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2009]LARYNGOSCOPES, LIDOCAINE, AND LIABD.ITY81ll. TRENDs IN EMS LmGATIONThe focus ofthis Note is on liability for medical treatment rendered in theprehospital setting; therefore, the reader will note that it gives only limited consideration to other possible sources oflitigation against EMS providers, such asproblems with dispatch or motor vehicle accidents involving responding ve-.hicles. Even though the studies examining litigation against EMS providers aregenerally not limited to claims for medical care, they are still illustrative of thegeneral trends in this sort of litigation- trends which may influence, or be influenced by, the scheme ofcivil liability for EMS personnel in a given jurisdiction.A. Chicago: 1976-1987.One study reviewed all claims brought against the Chicago municipal ambulance service system from 1976 to 1987.24 Lawsuits alleging "improper medical treatment" accounted for seventy-seven percent of the claims.25 Overall,there was one lawsuit per 27,371 responses, and one lawsuit per 17,995 patienttransports.26 Almost one-third of the lawsuits involved patients who sufferedcardiac arrest. 27 Patient death, regardless ofcause, increased the likelihood ofalawsuit.28 Noting that the most common cause of litigation involved acts ofomission, the authors recommended that ''prehospital providers should be encouraged to provide aggressive management when any doubt exists. ,,29 Thestudy indicated an increasing number of claims filed against prehospital careproviders over time,30 trumpeting the importance ofreconsidering the applicable schemes of civil liability.B. Murmi-Dade County: 1972-1982Another study conducted during the formative stages ofEMS found similar results- that is, a low risk of litigation during the period of the study withan increasing instance of complaints over time. 31 This study looked at theclaims filed against Dade County Fire Rescue in Miami-Dade County, Floridabetween 1972 and 1982, and found an incidence of one claim per 24,90624. RichardJ. Goldberg, et al,A ReviewofPrehospital Care Litigation ina Large Metropolitan EMS System, 19 ANNALs EMERGENCY MEn. 557,557 (1990).25. Id26. Id at 559.27. Id.28. Id29. Goldberg, supra note 24, at 561.30. Id. at 557.31. Joseph M. Soler et al, The Ten-Year Malpractice Experience ofa Large Urban EMSSystem, 14ANNALSEMERGENCYMED. 982,982 (1985).

82INDIANA HEALTH LAW REVIEW[Vol. 6:77runs. 32 More than half ofthe claims filed during the ten-year study period werefiled in the last three years of the study.33 The authors of the study offer somepotential causes for this trend toward litigiousness, including ''the beliefthat inthe public's eye the 'new glow' ofEMS has worn off; that yesterday's miraclesare today's routine occurrences; that trauma system development points out theweaknesses and strengths ofprehospital care[. ] and that the public's sentiment is that all misfortunes are compensable events.,,34 This same theme is reiterated elsewhere: "[o]ne of the most common fallacies among lay persons isthe belief that malpractice is always responsible if medical treatment yields abad, unsatisfactory or unexpected result." 35· C. Denver: 1984-1993Another study undertook a retrospective review ofall claims made againstthe Denver Health Paramedic Division from 1984 to 1993.36 The study foundan average of one claim per 5,084 runs.37 Motor vehicle accidents involvingambulances accounted for seventy-two percent ofthe claims, while claims specifically alleging medical negligence represented less than four percent of theclaims.38 Notable, however, is that the medical negligence claims, whilerepresenting less than four percent ofthe claims, accounted for thirty-five percent of the monetary losses paid out in legal claims.39D. Denver: 1993-1998A more recent study picked up where the previous research left off, looking at all complaints in Denver from 1993 to 1998, this time against the DenverParamedic Division.40 The study, which was not limited to complaints broughtfor medical treatment, found a complaint rate of one per 1,075 ambulance responses,41 a complaint rate substantially higher than that ofthe Chicago and Miami-Dade County studies. Of these, complaints alleging improper medicaltreatment represented twenty percent of the complaints,42 but the number maybe higher- according to the authors ofthe study, some medical treatment issuesalso may have been categorized as "rude behavior,'' a category which32.33.34.35.Id at 983.Id at 984.Id at 985.COHN&AzzARA, supranote21,at8.36. Christopher B. Colwell, et al, Claims Against a Paramedic Ambulance Service: ATen-Year Experience, 17 J. EMERGENCY MEl . 999,999 (1999).37. Id. at 1000.38. Id.39. Id at 999.40. Christopher B. Colwell, et al, Complaints Against an EMS System, 25 J. EMERGENCYMED. 403, 404 (2003).41. Id.42. ld. at 406.

2009]LARYNGOSCOPES, LIDOCAINE, AND LIABILITY83represented another twenty-three percent of the claims. 43 The authors of thestudy concluded that "[t]he identification of areas of high dissatisfaction willhopefully lead to targeting of quality and performance improvement programsdirected at customer service and risk management. ,,44 Conspicuously absentfrom this recommendation are programs addressing the technical proficiency ofprehospital providers, which may simply be an acknowledgement that the conditions of prehospital emergency response are, by definition, less-than-ideal,and that it is inevitable that the conditions encountered in emergency responsemay sometimes surmount the resources available to prehospital providers intheir efforts to provide medical care.It would be a mistake to derive any specific conclusions from this or theother studies as none of them were conducted in Indiana, and are thus susceptible to the statutory provisions of their respective jurisdictions. It is, however,possible to discern a general trend toward increasing litigation involving EMSagencies and providers. This trend warrants a reexamination of the provisionsgoverning potential liability for prehospital providers in Indiana.Ill. CONSTITUTIONAL CLAIMS INVOKING 42 U.S.C. § 1983 ("§ 1983")Plaintiffs often attempt to bypass potential state immunity for governmentemployed EMTs by filing claims alleging the deprivation of a federal constitutional right. 45 These claims are brought under the authority of the Civil RightsAct of 1871, which declares that[e]very person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to besubjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation ofany rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured inan action at law, suit in equity, or other proper proceeding for redress. 46The Seventh Circuit Court of Appeals once described §1983 as "the ubiquitoustort remedy for deprivations of rights secured by federal law (primarily theFourteenth Amendment) by persons acting under color of state law. "47 Withoutalleging more than inept medical care, plaintiffs have generally failed to state43. /d.44. /d. at 408.45. Philip Stittleburg, Force in Solicited Aid Not Always a Violation, FIRE CHIEF, Oct.2007, at 16.46. 42 U.S.C.A. § 1983 (West 1996).47. Jackson v. City of Joliet, 715 F.2d 1200, 1201 (7th Cir. 1983).

84INDIANA HEALTH LAW REVlEW[Vol. 6:77viable constitutional claims because "even if the complaints state good claimsunder general tort principles, it does not follow that they state good claims under [§]1983 just because the defendants are public officers.'.t8 The decisionsrejecting alleged constitutional violations for negligent emergency medical careare numerous and worth considering, especially in light of their policy implications.A. The Fourth AmendmentThe Fourth Amendment provides, in relevant part, that"[t]he right of thepeople to be secure in their persons, houses, papers, and effects, againstunreasonable searches and seizures, shall not be violated. '.49 Generally, movinga patient into an ambulance is not considered "custody" for purposes of theFourth Amendment. 5 Something more closely resembling a Fourth Amendment violation may arise when EMTs must restrain a patient in order to effectively administer medical aid, potentially running afoul of the prohibition on"unreasonable searches and seizures. "51In Peete v. Nashville, 52 for example, EMTs restrained a man having an epileptic seizure, who then died shortly after being restrained. 53 The court grappled with what is considered a "seizure" for purposes of the FourthAmendment, distilling from precedent that it is "an intentional interference witha person's liberty by physical force or a show of authority that would cause areasonable person consciously to submit." 54 Since the decedent was unconscious, the court found that no Fourth Amendment violation existed because thepatient necessarily "could not perceive any restraint on his liberty or otherwisefeel compelled to submitto a governmental show offorce."55In another case, Davidson v. City ofJacksonville, 56 EMS and fire personnel restrained an uncooperative patient suffering a hypoglycemic episode (lowblood sugar), in order to check his vital signs, establish an IV line, and administer medicine used to treat low blood sugar. 57 After securing his hands withhandcuffs, tying his ankles together, and connecting the two restraints with abandage, they carried him by his arms and legs to the stretcher located at the48. !d. at 1203.49. U.S. CONST. amend. IV.50. "The overarching prerequisite for custody is an affirmative act by the state that restrains the ability of an individual to act on his own behalf." Jackson v. Schultz,429 F.3d 586,590 (6th Cir. 2005). "The court has never held that one merely placed in an ambulance is incustody." !d.51. U.S. CONST. amend. IV.52. 486 F.3d 217 (6th Cir. 2007).53. !d. at 220.54. !d.55. !d. at 221.56. 359 F. Supp. 2d 1291 (M.D. Fla. 2005).57. Id.

2009]LARYNGOSCOPES, LlDocAJNE, AND LIABILITY85front door. 58 The patient's mid-section was unsupported while being carried;he was subsequently diagnosed with a herniated disc and suffered a permanentdisability as a result. 59 The court rejected the plaintiff's Fourth Amendmentclaim on grounds similar to those in Peete, stating: ''there is no evidence thatMr. Davidson was aware of, or was mentally present in, the situation. Instead,it seems that any 'resistance' was merely a result of the diabetic episode .which Mr. Davidson was experiencing.'.60 The court held that the FourthAmendment was inapplicable "given the lack of refusal on Mr. Davidson'spart.'o6lIndeed, the only viable Fourth Amendment claims against EMTs, whenthe EMTs are acting without law enforcement intervention or intent, are thosein which a patient was capable ofrefusing treatment or transport, did refuse, butwas transported or treated nonetheless. In Green v. City ofNew York, 62 the patient-plaintiff suffered from Lou Gehrig's disease, required a mechanical ventilator to breathe, and if the mechanical ventilator malfunctioned, familymembers had to perform manual ventilation.63 One afternoon, after the patientplaintiff's mechanical ventilator failed, his family called 911 and initiated manual ventilation.64 By the time EMTs arrived, the patient-plaintiffwas alert andoriented, and was able to non-verbally communicate-by blinking his eyes andusing a computer- that he did not want to be transported to the hospital.65 Theemergency medical personnel on scene transported the patient-plaintiff anyway. 66 The court held that seizing and transporting a competent adult for treatment is a violation of the Fourth Amendment, unless he presents a danger tohimself or others.67As gleaned from these cases, a Fourth Amendment claim against EMTsbased solely on flawed medical care is not viable, because the EMTs are "notacting to enforce the law, deter or incarcerate.,c;8 As in Green, a patient with58. /d.59. Id. at 1294.60. Id at 1295.61. Id. This holding begs the question ofwhat is sufficient to constitute a "refusal." Express consent is required ftom every conscious, mentally-competent patient oflegal age beforerendering treatment. See NAT'L HIGHWAY l'RANSP. SAFElY ADMIN., U.S. DEP'T OF TRANSP.,EMERGENCYMED. /emslpublemtbnsc.pdf (hereinafter EMT-BASIC:NATIONAL STANDARD CURRICULUM] ; see also Jon Belding, Patient RefUsal: What to Do WhenMedical Treatment and Transport Are Rejected, 31 no. 5 J. EMERGENCY MED. SERVICES. 116,116-17(2006); IND. CODE§§ 16-36-1-3-16-36-1-4 (1993). Implied consent is given when anunconscious patient requires emergency medical care. and such consent is based on the assumption that the unconscious patient would consent to emergency care if he was conscious. SeeEMT- BASIC: NATIONAL STANDARD CURRICULUM, supra at 68; see also Belding, supra at 5.62. 465 F.3d 65 (2d Cir. 2006).63. Id. at 69.64. ld. at 70.65. Id at 71.66. Id. at 73.67. Id at83.68. Peete, 486 F.3d at 222.

86INDIANA HEALTH LAW REVIEW[Vol. 6:77the capacity to refuse consent may have a successful claim against EMTs whodisregard such a refusal; however, those claims can be distinguished as dealingwith the forcible seizure of a person by a government official, rather than dealing with medical care.B. The Eighth AmendmentPlaintiffs may also allege violations of the Eighth Amendment for carerendered in the field. The Eighth Amendment prohibits, among other things,the inflicting of cruel and unusual punishment.69 Liability under the EighthAmendment must necessarily be preceded by a determination that the patient isin custody under the Fourth Amendment. This is because the "[g]overnmentgenerally has no constitutional duty to provide rescue services to its citizens,and if it does provide such services, it has no constitutional duty to providecompetent services to people not in its custody."70 The implication is that theGovernment must provide rescue services to people in its custody. The subsequent inquiry is what standard of care must be provided.In Salazar v. Chicago, 71 the decedent-plaintiffdrove after drinking excessively, and then ran into a parking meter and the front of a restaurant. 72 Paramedics were the first on-scene; they took the decedent-plaintiff's vital signs andbegan palpating his body for injuries, at which time he refused further examination. 73 The police arrived shortly thereafter and both the police and paramedicsattributed the decedent-plaintiff's disorientated behavior to his intoxication.74The paramedics left, leaving the decedent-plaintiff with the police who subsequently arrested him. 75 He was taken to the police station that night and diedthe next afternoon from a traumatic liver laceration, a condition which had noobvious external symptoms. 76 At trial, when establishing the standard applicable to their actions, the paramedics conceded that the decedent-plaintiff shouldhave been treated as a pre-trial detainee. 77The court then held that the Eighth Amendment imposes liability on theparamedics only if their behavior ''reflects complete indifference to risk- whenthe actor does not care whether the other person lives or dies, despite knowingthat there is a significant risk of death."78 As applied to the behavior of the paramedics in Salazar, "[p]erhaps [they] should have done more for Salazar, andperhaps their failure to do more was either negligent or (doubtedly) grossly neg-69.70.71.72.73.74.75.76.77.78.U.S. CONST. amend. Vill.Salazar v. City of Chicago, 940 F.2d 235,237 (7th Cir. 1991)./d.Id at 234.Id. at 235.Id at 236./d.Salazar, 940 F.2d at 236./d. at 237./d. at 238 (q oting Archie v. City ofRacine, 847 F.2d 1211, 1219 (7th Cir. 1988)).

2009]LARYNOOSCOPES, LIDocAINE, AND LIABILITY87ligent. But [their] actions do not evidence the complete indifference to Salazar's well-being that constitutes deliberate indifference."79 The Seventh Circuitdefined "deliberate indifference" as conduct that is intentional or criminallyreckless. 80 This definition is based on a consideration of what constitutes ''punishment," as the Eighth Amendment's prohibitions speak only to cruel andunusual punishment, and "[a]ny state of mind short of criminal recklessnessdoes not import danger so great that knowledge of the danger and thus, intent toinflict it, can be inferred.'.s 1In Peete, the decedent-plaintiff, who had an epileptic episode and died after being physically restrained, argued that the behavior of the EMTs manifested a deliberate indifference82 to serious medical needs, in violation of theEighth Amendment. 83 After the patient's Fourth Amendment argumentfailed, 84 the court rejected any argument rooted in Eighth Amendment protections:where the purpose is to render solicited aid in an emergency rather than to enforce the law, punish, deter, or incarcerate, there is no federal case authority creating aconstitutional liability for the negligence, deliberate indifference, and incompetence alleged in the instant case.Th

fers a fourth certification, EMT-Basic Advanced, which provides an Advanced Life Support (" ALSj supplement to the EMT-Basic training, and thus will be grouped with EMT-Basic in this Note). EMT-Basic is a Basic Life Support ("BLS'') certification; EMT -Intermediate and EMT-Paramedic are ALS certifications. See 8361ND. ADMIN. CODE 1-1-1(2) (2004 .