TEN MOST ASKED
EMS LEGAL QUESTIONS
By Frank Foster
These answers are just succinct and to the point answers and each situation has to be interpreted a little differently and invariably as even a slight variation in facts can have a profound variation in legal outcomes. So this little Q. and A should never be a substitute for a full discussion with your legal counsel of the issues at hand. Nonetheless with that disclaimer in mind hopefully the following will be helpful in getting that essential dialogue productively started.
10. Role of Law Enforcement
A. Interference at the Scene
The best rule of thumb is that crowd and traffic control be in the hands of law enforcement and patient care, including when to depart the scene and selection of destination facility with consultation with medical control be with EMS. Michigan has a state statute on the matter. At this juncture state legislation is unlikely and state rule writing on this subject is even less likely. The best written guidelines that I can find are a set written in 1982 by the State Advisory Council on EMS. At any rate regardless of Guidelines written at any level no set of Guidelines can be self implementing or substitute for communications both as a part of joint EMS and law enforcement planning (away from the stresses of the scene) and at the scene of emergencies themselves.
B. EMS and Blood Alcohol Testing
Most of my clients do not engage in this service to law enforcement. I still caution against this practice because This practice can divert EMS’s attention away from the primary task of patient care. Considerable court time can be wasted waiting and giving testimony. This practice can result in public relations challenges when EMS gets involved in revocation of driving privileges. Fourth Amendment prohibitions against unreasonable searches and seizures and Fifth Amendment prohibitions against self incrimination can generate claims that can be filed against units of government (private entities can be sued under tort under but not 42 USC 1983 –no “state action” present) via 42 USC 1983 which is an exception to sovereign immunity, official immunity, and the Missouri Public Duty Doctrine (see question 1 below). In my view the legislative history behind section 577.029 RSMo clearly points to in-hospital laboratory technicians and not EMS. The section that added an order to arrest authority in 2001 (577.020-1(6) RSMo) in my mind still does not change the scope of practice and training issues. In the case of Smith v. Director of the Department of Revenue, 77 S.W.3d 120 (Mo. App. W.D. 2002) the Court refused to reverse an administrative revocation of a drivers’ license on the basis that the paramedic lacked training or authority to conduct the test BUT acknowledged that if this issue had been raised below it might have been highly relevant.
For my clients that insist on going down this route I have developed consents, waivers of liability, and indemnification by law enforcement forms.
9. Wage & Hour Issues
A. The 7k Partial Exemption
Police and fire agencies have a partial exemption before any overtime is owed. The partial exemption is 181 hours/per a 28 day period for police and 212 hours for fire per a 28 day period. If your employer is a fire or police agency the partial exemption is indeed available. The Division of Wage and Hour says the exemption is available for EMS too if the employer can show a high per centage of fire or police calls and extrication training. However, the court cases have been highly inconsistent. Wage and Hour issues always have two bodies of law: The interpretations by the Division; The private cause of action law suits (with the potential for double the unpaid overtime and attorney’s fees). Because of the inconsistency in the latter category I advise stay away from 7 k unless you are a fire department.
B. Deduction of Meals and Sleep Time
If truly free to eat the meals without interruption and if five hours of uninterrupted sleep is achieved during an eight hour sleep shift, the sleep shift can be deducted. Because of the documentation issue few EMS agencies are bothering with these deductions from compensatory hours. However, technically they are there, provided you can also document a prior agreement with the employees to deduct these period from compensatory time.
C. On-Call Time as Non-compensatory Time
On-call time can be treated as non-compensatory time, provided the restrictions on personal freedom are not so severe that the time can not be used effectively as the employee’s own time. 10 minute rural, twenty minute urban response times as a guideline seem to be acceptable. Pagers or cell phones seem satisfactory. No use of alcohol seems satisfactory. Show up in uniform requirements seem to be permissible. There must be an agreement on these matters. The agreement does not have to be in writing, but without a written agreement, how do you prove what was agreed to? To avoid such ambiguity is why for all of my clients I have developed a standard written agreement to cover these issues.
8. The Role of First Responders
The old Chapter 190 RSMo good Samaritan legislation is gone and the 537.037 Good Samaritan section covers the only gratuitous non-duty rendering of assistance. Good Samaritan statutes only immunizes for something less than gross neglegince anyway. The Volunteer Immunity for a Board only protects private entities (537.117 RSMo), and the volunteer immunity statute section 537.118 RSMo permits negligence suits anyway.
The 1998 statute licenses advance life support first responder organizations (EMRA’s), but leaves the rest of the first responder universe to local control. In order to establish standards, minimize vicarious workers’ compensation issues, but also maximize the availability of governmental immunities to the first responders and their organizations, I have developed for my clients Model Ordinances and Mutual Aid Agreements that reflect these needs and concerns.
7. Medical Director’s Role and Responsibilities
The 1998 legislation moved us from mere medical advisors to medical directors who have a co-responsibility with ambulance administrators to restrict the scope of practice on questionable EMS practitioners (190.103-3 RSMo) and services are mandated to conduct quality assurance/quality improvement reviews as condition of licensure. An Agreement with the medical director on Roles and Responsibilities is also a mandatory condition for licensure.
Liability for EMS Medical Directors remains very low although this experience rating does not seem to be reflected in insurance rates. Legislative clarification that the mandatory Q.I./Q.A. activity should be protected from civil discovery as Peer Review Activity has been frustratingly slow in forthcoming with legislation in the offing this Session as well.
6. Communication to EMS on Exposures to Communicable Diseases
That EMS be informed by hospitals and other facilities of exposure to communicable diseases was established by the Federal Ryan White (42 USC 300 ff-86-90) legislation over twenty years ago, by state statute (192.800 et seq.) over twelve years ago, and by State regulation (19 CSR 30-40.047). A corresponding training regulation was allowed to lapse (19 CSR 30-40.048) but the underlying regulation is still on the books.
Advance notice for purposes of precautions plus after the fact learned exposures make an eminent amount of sense, but alas compliance issues to this day are astoundingly still occurring.
5. Choice of Medical Facility Versus the Necessity to Maintain Adequate Confidence Availability for Emergency Calls
Sometimes the decision arises in the context of scene response and the family is insisting on going to a more distant facility. The patient’s wishes are a preferred right but can not be in all contexts an absolute right. The patient’s condition, the distance, trauma center rules and designations, air ambulance availability, weather conditions, road conditions, the quantity of vehicles and personnel that would be left within the county or district are just some of the variables that might point to a diversion to a closer facility. I believe the implied consent statute gives EMS this flexibility (431.063 RSMo). I have developed a “Choice of Medical Facility Contrary to the Advice Given” form as away of educating patients and their families about these variables.
In the context of setting reasonable limits on distance, time of day, and only going to certain facilities, I advise my governmental clients to adopt in Ordinance form a transport protocol approved by the services medical director. The Ordinance authority of ambulance districts has been strengthened by recent case law and such Ordinances do have the full force weight and effect of law.
4. Bidding and Sunshine Law Requirements
A. Bidding Requirements and Ambulance Districts
Ambulance districts are exempt per A.G. Opinion Sears 90-96 from the general county bidding statute (50.660 RSMo) which has a $4,500 threshold. Self dealing with Board members in an amount that exceeds $500 per transaction or $5,000 per annum must be bid per 105.454 RSMo. Medical insurance must be bid every three years (376.696 RSMo) and life and accident policies every six years (67.150 RSMo). Telephone bids for where to deposit money should be obtained at least every four years (110.030 RSMo). For entities with population under 500,000 population negotiations with three candidates in lieu of bids for architectural or engineering services are permitted. Disposition of used property or equipment does not require bids but due business diligence is required.
B. Sunshine Law Deviations from 24 Hour Notice and From Agenda
While true the public notice requirement is twenty-four hours or more, in emergencies the public entity can deviate from the twenty-four hour plus notice requirement by documenting the nature of the emergency.
Also the Sunshine Law requires that the Notice reasonably apprise the public of the topics for the agenda (see 610.020-1 RSMo). Not to allow any deviation from the agenda would in my view constitute an unconstitutional prior restraint on speech, and preferred governmental policy speech at that! So if your elected officials have to deviate from the published agenda, they are free to do so. Note further that the Sunshine Law has certain fines and potentially injunctive relief to prevent further future violations, but provides no basis for challenging the validity of any action taken.
3. Ambulance District Board Procedures
A. Appointment of Vacancies
Section 190.052 RSMo allows the Board to make appointments to vacancies. The reference to sixty days in section 190.052 RSMo is not a maximum before the Board must act, but rather is a minimum before the Board can optionally use the County Commission to make the appointment. If the Board makes the appointment, the appointee must undergo election at the next Board election. If the Commission makes the appointment, then the appointee can serve out the full unexpired term. The Attorney General’s Office has ruled that meetings on candidates for an appointment is not in the category of personnel action (see 610.021(3) RSMo) and therefore must be an open meeting.
B. Attendance Requirements and Implied Resignation from Office
Despite the provision of section VII s 12 of the Missouri Constitution that office holders are presumed to hold office until duly succeed by their successors, I also believe the following to be legally valid. Section 190.055-1 RSMo establishes an ambulance district by-law authority. Section 190.055-2 RSMo requires that a board member devote sufficient rime to the office as to faithfully discharge his or her duty thereto. Therefore combining the two sections empowers ambulance districts (see also the Elastic Powers Clause in 190.060-1 RSMo) to establish reasonable attendance requirements, the violation of which can or could be a basis for applying the doctrine of implied resignation from office. If the application of the implied resignation from office doctrine becomes a matter of dispute the matter could then be referred to the County Prosecutor or Attorney General’s Office for a quo warranto proceeding. A letter of notice as to this possibility often resolves these problems in either a voluntary resignation or improved attendance.
C. Oath of Office
Although there is a format for the Oath of Office as set out in section Article VII s 11 of the Missouri Constitution, there is nothing preventing expansion on the Oath to remind office holders of other legal requirements such as the duty to keep closed minutes and close records closed, and to comply with other legal requirements and fiduciary duties applicable to the Office. For some of my clients I have provided an expanded version of the Oath of Office to remind certain office holders of their fiduciary duties.
2. Do Not Resuscitate Orders
Missouri’s Living Will legislation has as a standard “no death prolonging action” in it, so it does not follow the Uniform Act on Living Wills. The authors of the Durable Medical Power of Attorney Statute have said that it was not designed to address the prehospital EMS setting. The regulation underpinning the Orange Form was allowed to lapse due to budget issues and the passage of the 1998 legislation which replaced the legal basis for the regulation.
So until legislative clarification occurs, we are reliant on blanket refusals of care, local protocols, and on line medical control advice.
1. Availability of Governmental Immunities and Some of the Exception Areas
Sovereign immunity for the governmental entity (except for capped exposure to liability in the area of vehicular accidents) is retained in Missouri, as is the doctrine of official immunity for discretionary decision making and the Missouri Public Duty Doctrine defense which holds that if the duty is owed by the public employee to the public at large there is no liability for its negligent rendition or non-rendition. Ambulance districts retain these immunities even despite the purchase of insurance (see 190.060-1(90 RSMo).
The old post civil war civil rights statute section 42 USC 1983 can pierce these immunities. Therefore to have 42 USC 1983 claims coverage as a part of your entity’s errors and omissions coverage is essential. In allegedly egregious cases you can even be named in your individual capacities. 42 USC 1983 can be used to assert against a governmental entity any federal right not otherwise secured by statute including constitutional rights of privacy, speech (employee whistle blowers especially), association, and religion.
Also sans a union agreement, Missouri is an employment at will state. However, both state and federal statutes prohibit discrimination on the basis of race, sex (includes harassment, pregnancy, child birth and related conditions), national origin, age over 40, disability, complaints of discrimination, harassment or wage and hour, participating in investigations thereof, participating in union organizing activity, taking FMLA leave, or taking military leave. Whistle blowing on matters of public concern are also protected. Therefore, Employment at Will is very narrowly proscribed by these federal statutes and their state equivalent.
Recent court decisions indicate that punitive damages against supervisors under the Missouri Human Rights Act are now available. Legislative efforts to correct these court cases remain pending and problematic at the time of this writing.
So employment law areas and not patient care areas remain our biggest area of liability exposure.
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