Fire Law: Legal Factors in EMS Judgment Calls

July 7, 2011

Earlier this year, the city of Detroit, MI, overhauled the dispatch procedures used by its EMS system to give dispatchers discretion to refuse ambulance service to certain callers. Detroit’s dispatch policy is part of a larger overhaul of an EMS system that has suffered in the past. City officials acknowledge that ambulance response times average about 12 minutes, 50% above the national average. Critics complain about broken equipment, staffing shortages and other serious problems.

Last year, the city of Cleveland, OH, cut back responses to certain types of EMS calls. Cleveland EMS revised its dispatch policy to defer responses to lower-priority calls until all advanced life support (ALS) responses have been handled, and 10 ambulances are available for service.

The Los Angeles, CA, Fire Department announced in April a complex new plan to reduce the number of engine companies, but to upgrade others to paramedic companies, as a way to increase EMS response capabilities in the face of budget reductions. The plan involves a number of staffing changes and has drawn strong criticism from the union.

The changes in these three large cities represent only a few of the many approaches that fire-EMS departments of all sizes are taking to revise their response policies in reaction to the twin needs to address city budget cuts and upgrade emergency medical services. Local governments everywhere are facing huge budget gaps and pressure to reduce services or operate more efficiently. And, EMS systems are facing increased demands as well as increased scrutiny of their performance.

Every local government makes a judgment about which types of calls require an emergency response and which do not. And, policies vary widely among departments across the nation about the level of response for each class of call. There is no single correct answer to the question of what is the best policy.

Although we may not like it, there are legal as well as medical factors that must be considered in each department’s answer. Jurisdictions must consider what are legal risks are created by its response policy and what are the legal risks in changing response policies.

The U.S. Supreme Court has held that states have immunity from liability as a fundamental aspect of their sovereignty. However, as a result of both court decisions and tort-claims laws enacted by state legislatures, that immunity isn’t complete. Fire departments have been sued successfully for lapses in EMS operations.

While laws vary from one state to another, the basic distinction between acts that are immune and those that are not is whether the alleged wrongful act was “discretionary” or “ministerial” in nature. The first category involves actions that require some form of governmental judgment, such as where to locate fire stations and what resources to send to an emergency. The second category includes actions that do not involve such discretionary judgment, such as the type of treatment given to a patient.

Changes in response policies implemented by these three cities and others likely will be protected by sovereign immunity. These are the types of resource-allocation decisions that are inherently governmental in nature and that we expect governmental officials to make, even if we disagree with the outcome of their decision making. However, it is an open question as to whether changes such as these may increase the risk of ministerial errors and the resulting exposure to liability. Call-takers and dispatchers everywhere are expected to triage calls to determine which resources should be dispatched. Courts easily could construe this to be a ministerial activity, not subject to any special governmental judgment. Medical professionals are frequently called on to make these kinds of decisions.

These new policies add complexity to the dispatcher’s job and place increased pressure on dispatchers to get it right. Regardless of a jurisdiction’s response policy, there is always a risk that dispatchers will send a response that delays responders’ arrival at a true emergency or sends inadequate resources. But, the new policies in Cleveland and Detroit go one step further because dispatchers are making decisions to send no one at all in some cases.

Balanced against these liability concerns are the very real risks of doing nothing. Washington, DC, suffered enormous consequences, both legal and political, several years ago following a delayed response to an EMS incident. The tragedy was compounded by an ambulance crew’s misdiagnosing a head trauma from a street mugging as drunkenness. There are press stories from other cities about similar EMS system failures and the resulting legal liabilities.

Some have argued that the scope of sovereign-immunity protection has been narrowed, largely by expanding the definition of what ministerial actions include. This trend should not be surprising, given the political trend toward increased privatization of government functions in general. If a function, whether it is making dispatch decisions, performing emergency medical procedures on the street or driving an emergency vehicle, is being done in the private sector, then it is likely to be excluded from sovereign immunity protection. Departments of all types would be well advised to follow the example of Detroit, which referred its proposed policy to its lawyers before fully implementing it.

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