Immunity Statutes: How State Laws Protect EMS Providers

State laws regulate prehospital care services in 50 different ways. To encourage individuals to both volunteer and work in the EMS field, many state governments have passed immunity laws aimed at limiting the possibility of recovering damages from such providers in a lawsuit. However, the laws vary widely and are anything but uniform in their construction and coverage. Given the difficulty of providing care in emergency situations, the gist of many state statutes is that immunity from malpractice covers all actions except those performed “willfully” and/or “wantonly.” Although immunity statutes are widespread across the United States, they are not universally available.

Purposes and Applications

An immunity statute does not stop someone from filing a lawsuit; it simply makes it more difficult for an allegedly wronged party to recover. An immunity statute raises the threshold the plaintiff must meet to prove the elements of negligence in his or her case. If there is no immunity statute, then ordinary principles of negligence apply. That is, an EMT’s professional actions will be viewed no differently than those of any motorist driv­ing down the highway.

Negligence, as a legal standard, is based on what a reasonable person would do under the same or similar circumstances. Every person has a duty to “exercise due care in his conduct toward others from which injury may result.”1 Whether a person has been negligent is usually a question of fact for a judge or jury to decide.

The tort of negligence consists of four elements: duty, breach of duty (standard of care), proximate cause and damages. Each element must be proven by the plaintiff by a preponderance of the evidence, also called the 51% standard. The 51% standard is a term of art used by trial lawyers to show that their burden of proof is not very high.

An immunity statute does not change the basic elements of the tort of negligence; it raises the standard required for EMS providers to be considered negligent. In other words, it compels the plaintiff to prove that the defendant’s conduct was even more extreme than would otherwise be considered negligent.2 States have defined this heightened category of negligence using a variety of terms, including gross negligence, gross/intentional conduct, willful/wanton negligence and reckless disregard or misconduct. These are terms used to clarify degrees of negligence, not legal categories, and thus are not a consistent way of defining what actions would constitute negligence in a particular EMS malpractice case. Additionally, some states cover EMS dispatch systems and the driving of EMS vehicles under the immunity statutes, while others do not. That is, some states place more than just medical practice under the protection of their EMS immunity statutes.

So how does an immunity statute work? Say an EMS provider is sued for malpractice over some action taken in the course of providing medical care. Once a lawsuit has been filed, the employee’s defense counsel will review the complaint to determine whether they wish to file a motion to dismiss. A motion to dismiss argues to the court that under the allegations of the complaint, no legitimate cause of action has been stated. Most complaints should withstand a motion to dismiss. The case will then proceed to the discovery period, during which depositions will be taken and documentary evidence gathered. The EMS provider’s defense counsel will try to elicit testimony that supports his position: that the actions taken by the EMS provider did not rise to the level of negligence required under the immunity statute. As stated, each jurisdiction’s laws cover these matters a bit differently, but any type of immunity statute provides some measure of defense.

Who Is Covered?