Guest article by Dino A. Ross, Esq. and Emily J. Dodds, Esq., Ireland Stapleton Pryor and Pascoe, P.C.

Editor’s Note: This is the second part of a two-part series.

In October 2008,  the Colorado Department of Public Health and Environment held its First Annual Safety Summit. The objective of the Safety Summit was to develop strategies for safe ambulance operation. One recommendation made at the Safety Summit was to require all new ambulances to be equipped with ambulance data recorders (“black boxes”). The State Emergency Medical and Trauma Services Advisory Council adopted the recommendation and implemented it in the FY10 EMTS Provider Grants Program (“Grants Program”). As a result, all new ambulances purchased with Grants Program assistance must include black boxes. This article discusses this new ambulance black box requirement, as well as the operational and legal issues Colorado’s ambulance operators should consider when adopting their own black box systems. For purposes of this article, the term “ambulance operators” means Title 32 ambulance districts, fire protection districts operating ambulances, or metropolitan districts performing ambulance operations as one of its authorized organizational services.

F. Legal Issues
Black box systems will present a double-edged sword in the claims and litigation context. On one hand, because the black box records the activity of the ambulance’s lights, siren, and turn signals, as well as the ambulance’s speed and braking, its data can provide a powerful defense to claims that the ambulance was operating improperly without lights, siren, or turn signals, that it failed to brake, or that it was speeding. One ambulance operator reported avoiding litigation where a patient with heart pains claimed the ambulance stopped at a McDonald’s on its way to the hospital; however, the black box data established that the ambulance had made no unscheduled stops.

On the other hand, the black box data can present damaging evidence against an ambulance operator if it shows that the driver violated the law or exceeded the user-set limits. As an example, ambulance drivers in Colorado are permitted to disregard certain motor vehicle laws when responding to an emergency, such as proceeding through red traffic signals and exceeding the speed limit, so long as they slow appropriately and do not endanger life or property. Governmental immunity will insulate public ambulance operators from liability that may result from disregarding these laws, so long as the requirements for operating the ambulance during an emergency are observed.  But if the ambulance black box shows that the ambulance driver, for example, did not slow before proceeding through a red traffic signal, governmental immunity will not apply, and the ambulance operator and ambulance driver will be exposed to liability.  Similarly, if the ambulance driver was exceeding the “high over-speed” user-set limits at the time of an accident, that data may establish the driver endangered life or property, thereby forfeiting governmental immunity for the ambulance operator and driver.  In such cases, the black box data could become the centerpiece of a plaintiff’s lawsuit against the ambulance operator and ambulance driver. Obviously, in cases where the black box reveals the ambulance driver was at fault in an accident, the ambulance operator will have early notice that it should settle rather than take an expensive gamble in litigation.

An ambulance operator also must carefully consider what it will do in response to the driver’s level of performance grades assessed by the black box. As with physical fitness assessments, the ambulance operator must have a plan for addressing unsatisfactory performance grades. For example, will a driver with an unsatisfactory level of performance grade be prohibited from driving the ambulance? At what point? What steps will be taken to improve the driver’s performance grade before releasing the driver to resume ambulance operation? It is possible that an ambulance operator and the driver may be exposed to liability if the driver has received recent unsatisfactory performance grades and causes injury to a third party while operating an ambulance.

For public entities, the black box data will be subject to open records requests under the Colorado Public (Open) Records Act.  The data will also be subject to the document retention and destruction schedule established by the Colorado State Archivist. 

Because black box data may used as evidence in litigation, ambulance operators must make sure to preserve any data that may be relevant to an existing or potential claim. This means that once an ambulance operator becomes aware of facts that it knows may give rise to litigation (such as the occurrence of an accident or injury to a third party), the operator must preserve the relevant black box data and ensure it is not deliberately or accidentally disposed of pursuant to the operator’s document retention and destruction schedule. Destruction of the black box data under these circumstances could have serious consequences in litigation, just as would the destruction of any other relevant evidence. Thus, the ambulance operator must have policies and procedures in place to ensure that the black box data is not vulnerable to manipulation and that a proper chain of custody is established for the data. In certain circumstances this may require engaging an independent company to retrieve the black box data.

G. Standard Operating Guidelines
It is important for the ambulance operator to establish comprehensive Standard Operating Guidelines that address all of the legal and operational issues surrounding use of an ambulance black box system. At a minimum, the Standard Operating Guidelines should address:

• Parameter settings for emergent and non-emergent speed, rate of acceleration, rate of deceleration, hard braking, and hard cornering, including low and high settings where appropriate;
• Parameter settings for the amount of warning time a driver will be allowed before penalty points are assessed;
• Procedures regulating light, siren, turn signal, and seatbelt use, as well as the use of a spotter while backing;
• The level of performance grade required to meet the ambulance operator’s minimum driver performance standard;
• Whether to establish separate standards for low-mileage and high-mileage drivers, and if so, what will constitute “low” and “high” mileage;
• How new drivers will be trained and tested on the black box system;
• The consequences for drivers who fail to meet the minimum driver performance standard;
• Required training or other steps necessary to improve the performance of a driver with an unsatisfactory level of performance grade;
• Policies and procedures for complying with open records requests for black box ambulance data;
• The establishment of retention and destruction schedules for black box data, or the incorporation of black box data into existing document retention and destruction schedules; and
• Policies and procedures for ensuring that any black box data that may be relevant to current or potential litigation is properly preserved, is not disposed of pursuant to an ordinary document retention and destruction schedule, and that a proper chain of custody for the black box data is established.

In establishing its Standard Operating Guidelines, each ambulance operator should consider its unique operating procedures, context, and goals. The ambulance operator also should consider such environmental factors as the legal speed limit in the area, the geographical terrain (e.g., mountain or plains), the urban or rural character of the locale, the types of roads on which the drivers will primarily be operating (e.g., residential or interstate), and any other relevant factors. Additionally, ambulance operators should carefully consider the most effective and advantageous method by which to implement its new black box system.

Ambulance operators who have or may obtain ambulances subject to the new black box requirement should contact their legal counsel to discuss these issues and to develop appropriate Standard Operating Guidelines and implementation method for the operator’s ambulance black box program.

For further information, please contact Dino Ross (dross@irelandstapleton.com) or Emily Dodds (edodds@irelandstapleton.com) at Ireland Stapleton Pryor & Pascoe, PC.

This article is intended as general discussion and information on the topic covered, and is not to be construed as rendering legal advice. If legal advice is needed, you should consult a qualified attorney. This article may not be reprinted or reproduced in any manner without prior written permission of the authors.