurance coverage that may extend to certain of their activities as a medical director, they are unlikely to have coverage for all potential liabilities. Many of the insurance companies that provide insurance to ambulance services have begun offering secondary insurance policies that cover a physician for potential liabilities that may arise from his duties as a medical director. Secondary insurance policies step in only when the primary insurance, usually malpractice, does not cover an event or when the policy limits of the primary policy have been exhausted. This is in the interest of the insurance companies who know that having a medical director will improve the quality of the service rendered by the ambulance service and therefore reduce insurance claims. If this is not available, the medical director needs to find a source that will protect him or her for these duties, which are often classified as administrative rather than the usual patient care duties. There is no standard contract, but there are certain minimum issues any contractual arrangement should address (Box 16.1). Prospective medical directors should carefully scrutinize the EMS agency’s strengths and weaknesses, the political tone and community sup- port for EMS, and other factors that may affect achievement of their goals. The detail and complexity of the contract will differ if it is an understanding between the medical director and each EMS provider rather than be- tween the medical director and the county commissioners or a municipality. The substance of the contract may differ, depending on the agencies, the patient populations, the training and staffing of the prehospital care providers, and the different needs for immediate and long-range goals for quality improvement measures. The medical director’s role must be formalized, because many systems consist of multiple management heads with decision-making authority spread among fire chiefs, company owners, city managers, and medical directors. Medical directors must identify the correct party or parties with whom they must negotiate. A contract with the city health department may be meaningless if the city fire department chief has unbridled discretion regarding who is hired, what level of providers are dispatched to certain medical emergencies, and whether attendance at continuing education sessions is mandatory. The sovereign immunity of the US government is controlled by the Federal Tort Claims Act, which, on its face, seems to allow federal employees to be sued on the same basis as private individuals [47]. Federal employees do have further protection, however. An additional section of federal law [48] exempts “any claim based upon an act or omission of an employee of the Government, exercising due care, in the execution of a statute or regulation, whether or not such statute or regulation be valid, or based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government.” The boundaries of the Federal Tort Claims Act were examined in a recent California case in which the National Park Service and two of its providers were sued for failure to have neither the proper equipment nor training for proper c-spine immobilization and CPR [49]. The court determined that any decision as to the training level of providers and what equipment they were provided was a discretionary function and therefore immune from lawsuit. On the other hand, the proper delivery of care at this scene was not a discretionary function and could be heard at trial. Although medical directors have yet to specifically benefit from sovereign immunity, lawsuits against EMS providers have been dismissed based on it. Without li- ability of providers, it would be impossible to derive liability against their medical oversight physician. Good Samaritan statutes are another possible source of immunity for the medical director, though they are more likely to be of benefit in limiting his direct liability from actions at a scene than by preventing vicarious liability by giving immunity to the providers. These statutes vary from state to state, so no blanket statements are possible [50]. In general, however, Good Samaritan statutes usually are written to protect physicians, although others are sometimes included. California, for example, protects nurses, prehospital care providers, firefighters, and anyone attempting to aid a choking victim at a restaurant. Good Samaritan statutes usually apply to actions rendered “at the scene of an emergency,” which has been limited to the roadside in some jurisdictions and expanded to hospital rooms in others [51,52]. They usually require that the care rendered is gratuitous and delivered in “good faith.” The statutes vary in their protection, some offer complete immunity, whereas others excuse ordinary negligence [53,54]. A medical director should understand the limitations of his or her state’s Good Samaritan statute and how it might apply to medi- cal oversight activities. The American College of Emergency Physicians has published a policy statement sup- porting Good Samaritan legislation [55]. A Maryland decision temporarily extracted Baltimore firefighter/paramedics from the state’s Good Samaritan statute because the city billed for their services and allowed a suit against a paramedic for an alleged esophageal intubation [56]. This decision was overturned on appeal. The appeals court based the decision on another specific fire company immunity act and did not specifically address the Good Samaritan issue [57]. The Aviation Medical Assistance Act of 1998, a limited federal Good Samaritan law, immunizes qualified individuals from liability in state or federal court unless they are guilty of “gross negligence or willful misconduct” in their response to an in-flight medical emergency [58]. Case law is a source of law in which a written decision by a judge, or a panel of judges, interprets statutes or the applicability of legal principles to a case. Often referred to as “common law,” these rulings can determine the merit of a plaintiff ’s negligence claim or interpret a statute. For example, in recent years, interpretations of the working of immunity statutes and what conduct constitutes “gross negligence” have abounded. However, because of varying facts from case to case, varying interpretations from state to state, and passing years between the date of the incident and a court ruling, case law is sometimes an ineffective educator. Often, though, it is all we have. Court decisions in one state are not binding on any other state; however, discussions of issues in state case law reveal the success or failure of legal theories pro- posed by plaintiffs, thereby highlighting the kinds of conduct that attract the attention of judges and juries. Courts also often look to see how other jurisdictions have handled new legal theories and are sometimes persuaded by their reasoning. An awareness of the le- gal arguments by plaintiffs seeking recovery from EMS agencies and prehospital care providers can guide the medical director in areas where acceptable protocols and negligent conduct have not been well defined. Specific areas of EMS case law important to the medical director are discussed further below. In areas where there is little law directly on point, analogous situations serve to show current legal reasoning. Remarkably, few legal decisions have discussed medical oversight or implicated medical directors in allegations of providers’ misconduct. One of the few negligence actions that addressed the role of the medical director resulted in a ruling adverse to the medical director. In Florida, an appellate court upheld a jury verdict against a medical center, because the EMS medical director failed to properly supervise, train, and instruct the paramedics [59]. After assessing a 5-year-old girl at her home, paramedics decided no emergency medical care was needed. The young patient died hours later of congestive heart failure. The EMS medical director admitted there was no written protocol for “how to take a history or how to distinguish between an emergency and non-emergency situation” or for taking pediatric vital signs. Instead, the medical director depended on the paramedics’ schooling and experience to provide the necessary guidance. The jury concurred with the plaintiff ’s contention that the medical director was responsible for developing procedures “and deviated from the standard of care by not having established such written procedures” [60] Protocols addressing, or simply forbidding, non-transports might have protected the system and the medical director. The medical director’s duties require that potential liabilities be separated into two general categories: professional and administrative. The professional role encompasses most of what is thought of as the traditional role of the medical director (e.g. delivering and supervising patient care). The liabilities for the medical director in the professional role center on negligence, and common professional liability insurance often provides protection. The administrative role is less clearly defined. Because medical oversight is necessary for employment of a prehospital care provider, decisions on the part of the medical director about with- holding medical oversight effectively become employment decisions. Often, disgruntled former employees will find ways to blame the medical director for these decisions. Additionally, a medical oversight physician may be placed in a position where he or she deals with reimbursement issues for the service. This may expose the physician to liabilities for false claims/fraud issues. The significant feature of administrative liability is that traditional professional liability insurance does not apply in these areas. Most of the subsequent discussion will address medical director liabilities in the professional role, which are usually associated with actions/inactions of prehospital care providers. Without judicial interpretation of the duties for proper medical oversight, the legal claims against medical directors that will prove successful for a plaintiff attorney can only be surmised. The relation- ship of the medical director and the prehospital care provider is unique, although there are similarities to the relationships between nurses and physicians and physicians’ assistants and physicians [61]. Extrapolating from these medical professional relationships and from general medicolegal principles, a few theories are worth noting. These legal theories are some of the pathways by which a medical director can be linked to liability. No doubt there will be other theories proposed by inventive plaintiffs’ attorneys. The clearest source of liability is a negligent act committed by the medical director. This could be a simple malpractice action for treatment rendered at the scene of an accident by a medical director who rides along with the ambulance, but it is more commonly a failure in other areas. Through statute and regulation, medical directors are obligated to perform certain tasks, such as providing direct medical oversight, establishing protocols, and auditing the performance of field personnel. Despite many variations among EMS systems and state laws, standards of conduct in medical oversight have taken shape. When litigation arises, expert testimony by other medical directors is usually necessary to give substance and shape to the professional duties of colleagues. A malpractice action against a medical director could be a valid cause of action if the plaintiff can establish the requisite elements of malpractice including duty, breach, proximate cause, and damages. This was successfully argued in the case of Tallahassee, discussed previously.
Legal issues
Introduction
The legal framework of the physician/EMT relationship
Sources of accountability
Federal law and regulations
Civil rights
State statutes and regulations
Local ordinances
Immunity laws
Sovereign immunity
Contracts
Good Samaritan statutes
Court decisions
Areas of liability
Failure to perform responsibilities
Negligent supervision
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