1

ER arrives for a somewhat confused patient. Her speech is slurred, she has no balance. Her husband has very limited English and calls his son to translate via Skype. The paramedics warn about the danger of contracting covid-19 in ER and asks the patient whether she wants them to drive her to ER. The patient doesn't quite understand what's going on and says "no". The son asks the paramedics via Skype to evaluate her and make the decision. The paramedics reply that they don't see anything wrong with her. The daughter-in-law, an RN, tells them via Skype that the patient may have a stroke and they should take her to ER. They reply that they have to go with what the person present tells them. They leave. The patient indeed had stroke and, due to 24-hour delay, her condition worsened significantly and irreversible. Is the paramedic company liable?

3

Maybe, but probably not, although this would be a question of fact to resolve on a case by case basis under broad legal standards by a jury, and would also depend upon the state where it took place, and upon the nature of the employer of the paramedic. The hypothetical facts in this case are rich enough and ambiguous enough that the case could go either way depending upon how it was presented and what could be proven at trial.

This is a case it would be good to take to a medical malpractice/personal injury lawyer in the jurisdiction where it happened to be evaluated. Usually a PI lawyer would not charge you for doing so or would ask for only a nominal fee. Additional factual investigation would probably also be necessary regarding some of the key facts identified below.

It's complicated and there are multiple issues presented in this case where the law is not uniform from state to state.

The general rule is that a medical professional has to carry out the delivery of medical care to a patient with the reasonable care that would be taken by a medical professional of that type. If the medical professional fails to take reasonable care, and that negligence failure to do so causes injury, then there is civil liability for medical malpractice.

  • A threshold issue would be whether a medical professional-patient relationship was established. This would be a question of fact for a jury and would be a question upon which various potentially applicable state and federal laws would often not be uniform. On these facts, it could easily go either way.

  • In federal court and in a majority of state courts (although there is variation from state to state) you need to know the name of the paramedic you dealt with who provided the bad advice to bring a successful lawsuit before suing. In a minority of states, you could sue first and get the name of the paramedic in discovery through the court process from the hospital after the lawsuit was commenced.

  • The standard of reasonable care liability in this case would be judged by the standard of a reasonable paramedic, not a reasonable doctor. But, often states would have statutes that would limit the liability of paramedics in these situations to liability for gross negligence (which the facts in the question would probably not suffice to show), but not for ordinary negligence (which a jury could come out either way upon and which would hinge heavily on expert testimony). These tort reform type laws differ considerably from state to state.

  • Whether or not particular conduct was negligent or grossly negligent, is a question ultimately decided by a jury under very broad and general legal standards after the fact in a trial, based largely upon expert testimony, on a case by case basis, unless the facts are unequivocally clear one way or the other, which is rarely the case. With my layman's level of knowledge about what a reasonable paramedic should be able to diagnose, I could see this determination going either way. Two cases with identical facts in front of the same judge in separate trials, in which juries are presented with exactly the same evidence could come out differently. The resolution of one case of the question of whether a particular act constituted negligence giving rise to liability is not binding as precedent and is not admissible as evidence in another case (subject to a narrow exception called "collateral estoppel" which applies when the same individual is sued by multiple people for the same conduct in different lawsuits that have resulted in final orders resolving key questions of fact that the lawsuits have in common).

  • Many states would require that someone suing the paramedic have a medical professional certify that the paramedic's actions constituted legal negligence before the suit could go forward in a court.

  • If there is a medical professional-patient relationship, and if the medical professional was found to have negligently caused injury, the medical professional's employer would have vicarious liability in some (but not all) states under a respondiat superior doctrine.

  • Usually, the paramedic at an ER would be an employee of a private EMS ambulance company or a municipal fire department, and not of the hospital that runs the ER. But, some hospitals have their own in house paramedics. Also, some hospitals are run by for profit or nonprofit private companies, some are state or local governmental agencies, and some a federal government agencies. Usually only a small minority of the medical professionals in a hospital are employed by that hospital, and most of them merely have "privileges" to provide medical services for which they bill patients separately while working for their own professional corporation through which they are self-employed. Legally, the hospital itself is more like a hotel or a WeWork office space than to being a firm that directly provides medical services, although it isn't quite that black and white.

  • Holding the ER directly responsible for failing to have good triage policies, as opposed to holding the paramedic responsible and assigning vicarious liability to the employer of the paramedic, would be very difficult, although not necessarily impossible if the ER had official policies that fell far below the standard of care for emergency room triage. It would be very uncommon for an ER to have bad policies of this type. Typically, ERs are only held directly liable for bad triage policies when, for example, they have a policy of not evaluating at all someone who does not have health insurance, which is a practice expressly prohibited by federal law.

  • If the paramedic's employer was a government entity such as a fire department or a government owned hospital, the paramedic would be entitled to absolute immunity from civil liability under the doctrine of sovereign immunity, unless an exception applied. Usually there is an express exception to absolute immunity for medical malpractice liability by a medical doctor who has established a doctor-patient relationship with a patient, when the medical doctor is employed by a state or local government, usually there isn't when the doctor is employed by the federal government. But these laws differ from state to state in fine details that matter in a case like this one regarding whether the exception to immunity from liability is limited to medical doctors or applies also to paramedics.

  • Causation would also be an important factual issue for trial. There is liability only to the extent that taking a non-negligent action could have prevented the harm. If you are infected with COVID, one common consequence is a stroke, and if someone had a stroke while infected with COVID, the case that taking them to the ER would have prevented the stroke from doing serious damage in the long run is weaker. On the other hand, guessing that a stroke was really something else, might or might not be reasonable. The injured person would also have to prove that the EMS response occurred at a time within the roughly 1-2 hours after the start of a stroke when it is possible to take medical action that could do something about a stroke. If the stroke had already happened an hour and a half later and it was rush hour and would have taken half an hour to get to the nearest hospital, causation might be absent and there would be no liability.

  • There would be a legitimate question of fact over whether there was an actual diagnosis and treatment, or whether there was a refusal to get treatment.

  • The reasonable care test is a balancing test. It takes into consideration not just the potential benefits of taking action, but also the cost that would be incurred if action was taken, and the downside risks of a proposed action. The paramedic's concerns about getting a COVID infection at the ER when the person responded to didn't appear to have it at the time would make the cost of a false positive diagnosis higher and would thus influence what would constitute reasonable care in this situation as the jury applies the relevant legal test.

  • Liability would be evaluated based upon what the paramedic reasonable understood he was being told. This would be a question of fact for the jury. It is likely that different people who were present understood what was being said differently. Even if bystanders understood what was being said and meant, what matters is what the paramedic reasonably understood was being said and meant. Given the communication difficulties involved, that question could go either way.

| improve this answer | |
  • Absolute Immunity is something that only recently appeared as something District Attorneys have in some regards... I think you mean Qualified Immunity, which is a specific term of art. – Trish Jul 23 at 15:45
  • @Trish I am being very careful about how I use the terms "absolute immunity" and "qualified immunity" here. Qualified immunity is the newcomer that arose in civil § 1983 cases by judicial decree where there was previously no immunity. Absolute immunity in contexts of sovereign immunity, judicial immunity, and immunity for the discretionary prosecutorial actions of prosecutors, is the older concept (but not litigated much, because "why sue someone who clearly has absolute immunity?"). A § 1983 suit is allowed notwithstanding absolute sovereign immunity because of the Supremacy clause. – ohwilleke Jul 24 at 17:46
1

If they are alive and appear competent at the moment the EMT arrives, the patient has near absolute right to refuse treatment. If they do so, the responder has to back off and stop treatment.

Only in life threatening situations treatment can be forced upon a conscious and seemingly competent patient. I mean treatment in a situation where you are skewered by a streetlight or hanging from a noose, when denying it is a clear sign if you lacking competence.

However, it's hard to take apart being disoriented from not understanding what is said to you due to the language barrier - and not the job of an EMT. The patient told them to back off and that she didn't want to go to the ER. There was no legal guardian who could have overruled her non consent to being transported to ER, so there is very little grounds to fight the EMT or their employer.

Would she be unconscious or incompetent, the EMT has much broader ability to force treatment under the Good Samaritan clauses keeping his ass safe but if someone seemingly competent denies it, they can not help because that would be assault or kidnapping.

| improve this answer | |
  • Thanks, Trish. To clarify, she was conscious, but, due to the stroke barely coherent, as many stroke victims are. She said "no", but she didn't understand her condition, and IMHO wasn't competent to refuse, although it sounds like EMTs misread her condition as competent and listened to her. So, I guess, the question is "if they diagnosed stroke should they override her objections, and should they have been able to diagnose her?" – Michael Jul 23 at 22:04
  • EMTs are typically not doctors who are trained to diagnose illnesses and might not even be allowed to diagnose besides some objective cases! In my jurisdiction, doctors are carted to the EMTs on site to decide if a patient can be transported or to decide on the apparent competency of the patient. But we also treat any body that has no injuries that are "not totally incompatible with life" (such as beheaded) as alive till a doctor declares them dead. – Trish Jul 23 at 22:09

Your Answer

By clicking “Post Your Answer”, you agree to our terms of service, privacy policy and cookie policy

Not the answer you're looking for? Browse other questions tagged or ask your own question.