Missouri Court Rules that “True Emergency” Required for EMTs to Claim Immunity

In a troubling decision issued on September 21, 2010, the Missouri Court of Appeals ruled that immunity protection for emergency responders will not protect them if they mistakenly conclude a patient is not seriously ill. The background of the case is important to understanding just how unsettling the decision is.

First off, Missouri courts recognize the concept of official immunity. The court decision explains official immunity as “a judicially-created doctrine designed to protect public employees from liability for allegedly negligent acts committed during their performance of official duties.” It is a bit different from the more common sovereign immunity and statutory immunity that applies to many fire service organizations in other states.

Second, the facts of the case: on July 10, 2008 Anthony Thomas called 911 complaining of chest pains and difficulty breathing. Community Fire Protection District dispatched an ambulance to the call. EMT Michael Brandt, and paramedic James Loehrer examined Thomas, concluded he was suffering from acid reflux, recommended an over-the-counter treatment, and left after just 15 minutes.

The next morning, Thomas called 911 again, still complaining of difficulty breathing and chest pains. This time a Community Fire Protection District ambulance staffed two different personnel responded and transported him to the DePaul Health Center, where he arrested and died.

Thomas’s children filed a wrongful death lawsuit against Brandt, Loehrer and the Community Fire Protection District alleging negligence. The suit was filed in the Circuit Court for St. Louis County, who granted summary judgment to the firefighter-defendants on the grounds of official immunity. The Thomas children appealed.

In reversing the trial court, the Missouri Court of Appeals stated “Respondents are not immune from Appellant’s wrongful death action based on official immunity. Official immunity is available to publicly-employed emergency responders only if they are acting in a true emergency situation.”

The court did not elaborate on the hair they were splitting, which leads me to believe they may have missed a very important point: A fire department ambulance responded with “lights and siren” on an emergency run, for a patient who was legitimately having a real medical emergency, yet according to the court the incident was somehow transformed into a non-emergency because personnel misdiagnosed the patient… and it was that misdiagnosis that both made the firefighters liable AND excluded them from liability protection. WOW!!!

If the court recognized the subtlety, they totally glossed over it in the decision. Here is a copy. Download ThomasDecision.jsp

The case now goes back to the trial court, unless it is appealed to the Missouri Supreme Court. Perhaps the MSC will be able to square this issue away. The good news is it will have no applicability outside of Missouri.

About Curt Varone

Curt Varone has over 40 years of fire service experience and 30 as a practicing attorney licensed in both Rhode Island and Maine. His background includes 29 years as a career firefighter in Providence (retiring as a Deputy Assistant Chief), as well as volunteer and paid on call experience. He is the author of two books: Legal Considerations for Fire and Emergency Services, (2006, 2nd ed. 2011, 3rd ed. 2014) and Fire Officer's Legal Handbook (2007), and is a contributing editor for Firehouse Magazine writing the Fire Law column.
  • Nate Barrington

    Thanks, this is important i think for also the understanding that to often minimally trained EMS personnel over estimate their level of knowledge without remembering some of these diagnosis’s require testing, evalauation, and monitoring before coming up with a benign cause, not a popular thought i am sure, however is it the job of the EMS provider to diagnose in the field? or to bring the patient to a facility where proper evalautions can be performed, this underscores the need for accountability in pre hospital medicine,
    My sense is if you look deeper you will find the lack of Q/A in this service, because somehow these EMS providers either via policy or tactictly began practicing medicine beyond the intended scope and this was not the first time providers in this service made this type of determination. Having said that, i am sure at some point in my career in EMS i may have done something similar based on burnout ignorance or both

  • Chief
    You bring up some great points. The heartburn-heart attack differential diagnosis is not something anyone should be diagnosing in the street… even if a paramedic is really good or really lucky 99 times, the odds will catch up with you.
    As wrong as the medical decisionmaking appears to have been, I have to believe the court did not fully think through their decision… some of that may have been the way the case was presented or argued. I just don’t understand how they can say a true emergency is not a true emergency if the personnel involved negligently fail to realize it is a true emergency. It is still a true emergency! Or maybe I am missing something?

  • I think that there’s two major problems that exist. First, the working diagnosis used by the crew was a non-emergent diagnosis. Second, there seems to be an almost global misunderstanding of the diagnostic process, mostly I feel steaming from the “EMTs don’t diagnosis” mantra.
    From my limited understanding (essentially the news articles about it), the entire purpose of the immunity is to protect providers from making wrong decisions (everyone makes wrong decisions) or oversights in rapidly changing, life threatening cases. A myocardial infarction falls into that category and requires prompt recognition, treatment, and transport. However acid reflux is not an emergency and the crew has all day to work up a patient.
    Let’s say the case was reversed. The patient was having acid reflux, the crew established a working diagnosis of a NSTEMI (I’ll give the crew the benefit of the doubt that they ran a 12 lead that came up, at a minimum, without ST elevation), so the crew elected to treat for an MI and initiate rapid transport. Now let’s say any adverse event occurred (including, say, transport to a hospital out of the patient’s insurance network or the ambulance incurs a traffic accident during transport). Is the crew liable? No. Even though they misdiagnosed the patient, which resulted in administering the wrong interventions (I personally include destination choices and the decision to transport emergently interventions as they should be based on the patient’s condition), the misdiagnosis was a valid choice based on the information at hand and given the consideration that emergencies require prompt (however not recklessly fast) decisions based on limited information.
    In terms of the diagnosis, I agree with the crew that acid reflux is a valid differential diagnosis (DDx) based on the information supplied. However, another equally valid differential diagnosis that HAS to be consider is a NSTEMI, which paramedics cannot rule out, even if they do have access to point of care cardiac troponin testing (unless they want to sit with the patient for several hours and run serial troponin tests). After all, the entire point of differential diagnoses is to say, “Given the information we have, these are the likely potential causes.” As more information comes in, the list can grow or shrink. Based off the probability and potential severity of the DDxs, one or more working diagnosis is picked for treatment pending more lab results and response to treatment. Since the crew is incapable of ruling out a a very probable emergent condition, the only valid choice is to push for transport to a facility that can rule out NSTEMI (i.e. any emergency department).

  • Great points. The purpose of immunity law is to give EMTs and emergency responders some degree of protection when making split second decisions under emergency conditions. IMHO any time an EMS unit is dispatched (outside of routine transports), it is an emergency.
    The court chose to split a hair – that is just absurd to split. Let me use this analogy: A given state has an immunity law for fire departments for actions and decisions made while “operating at or responding to fires or emergencies”. A FD responds to a fire alarm, investigates, negligently concludes it was a false alarm because they misread the fire alarm panel (they checked 3rd floor east and the fire was in 3rd floor west, a separate tower in the same complex), and return 15 minutes later to a serious fire. How could a court rule there was no fire or emergency (and thus no immunity protection) simply because the FD negligently missed it? The immunity protection is provided EXACTLY for that reason – because things like this can happen.
    I do not do much medmal work, but I do know a thing or two about differential diagnosis. As you said – a fundamental principle of differential diagnosis is that when a medical professional cannot rule out a potentially life threatening condition (MI), then they cannot assume and treat a patient for a non-life threatening condition, and ignore the life threatening condition. That would be negligence – and negligence is what the immunity law is intended to cover.
    I really hope the case gets to the Missouri Supreme Court to get straightened out.
    Thank you for your thoughts!!!!

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  • What would have happened if the ambulance crashed on he way to the first call? Would there then have been immunity from liability since the crew did not know what they would find on scene?

    The Court’s logic is flawed. But let’s face it, this is not the first case where an appellate court made a bad decision.


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