Negligence and the Litigation Process for EMS and Fire Responses

By John K. Murphy

Fire and emergency medical services (EMS) agencies are no stranger to litigation of all types–from criminal to civil claims in local and federal courts. Daily, we see in the news that fire departments are sued for a variety of reasons, resulting in the disruption of services; loss of personnel; demotions; and, in many cases, large monetary awards.

Understanding the litigation process, developing an awareness of the issues, and undertaking the mantra of "do no harm" are important for fire and EMS providers. Knowing the standards of care and the litigation process can prepare members to anticipate and successfully defend their positions.

The incidence of personal injury and wrongful death litigation is increasing, spurred by many factors, depending on the circumstances of the event. One case in California is related to fire-based paramedics refusing to treat a nursing home patient in cardiac arrest because of the misinterpretation of the standing COVID orders promulgated by the EMS authority in this response area. (See "California City investigating why fire personnel refused to enter facility to administer care," mercurynews.com.) Although the department investigation continues, the family of the deceased nursing home resident is sure to sue the fire department in this case.

Understanding the term negligence and the litigation process can help firefighters/EMS providers prevent the event or at least prepare for the outcome of a " call gone bad" to include the summons and complaint to provide testimony and defend the department and your actions in litigation.

Elements of Litigation

Common personnel litigation actions against the department include hostile work environment, bullying, discrimination in any form against the protected firefighter or EMS provider, retaliation, and failure to promote a qualified individual. In the EMS arena, the issues are patient care oriented such as abandonment, equipment failures, failure to respond, and use of expired medications. To have a favorable verdict, the plaintiff must prove the presence of four elements—duty, breach, causation, and damages–through a preponderance of evidence standard.

Duty. Duty exists when a firefighter or EMS provider and an individual have a professional relationship. This element is readily established by the fact that the plaintiff or a family member called 911 in an emergency and you, while on duty, responded to this call for assistance. Duty-bound to act in accordance with standards of care, a firefighter or EMS provider is expected to exercise the degree of care and skill of a reasonably prudent firefighter or EMS provider in the same or similar conditions.

Standards of care are used as objective measures of performance and required by fire and EMS providers to provide the ordinary minimum degree of skill and care exercised by their peers. In an interesting and relevant article, discussions related to standards of care have found their way into case law on other matters indicating a responsibility for a standard of care issue. (See "The Standard of Care: Legal History and Definitions: the Bad and Good News-PMC," nih.gov.)

National Fire Protection Association (NFPA) standards are an important factor in these issues dealing with safety and operations. They are consensus standards developed by specific industries to set forth widely accepted standards of care and operations for certain practices. Standards are an attempt by the industry or profession to self-regulate by establishing minimal operating, performance, or safety standards, and they establish a recognized standard of care. They are written by consensus committees composed of industry representatives and other affected parties. The NFPA has many standards that affect fire departments. The standards should be followed to protect fire and rescue personnel from unnecessary workplace hazards, and they establish the standard of care that may be used in civil lawsuits against fire and rescue departments. These will be used by both plaintiff and defense attorneys and will be used to defend you or accuse you of a breach of a standard of care. Regardless of whether compliance with an NFPA standard is voluntary or mandatory, fire and rescue departments must consider the impact of "voluntary" standards on civil (tort) litigation. In some states, a department may be liable for the negligent performance of duties. Even in states that protect rescue workers under an immunity statute, most state laws do not protect fire or rescue departments for grossly negligent acts. [i]

Breach. Failure to fulfill duties in accordance with standards of care is a breach of duty or negligence. Breach of duty is synonymous with the "standard of care." Prior to our legal journey in this article, noted in several important cases in the 1900s, the standard of care was defined by the legal concept of "custom." As quoted in the 1934 case of Garthe v. Ruppert,[ii] when "certain dangers have been removed by a customary way of doing things safely, this custom may be proved to show that [the one charged with the dereliction] has fallen below the required standard." Put another way, if others in the business are commonly practicing a certain way that eliminates hazards, then this practice can be used to define the standard of care. A jury still needed to decide, however, whether this "custom" was reasonable and whether the deviation from this "custom" was so unreasonable as to cause harm. Expert witnesses on both sides define the standard from many resources including their own personal experience in the field.

Causation. Causation examines whether the firefighter's or EMS provider's conduct was the actual cause of the patient's injury. For damages to be awarded, the injury or wrongful death must be causally related and a natural and continuous product of a defendant's omissions or actions, such as a failure to provide certain care or prevent future damages to the patient. Another way to look at causation in a medical malpractice example is that causation may involve cause-in-fact and proximate cause. Cause-in-fact means that the patient's injuries were caused by the provider's negligent actions. Proximate causation or "foreseeability" may not be the most immediate cause of the injury but it could have been negligence that eventually led to the injury such as a failure to act within the protocol or standards. If sufficient evidence implies a breach of duty, the attorney will seek to "discover" further information that will strengthen the case. Were policies and protocols available and accessible? Did they reflect current regulations? Did the staff follow them? (Overview of the nursing home litigation process, ScienceDirect.)

Damages. In any of these cases, there must be damages and not a "near miss" event. The legal term "damages" refers to a sum of money that may be awarded by a court of law to an individual or entity as compensation for property damage, a physical injury, or other loss caused by another person's actions. Damages that a court may award are divided into two basic types, "compensatory," and "punitive." Compensatory damages return the plaintiff in a civil lawsuit to his financial position prior to the act, and punitive damages are sometimes awarded as a way to punish the defendant.[iii] Damages may also be awarded for emotional harm, pain, and suffering inherent in the injury and the costs and expenses resulting from it and punitive (generally not covered by professional insurance) as noted above. It is used as a deterrent against future action by the individual or department. Punitive damages can also be awarded if willful misconduct or maliciousness is found and are allowed to serve as a warning to others and are awarded only if the court finds the plaintiff's conduct was outrageous.

The Litigation Process

The litigation process has numerous steps, starting with a threshold event to the receipt of a summons and complaint from the aggrieved person, their survivors, the estate of those suffering from fire damage, or a loss related to your negligence on the scene. If you and your department are sued during the course of your duties, you MUST notify the department's insurance carrier to represent you in this litigation.

Before anyone can file a lawsuit against a city or government, they must provide a "Notice of Claim" or similar notification and need to take care to meet all the requirements or the suit maybe dismissed by the court. The "notice of claim" informs the government and the parties involved of an intent to sue.[iv] The notice may be vague as to the issues, so it is important for the attorney and fire and EMS providers to determine if litigation has commenced within the statute of limitation and review the case carefully with the attorney before answering the complaint. Your department attorney will pull and review the original medical or response record for completeness and evidence of injury or adverse events. He then will sequester the medical record and begin an internal investigation that may include interviewing, reviewing documents, collecting and preserving evidence, gathering or taking pertinent pictures, etc.

After the attorney and the firefighter or EMS provider thoroughly review the record, the complaint is answered, and a counterclaim is filed if appropriate. At some point early in the process, the attorneys confer and attempt to reach an agreement on issues and scheduling future meetings or move to litigation. If the allegations are false, efforts will focus on disproving them. If they are true, efforts will focus on minimizing the damages. Has the statute of limitation run out? Did the patient know, understand, and freely consent to the procedure or action that culminated in an injury? Did the patient's actions contribute to the negligence (referred to as contributory negligence)? Did your actions or lack thereof cause or amplify the injury or destruction of property?

Fire and EMS providers must work with their attorneys. You should not send documents until the attorney determines that the request is appropriate and meets the legal requirements of the jurisdiction. You should not attempt to answer interrogatories, if any are sent, alone. You should review the questions with the attorney, giving straightforward and succinct answers.

The attorney will draw up and send the response to the opposing party and the court.

Depositions. If called to testify at a deposition, you should be prepared. The deposition is part of the discovery phase and takes place under oath in the presence of a court reporter. Your assigned attorney will assist you in that process and will accompany you to the deposition. Before the deposition, you should meet with your attorney to review the process and review the possible questions the opposing counsel will ask. You should review the medical or response records to refresh your memory. On the day of deposition, you should bring only the materials you have been asked to bring and answer questions honestly and briefly. DO NOT elaborate, become defensive, nor attempt to answer if you do not understand the question or do not know the answer. If you do not know the answer, state that you do not know the answer. DO NOT FABRICATE facts. If the deposition goes well, the case may not proceed to trial. You will have a chance to review your deposition document and your attorney should review and amend any errors in the deposition.

This is a partial list to be aware of during the litigation process. The plaintiff provides a Notice of Claim and the department or governmental entity has 90 to 120 days to respond. If the department fails or chooses not to respond, the claimant and their attorney will file a complaint in a court of the appropriate jurisdiction and will have the appropriate defendant party served with a summons and complaint issued by the clerk. As the defendant, your attorney files a brief response to the court and the plaintiff's counsel. Counterclaims may be set forth attesting to equal blame on both sides or to rebut the issue for contributory negligence (the plaintiff brought the damages upon themselves through their action) or other strong defenses. A motion to dismiss, rather than an answer, may be filed based on a number of allegations, such as lack of jurisdiction, insufficiency of process, or failure to state a claim on which relief can be claimed.

If allowed to proceed, the discovery phase begins, as each side collects facts and investigates the allegations. Discovery devices may include many factors such as written interrogatories that question relevant background information pertaining to the issues of the case; requests for production, generally made after the interrogatories are answered; written requests for copies of pertinent documents, such as medical or response records, logs, or policies and procedures; and a request for inspection, specifying the items, time, place, and manner of inspection. This may be done when an attorney requests inspection of materials that the deposed party has brought to the deposition. In cases of a medical malpractice claim, a medical examination of the patient may be requested when the actual damages suffered are disputed. If the case is allowed to proceed and has not been dismissed by prior motions, additional material is sought to develop the factual bases of a case. This process helps each side evaluate its respective positions and determine if a settlement is possible.

Going to Trial

If all else fails, including an attempted settlement offer, the trial process begins to include additional motions and empaneling a jury if not a bench (judge only) trial. I am sure you have watched enough TV jury trials to get the gist of the process so I won't go into detail here, but at the end of the day, you may have won or lost and the findings of the court may be appealed by the losing side and the process begins anew.

Discovery. The discovery process is intended to gather information not found in the medical, response, or other departmental records. The attorneys will want to obtain access to everything your department gathers, saves, and records that is germane to this issue. As an attorney, it would be negligent on my part not to ask for documents such as personnel files, including job descriptions, staffing pattern and workload documents, timesheets, work assignments, training reports, policy and procedure manuals, response log books, the applicable incident or accident reports, maintenance repair records, other lawsuits involving the department and, if you bill for services, a review of your billing practices and a possible request for a review of your billing practices made to the Centers for Medicare and Medicaid Services (CMS), a component of the Department of Health and Human Services, to determine whether the minimum Medicare and Medicaid quality and performance standards are being met if that is the issue.

Testifying in court. The responding firefighter, EMS provider, command officer, and others involved in this incident may be called on to give testimony about the event and the resulting outcome of the fire department's provision of care or actions at the scene. In cases of discrimination or other violations of policy or state or federal law, fire department members will be called to testify in some forum to include depositions or actual trial. You and your attorney should prepare before testifying; remember to answer the question asked, do not elaborate, do not get defensive, do not attempt to intimidate the judge or jury, do not bring in any documents yourself (your attorney will have them). You can review your deposition, statement, or department records to refresh your memory. The opposing counsel will attempt to get under your skin, asking sometimes inflammatory questions about your practices or qualifications. Do not get misdirected by these questions and take time to respond after the question is asked. Do not shoot from the hip or become glib during your response. Be thoughtful in your responses and, above all, stick to the facts.

Damage Control

Preventing litigation may not be possible, but fire and EMS providers can minimize the risk of involvement by knowing and adhering to the standards and scope of their industry using the NFPA standards, solid policy and procedures, and adherence to those policies and procedures.

Fire and EMS providers should be proactive; work within their scope of practice as put forth by state patient care guidelines job descriptions; stay current with advances in your discipline; and become familiar with and participate in the timely revision or development of updated protocols, policies, and procedures.

Given the doctrine of respondeat superior, fire and EMS departments and their chief officers or elected officers may find themselves being sued for the negligent actions of a subordinate. The Latin term respondeat superior, which translates as "let the master answer," refers to a legal doctrine in which an employer may be held responsible for the actions of his employees when the actions are performed "in the course of employment." For respondeat superior to apply, there must be a clear employee-employer relationship established, as the principle does not apply to actions by an independent contractor.[v]

The medical record, a key source of information in medical malpractice litigation, should be current, accurate, legible, and signed or initialed. If an entry is late, it should be documented as such; this should be an easy process to make the necessary updates and corrections of the records without altering or deleting the documents.

HIPAA. Maintaining confidentiality, respecting patients’ rights, and preventing abuse and misuse of the patient are only a few of the other proactive steps fire and EMS providers can take to help reduce the risk of liability.

Defense Strategy

Prevention is the best strategy in preventing litigation against the fire department. Doing things right every time will prevent litigation.

Fire and EMS providers who are personally sued for actions while on the job must contact their employer, who will notify the insurer, who will appoint an attorney to represent your department in this issue. If you are a party to the action, you should not discuss the case with colleagues, the patient, reporters, or other attorneys without first consulting your assigned attorney. You should not go into the medical record or other response document to try to correct oversights or omissions, as you must understand that these cases may present themselves two to three years after the actual event and within the statute of limitations. Your memory is fallible, and you will not remember the small but important details of the event. Do not be evasive when questioned or answer a question you do not the answer to. You should educate yourself about the case and legal proceedings and work with your attorney by being available and candid, realizing you may not recall or know everything asked. Your attorney can guide you through the process, but when you are on the stand, you cannot look to him for help. You should focus on the jury and answer the question as you responded in the deposition. Do not stray from the facts of the case and your actions.

Most likely, an expert witness will be called to attest to the appropriate standards of care. To qualify as an expert in a medical negligence case, the expert must be a qualified EMT, firefighter, fire officer, or medical provider with relevant knowledge, education, skill, and experience to offer the expert opinion. You as well must be the expert in your field.

Familiarity and compliance with applicable standards and federal and state laws regulating your industry are prerequisites for a good defense. Attorneys are experts in the law, and you are the expert in your profession. If sued, fire and EMS providers should work with the assigned attorney to establish a defense, letting them guide the litigation process while they learn your culture, policies, practices, and applicable standards. Knowing what to expect and being active participants will help fire and EMS providers get through the process.

This can be summed up in the following jury instructions:

"A firefighter or EMT is negligent if he or she fails to use the skill and care that a reasonably careful firefighter or EMT would have used in similar circumstances. This level of skill, knowledge, and care is sometimes referred to as "the standard of care." You as members of the jury must determine the level of skill and care that a reasonably careful firefighter or EMT would use in similar circumstances based only on the testimony of the expert witnesses, the plaintiff, and the defendant firefighter or EMT who have testified in this case."[vi]

[i] Fire Service Court: On Standards – Fire Engineering: Firefighter Training and Fire Service News, Rescue

[ii] Garthe v. Ruppert 264 N.Y. 290, 296, 190 N.E. 643.

[iii] Damages – Definition, Examples, Cases, Processes (legaldictionary.net)

[iv] How to Sue the Local Government: 14 Steps (with Pictures) (wikihow.com)

[v] https://legaldictionary.net/respondeat-superior/

[vi] CACI No. 600. Standard of Care :: California Civil Jury Instructions (CACI) (2022) :: Justia

BIO:

John K. Murphy retired as a deputy chief after 32 years of career fire department service and is a licensed attorney in Washington with a focus on employment practices liability, training safety, employment policy and rules, and internal investigations. He is a subject matter expert on pre-hospital EMS and fire operations, consults with private and public services on risk management, and serves as an expert witness on fire department litigation. He is a frequent local and national speaker on legal issues affecting fire and EMS services.