In this chapter, we will discuss the basic
framework of the United States legal system. We will also discuss similarities in Wisconsin
to the federal system. Once completed with this chapter, you should
be able to identify federal and state laws that affect EMS; describe how the three branches
of government work together to form laws and regulations that apply to EMS; differentiate
between statutory law and case law, and explain their applicability to the EMS world; describe
administrative and regulatory law and how administrative laws apply to the EMS system;
identify several situations in which EMS personnel could be subject to various provisions of
criminal law; and, list checks and balances built into the EMS system.
To preface this chapter, consider this scenario. One of your personnel is transporting an unconscious
patient in the back of your ambulance. Upon arrival at the hospital, the crew unloads
the patient, who is admitted for a drug overdose and is eventually placed under the care of
a hospital psychologist. The patient is treated and discharged to a community mental health
professional. Several months later, a police officer appears at your place of work and
places the transporting EMT under arrest for a sexual assault of the unconscious patient.
The employee is taken to the police station and read Miranda rights. The “evidence” consists
solely of the patient’s verbal statements, accusing the EMT of sexual fondling and taking
inappropriate pictures of the patient while unconscious. (While the book paints the scenario
with a female patient and male EMT, gender is actually irrelevant to the discussion.
As we will see later in this course, sexual impropriety can be male-female, male-male,
or female-female.) So, what would you do? One of your employees
has been arrested for a criminal act. As the service director, what would you do first?
What liability do you think your service may bear? How do you think your service can protect
its employees from similar allegations in the future? What significance is it that the
EMT was provided with Miranda warnings at the police station? Does HIPAA prevent you
from introducing your own evidence to defend the EMT? What if you were the EMT being arrested?
Does that change your perspective and your actions?
While this scenario may seem unlikely, it does have basis in fact. Something like this
could happen to any EMS provider, and other “unlikely” scenarios seem to pop up around
the country all the time. Obviously, it is important for any EMS leader or manager to
understand the legal aspects of providing emergency medical care and services, both
as a provider of those services, as well as someone who leads and manages such a service.
With that in mind, the goal of this course is to expose you to legal issues that impact,
or have the potential to impact, EMS providers and services. By the time you are finished
with this course, you should have a better understanding of legal concepts that apply
to EMS providers and agencies, which should help you, as an EMS service leader and manager
to potentially avoid legal complications and liability down the road. This course is not
designed to make attorneys out of anyone. Rather, it will help you recognize issues
to know when to seek qualified legal counsel. Ultimately, you should be better prepared
to manage your exposure to legal risk and potential liability.
To begin our exploration into the legal system as it applies to EMS services, providers,
managers, and leaders, we will begin by introducing some very basic concepts regarding the structure
of our government and legal system. The United States is commonly recognized as having three
different “levels” or tiers of government. The first and highest tier of government is
the federal government itself. Established by the United States Constitution, the federal
government creates laws that apply throughout the entire country. The next tier consists
of the individual states and territories, which have the ability to write laws that
apply within the physical borders of that state or territory. The third and final tier
or level of government are considered subdivisions of state government, such as counties, cities,
towns, villages, districts, and other local entities as recognized by state law. Laws
passed at the local level are commonly referred to as ordinances, and are limited in their
application to the geographical confines of the respective municipality or government
entity. Understanding the “nested” nature of these
levels of government is important because it helps set the stage for how EMS developed
within the country. EMS, as we know it, had its beginnings in
1966 when the National Academy of Sciences published Accidental Death and Disability:
The Neglected Disease of Modern Society. Referred to simply as the “White Paper,” this document
identified accidental injuries as the leading cause of death for Americans age 1 to 37.
(For the population as a whole, accidents were the fourth leading cause of death and
motor vehicle collisions were the leading cause of accidental death for all age groups
under 75.) In 1965, there were 52 million accidental injuries, which resulted in 107,000
deaths, more than 10 million disabled, and another 400,000 permanently impaired. The
economic impact to the country at that time was estimated to be $18 billion (or over $131
billion in 2015 dollars). At that time, there were also 49,000 motor vehicle crashes that
resulted in death (a rate of 24.9 in 100,000). For comparison sake, NHTSA data for the year
2009 has that number at 30,797 with a rate of 11.01 deaths per 100,000. As further evidence
of the problem, it was stated that severely injured patients had a higher survival rate
on the battle field than on a highway within the United States given the lack of on-scene
medical care. (At the time this White Paper was published, less than 2% of battlefield
injuries in Vietnam resulted in death.) To address these concerns, the White Paper
made several recommendations, which included the formation of a National Council on Accident
Prevention; extension of basic and advanced first aid training to greater numbers of the
lay population; preparation of nationally acceptable texts, training aids, and courses
of instruction for rescue squad personnel, police officers, firefighters, and ambulance
attendants; legislation to govern ambulance design and construction, the equipment and
supplies carried on an ambulance, and to establish qualifications for and supervision of ambulance
personnel; adoption of state-level regulations pertaining to ambulance services; the need
for a better communications system for agencies serving emergency medical needs; establishing
a mechanism for inspection, categorization, and accreditation of emergency departments;
creation of trauma registries; and, other items related to the care of acutely sick
and injured patients. (If you are interested in reading the White Paper, it is available
on the EMS.gov website. A copy of the link that was current at the time this presentation
was created is included on this slide as well.) While the White Paper was not the result of
legislative action, it did provide the impetus for the passing of the Highway Safety Act
of 1966, which created the United States Department of Transportation, imbued the agency with
the authority to improve EMS by developing and implementing standards for provider training,
and also required states to develop regional EMS systems.
In 1973, Congress passed the EMS Systems Act, which modified the 1944 Public Health Services
Act, to provide assistance and encouragement for the development of comprehensive area
emergency medical services systems. Among other things, this law stipulated 15 components
that should be included within all EMS systems. These components included: Ensuring adequate
personnel with appropriate training and experience; providing training and continuing education
for personnel; establishing an adequate communication system; ensuring an adequate number of vehicles
to provide services; ensuring an adequate number of EMS facilities; having access to
specialized critical medical care units, or obtain access to such units in neighboring
areas; ensuring effective utilization of personnel, facilities, and equipment; being organized
to allow for public input in the establishment of policy; providing services, even if someone
cannot pay; providing for the transfer of patients to appropriate facilities; maintaining
adequate, standardized recordkeeping; providing public education programs; employing periodic,
comprehensive, and independent reviews and evaluations of the extent and quality of the
care provided; plan for mass casualties, natural disasters, or national emergencies; and, establishing
reciprocal basis agreements with neighboring services to ensure adequate service coverage.
To review the law for yourself, a web link has been provided on this slide. (The URL
is current as of the date this presentation was produced. If the URL is no longer correct,
it will be necessary to perform a web search to find the document.)
Since these humble beginnings, there are now numerous federal agencies involved in the
regulation and oversight of EMS. The National Highway Traffic Safety Administration, under
the federal Department of Transportation, is one of those entities, along with the Maternal
and Child Health Bureau of the Department of Health and Human Services, as well as the
United States Fire Administration. While state governments have very broad authority
over EMS agencies, the federal government still maintains some very key roles in EMS.
These roles include: Establishing minimum EMS training standards, developing national
equipment lists and specifications, coordinating national research and prevention efforts,
offering technical assistance to state EMS offices, defining basic components of EMS
systems, directing nationwide system development, overseeing the development of national training
guidelines, and promoting EMS data collection and research.
Again, state governments have broad authority over EMS activities by virtue of their Constitutional
privilege (granted by the Tenth Amendment) to legislate for the safety, health, and well-being
of their citizens. By virtue of subdivisions of government within individual states, EMS
is typically provided by local governments. From a political standpoint, it is important
to recognize that various EMS stakeholders may have different needs and diverse perspectives
on EMS issues. From EMS agencies, other healthcare organizations, and organized labor to individual
providers and patient advocacy groups, it can be challenging to reach consensus on issues
impacting EMS. Keep this in mind as you move forward in this course as EMS leaders and
managers must be mindful of political forces when working within an EMS system. This could
include the politics of a small volunteer EMS service or fire department where the support
of the general membership is required to move initiatives forward, all the way up to working
with state (or maybe even federal) legislators to address a pressing system need.
Moving beyond the history of EMS in the United States, it is also important to understand
how the legal system functions within the country.
First and foremost, the United States legal system has its roots in English common law.
This means that, historically, laws were established through judicial decisions which became binding
on “lower” courts within the same jurisdiction. At the time the United States was being formed,
there was considerable debate as to whether or not the national government should be a
strong or a weak government. Remember that the founding fathers just fought against the
tyranny of a king and the last thing they wanted was to replace one king with another.
To protect against this, the Constitution was written to include three separate branches
within the federal government, with each branch having a specific role. (This is referred
to as the separation of powers.) Additionally, these branches have the power to exert some
control over the other branches. (This is called the system of checks and balances that
exist within the Constitution.) These topics will be discussed further later in this presentation.
While it is common today for people to think about the federal government as having considerable
power, believe it or not, the federal government is actually a government of limited powers.
This means that the federal government cannot act unless it is specifically authorized to
do so within the Constitution. All other powers not specifically prohibited by the Constitution
are reserved for the states. As we will see momentarily, this is the primary reason why
the regulation of EMS is a state function. Within specific auspices, the federal government
has taken a leadership role in EMS by virtue of its ability to regulate interstate commerce
while also being able to tax and spend for the benefit of all states. Thus, there are
numerous federal laws that impact EMS across the United States, such as laws pertaining
to reimbursement billing from Medicare; the acquisition, storage, and usage of controlled
substances; the use of an incident management system that complies with the National Incident
Management System; and, the availability of disaster assistance through the Federal Emergency
Management Agency, to name a few. On the other hand, there is also a tremendous
amount of control exerted over EMS by state and local governments. Examples include licensing
requirements, educational requirements, continuing education requirements, composition of a legal
crew, scope of practice, driving requirements (rules of the road), documentation requirements,
medical director involvement, and other operational considerations.
As mentioned briefly before, the Tenth Amendment reserves for the states all other powers not
specifically enumerated for the federal government or prohibited by the Constitution. It is the
exercise of these police powers that allows states to administer, certify, discipline,
review, and provide quality assurance as it relates to the practice of EMS within the
state. Given the sheer volume of laws that apply
to employers at both the federal and state level, it is important for employers to be
well informed as to the specific laws that may potentially impact their operations. These
laws include workers’ compensation, tax codes, the Fair Labor Standards Act, Social Security
requirements, the Americans with Disabilities Act, employee safety and health laws, the
relatively new provisions of the Patient Protection and Affordable Care Act, and others.
While the sheer number of laws that apply to EMS can be daunting, it is also not acceptable
for a service or employer to simply miss or forget about a law. Ignorance of a law is
no defense to not following the requirements of the law and liability will still attach
to an employer’s illegal actions, even if they were not done intentionally.
In discussing the laws that apply to EMS, let’s begin by looking at how those laws are
created. To begin, the federal government has three
branches of government: executive, legislative, and judicial. The executive branch is responsible
for the enforcement of laws and the daily operations of the government. The legislative
branch writes the laws (which are enforced by the executive branch). The judicial branch
ensures the laws written by the legislature and enforced by the executive branch are Constitutional.
Ultimately, the United States Constitution is the supreme law of the land and all other
laws must comply with the provisions of the Constitution. Any law that does not comply
with the Constitution is deemed unconstitutional by the judicial branch, which means it is
not a valid law and cannot be enforced. Within this structure of government, it may
already be clear how the three branches are used to provide a system of checks and balances
against each other so that no one branch becomes too strong or abuses its power. The President
appoints Supreme Court Justices. The legislature has the power to impeach the President. The
President may issue executive orders. The Supreme Court may declare laws written by
the legislature unconstitutional, and so on. Each state has its own written constitution,
which cannot violate the provisions within the United States Constitution. The states
also have their respective branches of government which typically follow the same structure
as that which exists at the federal level. As previously mentioned, so long as the states
are not prohibited from using specific powers by the Constitution and those powers are not
delegated to the federal government by the Constitution, they are ultimately powers reserved
for the states. These powers, referred to as “general police
powers,” are designed to protect the public health, safety, and welfare of the states’
citizens. The providing and regulating of protective services, such as law enforcement,
fire protection, and EMS, falls within the legal rights of the states by application
of their general police powers as guaranteed by the Tenth Amendment of the United States
Constitution. Of interest is the fact that the United States
government has a treaty with Native American tribes that allow them the right to broad
self-government. As a result, many Native American nations have their own recognized
sovereignty within the United States and have the ability to tax, pass laws, and adjudicate
matters within their own courts. With that being said, there are some federal laws, such
as OSHA, that do apply to Native American tribes. Despite this right of self-governance,
most Native American tribes follow federal guidelines and state laws in the formation,
administration, and operation of their own EMS systems.
When evaluating the impact of both federal and state laws on an EMS employer, it is important
to recognize the difference in scope between the two levels of government.
The United States Congress, which consists of two houses, the Senate and the House of
Representatives, may pass legislation within the confines of Constitutional power for the
federal government. Generally speaking, the United States Congress lacks the power and
authority to write laws that directly impact local EMS operations. (Keep in mind, however,
that the federal government may attempt to impact state action by providing or withholding
funding. As an example, the states have the ability to define their own minimum ages at
which people are legal to drink alcohol. If the states want their federal highway funds,
however, they must ensure that age is at least 21 years old.)
While the states have the ability to write laws that impact the people and business entities
within their respective geographical boundaries, those laws cannot undermine or contradict
federal laws. For instance, a state may not pass a law that does not make hourly workers
eligible for overtime until after they work 50 hours in a single week as such a law would
violate the provisions of the federal Fair Labor Standards Act. On the other hand, states
may write laws that are more restrictive than a similar federal law, or they may pass laws
that provide greater civil protections than provided by related federal legislation. A
simple example is that many states have their own Family Medical Leave Act which provides
more rights to workers than afforded by the federal Family Medical Leave Act.
Keep in mind as well that the legislative process is a slow one, especially at the federal
level. One benefit states have is that it is typically easier for laws to be passed
at the state level than at the federal level. As a result, states are routinely considered
more nimble in being able to act legislatively for the safety, health, and welfare of its
citizens. When disputes arise as to the enforcement
or applicability of a law, they are heard by a court. Federal courts hear cases that
relate specifically to federal issues or laws. The typical entry-level court in the federal
system is the Federal District Court. Believe it or not, the Supreme Court also has original
jurisdiction over some legal disputes as well. While it does not happen often, the Supreme
Court may occasionally hear a case that has not been tried elsewhere previously. Typically,
however, the United States Supreme Court will only hear cases upon appeal from a lower court
in either the federal system of courts, or from a state if the case involves a significant
Constitutional issue. Given this need to ensure court rulings are
correct, the federal system of courts also has a system of appeals courts that hear appeals
from the district courts. State courts are much more broad in their
role and applicability to disputes as they may hear issues related to both state and
federal law (unless prohibited by the federal government, such as in bankruptcy proceedings,
which may only be heard in federal bankruptcy court). All state court systems have entry
level courts, as well as some appellate process and a court of last resort (which may be called
different things depending on the state). Within Wisconsin, the highest court is called
the Supreme Court. Many states also recognize municipal courts to enforce municipal law
violations, as well as specialty courts for common disputes, such as divorces, crimes
involving juveniles, or guardianship cases. Within both the federal and state court systems,
the goal of the judiciary is to decide controversies between adverse parties, which may even include
the government itself. To provide some semblance of order and predictability
within the judicial system, the common law doctrine of stare decisis applies to court
decisions. Ultimately, decisions provided by a court must be followed by “lower’ courts
within that jurisdiction. For instance, if a state’s court of last resort defines a test
to determine if a public employee’s actions are subject to statutory immunity, that test
must be used by all state courts within that state. That ruling, however, does not apply
to neighboring states, nor does it apply to federal courts. Inversely, if a local court
makes a decision, it is only binding on that court. The applicability and enforcement of
court decisions flow down, so to speak, not up (or across, for that matter).
While this does help provide some predictability within our complex legal system, there is
no guarantee that previous case law will never be overturned by a higher court (or the same
court years later). As society changes, the opinion of the courts may change as well.
To reiterate, federal courts exercise judicial review over federal laws and federal agency
actions. They may also rule on the constitutionality of both federal and state laws. Federal court
rulings also provide interpretation of federal legislation and federal agency rules and decisions.
State courts may render decisions on the constitutionality of state laws and state agency actions, but
such decisions may wind up being heard in a federal court at some point. Commonly, state
courts deal with matters of state law and state agency actions.
Ultimately, if someone breaks a law, jail time, a fine, or a combination of the two
may result. This is the case at both the federal and state levels. If an organization is guilty
of breaking a law, it may not be possible to put the organization itself in jail, but
its principal officers may be subject to jail time, depending on the nature and scope of
the law violated. Fines may also be levied against an organization, such as an EMS agency.
This is where it becomes necessary to recognize the difference between civil and criminal
law. Civil law applies in actions between private parties where one party injures another.
Criminal law, on other hand, involves society as a whole when the alleged wrongdoer breaks
a law that “hurts” society. Jail time is a potential punishment only in criminal cases,
not civil cases. Given the nature of these two bodies of law, the burden of proof (meaning
the level to which the plaintiff in a civil case or the government in a criminal case
must prove the facts of the case) is different between the two. Because a breach of criminal
law could very well mean the deprivation of someone’s liberty (jail time) or, in severe
cases in specific states, their life (the death penalty), the government must meet the
rather significant burden of proving its case beyond a reasonable doubt in court. Civil
cases, on the other hand, require only that the plaintiff (the person who filed the lawsuit
claim) prove his, her, or its case by a preponderance of the evidence, which is merely the proverbial
tipping of the scales, if you will. Stated another way, preponderance of the evidence
simply means more likely than not. As far as EMS providers and agencies are concerned,
the federal court system applies only in specific cases where a violation of federal law is
alleged. Some examples include employment issues under the Americans with Disabilities
Act, wrongful terminations, harassment, or sexual harassment.
Beyond the applicability of federal law, EMS providers are actually most likely to find
themselves in court for civil (not criminal) claims based upon state laws. Such cases could
include medical malpractice, motor vehicle accidents, or other civil claims, which could
also include claims of negligence outside the auspices of medical malpractice.
By now, it should be obvious that there are numerous laws that apply to EMS agencies and
providers. Those laws come from legislative action at both the state and federal level,
oversight agencies (again, at both the state and federal level), executive orders, and
case law as provided by the courts. Those who have been involved in EMS for any
period of time also recognize that funding is a consistent issue that seems to impact
all levels of government. The federal government is routinely involved
in local funding through grants administered by federal agencies such as Health and Human
Services or the Federal Emergency Management Agency.
Grant funding through the federal government can be a somewhat convoluted process, however,
as some grants may be awarded directly from the federal agency to the requester while
others must go through a state agency for distribution to local entities. Some grants
also require a local match of a given percentage of funding.
We will be discussing the difference between federal and state laws momentarily. With that
in mind, remember the structure of the federal government with its three branches: legislative,
judicial, and executive. That federal structure is very similar to
state structure as well. While Congress is the legislative entity at the federal level,
states have their respective state legislatures. Both levels have a judicial system with a
specific structure to the organization of their courts. The federal executive is the
President of the United States while the executive at the state level is the Governor.
While the structure of state government may be similar to that of the federal government,
there are some significant differences in terms of the roles played by the two levels
of government. In this regard, the laws passed at the two levels are commonly very different
in their scope and application. As mentioned previously, the federal government
is a government of limited powers. These limited powers, as defined within the Constitution,
include defense, foreign relations, foreign commerce, interstate commerce, protection
of constitutional rights, establishment of federal courts, copyright protection, coining
money, establishing a national set of universal weights and measures, establishing a post
office, and taxing as necessary to support these essential functions. (In case you were
wondering, the power of the federal government has indeed expanded over time under the auspices
of its ability to regulate interstate commerce along with the ability to tax and spend for
the greater good.) Anything outside the auspices of these specific categories falls within
the purview of the states to regulate. At this point, the book author tries to draw
a correlation between certification and licensing as a method of showing how state laws are
different from federal laws. The problem with this assertion is that, first of all, the
federal government itself does not necessarily credential EMS providers. While it is true
the federal government supports standardized EMS provider credentialing, that nationwide
certification is provided by a nongovernmental entity, the National Registry of Emergency
Medical Technicians; it is not provided by the federal government. The author also states
that most EMS providers are certified, not licensed. That is not the case in Wisconsin
where EMS providers are licensed to practice by the state. Initial candidates for licensure
must pass the National Registry certification examination, but need not maintain NREMT certification
to remain licensed. Once the provider has a license, the provider may not practice until
he or she is credentialed through a state-licensed EMS service.
Regardless of whether a provider is licensed or certified through the state to practice,
there is an inherent right to due process for the EMS provider if the state decides
to take action against the provider’s license or certification.
Within the text, the author refers to the Medical Practice Act as a single piece of
legislation. Unfortunately, this is a little confusing as there is no one, single federal
law that stipulates how medicine is to be practiced across the country. Outside the
auspices of laws that deal with medical care in a cursory fashion, such as Medicare, HIPAA,
or the PPACA, the regulation of the practice of medicine is an area of state purview. In
this regard, each individual state has its own laws governing the practice of medicine
within the state. Within Wisconsin, the primary statute governing the practice of medicine
is state statute 448. Keep in mind, however, that there are other laws that also impact
the practice of medicine within the state. As far as EMS is concerned, the primary law
governing the practice of EMS in Wisconsin is state statute 256. There are also regulations
within the state, typically under the Department of Health Services, that further define the
practice of medicine and EMS within the state. As is common across the country, EMS providers
in Wisconsin are licensed to practice under the auspices of a state licensed physician
utilizing a combination of online and offline medical protocols.
Ultimately, when we say there are are a lot of laws that apply to the practice of EMS,
it is important for the EMS provider to understand the sources of those laws.
First and foremost, there are statutes (laws) written and passed by the federal or state
legislative body (and signed into law by the chief executive). At the federal level, these
laws are referred to as the United States Code. In Wisconsin, they are called statutes.
One interesting facet about statutory law is that the average legislator typically lacks
subject matter expertise in the subject matter addressed by the law for which he or she is
voting. As an example, we have laws governing the practice of EMS within the state, but
these laws are not written by EMS providers or individuals who know anything about EMS.
Another example includes workplace safety and health legislation. Legislators are commonly
not industrial hygienists, so how can they possibly know enough about workplace hazards
and controls to write comprehensive laws about workplace safety? The answer is that the legislative
body typically does not write specific laws regarding a unique subject matter or profession.
Rather, the legislature creates what is known as enabling legislation that creates a governmental
administrative agency tasked with writing and enforcing regulations that specifically
address the nuances and idiosyncrasies associated with the subject matter. At the federal level,
those agency rules are called regulations and they are published in the Code of Federal
Regulations. Administrative laws in Wisconsin are commonly referred to as administrative
rule (or code). It is important to recognize that administrative
rule has the same force and effect of law as a statute enacted by the state or federal
legislature. Where things become interesting is that, despite
best efforts to the contrary, the language of statutes and rules are often open to interpretation.
One person may read a statute one way, while another reads the same statute and develops
a different understanding. If a controversy develops over the application of one of these
laws, it falls upon the courts to interpret the legislative intent of the law. These legal
decisions become a body of law unto itself, known as case law. Being able to read and
interpret a statute or rule is one thing. To truly understand how a statute or rule
applies to a specific situation, however, it is also necessary to check for any applicable
case law on the matter. Remember as well that the United States is
a common law country and we have laws that were not necessarily written by a legislature.
Over time, this judge-made law forms a body of case law that applies just as a statute
or rule. Given its significant impact on EMS, it is
important to understand how administrative (or regulatory) law works.
While the textbook author states that administrative law governs the creation and operation of
administrative agencies, that is not entirely correct. The law that governs the creation
and operation of an administrative agency is a statute (or code at the federal level).
The legislature creates an administrative agency through what is known as an enabling
statute. This statute creates the agency and defines is scope and purpose.
The regulations promulgated by the administrative agency itself are referred to as administrative
or regulatory laws. Once created, administrative agencies fall
under the purview of the executive branch of government.
To reiterate some earlier information, administrative agencies consist of subject matter experts
who follow a specific rule-writing process to garner input and feedback from interested
stakeholders. Once the administrative rules are in place, it then becomes the responsibility
of that agency to enforce the rules it wrote. Because these agencies are designed specifically
to address a particular industry or subject matter, it is not uncommon for administrative
rules to have a greater impact on the day-to-day functioning of business and industry than
the overriding legislative statute that created the agency in the first place. Compare Wisconsin
statute 256 and DHS administrative rule 110, for instance. DHS 110 is much more applicable
to the daily operations of an EMS agency and compliance with DHS 110, while just as important
as compliance with state statute 256, takes more effort as the scope of DHS 110 is broader
than than of state statue 256, impacting numerous aspects of providing emergency care within
the state. Within this broad body of statutory, administrative,
and case law, it is important to recognize the difference between criminal and civil
law. If someone commits a crime, it is considered to be a wrong against society as a whole.
The legal process in a criminal case is started by the government on behalf of the people.
Depending on the law that is broken, the stakes within the criminal justice system are substantially
higher for the criminal defendant as he or she may ultimately be deprived of liberty
by being jailed. (While Wisconsin does not have the death penalty, there are states that
do, which raise the stakes even higher.) In comparison, civil cases are started by an
individual or an entity to determine ultimate responsibility (or culpability) for wrongful
civil conduct and individual damages. Criminal cases find the defendant either guilty or
not guilty. The burden of proof in such a criminal case is beyond a reasonable doubt,
which is a pretty high threshold for the government to meet. The defendant in a civil case, however,
is found culpable or responsible, sometimes to a given percentage. A preponderance of
the evidence (a proverbial tipping of the scales) is all that is required in a civil
case to assign culpability to a civil defendant. Crimes are commonly broken down based upon
their severity. Misdemeanors are minor crimes, while felonies are major crimes. Within Wisconsin,
there are also fines and forfeitures, which are not actually considered crimes.
Of interest to note is that some wrongful actions can give rise to both criminal and
civil liability. An example would be when an ambulance driver fails to drive with due
regarding causing serious injuries or the death of another. Depending on the circumstances,
such an event could result in both criminal and civil liability for the ambulance driver.
We will discuss the differences between criminal and civil laws in somewhat greater depth later
in this course. For the time, being you should keep in mind that the repercussions of committing
a crime are typically more serious than a civil wrong. As opposed to paying damages
(as in a civil case), criminal punishments may include a fine in addition to the loss
of personal liberty through incarceration (jail time). Depending on the nature of the
crime, the EMS provider may also lose the ability to hold an EMS license or credential
within the state. EMS providers commonly have access to controlled
substances and a misuse or misappropriation of those medications can result in criminal
culpability as well. In a later chapter, we will discuss the Health
Insurance Portability and Accountability Act. Known as HIPAA, this federal law governs the
safekeeping of electronic patient information. For the time being, however, it is important
to understand that HIPAA violations (the unlawful release of protected health information) are
investigated by the Office of Civil Rights and infractions can result in criminal sanctions
(such as fine) as well as civil liability. Every jurisdiction defines their own scope
of practice for EMS providers. Within Wisconsin, DHS publishes a scope of practice for each
level of EMS provider within the state. Essentially, EMS providers function in the field under
the physician’s license held by their medical director. Practicing outside the scope of
practice can give rise to both civil or criminal offenses.
When considering legal requirements and potential for liability for EMS agencies and providers,
it is of critical importance to ensure adequate checks and balances are in place to ensure
laws are followed and potential legal risk is minimized.
Services must follow DEA requirements for storing and using controlled substances, which
includes maintenance of inventory records, secured storage, and adequate documentation
of use (and wasting). Minimizing Medicare, Medicaid, insurance,
and other fraud requires adequate billing safeguards be in place.
Quality assurance must be performed to identify potential shortcomings in care and correct
them to improve future patient care. Routine training is also important, not only
to maintain licensure or certification requirements as defined by National Registry or the state,
but to also ensure EMS providers are indeed competent. (In the event of a medical malpractice
lawsuit, for instance, some of the first documents subpoenaed in discovery are training records.)
When talking about individual EMS providers, checks and balances are in place to ensure
provider competency, which results in better care and, hopefully, better patient outcomes.
Some of these checks and balances include mandatory continuing education (such as refreshers),
relicensure/recertification requirements, driver’s license checks, criminal background
checks, personnel evaluations, and competency verification activities by the service medical
director. While better patient outcomes are the goal
of these checks and balances, they also serve the important purpose of ensuring compliance
with laws while minimizing legal risk exposure. If an effective system of checks and balances
is in place and followed, it should reduce the risk of investigations, fines, civil liability,
and maybe even incarceration for leaders, managers, and employees of the EMS agency.
There are numerous laws that apply to the field of EMS, and we will be discussing many
of them throughout the duration of this course. At this time, however, the textbook author
provides some examples, such as mandatory child or elder abuse laws, guidelines for
placing AEDs in federal buildings, and the regulation of the nation’s drug supply.
There are also numerous organizations and agencies that have a direct and profound impact
on the field of EMS. Some of these agencies impact the course, direction, regulation,
and enforcement of EMS practices, such as Wisconsin’s Department of Health Services
EMS Section. The National Registry of Emergency Medical Technicians provides for nationwide
credentialing of EMS providers, the National Fire Protection Association is becoming involved
in writing consensus standards for ambulances, and the Wisconsin Department of Transportation,
through administrative rule TRANS 309, delineates required equipment on ambulances. Numerous
agencies impact training and recertification, such as the Committee on Accreditation for
the Emergency Medical Services Professions and the NREMT. There are also countless other
entities that impact other aspects of EMS systems and their personnel.
The United States Department of Transportation is the parent agency for the National Highway
Transportation Safety Administration, which publishes national educational standards for
EMS. The Federal Emergency Management Agency provides
assistance to citizens and first responders in major disasters.
The United States Department of Health and Human Services, Office of the Inspector General,
provides guidance and information regarding compliance with, and enforcement of, federal
health care fraud and abuse laws. The Drug Enforcement Administration regulates
the sale, distribution, storage, and use of controlled substances.
The Food and Drug Administration regulates medications and medical devices.
The Department of Labor enforces the federal wage and hour laws (particularly those within
the Fair Labor Standards Act). The Office of Civil Rights is involved in
the enforcement of HIPAA Privacy Rule provisions. To round out the list provided by the author,
the Health Resources and Services Administration works to improve access to health care services
for people who are uninsured or medically vulnerable.
Needless to say, this is just the proverbial tip of the iceberg when looking at organizations
and agencies that impact EMS. There are numerous other agencies and organizations that regulate
or impact EMS at both the federal and state level that have not been included in this
specific presentation. Keep in mind that this discussion has not included much information
on Wisconsin-specific EMS laws or agencies, which adds another layer of regulation and
oversight to EMS agencies and providers. To reflect on the initial scenario presented
at the start of this presentation, what would you do to handle the female patient’s complaint
against your employee? Obviously, such a complaint must be shared
with higher management. While the police are already involved in this particular case,
their involvement is important in other similar cases to determine whether or not a crime
may have occurred. (As an employer, you have a certain level of due diligence that must
be performed and you cannot simply stick your head in the sand, so to speak, and hope the
problem goes away. If you fail to take appropriate steps, you the agency may expose itself to
additional liability.) Ideally, your agency would have taken proactive
steps to prevent complaints of this nature in the first place. If transporting an unconscious
patient, whether male or female, two providers in the back of the ambulance are preferred
as they can corroborate the events that occurred and serve as a check and balance for each
other. Quality documentation of the run is also of paramount importance.
What about some other common situations? If a provider is at a crime scene and discovers
drugs or weapons on a patient, involve the police. This is not a HIPAA violation, nor
is it typically considered a Fourth Amendment search and seizure.
If the provider is treating a patient that is suspected to be under the influence of
drugs or alcohol, the EMS provider’s first responsibility is to take care of the patient.
Within Wisconsin, the Patient-Physician privilege does not extend to an EMS provider, so it
is permissible for that information to be shared with law enforcement (which, again,
is not considered a HIPAA violation). To conclude this module, EMS has evolved quite
a bit over the years. Within this timeframe, federal and state laws have been passed and
interdisciplinary agencies have been formed to manage and oversee the delivery of EMS
services. As an EMS leader, manager, or provider, it is absolutely critical to be aware of the
various laws that affect EMS. Additionally, it is important to understand
that violating laws that govern EMS can lead to personal civil and/or criminal liability.
To reduce the incidence of such occurrences, there are systems of checks and balances built
into every EMS system. As an EMS leader or manager, it will be your job to not only enforce
those checks and balances, but to also modify them, ensure they are working, and propose
new ones, especially in light of new laws that may be passed.