Chapter 3: Legal and Ethical Issues in EMS
I.
The Scope of Practice—Legal Duties
A. Scope of practice is the actions and care that the EMT is legally allowed to perform by the state in which he is
providing medical care.
B. Standard of care is the care that is expected to be provided by an EMT with similar training managing a
patient in a similar situation.
C. Duty to act is the legal obligation to provide service, whether you think the patient needs an ambulance or not.
1. On duty you are required to care for a patient who requires and consents to it.
2. Off duty you may or may not be required to stop and render aid, depending on the state.
3. If you are off duty and publicly respond to a page for assistance at an emergency call or if you come
across a scene and decide to stop and provide emergency care, you create a duty to act.
4. Duty to patient
a. Respect the right of the patient.
b. Maintain the patient’s privacy and confidentiality.
c. Provide complete and competent care.
5. Duty to self—Credentials and physical and mental health
6. Duty to partner—Ensuring partner is physically and mentally fit
7. Duty to equipment—Ensuring equipment is in working order
D. Good Samaritan laws protect a person who is not being paid for his services from liability for acts performed
in good faith unless those acts constitute gross negligence.
1. Most states have laws authorizing EMTs to perform prehospital emergency medical procedures without a
medical license.
2. Always render care to the best of your ability, work within your scope of practice and standard of care,
behave in a professional manner, and ensure that you have adequate liability insurance.
E. Other legal protections
1. Sovereign immunity (governmental immunity) prevents persons treated by governmentally operated EMS
systems from suing the government for civil liability.
2. Each state has a statute of limitations relative to negligence claims, meaning that the patient only has a
certain amount of time to file a negligence claim following the event or from the point of discovering the
problem existed.
3. Contributory negligence exists when there is a finding that the patient, through his own negligence,
caused or contributed to the damage that was done to him.
F. An EMT’s legal right is contingent upon medical direction.
1. Follow standing orders and protocols, as approved by medical direction.
2. Establish cell phone, telephone, and radio communications with medical direction when appropriate.
3. Communicate clearly and completely with medical direction, and follow orders medical direction gives in
response.
4. Any time there is a question about the scope or direction of care, consult medical direction.
II. The Scope of Practice—Ethical Responsibilities
A. Serve the needs of the patient with respect for human dignity and without regard to nationality, race, gender,
creed, or status.
B. Maintain skill mastery. Demonstrate respect for the competence of other medical professionals.
C. Keep abreast of changes in EMS that affect patient care. Assume responsibility in defining and upholding
professional standards.
D. Critically review performances, seeking ways to improve response time, patient outcome, and
communication. Assume responsibility for individual professional actions and judgments.
E. Report with honesty. Hold in conference all information obtained in the course of professional work unless
required by law to divulge such information.
F. Work harmoniously with other EMTs, nurses, physicians, and other members of the health care team.
III. Issues of Patient Consent and Refusal—Types of Consent
A. The conscious, competent, and rational patient has the right to accept or refuse emergency medical care.
B. Informed consent is permission for care given after the patient has been informed of the care to be provided
and the associated risks and consequences.
1. Inform the patient that you would like to perform an assessment, provide emergency care, and transport
him to a medical facility.
2. Do not touch a patient’s body or clothing without first obtaining the proper consent.
C. Expressed consent is obtained from every conscious, mentally competent adult before treatment is started
and includes either verbal confirmation or nonverbal cues such as nodding.
D. Implied consent occurs when you assume that a patient who is unresponsive, who is not competent, or who is
unable to make a rational decision would consent to emergency care if he could.
E. Consent to treat a minor must be obtained from a parent, legal guardian, or other person who has been
granted limited rights of decision making by the parent or guardian.
1. Implied consent is used in the absence of a parent or guardian.
2. Document the circumstances in making the decision to render emergency care.
F. Involuntary consent can be applied when you are dealing with a mentally incompetent adult or with an
individual who is in custody of law enforcement or is incarcerated and often involves a third party.
IV. Issues of Patient Consent and Refusal—Advance Directive
A. An advance directive is a legally recognized document, signed by the patient, that states the chronically or
terminally ill patient’s wish not to be resuscitated and legally allows the health care provider to withhold
resuscitation
B. Types
1. Do not resuscitate order (DNR)—Most often governs resuscitation issues only
2. Living will—Often used to cover more general health care issues, including long-term life support and
feeding tubes
3. Durable power of attorney (health care proxy)—Designates a person who is legally empowered to make
health care decisions for the signer of the document if he is unable to do so for himself
4. Physician orders for life-sustaining treatment (POLST)
a. Used in patients with serious or terminal illness who are not expected to survive for longer than one
year
b. Designed to allow the patient to choose and express the level of treatment he desires in the case of
deterioration prior to the need for resuscitation
C. Check the validity of any advanced directive such as a DNR and follow laws and protocols for your state.
D. When faced with questions about whether or not to provide care, err by providing treatment.
V. Issues of Patient Consent and Refusal—Refusing Treatment
A. Competency
1. A competent person is one oriented to person, place, and time.
2. A competent person has the right to refuse care even if it results in the patient’s death.
3. When in doubt, always err in favor of providing care to the patient.
B. Protecting yourself in refusal situations
1. Try again to persuade the patient to accept treatment or transport to a hospital by explaining why
treatment or transport is essential.
2. Make sure the patient is competent and able to make a rational, informed decision.
3. Consult medical direction as needed, or as required by local protocol.
4. If the patient still refuses, clearly document what was told to the patient and his response.
5. Have the patient (and possibly a witness) sign a refusal form.
6. Before you leave the scene, encourage the patient to seek help if certain symptoms develop.
7. If you are unsure whether the patient is able to make a rational decision or not, contact medical direction.
VI. Other Legal Aspects of Emergency Care—Negligence
A. In a criminal liability case, the government, on behalf of the public, brings legal action against the EMT, and
the EMT faces a possible fine or incarceration.
B. In a civil liability case, an individual (plaintiff) files a lawsuit for monetary compensation against an individual
EMT, the EMS agency or company, or others involved with the patient’s care.
1. Tort—A wrongful act, injury, or damage
2. Negligence—A tort in which there is no intent to do any harm to the patient but in which a breach in duty
to act occurred
3. Four elements the plaintiff must prove
a. EMT had a duty to act.
b. EMT breached that duty to act.
c. Patient suffered an injury or harm.
d. Injuries were the result of the breach of duty.
4. Res ipsa loguitur—Concept used in cases where a care giver’s inappropriate actions are obviously that
cause of patient harm
5. Negligence per se—Act is considered to be negligent simply because it is in violation of a statute or
regulation such as written EMS protocols or approved scope of practice
C. Duty to act—Obligation of the EMT to respond to the scene and provide emergency care to the patient
D. Breach of duty to act
1. Negligence—Deviation from standard
2. Simple negligence—EMT fails to perform care or makes a mistake in treatment.
3. Gross negligence—Willful, wanton, or extremely reckless patient care far beyond being negligent or
careless
E. Damages—Must be real, demonstrable, and recognizable by law
F. Proximate cause—Injuries suffered by the patient were the direct result of the EMT’s negligence.
VII. Other Legal Aspects of Emergency Care—Intentional Tort
A. Act knowingly committed by an individual that is considered to be civilly wrong according to law
B. Types
1. Abandonment—Stopping treatment of the patient without transferring the care to another competent
professional of an equal or higher level of training and certification or licensure
2. Assault—Willful threat to inflict harm on a patient; can occur without actually touching the patient
3. Battery—Act of touching a patient unlawfully without his consent
4. False imprisonment or kidnapping—Intentionally transporting a competent patient without his consent
5. Defamation—Releasing information to the public in either written or spoken form that is construed to be
damaging to that person’s character, reputation, or standing within the community
a. Slander—Spoken form of defamation
b. Libel—False or damaging statement in written form or via mass media
VIII. Other Legal Aspects of Emergency Care—Confidentiality
A. Do not speak to the press, your family, friends, or other members of the public about details of the emergency
care you provided to the patient.
B. Most of the time, releasing confidential information requires a written release form signed by the patient or a
legal guardian.
C. Circumstances that do not need a patient’s or guardian’s permission to release confidential information
1. Another health care provider needs to know the information in order to continue medical care.
2. An official public health or governmental agency requires mandatory reporting of information related to
your contact with the patient.
3. You are requested by the police to provide the information as part of a potential criminal investigation.
4. A third-party billing form requires the information.
5. You are required by legal subpoena to provide the information in court.
IX. Other Legal Aspects of Emergency Care—Health Insurance Portability and Accountability Act
(HIPAA)
A. Federal law that protects the privacy of patient health care information and gives the patient control over how
the information is distributed and used
B. EMT practices in regard to HIPAA
1. You will be limited to discussing patient-specific information only with individuals with whom it is medically
necessary to do so.
2. You will be trained on specific policies and procedures regarding privacy issues by your EMS agency.
3. You are the patient will be provided with the policies and procedures.
4. Your EMS agency will have a designated Privacy Officer who will oversee HIPAA regulations.
X. Other Legal Aspects of Emergency Care—COBRA and EMTALA
A. Federal regulations that ensure the public’s access to emergency health care regardless of ability to pay
B. Prevent discrimination in medical care and patient dumping
C. EMS personnel are affected by certain aspects of the regulations, especially if the ambulance service is
owned and operated by the hospital.
XI. Other Legal Aspects of Emergency Care—Protecting Yourself in Transport and Transfer
Situations
A. Do not make a decision to transport to a specific medical facility based on the patient’s ability to pay.
B. Do not bypass a medical facility that is able to treat the patient unless you are directed to do so by medical
direction or predetermined protocol.
C. Transferring between hospital or medical facilities
1. Get a full and clear report about the patient’s condition.
2. Ensure that you are able to provide the level of care necessary during the transport and it is within your
scope of practice.
3. Obtain the informed consent form signed by the patient or his legal guardian allowing for the transfer.
4. Obtain the written certification of transfer that includes the transferring physician’s name and address,
facility receiving the patient, and the reason for the transfer.
5. Know where you are going and take the quickest possible route.
XII. Other Legal Aspects of Emergency Care—Special Situations
A. Donors and organ harvesting
1. Organs can be donated only if there is a legal signed document giving permission to harvest the organs
(e.g., signed organ donor card)
2. Assist the organ harvesting procedure
a. Identify the patient as a potential donor based on the type of injuries or illness and treatment that was
rendered.
b. Communicate with medical direction regarding the possibility of organ donation.
c. Provide emergency care, such as CPR, that will help maintain vital organs in case harvesting is
attempted.
B. Medical identification insignia—Look for insignia during assessment.
C. Recognizing death in the field
1. Presumptive signs of death (for DNR)
2. Obvious signs of death (resuscitative efforts not necessary)
3. Cases for which medical examiner or coroner should be called
D. Crime scenes
1. For potential crime scenes, dispatch should also notify the police.
2. If you suspect that a crime is in progress or the criminal is still active at the scene, do not attempt to
provide care to any patient.
3. Wait until the police declare the scene is safe before entering, but remember that the scene could still be
dangerous.
4. While your priority is emergency care for the patient, try to avoid disturbing anything that may be
considered evidence (e.g., clothing, knots).
E. Special reporting situations
1. Abuse (e.g., child abuse, elder abuse, spousal abuse)
2. Crime (e.g., gunshot wounds, suspicious burns)
3. Drug-related injuries (Remember that drug addiction is considered an illness, not a crime).
4. Infectious disease exposure
5. Use of patient restraints
6. Mentally incompetent patients
7. Attempted suicides
8. Dog bites