Many times the first contact that a sick or injured individual has with a hospital is when an ambulance arrives at his home, the attendant and the emergency medical technician work over him, and he is loaded into the ambulance for the trip to the hospital. Now assume that the patient is in even worse shape when he gets to the hospital, and the reason for the decline in his condition appears to be the conduct of the emergency health care provider. Does the patient have a cause of action for medical malpractice against the health care providers or their employers, and if so, do the health care providers have any defenses against the action?

A number of states have statutory or constitutional provisions directly dealing with the potential liability of emergency medical care providers. These statutes, including Good Samaritan laws, are frequently designed to encourage emergency medical treatment by granting immunity against medical malpractice actions in the absence of gross or willful and wanton negligence. Gross negligence along with willful and wanton negligence is often interpreted as more than ordinary negligence but less than intentional negligence. An actor whose conduct is grossly or wantonly and willfully negligent has knowledge of an existing dangerous condition but chooses to proceed in a manner that is recklessly indifferent to the result. Many jurisdictions apply these immunity statutes even though the emergency health care providers are not volunteers when they working on a sick or injured individual.

Emergency care providers are usually employed by hospitals, governmental units such as municipalities, or private businesses, and injured parties have filed medical malpractice actions against not only the individual emergency care providers but against their employers under general tort law principles. In actions based on direct liability, the injured parties must prove that the employer failed to supervise, train, or instruct the emergency care providers and that it was this failure that causing the patient’s increased injury.

In actions against employers based on vicarious liability, the courts often look to any governmental immunity statutes. Vicarious liability against municipal employers has been found when an employee who worked as an emergency care provider breached his duty of care and there was a causal connection between the negligent treatment in the injury. However, there was no vicarious liability against the employing city or ambulance service when the evidence failed to show the negligence of the individual care provider.