Medicolegal Considerations in Wilderness EMS Care
Kristen C. Burke
INTRODUCTION
A state-licensed emergency medical technician (EMT) certified as a wilderness responder volunteers through the local county sheriff’s office on a search and rescue (SAR) team during the summer months. One morning, the EMT receives a call from the county sheriff’s office dispatching the SAR team to rescue a hiker who has fallen off a cliff in a remote area. Before heading into the field, the EMT thinks through the logistics of the rescue, determines what supplies the team might need in the field, and thinks about how the team could transport the hiker from the remote area to a hospital. What the EMT does not think about are personal legal duties and the potential liabilities associated with the SAR operation.
While wilderness emergency medical services (WEMS) providers need to focus on the situation during a crisis and not allow legal concerns to cloud their judgment in the field, WEMS personnel and the organizations under which they operate should become familiar with the legal risks of helping distressed people in the wilderness before an emergency occurs. Doing so minimizes the risks of ending up in expensive litigation, dealing with administrative punishment, or even facing criminal prosecution.
This chapter offers a broad survey of the types of legal liability that could impact WEMS personnel. Although both the law and public policy encourage WEMS to help those in distress,1 WEMS personnel and their organizations could find themselves embroiled in litigation if they do not adhere to a basic “reasonable person” standard of care, as well as to federal, state, and local legal requirements. As such, all WEMS personnel—from volunteer first responders with minimal medical training, to physician medical directors—should have a basic understanding of how legal liability could impact their efforts to help those in peril in the wilderness.
This chapter begins with a brief explanation of the U.S. legal structure to familiarize the reader with the layers of law that apply in each jurisdiction. Next, the chapter describes the “reasonable person” standard of care, and the practical factors WEMS personnel should consider in order to adhere to that standard. The chapter then addresses how civil liability might arise in the WEMS context. After offering an overview of civil litigation procedures and relevant legal relationships as background, the civil liability section describes the types of civil liability most likely to come up in the WEMS context: negligence, abandonment, battery, and administrative liability. The chapter then briefly describes how criminal liability might arise as a result of particularly egregious conduct by a WEMS provider.
After describing the types of liability that WEMS personnel could encounter, the chapter explains the statutory protections that most jurisdictions have established to protect people and organizations from liability. Specifically, the liability protection sections discuss EMS-specific liability protection laws, liability protection statutes for volunteers, Good Samaritan legislation, and sovereign immunity statutes that protect government actors, and often government employees and volunteers as well.
Note that this chapter does not delve into the certification and legal licensing requirements for WEMS personnel due to the complex and state-specific nature of those requirements. WEMS personnel, however, should become familiar with the licensing and/or certification requirements of the state(s) in which they work to ensure they comply with the law. The chapter also refrains from advising WEMS personnel, or their organizations, on how to mitigate liability risks through insurance protections, liability releases, or other practical methods, because every WEMS provider and organization will require a different risk-management strategy. An attorney hired by a particular WEMS organization can provide the kind of specific
risk-management guidance necessary to address the organization’s unique situation.
risk-management guidance necessary to address the organization’s unique situation.
OVERVIEW OF THE U.S. LEGAL SYSTEM
The “Law” that applies to WEMS personnel in the United States consists of several layers. At the highest level, WEMS personnel must follow federal laws. These laws apply to everyone in the country. The body of federal law has four components:
The Constitution: A founding document with many amendments that provides the groundwork for the American legal system;
Statutes: Broad laws passed by Congress, the legislative branch of the federal government, that must comply with the Constitution;
Administrative Regulations: Detailed rules adopted by the executive branch of the federal government (ie, the President’s administration) designed to help implement statutes; and
Case Law: Legal opinions written by federal appellate court judges that interpret what the Constitution, statutes, and administrative regulations mean, as well as describe the judge-made form of law called common law. Appellate courts review cases and publish legal opinions after a judge or jury in a trial court (the courts with which most people are most familiar) renders a decision in a case.
Unless specific provisions state otherwise, the Constitution, statutes, and administrative regulations apply uniformly across the country. Case law written by the U.S. Supreme Court (the country’s highest appellate court) also applies to the entire nation. Case law written by the circuit courts of appeals (the lower appellate courts) only applies in the geographic region, known as a jurisdiction, governed by the circuit court of appeals that authored the case.
Like federal law, state law consists of constitutions, statutes, administrative regulations, and case law. State constitutions provide the legal foundation for all other state laws. State legislatures pass statutes, the governor’s administration implements those statutes through administrative regulations, and the state appellate courts interpret the constitution, statutes, and regulations.
Much of the substantive law that applies to WEMS personnel is passed at the state level, and can accordingly vary widely from state to state. As such, WEMS personnel, and particularly the leaders of WEMS organizations, should familiarize themselves with the statutes and regulations governing the state or, in some cases multiple states, in which they provide WEMS services.
WEMS personnel should additionally become familiar with the local laws issued by counties, municipalities, and other forms of local government. Like Congress and the state legislatures, local legislative bodies pass ordinances and other types of local laws that may directly apply to WEMS. Often, local laws will address the unique features of a particular area in a way that federal and state laws do not. In the WEMS context, local law might explicitly address conduct in rural wilderness areas with a degree of specificity that does not exist at the state or federal level.
THE REASONABLE PERSON STANDARD OF CARE
Before thinking about the different kinds of legal liability that may apply in the WEMS context, WEMS personnel should understand the “reasonable person” standard of care. Articulations of this standard vary from jurisdiction to jurisdiction, and often depend upon a variety of factors specific to an individual. Such factors may include a WEMS provider’s level of medical training, whether the provider carries a particular certification or license, the relevant geographic area, and/or the type of action taken by the provider that gave rise to the need to define the reasonable person standard.
Recognizing that the reasonable person standard can manifest in many forms based on the aforementioned (and other) factors, two general articulations of the reasonable person standard are worth noting: (i) the standard for a reasonable nonprofessional person and (ii) the standard for a reasonable professional. When performing a function that does not require a professional license, certification, or training—such as preparing food for a SAR team or locating a patient in the wilderness—a WEMS provider should follow the reasonable person standard by acting as a reasonably prudent person would under the same or similar circumstances.2 When performing functions that require a professional license, certification, or training—such as providing medical care—the WEMS provider should follow a professional reasonable person standard by acting with such care, skill, and diligence as people with the same or similar training would ordinarily exercise under like circumstances.3
To think about these variations of the reasonable person standard in a practical way, a WEMS provider might consider: (i) his or her level of training; (ii) the unique facts of a particular emergency situation; and (iii) how a reasonable person with the same or similar training would act in the same or similar circumstances.
Consider a hypothetical situation: If a licensed EMT is called into the woods to treat a hiker with a possible broken arm, the provider should think how a reasonably prudent EMT with the same or similar training would act when treating a hiker in the woods with a possible broken arm. Factors to consider during this hypothetical reasonableness analysis include, but are not limited to:
The scope of practice permitted under the applicable certification or licensing scheme;
The extent of the patient’s injuries and the type of care that may be needed;
Safety of the WEMS providers, their teams, the patient, and any others involved in the emergency situation;
The patient’s decision-making capacity and his or her ability to consent to treatment;
The risks of performing a particular procedure;
The scarcity or availability of medical equipment;
The risks of administering care in the particular location;
Lack of access to definitive medical care; and
Of course, factors a WEMS provider may consider during a reasonableness analysis will vary depending on the context. For example, a WEMS provider might consider the scope of practice permitted by the particular jurisdiction’s laws governing epinephrine administration and/or automated external defibrillator (AED) use if the WEMS provider thinks that a given scenario calls for epinephrine or an AED.
Notwithstanding the specific laws that apply to a particular WEMS provider, complying with the appropriate reasonable person standard of care can reduce liability risks by preventing a lawsuit altogether, or by providing a defense if litigation occurs. The reasonable person standard will also come up throughout the remainder of this chapter as it relates to specific types of legal liability.
TYPES OF LIABILITY IN THE WEMS CONTEXT
Legal liability comes in many forms and can result in difficult consequences for the liable party. Fortunately, WEMS personnel can avoid most legal liability by understanding and complying with the laws that apply in their jurisdiction and by adhering to the appropriate reasonable person standard of care.
The body of WEMS-specific law is notably limited, likely because WEMS as a discrete field is still fairly new, and because the incidence of WEMS-related incidents resulting in published case law and reactive legislation is quite low. Recognizing the dearth of law that directly addresses WEMS scenarios, the following sections describe different categories of liability that could apply in the WEMS context, providing real-world examples when possible, and hypothetical applications when salient case law does not appear to exist. Due to the variability of state and local laws, the general statements in these sections may not apply in every jurisdiction or to every WEMS provider. As such, the remainder of this chapter aims to familiarize different types of WEMS personnel with the legal vocabulary and types of liability that could apply to them, with the caveat that such applicability will largely depend on the specific laws of the governing jurisdiction.
The liability sections begin with the most common category of liability seen in the WEMS context: civil liability. As background, the civil liability section first offers a primer on civil litigation procedures and discusses how the legal relationships between people and organizations can impact civil liability. It then describes the rare types of federal civil liability claims that could come up in the WEMS context, including Constitutional claims under Section 1983 of the U.S. Code and claims brought under the Federal Tort Claims Act (FTCA). The civil liability section goes on to describe the more common forms of civil liability that could arise at the state and local levels: negligence, abandonment, battery, and administrative liability. The final portion of the liability section briefly describes how criminal liability could come up in the WEMS context. The near-total absence of criminal law related to WEMS personnel, however, renders the criminal law section largely speculative; it is also a reassuring statement about the exposure to the risk of criminal liability experienced to date by WEMS personnel.
Civil Liability—In General
Civil liability is defined as a legal obligation to pay money to a person as compensation for that person’s loss or injury.6 Civil liability can arise under federal, state, or local law. The most common type of civil liability that comes up in the WEMS context is tort liability. A person may be liable in tort if his or her act or failure to act causes someone else to sustain a loss or harm.7 Common torts include trespass, slander, battery, infliction of emotional distress, and—particularly important to the WEMS context—negligence.
Before turning to the principles of ordinary negligence law, the next subsections provide an overview of the procedures that make up a civil law suit as well as a brief description of how legal relationships between WEMS personnel and organizations can influence civil liability. Familiarity with these procedures and legal relationships will help the reader understand what an individual WEMS provider, a medical director, or the organization under which an individual provider operates might have to do if sued in civil court.
Anatomy of a Civil Law Suit
This section briefly describes how a civil law suit progresses through the court system. Understanding the legal terminology and high-level procedures described below will help the reader comprehend how the types of civil liability described later come to fruition in practice.
After an unfortunate incident, a person (or the alleged victim’s attorney) who believes he or she suffered harm as a result of another’s action or omission might contact the alleged defendant (person or organization whose act or omission allegedly caused the harm) about a pending law suit. Although a lawsuit has not officially begun, these early communications could offer an opportunity for settlement (resolution of the case by way of
a negotiated agreement outside of court) that could minimize the alleged defendant’s financial exposure. A WEMS provider, or an organization under which WEMS personnel operate, can hire an attorney after receiving initial communications from an alleged victim to determine whether settlement might be a good option in a given situation.
a negotiated agreement outside of court) that could minimize the alleged defendant’s financial exposure. A WEMS provider, or an organization under which WEMS personnel operate, can hire an attorney after receiving initial communications from an alleged victim to determine whether settlement might be a good option in a given situation.
If early settlement does not occur, or if settlement discussions never begin at all, a civil lawsuit officially starts when a plaintiff (the alleged victim) files a complaint (document asserting legal reasons for the suit, known as claims) against the defendant(s) in the appropriate court. The plaintiff must file the complaint with a court that has the authority to decide the stated legal claims. For example, if the plaintiff’s claims arise under federal law, the plaintiff should file the complaint with the federal court located in the geographic area in which the events that gave rise to the claims occurred. Analogously, if the plaintiff’s claims arise under state law, the plaintiff will file a complaint in a state court with authority over the relevant geographic area.
After the plaintiff files a complaint in the proper court, the defendant has the opportunity to file an answer to explain why the defendant should not be liable for the plaintiff’s claims. The defendant’s reasons why liability should not attach, as presented in the answer, are known as defenses.
After both parties—the plaintiff and the defendant—have filed their initial documents with the court, their lawyers will likely file motions, discovery requests, and other procedural documents aimed simultaneously at (i) resolving the case before trial and (ii) preparing for trial if pretrial settlement does not occur.
If the case goes to trial, the plaintiff and defendant’s respective attorneys will present evidence—such as witness testimony, tangible exhibits, photos, maps, etc.—in court to support their legal arguments. Depending on the case, a trial may occur in front of a jury (as often seen on television dramas) or in front of only a judge. The plaintiff’s attorney will present the plaintiff’s case first, then the defendant’s attorney will present the defendant’s side of the story.
After each side has had an opportunity to present its case, the jury or the judge will consider the law, the facts, and the legal arguments to determine who wins. A plaintiff has the burden to prove a civil case by a preponderance of the evidence. This burden of proof, also known as the 51% rule, requires the plaintiff to present evidence showing that it is more likely than not that the plaintiff’s legal arguments are correct in order to win. If the plaintiff wins, the judge or jury will determine the amount of damages (money ordered to be paid to a person as compensation for that person’s loss or injury)8 the defendant will have to pay the plaintiff. If the defendant wins, then the plaintiff does not receive damages.
If the losing party is unsatisfied with the result of the trial, that party may appeal the trial court’s decision to the appropriate appellate court. The appellate process differs from the trial process in that appellate courts decide issues of law instead of issues of fact. As such, the attorneys for the plaintiff and the defendant do not present evidence to the appellate court through witness testimony or exhibits. Instead, the attorneys file written briefs, then answer questions from a panel of judges about the case’s legal issues during a hearing known as oral argument. The appellate court will consider the parties’ briefs and oral arguments, in addition to the law as applied by the trial court, and will then issue an opinion deciding the legal issues presented on appeal. Appellate opinions contribute to the body of judge-made law.
If the party that loses on appeal is unsatisfied with the appellate court’s decision, that party may attempt to appeal the case again, this time to the highest appellate court in the jurisdiction—often, but not always, called the Supreme Court.* While the lower appellate courts are required by law to hear every appeal that comes before them, the Supreme Court may elect to review or not review a case depending on a variety of factors. These factors include, but are not limited to, whether the case presents a new legal issue, whether the case is particularly important from a public policy perspective, and whether the case is properly positioned to result in an opinion that will benefit the body of judge-made law.
If the Supreme Court decides to hear the case, the plaintiff and defendant’s attorneys will file a second round of appellate briefs and conduct oral arguments before the Supreme Court. The Supreme Court will consider the legal issues presented and will author a legal opinion ultimately deciding those issues and often ending the case.
Note that the general procedures described above assume a simple case in which one plaintiff sues one defendant in a single jurisdiction. In practice, civil litigation is often much messier. For example, jurisdictional questions could arise if, say, a federal firefighting team from one state is deployed to fight a fire on state-owned land in another state. In addition, a plaintiff could sue not only an individual WEMS provider, but also that provider’s employer, medical director, or the entity for whom the provider volunteers under a theory of respondeat superior (ie, a type of vicarious liability whereby the supervisor or overseeing organization is liable for the acts of its employee or volunteer).9 A defendant could also elect to bring its insurance provider into the case to help reduce the defendant’s potential damages. Various procedural maneuvers by the parties’ attorneys can complicate a civil lawsuit as well. Understanding the basic anatomy of a civil lawsuit as described above is important, however, because the procedures and terminology involved will come up in the following sections discussing the types of civil liability that may apply in the WEMS context.
Impact of Legal Relationships on Civil Liability
In addition to understanding general civil litigation procedures, the reader should recognize that the legal relationships between WEMS personnel and the organizations under which they operate can impact how civil liability might manifest in a given situation. Physician medical directors may supervise field WEMS personnel; field WEMS personnel may volunteer with, or work as paid employees for, governmental, nonprofit, and private groups; and WEMS field personnel could relate to each other as members of a team. These and other relationships become important when assessing what individuals or organizations might be liable for their own actions or for the actions of others.
For example, in jurisdictions that require physician medical directors for EMS organizations, the medical director has a supervisory legal relationship with the field provider.10 This means that a field provider’s actions will not be considered the action of the medical director per se, but the medical director could be liable for his or her own conduct while acting in the supervisory role,10 and may still be found responsible or to have shared responsibility for certain actions taken by a medical field provider. EMS personnel employed by a government agency such as the National Park Service, or by another government organization—such as a special district, county, or municipality—are often considered agents of the employing government organization.10 Under agency law principles, the acts or omissions of an EMS provider could be viewed as acts or omissions of the employer organization itself.10 An agency relationship can thereby create vicarious liability for the employer in the event that the employee field provider is found personally liable under a host of different legal theories.10 Relationships between WEMS field personnel acting as a team can also impact how civil liability arises, particularly when team members have different levels of medical training, when one team member acts as a supervisor, or when the team receives instructions from a remote physician.
WEMS personnel, and particularly WEMS organizations and supervisors, should recognize the varying relationships between individual and organizational components of their own WEMS system to fully understand the possible sources of liability that could drag field personnel, supervisors, and organizations to court.
With these relationships, and the general civil litigation process in mind, the following section describes the most important type of civil liability to understand in the WEMS context: negligence.
Ordinary Negligence
The most important legal concept to understand in the WEMS context is negligence. Ordinary negligence “is conduct which falls below the standard established by law for the protection of others against unreasonable risk of harm.”11 Negligence law continues to develop over time through judge-made common law. Although statutes and regulations often refer to negligence, and expand or limit how the concept may apply in certain situations, case law written by appellate courts defines the term and explains how its elements apply in practice. As with all law, the law of negligence varies by jurisdiction. This section addresses the topic generally, but the reader should consider conducting additional research to better understand how the concept applies in his or her particular location.
To prove a negligence claim and receive monetary damages from a negligent defendant, a plaintiff must establish four elements by a preponderance of the evidence. These elements are:
1. Injury: The plaintiff has suffered an injury or other harm;
2. Duty: The defendant owed a duty to the plaintiff to take due care against causing the injury or harm suffered by the plaintiff (most often, the duty of care equates to the appropriate reasonable person standard);
3. Breach: The defendant breached an existing duty by either acting carelessly or failing to act; and
4. Causation: The defendant’s breach actually and proximately caused the plaintiff’s injury or harm. A breach actually causes harm when the harm would not have occurred but for the breach. A breach proximately causes harm when the breach is so closely connected to the resulting harm, and of such significance, that the law is justified in imposing liability on the actor.12(p197),13
The following hypothetical example demonstrates how an ordinary negligence claim might be argued in the WEMS context. Imagine that a skier is partially buried in an avalanche and injures her leg. Her companions call 911 and the local sheriff’s office dispatches a SAR team, one member of which is a licensed EMT, to help. During the rescue, a member of the SAR team, upon instructions from the EMT, fails to appropriately stabilize the patient’s leg. The patient eventually has the leg amputated at the hospital.
The patient sues the EMT for negligence. She argues each of the four elements of the negligence claim as follows:
1. Injury: The alleged victim suffered severe leg injuries that resulted in amputation;
2. Duty: The EMT owed the plaintiff a professional duty of care by virtue of being a certified health care provider on a formal SAR team that was formally dispatched to the call; specifically, the EMT was required to act in a way that an ordinarily prudent EMT with similar training would act in the same or similar circumstances;
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