EMS LEGAL TIPS & ADVICE
Managing the risks & liability of sleep deprivation in EMS
By Stephen R. Wirth, Esq., EMT-P
Fatigue brought on by sleep deprivation can lead to serious and even tragic mis- takes for EMS practitioners.
The U.S. Department of Transportation
identifies fatigue as the number one safety problem in transportation operations, costing more
than $12 billion a year. Sleepy drivers can be as
dangerous as alcohol-impaired drivers, and the
U.S. National Highway Traffic Safety Administration (NH TSA) estimates that in 2015, more
than 72,000 police reported crashes involved
drowsy drivers. These crashes led to 41,000
injuries and more than 800 deaths.
P. Daniel Patterson, PhD, MPH, MS, NRP,
has a well-researched article on page 27, which
will be the seminal article on this subject into the
future. Dan and his research team have developed
practical solutions and strategies—including
evidence-based guidelines for fatigue risk management—to help address this serious problem in EMS.
A MAJOR RISK
EMS agencies are at great risk for liability if
this problem isn’t addressed effectively. Liability to the EMS agency for the mistakes of
fatigued employees arises from the simple legal
principle of respondeat superior: The employer
is responsible for the actions of its agents, who
are acting on the employer’s behalf.
Claims of negligence can be successfully
brought against healthcare employers for mistakes made due to provider fatigue. This is especially the case if the employer knew or should
have known of the risk that a fatigued healthcare provider posed to himself or others, yet
did nothing about it.
EMS agencies have a legal responsibility to
supervise their personnel and prevent negli-
gent acts from happening. Claims of “negligent
supervision” are becoming more common, and
are likely to be found in a lawsuit against an
employer when the fatigued employee harms a
third party. Employers may also have workers’
compensation liability if the fatigued employee
harmed himself or co-workers on the job.
The individual provider can be sued in civil
court for negligence, and can also be held criminally liable if the individual fell asleep at the
wheel and others were harmed or killed as
EMS agencies must implement a comprehensive risk management program to deal with this
increasingly serious problem. Risk management is mostly about prevention: Addressing
the problem before a serious incident occurs.
Awareness of the problem is the first step,
and EMS leaders should candidly discuss and
address the issue head-on with field providers, dispatchers and others who may be prone
to fatigue that can affect job performance or
The old policies of “reporting to work well-rested,” “no sleeping on duty,” and “no moonlighting” need to be re-evaluated and retooled
in an environment where EMS personnel are
working increasingly long shifts and multiple
jobs just to make ends meet.
If an employer is aware of staff members
not functioning up to par because of fatigue
or lack of sleep, simply put, the employer has a
legal (and ethical) responsibility to do something about it. That’s why more EMS agencies are implementing “time out” protocols,
allowing brief naps and establishing a “quiet
room” or “sleeping room” where staff members
can get refreshed if they’re too fatigued or too
tired to function.
Agencies must develop policies to manage
this evolving and serious issue and include those
who will be affected in their development.
The culture of the organization must allow
for a staff member to call him or herself “out
of service” in specific situations if fatigue would
pose a risk to themselves, their co-workers or
EMS practitioners have a professional
responsibility. We need to be our best for every
patient and every family, every time. You’re only
one call away from a $10 million jury verdict.
Making a fatal error because you didn’t get ade-
quate rest is a sure-fire way to get one!
Providers shouldn’t take improper advantage
of time out or rest protocols, but they should
let their supervisor know if they don’t feel that
they’re physically capable of safely performing their job duties. Furthermore, supervisors
shouldn’t view this as a negative mark against
The bottom line is that workplace safety
programs must include a process for addressing
the fatigued staff member to ensure that we “do
no harm” when we provide high-quality EMS
for our communities.
The consequences are too great if we don’t
address these critical issues.
1. United States Department of Transportation. (n.d.) Drowsy driving. National Highway Traffic Safety Administration. Retrieved
Feb. 3, 2018, from www.nhtsa.gov/risky-driving/drowsy-driving.
2. National Association of State EMS Officials. (Nov. 8, 2017.) Fatigue
in EMS. NASEMSO. Retrieved Jan. 3, 2018, from www.nasemso.
Stephen R. Wirth, Esq., EMT-P, is an EMS
attorney and founding partner of Page, Wolfberg & Wirth, which represents EMS agencies
throughout the U. S. He ‘s one of the nation’s
leading EMS attorneys and one of central
Pro Bono is written by the attorneys
at Page, Wolfberg & Wirth, The
National EMS Industry La w Firm. Visit
the firm’s website at www.pwwemslaw.com or find them on
Facebook, Twitter or LinkedIn.
Learn more from Steve Wirth at the EMS
Today Conference, Feb. 21–23, in Charlotte, N.C. EMS Today.com