Ruling limits suit risk for governments

Death sparked challenge

Fee-taking areas don't surrender immunity, judges say

July 28, 2000|By Andrea F. Siegel | Andrea F. Siegel,SUN STAFF

Local governments that charge for ambulance service keep their immunity from most malpractice-type lawsuits against paramedics, the state's highest court ruled yesterday in a Baltimore case closely watched by area municipalities.

In a split decision, the majority of the Court of Appeals held that rescue workers are immune from the lawsuits. The possibility that governments might lose their immunity by making patients pay for paramedics has been a key factor in keeping many jurisdictions from charging for ambulance service.

The ruling stemmed from a city case in which the family of 62-year-old Carlean Burley alleged that a city paramedic's action in 1995 cost the woman her life.

City officials said yesterday that they had not seen the ruling.

Even with the decision, it is unclear how attractive charging for ambulance runs will become, said David Bliden, executive director of the Maryland Association of Counties.

"Obviously, this takes the lawyers out of the mix, in that with increasing liability not being an issue, the question of charging a fee for service becomes a pure policy decision to be made by the local officials," he said.

Also figuring into the decision are such issues as the cost of a billing program, whether charging would be politically costly, how to bill so that only insurance fees would be expected as payment, the fiscal landscape of the jurisdiction and whether officials could realistically expect to bring in enough money to make it worthwhile.

Jurisdictions that bill for services generally do so to tap into insurance dollars. If more localities bill, insurers can expect to pay out more ambulance charges.

Area governments that charge have a low collection rate. Baltimore's collection rate is approaching 30 percent, and Washington's is about 40 percent.

In 1994, Annapolis considered ambulance fees. The danger of losing immunity to make $100,000 a year - a sum that could be more than wiped out with one lawsuit - was one reason the plan withered. The politics and mechanics of billing were others.

Annapolis City Attorney Paul G. Goetzke, who had lobbied the General Assembly to extend "good Samaritan" protection to rescue workers employed by governments that charge for ambulance runs, praised the ruling and said he will alert city officials to it.

"I think that this decision is extremely important to all local governments," he said. "Local governments may now decide to charge for paramedic services, thereby shifting the cost of those services from the general tax base to the user."

Last year, the Anne Arundel County Council voted to start charging but reversed that position, because of fears about losing lawsuit immunity and because of billing and cost issues.

The ruling "changes the picture somewhat," said Daniel Klosterman, chairman of the council. "But don't forget, there were other issues."

A 4-3 majority of the Court of Appeals held that one of two state laws grants immunity to fire and rescue departments, paid and volunteer, though the minority rejected that view. The majority said it did not need to get into the "good Samaritan" law, which protects volunteers, and overturned a Court of Special Appeals ruling.

"I just can't see this as the end, even though it can very well be," said Sharon E. Chase, the youngest of Burley's daughters. She said she and her sisters want to know whether he had the skills necessary for the emergency.

"It's obviously a bitter disappointment, especially considering it was a 4-3 decision and the seventh member of the court recused himself because he had been the author of the [lower court] opinion," said John Amato IV, lawyer for Burley's family, referring to former Court of Special Appeals Judge Glenn T. Harrell Jr., who has been elevated to the top court.

"The majority of the present-day court believes I am right."

When Harrell recused himself, a retired judge replaced him on the court.

The case might not be over, Amato said. The Court of Special Appeals did not rule on whether the city judge was correct in saying there was no evidence of gross negligence, a difficult standard to meet. That leaves a possible avenue for reviving the case, he said.

In 1997, Burley's family sued the city and paramedic Kevin Williams for $400,000. The lawsuit contends that Williams inserted a breathing tube into Burley's esophagus, which leads to the stomach, instead of into her windpipe, which leads to the lungs. Burley had been suffering shortness of breath when relatives called for an ambulance.

Baltimore Circuit Judge David B. Mitchell blunted the lawsuit in 1998, saying the city and the paramedic were immune unless Burley's family showed that the paramedic and the city were grossly negligent, which he said they had not done.

The family turned to the Court of Special Appeals last year and won when the state's second-highest court ruled that by charging for ambulance service, the city forfeited immunity.

More than a dozen firefighter and paramedic unions and organizations urged the Court of Appeals in a brief to give them lawsuit protection. They said fees that defray the cost of emergency care should not lead to second-guessing by judges and juries of work they do quickly, under stress and often without knowing a patient's medical history.

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