LARYNGOSCOPES, LIDOCAINE, AND LIABILITY: THE ABSENCE OF IMMUNITY PROTECTION FOR PREHOSPITAL PROVIDERS IN INDIANA MeghanA. Cox· TABLE OF CONTENTS I. INTRODUCTION ................................................................................. 78 IT. TRENDS IN EMS LmGATION ............................................................ 81 A. Chicago: 1976-1987 .................................................................. 81 B. Miami-Dade County: 1972-1982 .............................................. 81 C. Denver: 1984-1993 ................................................................... 82 D. Denver: 1993-1998 ................................................................... 82 ill. CONSTITUTIONAL CLAIMS INYOKING42 U.S.C. § 1983 ("§1983'') ...... 83 A. The Fourth Amendment .............................................................. 84 B. The Eighth Amendment .............................................................. 86 C. The Fourteenth Amendment ....................................................... 87 IV. CIVIL LIABILITY STATUTES .................................................................. 89 A. Statutory Provisions for CMI Liability in Indiana and Surrounding States ..................................................................... 89 1. Indiana ................................................................................ 89 2. Michigan .............................................................................. 91 3. Illinois .................................................................................. 91 4. Ohio ..................................................................................... 92 5. Kentucky .............................................................................. 92 B. States Providing for Liability for Ordinary Negligence ............. 92 C. Application of Ordinary Negligence Standard to EMI's ............ 93 V. THE INDIANA MEDICAL MALPRACTICE ACT .................................... 94 A. Generally .................................................................................... 94 B. The Patient's Compensation Fund ............................................. 96 VI. THE POLICY CONSIDERATIONS DRIVING IMMUNITY ........................ 97 A. The State of EMS in Indiana ...................................................... 97 B. Other Statutory Grants of Immunity ........................................... 98 1. Indiana Code Section 16-31-6-4: Immunity in Disaster Emergency ........................................................................... 98 2. Indiana Code Section 34-30-12-1(b): Good Samaritan Law ...................................................................................... 99 C. The Role ofFirefighter/EMI's .................................................. 101 D. The Prevalence ofShiftwork .................................................... 102 * J.D. Candidate, 2009, Indiana University School ofLaw -Indianapolis; B.A., 2006, The College of William and Mary; Indiana Emergency Medical Technician- Basic. 78 INDIANA HEAL Til LAW REVIEW [Vol. 6:77 E. Administrative Liability ............................................................ 103 VU. CONCLUSION .................................................................................. 104 I.INTRODUCI'ION On February 16, 1968, then-Alabama Speaker of the House, Rankin Fite, placed the first-ever 911 call from City Hall to the police station in Haleyville, Alabama.1 Thirty years later, President Clinton signed the Wireless Communi­ cations and·Public Safety Act of 1999, which designated "911'' as the nation­ wide emergency number.2 Since that first 911 call forty years ago, dramatic changes have occurred in the response provided to an emergency call, especial­ ly with regard to the provision of Emergency Medical Services ("EMS"). The public's expectations of emergency response have changed as well, but these changes may not necessarily reflect the reality of EMS. Public expectations have been shaped largely by media portmyals ofEMS response.3 Recent generations have been exposed to television shows devoted to the dramatization of emergency response. From 1972 to 1979, for example, Emergency! aired on NBC and portrayed a fictional crew ofLos Angeles Coun­ ty Fire Department paramedics responding to emergencies.4 From 1989 to 1996, Rescue 911 aired on CBS and featured dramatic reenactments of situa­ tions leading up to and following 911 calls.5 The show was devoted almost entirely to successful rescues. 6 Other, more recent shows, such as E.R. and Chicago Hope, have continued to provide a glimpse into emergency medical care. The dramatic and selective nature of these shows has generated the per­ ception that virtually all prehospital interventions are successful. 7 Of emergencies portrayed on television, the resuscitation of cardiac arrest patients exhibits the greatest discrepancy between how it is portmyed on televi­ sion and actual statistics. 8 A 1996 study of the television programs Chicago Hope, ER, and Rescue 911 found that the programs gave misleading portrayals 1. See The History of 911, DisPATCH MONTHLY MAGAZINE, available at http://www.911dispatch.com/ 911/history (last visited Jan. 9, 2008). 2. 47 U.S.C.A. § 615 (West 1999). 3. Bryan Bledsoe, Have We Set the Bar Too High?, 32 J. EMERGENCY MED. SERVS. (March 2007), available at bttp://wwwJems.comlnews_and_articles/articles/jems/3203/have _ we_set_the_bar_too_high.htmL 4. See Emergency! (1972), Internet Movie Database, Inc., http://imdb.com/titlel tt0068067 (last visited Feb. 6, 2009). 5. See Rescue 911 (1989), Internet Movie Database, Inc., http://imdb.com/title/ tt0096688/ (last visited Feb. 6, 2009). 6. Susan J. Diem, et al., Cardiopulmonary Resuscitation on Television, 334 NEW ENo. J. MED.1S78, 1581 (1996). 7. Bledsoe, supra note 3. 8. ld. 2009] LARYNGOSCOPES, LIDOCAINE, AND LIABILITY 79 of cardiopulmonary resuscitation ("CPR")9 and death in three ways.10 First, the study found that the shows inaccurately represented the types of people most commonly given CPR: on television, sixty-five percent of those given CPR were children, teenagers, or young adults; in reality, cardiac arrest is much more common in the elderly. 11 Second, the study found that the shows inaccurately reflected the causes of cardiac arrest: only twenty-eight percent of those on tel­ evision had a cardiac arrest attributable to underlying cardiac disease, as op­ posed to acute injury, such as gunshot wounds or motor vehicle collisions; in real life, underlying cardiac disease accounts for seventy-five to ninety-five per­ cent of all cardiac arrests.12 Finally, the study found that CPR performed on the shows succeeded far more frequently than in real life: the three shows com­ bined showed a seventy-five percent survival rate immediately after cardiac arrest; 13 Rescue 911, which admittedly focuses on the successes of emergency services, had a 100% post-CPR survival rate. 14 These shows,.and others like them, instill in the public an unrealistic impression of resuscitation efforts and their chances for success, showing overall survival rates significantly higher than the most optimistic statistics provided in medical literature. 15 Public expectations have also been shaped by education campaigns de­ signed to promote the use of911 in emergencies. These public education pro­ grams have largely emphasized the importance of speed in obtaining an emergency response. 16 Although response times less than four minutes from the time of patient collapse are highly correlated with improved resuscitation rates, 17 it would be prohibitively expensive for most EMS agencies to consis­ tently provide response times under four minutes. 18 Many EMS systems have 9. American Heart Association, "Cardiopulmonary Resuscitation (CPR)," available at http://www.americanheart.orglpresenter.jhtml?identifier=4479 ("CPR is a combination of rescue breathing and chest compressions delivered to victims thought to be in cardiac arrest. When cardiac arrest occurs, the heart stops pumping blood. CPR can support a small amount of blood flow to the heart and brain to 'buy time' until normal heart function is restored."). 10. Diem, et al., supra note 6, at 1580-81. 11. Id. at 1581. 12. Id. 13. ld. 14. !d. 15. Jaqueline Brooks, Real CPR Isn 't Everything It Seems to Be, Web MD, May 14, 200 l, available at http://www.webmd.com/news/200 I 0514/real-cpr-isnt-everything-seems-to-be ("[O]nly between 5%-10% of people who undergo CPR will survive."). See generally Diem, et al., supra note 6, at 1578. 16. Bledsoe, supra note 3. 17. Jd.; see also Peter T. Pons & Vincent J. Markovchick, Eight Minutes or Less: Does the Ambulance Response Time Guideline Impact Trauma Patient Outcome?, 23 J. EMERGENCY MEn. 43, 45-46 (2002). 18. Pons & Markovchick, supra note 17, at 47 ("It is not realistic to expect ever-shorter[ . . . ] ambulance response times to be the answer to meet all out-of-hospital medical needs and expectations. . . . [T]here is a significant financial cost associated with lowering ambulance response times. To do so means the addition of ambulance vehicles and paramedic staff at an approximate annual cost of $400,000 to $500,000 per 24 hi day staffed ambulance."). 80 INDIANA HEALTH LAW REvmw [Vol. 6:77 an eight-minute target response time;19 however, a 2002 study found that ''there is little evidence [ ... ] to suggest that changing [ ... ] response time specifica­ tions to times less than current, but greater than 5 minutes, would have any beneficial effect on survival. "20 EMS personnel are already ''particularly vul­ nerable to malpractice allegations since they routinely treat patients in less than optimal locations with minimal if any history, no advance notice and with li­ mited resources."21 The added distortion of the importance of response times and the inflated survival rates portrayed to the public22 has primed the prehos­ pital patient care relationship for litigation. The purpose of this Note is to map out the scheme of civil liability for EMS providers in Indiana and call into question the absence of minimal im­ munity protections for them. 23 Part ll of this Note explores the increasing trends in litigation against EMS providers, as found in several studies con­ ducted between 1972 and 1998. Part m explores the constitutional arguments that plaintiffs have made in attempting to hold EMTs liable for claimed defi­ ciencies in the provision of emergency medical services. Part IV of this Note introduces the civil liability provisions in the Indiana Code applicable to EMTs and the standard of care that those provisions impose. It considers these statu­ tory provisions, as compared to those of neighboring states. Part V considers the potential impact of the Indiana Medical Malpractice Act (the "Act") on EMS providers. Part VI considers the policy imperatives driving a grant of immunity for EMS providers. This Note concludes with the recommendation that, as a public policy matter, the Indiana General Assembly should provide immunity to EMTs for acts of ordinary negligence. 19. Bledsoe, supra note 3. 20. Thomas H. Blackwell & layS. Kaufinan, Response Time Effectiveness: Comparison of Response Time and Survival in an Urban Emergency Medical Services System, 9 ACAD. EMERGENCY MED. 288, 288 (2002). 21. BRUCE M. COHN & ALAN 1. AzzARA, LEciALAsPEcTs OF EMERGENCY MED. SERV. 8 (W.B. Saunders Company 1998). 22. See discussion of distorted portrayals of resuscitation on television, supra pages 2-3. 23. The state of Indiana, through the Indiana Department of Homeland Security, offers three main levels ofEMS certification: Emergency Medical Technician ("EMT'')- Basic, EMT­ Intermediate, and EMT -Paramedic. See IDHS: Emergency Medical Services Training Program, Indiana Dept of Homeland Sec., available at http:l/www.in.gov/dhs/2476.htm. (The state of­ 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). These certification levels correspond to the medical skills that a provider is trained and permitted to perform. Generally speaking, ALS providers can perform skills including endotracheal intuba­ tion, initiating intravenous ("IV") lines, drug administration, electrocardiogram interpretation, and operation of a manual defibrillator. See id. Indiana's EMS training standards are "estab­ lished by the Indiana Emergency Medical Services Commission and either meet or exceed the standards set by the National Highway Traffic Safety Administration (NHTSA) for EMS pro­ grams;" IDHS: Emergency Medical Services Training Program, Indiana Dept. of Homeland Sec., available at http://www.in.gov/dhs/2476.btm. For purposes of this Note, "EMT" will refer to all levels of certification, and "paramedic" wiD refer specifically to ALS personnel. 2009] LARYNGOSCOPES, LIDOCAINE, AND LIABD...ITY 81 ll. TRENDs IN EMS LmGATION The focus of this Note is on liability for medical treatment rendered in the prehospital setting; therefore, the reader will note that it gives only limited con­ sideration to other possible sources oflitigation against EMS providers, such as problems with dispatch or motor vehicle accidents involving responding ve-. hicles. Even though the studies examining litigation against EMS providers are generally not limited to claims for medical care, they are still illustrative of the general trends in this sort of litigation- trends which may influence, or be in­ fluenced by, the scheme of civil liability for EMS personnel in a given jurisdic­ tion. A. Chicago: 1976-1987 . . One study reviewed all claims brought against the Chicago municipal am­ bulance service system from 1976 to 1987.24 Lawsuits alleging "improper med­ ical 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 patient transports. 26 Almost one-third of the lawsuits involved patients who suffered cardiac arrest. 27 Patient death, regardless of cause, increased the likelihood of a lawsuit.28 Noting that the most common cause of litigation involved acts of omission, the authors recommended that ''prehospital providers should be en­ couraged to provide aggressive management when any doubt exists. ,,29 The study indicated an increasing number of claims filed against prehospital care providers over time, 30 trumpeting the importance of reconsidering the applica­ ble schemes of civil liability. B. Murmi-Dade County: 1972-1982 Another study conducted during the formative stages ofEMS found simi­ lar results- that is, a low risk of litigation during the period of the study with an increasing instance of complaints over time. 31 This study looked at the claims filed against Dade County Fire Rescue in Miami-Dade County, Florida between 1972 and 1982, and found an incidence of one claim per 24,906 24. RichardJ. Goldberg, et al,A ReviewofPrehospital Care Litigation ina Large Metro- politan EMS System, 19 ANNALs EMERGENCY MEn. 557,557 (1990). 25. Id 26. Id at 559. 27. Id. 28. Id 29. Goldberg, supra note 24, at 561. 30. Id. at 557. 31. Joseph M. Soler et al, The Ten-Year Malpractice Experience of a Large Urban EMS System, 14ANNALSEMERGENCYMED. 982,982 (1985). 82 INDIANA HEALTH LAW REVIEW [Vol. 6:77 runs. 32 More than half of the claims filed during the ten-year study period were filed in the last three years of the study. 33 The authors of the study offer some potential causes for this trend toward litigiousness, including ''the belief that in the public's eye the 'new glow' ofEMS has worn off; that yesterday's miracles are today's routine occurrences; that trauma system development points out the weaknesses and strengths ofprehospital care[ ... ] and that the public's senti­ ment is that all misfortunes are compensable events. ,,34 This same theme is rei­ terated elsewhere: "[o]ne of the most common fallacies among lay persons is the belief that malpractice is always responsible if medical treatment yields a bad, unsatisfactory or unexpected result. "35 · C. Denver: 1984-1993 Another study undertook a retrospective review of all claims made against the Denver Health Paramedic Division from 1984 to 1993.36 The study found an average of one claim per 5,084 runs.37 Motor vehicle accidents involving ambulances accounted for seventy-two percent of the claims, while claims spe­ cifically alleging medical negligence represented less than four percent of the claims.38 Notable, however, is that the medical negligence claims, while representing less than four percent of the claims, accounted for thirty-five per­ cent of the monetary losses paid out in legal claims. 39 D. Denver: 1993-1998 A more recent study picked up where the previous research left off, look­ ing at all complaints in Denver from 1993 to 1998, this time against the Denver Paramedic Division. 40 The study, which was not limited to complaints brought for medical treatment, found a complaint rate of one per 1,075 ambulance res­ ponses, 41 a complaint rate substantially higher than that of the Chicago and Mi­ ami-Dade County studies. Of these, complaints alleging improper medical treatment represented twenty percent of the complaints,42 but the number may be higher- according to the authors of the study, some medical treatment issues also may have been categorized as "rude behavior,'' a category which 32. Id at 983. 33. Id at 984. 34. Id at 985. 35. COHN&AzzARA, supranote21,at8. 36. Christopher B. Colwell, et al, Claims Against a Paramedic Ambulance Service: A Ten-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. EMERGENCY MED. 403, 404 (2003). 41. Id. 42. ld. at 406. 2009] LARYNGOSCOPES, LIDOCAINE, AND LIABILITY 83 represented another twenty-three percent of the claims. 43 The authors of the study concluded that "[t]he identification of areas of high dissatisfaction will hopefully lead to targeting of quality and performance improvement programs directed at customer service and risk management. ,,44 Conspicuously absent from this recommendation are programs addressing the technical proficiency of prehospital providers, which may simply be an acknowledgement that the con­ ditions of prehospital emergency response are, by definition, less-than-ideal, and that it is inevitable that the conditions encountered in emergency response may sometimes surmount the resources available to prehospital providers in their efforts to provide medical care. It would be a mistake to derive any specific conclusions from this or the other studies as none of them were conducted in Indiana, and are thus suscepti­ ble to the statutory provisions of their respective jurisdictions. It is, however, possible to discern a general trend toward increasing litigation involving EMS agencies and providers. This trend warrants a reexamination of the provisions governing 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 government­ employed EMTs by filing claims alleging the deprivation of a federal constitu­ tional right. 45 These claims are brought under the authority of the Civil Rights Act of 1871, which declares that [ e ]very person who, under color of any statute, ordin­ ance, regulation, custom, or usage, of any State or Terri­ tory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other per­ son within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Con­ stitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceed­ ing for redress.46 The Seventh Circuit Court of Appeals once described § 1983 as "the ubiquitous tort remedy for deprivations of rights secured by federal law (primarily the Fourteenth Amendment) by persons acting under color of state law. "47 Without alleging more than inept medical care, plaintiffs have generally failed to state 43. /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). 84 INDIANA HEALTH LAW REVlEW [Vol. 6:77 viable constitutional claims because "even if the complaints state good claims under general tort principles, it does not follow that they state good claims un­ der [§]1983 just because the defendants are public officers.'..t8 The decisions rejecting alleged constitutional violations for negligent emergency medical care are numerous and worth considering, especially in light of their policy implica­ tions. A. The Fourth Amendment The Fourth Amendment provides, in relevant part, that"[ t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated. '.49 Generally, moving a patient into an ambulance is not considered "custody" for purposes of the Fourth Amendment. 5° Something more closely resembling a Fourth Amend­ ment violation may arise when EMTs must restrain a patient in order to effec­ tively administer medical aid, potentially running afoul of the prohibition on "unreasonable searches and seizures. "51 In Peete v. Nashville, 52 for example, EMTs restrained a man having an ep­ ileptic seizure, who then died shortly after being restrained. 53 The court grap­ pled with what is considered a "seizure" for purposes of the Fourth Amendment, distilling from precedent that it is "an intentional interference with a person's liberty by physical force or a show of authority that would cause a reasonable person consciously to submit. "54 Since the decedent was uncons­ cious, the court found that no Fourth Amendment violation existed because the patient necessarily "could not perceive any restraint on his liberty or otherwise feel compelled to submitto a governmental show offorce."55 In another case, Davidson v. City of Jacksonville, 56 EMS and fire person­ nel restrained an uncooperative patient suffering a hypoglycemic episode (low blood sugar), in order to check his vital signs, establish an IV line, and adminis­ ter medicine used to treat low blood sugar.57 After securing his hands with handcuffs, tying his ankles together, and connecting the two restraints with a bandage, they carried him by his arms and legs to the stretcher located at the 48. !d. at 1203. 49. U.S. CONST. amend. IV. 50. "The overarching prerequisite for custody is an affirmative act by the state that re­ strains 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 in custody." !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 LIABILITY 85 front door. 58 The patient's mid-section was unsupported while being carried; he was subsequently diagnosed with a herniated disc and suffered a permanent disability as a result. 59 The court rejected the plaintiff's Fourth Amendment claim on grounds similar to those in Peete, stating: ''there is no evidence that Mr. 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 Fourth Amendment was inapplicable "given the lack of refusal on Mr. Davidson's part.'o6l Indeed, the only viable Fourth Amendment claims against EMTs, when the EMTs are acting without law enforcement intervention or intent, are those in which a patient was capable of refusing treatment or transport, did refuse, but was transported or treated nonetheless. In Green v. City of New York, 62 the pa­ tient-plaintiff suffered from Lou Gehrig's disease, required a mechanical venti­ lator to breathe, and if the mechanical ventilator malfunctioned, family members had to perform manual ventilation.63 One afternoon, after the patient­ plaintiff's mechanical ventilator failed, his family called 911 and initiated ma­ nual ventilation.64 By the time EMTs arrived, the patient-plaintiff was alert and oriented, and was able to non-verbally communicate-by blinking his eyes and using a computer- that he did not want to be transported to the hospital. 65 The emergency medical personnel on scene transported the patient-plaintiff any­ way. 66 The court held that seizing and transporting a competent adult for treat­ ment is a violation of the Fourth Amendment, unless he presents a danger to himself or others. 67 As gleaned from these cases, a Fourth Amendment claim against EMTs based solely on flawed medical care is not viable, because the EMTs are "not acting to enforce the law, deter or incarcerate . .,c;8 As in Green, a patient with 58. /d. 59. Id. at 1294. 60. Id at 1295. 61. I d. This holding begs the question of what is sufficient to constitute a "refusal." Ex­ press consent is required ftom every conscious, mentally-competent patient oflegal age before rendering treatment. See NAT'L HIGHWAY l'RANSP. SAFElY ADMIN., U.S. DEP'T OF TRANSP., EMERGENCYMED. 'I'EcHNJCIAN-BAsl:c:NAT'LSTANDARDCURRICULUM68(1994),availab/eat http://www.nhtsa.dotgov/peoplelinjury/emslpublemtbnsc.pdf (hereinafter EMT-BASIC: NATIONAL STANDARD CURRICULUM] ; see also Jon Belding, Patient RefUsal: What to Do When Medical 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 an unconscious patient requires emergency medical care. and such consent is based on the assump­ tion that the unconscious patient would consent to emergency care if he was conscious. See EMT- 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. 86 INDIANA HEALTH LAW REVIEW [Vol. 6:77 the capacity to refuse consent may have a successful claim against EMTs who disregard such a refusal; however, those claims can be distinguished as dealing with the forcible seizure of a person by a government official, rather than deal­ ing with medical care. B. The Eighth Amendment Plaintiffs may also allege violations of the Eighth Amendment for care rendered in the field. The Eighth Amendment prohibits, among other things, the inflicting of cruel and unusual punishment. 69 Liability under the Eighth Amendment must necessarily be preceded by a determination that the patient is in custody under the Fourth Amendment. This is because the "[g]overnment generally has no constitutional duty to provide rescue services to its citizens, and if it does provide such services, it has no constitutional duty to provide competent services to people not in its custody."70 The implication is that the Government must provide rescue services to people in its custody. The subse­ quent inquiry is what standard of care must be provided. In Salazar v. Chicago, 71 the decedent-plaintiff drove after drinking exces­ sively, and then ran into a parking meter and the front of a restaurant. 72 Para­ medics were the first on-scene; they took the decedent-plaintiff's vital signs and began palpating his body for injuries, at which time he refused further examina­ tion. 73 The police arrived shortly thereafter and both the police and paramedics attributed the decedent-plaintiff's disorientated behavior to his intoxication. 74 The paramedics left, leaving the decedent-plaintiff with the police who subse­ quently arrested him. 75 He was taken to the police station that night and died the next afternoon from a traumatic liver laceration, a condition which had no obvious external symptoms. 76 At trial, when establishing the standard applica­ ble to their actions, the paramedics conceded that the decedent-plaintiff should have been treated as a pre-trial detainee. 77 The court then held that the Eighth Amendment imposes liability on the paramedics only if their behavior ''reflects complete indifference to risk- when the actor does not care whether the other person lives or dies, despite knowing that there is a significant risk of death."78 As applied to the behavior of the pa­ ramedics in Salazar, "[p ]erhaps [they] should have done more for Salazar, and perhaps their failure to do more was either negligent or ( doubtedly) grossly neg- 69. U.S. CONST. amend. Vill. 70. Salazar v. City of Chicago, 940 F.2d 235,237 (7th Cir. 1991). 71. /d. 72. Id at 234. 73. Id. at 235. 74. Id at 236. 75. /d .. 76. Salazar, 940 F.2d at 236. 77. /d. at 237. 78. /d. at 238 (q~oting Archie v. City ofRacine, 847 F.2d 1211, 1219 (7th Cir. 1988)). 2009] LARYNOOSCOPES, LIDocAINE, AND LIABILITY 87 ligent. But [their] actions do not evidence the complete indifference to Sala­ zar's well-being that constitutes deliberate indifference."79 The Seventh Circuit defined "deliberate indifference" as conduct that is intentional or criminally reckless. 80 This definition is based on a consideration of what constitutes ''pu­ nishment," as the Eighth Amendment's prohibitions speak only to cruel and unusual punishment, and "[ a]ny state of mind short of criminal recklessness does not import danger so great that knowledge of the danger and thus, intent to inflict it, can be inferred.'.s1 In Peete, the decedent-plaintiff, who had an epileptic episode and died af­ ter being physically restrained, argued that the behavior of the EMTs mani­ fested a deliberate indifference82 to serious medical needs, in violation of the Eighth Amendment.83 After the patient's Fourth Amendment argument failed, 84 the court rejected any argument rooted in Eighth Amendment protec­ tions: where the purpose is to render solicited aid in an emer­ gency rather than to enforce the law, punish, deter, or in­ carcerate, there is no federal case authority creating a constitutional liability for the negligence, deliberate in­ difference, and incompetence alleged in the instant case. The Eighth Amendment "Cruel and Unusual Punish­ ment" Clause raising a "deliberate indifference" stan­ dard does not apply here because Becerra was not incarcerated and the purpose of the alleged wrong was not punishment. ss This case demonstrates that an Eighth Amendment violation occurs only if a patient is in custody at the time of receiving medical care, and the care rendered by the EMT shows such complete indifference to the patient's well-being that it constitutes deliberate indifference. As this standard of care requires criminal recklessness, mere negligence by an EMT, even gross negligence, is insuffi­ cient to impose liability under the Eighth Amendment. C. The Fourteenth Amendment A cursory glance at federal case law renders the impression that the most 79. Salazar, 940 F.2d at 242. 80. Id at 238; see also Archie, 847 F.2d at 1218. 81. Salazar, 940 F.2d at 239 (internal quotation nuuks omitted). 82. Estellev. Gamble, 429 U.S. 97, 104(1976) ("[D)eh"berateindifferenceto serious med­ ical needs of prisoners constitutes the uunecessmy and wanton infliction of pain [ •.. ] proscribed by the Eighth Amendment")(intemal citations omitted). 83. Peete, 486 F.3d at 221. 84. See Part ill.A, infra. 85. Peete, 486 F.3d at 221. 88 INDIANAHEALlH LAW REVIEW [Vol. 6:77 commonly alleged §1983 violations involving EMTs are violations of Four­ teenth Amendment protections, specifically the Due Process Clause. 86 The Due Process Clause provides that the Government shall not "deprive any person of life, liberty, or property without due process of law.'.s7 Just as the Eighth Amendment speaks to the standard of care owed to a patient in state custody, the Due Process Clause imposes the standard of care on EMTs providing emer­ gency medical services to the general public. According to the Supreme Court, the Due Process Clause "forbids the State itself to deprive individuals of life, liberty, or property without • due process oflaw,' but its language cannot fairly be extended to impose an affirmative obligation on the State to ensure that those interests are not banned through other means.'.s8 As a charter of negative liberties, the Constitution seeks "to protect Americans from oppression by state government, not to secure them basic governmental services.'o89 Expanding the Due Process Clause to include a right to government services •