EMS LEGAL TIPS & ADVICE
STANDARD OF CARE
What you can do to prevent patient claims of contracted illness
By Douglas M. Wolfberg, Esq.
We’ve all heard the saying, “Clean- liness is next to godliness.” But in healthcare, it also can be considered a legal obligation. This month, we examine the potential liability of an EMS agency to
a patient claiming harm from contamination
in an ambulance.
In over 20 years as an EMS attorney, I’ve
never had to defend a client in
a lawsuit by a patient claiming
to have been harmed by a contaminated ambulance. Nobody
in our firm has had to defend
such a case.
Since I’d like to think our
EMS law practice at Page, Wolfberg & Wirth is a microcosm of
what’s happening in EMS, anecdotally I’d conclude that liability
for alleged ambulance contamination is extremely rare.
But, in my experience, I’ve also
found that it’s the exceedingly rare type of liability for which many EMS agencies are under-prepared and lax in their vigilance.
It’s important to remember that a patient
claiming harm from ambulance contamination would have the burden of proof in any
lawsuit. This means that the plaintiff would
have to prove—by a preponderance of the
evidence—that it’s more likely than not that
their harm was caused by your contaminated
ambulance. Proving “proximate causation,” as
the law refers to it, is always one of the tough-est hurdles for a plaintiff; in a case alleging
ambulance contamination, it would be a particularly uphill battle.
Nevertheless, one can imagine a scenario
in which a plaintiff is able to obtain expert
testimony from a communicable disease or
decontamination expert witness supporting
a claim—and then you’re off to the races.
Then it will be up to you and your lawyers to
demonstrate that your agency met the legal
standard of care.
The legal standard of care is that conduct
is objectively reasonable under the circumstances. Since the standard of care is always
dependent upon the circumstances, that means
the standard of care might differ based on the
Consider these contrasting examples: If your
agency transports an elderly patient for shortness of breath—and the patient has no medical history of any communicable disease—and
during transport there are no indications of
bloodborne or airborne contamination other
than the occasional cough or sneeze, then preparing the ambulance for the next call might
only reasonably require changing the linens on
the stretcher, restocking any disposable supplies
and cleaning any visibly contaminated surfaces.
The standard of care likely wouldn’t require
a complete decontamination of the ambulance,
which after all isn’t presented to the public as
a sterile treatment facility—nor is it required
Contrast that example with this one: Your
agency transports a patient who recently trav-
eled to Central America and returned home
complaining of a rapid onset of flu-like symp-
toms. Known cases of an insect-borne commu-
nicable bloodborne disease have been reported
by the Centers for Disease Control and Pre-
vention among known travelers to this coun-
try. Your patient’s symptoms are consistent
with exposure to this highly communicable
and serious disease.
In this case, the standard of care for preparing the ambulance for its next patient
would likely not be as straightforward as in
the first example. Here, complete decontamination of all exposed surfaces and equipment
using bleach-based cleaners would likely be
necessary. Disposal of exposed
items—even if not used by the
patient—might also be required.
Proper decontamination of
clothing worn by EMS practitioners might be necessary. Strict
adherence to any decontamination guidelines issued by the
CDC, the state health department, or other public health
authorities specific to the potential pathogen would have to be
Because the standard of care
is situational, and dependent on whether the
defendant acted reasonably under the circumstances presented, it’s rarely a one-size-fits-all proposition. Nevertheless, EMS agencies
should acquaint themselves with best practices
for ambulance decontamination—both on a
routine basis, and following known exposures
to airborne or bloodborne pathogens. JEMS
Doug Wolfberg, Esq., is an EMS attorney
and founding partner of Page, Wolfberg &
Wirth, the nation’s leading EMS industry law
firm. In a career of nearly 40 years, Doug has
served as an EMS practitioner, a county EMS
Pro Bono is written by the attorneys
at Page, Wolfberg & Wirth, The
National EMS Industry Law Firm.
Visit the firm’s website at www.pwwemslaw.com or find them
on Facebook, Twitter or LinkedIn.
Since the standard of care is
always dependent upon the
circumstances, that means the
standard of care might differ
based on the facts presented.