This document provides a summary of an article in the Winter 2013 issue of the National Tactical Medical Association journal. The article discusses legal issues that can arise for tactical medical providers in their work. It notes that tactical medical providers are subject to oversight from their state licensing boards and must practice within their scope. It also discusses protections from liability, the importance of medical control and documentation, and preserving evidence when providing care in tactical situations.

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Winter
IN THIS ISSUE
•Legal Issues in Tactical
Medicine
Michael Baulch RN,JD, Tactical
Medic
•On The Horizon - STS
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CAREUNDERFIRE2013
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"Criticism is necessary and
useful; it is often
indispensable; but it can
never take the place of
action, or be even a poor
substitute for it. The
function of the mere critic
is of very subordinate
usefulness. It is the doer
of deeds who actually counts
in the battle for life, and
not the man who looks on and
says how the fight ought to
be fought, without himself
sharing the stress and the
danger." (1894)
! Theodore Roosevelt
CARE UNDER FIREThe official Journal of the National Tactical Medical Association
Winter 2013
LegalIssuesinTacticalMedicine
Michael N. Baulch, R.N., JD, Attorney at Law, Tactical Medic, FBI SWAT San Francisco
Introduction
The practice of medical care in
the tactical environment (tactical
medicine) is fraught with
numerous known risks and
dangers not typically present in
the standard EMS setting; contact
with suspects who have already
shown a propensity for violence,
exposure to gunfire and flash-
bang grenades, non-lethal gas
agents, extreme environmental
conditions, potential blunt force
injuries (such as falls) resulting
from dynamic entry techniques,
and extreme stress associated
with working in the dangerous
circumstances of SWAT team
callouts. However, one often
unappreciated risk encountered
by tactical medicine providers is
one that can be as career
damaging, or career ending, as
any physical or psychic injury. It
is that of civil, administrative, or
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even criminal legal liability that
can attach to a finding of medical
negligence in the performance of
duties as a medical support
member of a civilian tactical or
SWAT team.
There are a number of legal
challenges in the delivery of
Tactical EMS. The first issue is
that most, if not all, of the non-
law enforcement patient contacts
(such as suspects, family
members, and bystanders) will
likely view the tactical medic as
an adversarial party, part of the
same law enforcement effort that
resulted in their injury in the first
place. This is quite different from
normal EMS responders, who
are most often regarded by
patients and families as welcome
rescuers.
Second, tactical medical care is
delivered under extraordinarily
stressful (i.e. tactical)
circumstances. Under those
stresses, perceptions and
priorities may be altered and
misunderstood by both patients
and witnesses alike.
Third, medical care delivered in a
tactical setting will be subject to
a level of scrutiny and after-
action review not normally seen
in the average EMS setting.
Injuries that result from the
actions of law enforcement
personnel are very often
examined by standing review
boards and investigative units,
and injuries inflicted upon law
enforcement personnel by
suspects are similarly reviewed
as after-action investigations and
can be important in the
prosecution of said suspects.
Injuries to civilian bystanders are
almost certain to result in civil
litigation against the responsible
law enforcement agency. It is
safe to assume that any medical
care delivered by a tactical
medic in an actual operational
setting is going to be scrutinized
by any number of review boards
or, potentially, a criminal and/or
civil jury. Even training injuries
that require some level of
hospital evaluation of an injured
operator will be reviewed by
training departments and
command personnel as a hedge
to improve training and
prevention of future injuries. For
the FBI, serious injuries incurred
during training of SWAT and
Hostage Rescue Team (HRT)
operators is quickly, often within
minutes, reported up to the
Director level at FBI
Headquarters.
There are few, if any, current
legal precedents, such as
lawsuits specifically addressing
medical negligence in the tactical
setting, which have resulted in
legal sanctions for tactical
medical providers. The legal
landscape for tactical medicine is
significantly less developed than
is that for EMS in general, itself a
relatively young and developing
area of medical negligence
liability. The same can be said for
the appropriate application of
immunity protections for medical
personnel acting as a member of
a law enforcement tactical team.
For the purposes of this article,
the relevant areas of focus are:
Jurisdiction and Oversight for the
tactical medical provider, Scope
of Practice, Medical Control,
Protections from Liability,
Documentation, and Evidence
Preservation.
Jurisdiction and Oversight of
the Tactical Medical Provider
Regardless of which law
enforcement agency; local, state,
or federal, for which the tactical
medic is providing service, the
jurisdiction and oversight of that
medical providers license or
certification remains with the
state licensing authority that
originally issued the license.
This is true for the Paramedic,
Registered Nurse, Physician, or
EMT that is filling the role of
tactical medical provider for a
SWAT team. The location of the
incident and law enforcement
jurisdiction (i.e. the federal, multi-
state reach of the FBI versus a
municipal police department) are
largely irrelevant when it comes
to the determination of which
licensing body has authority for
disciplining (i.e. administrative
revocation or suspension) a
providers license to practice.
The tactical medical provider will
always be subject to the
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regulations and standards of their respective state
licensing authority, even if an alleged incident of
medical negligence or deviation from scope of
practice occurred in a different state. Indeed, such
an occurrence may expose the tactical medic to
sanction or discipline in both the licensing state
and the state in which the alleged violation
occurred.
Scope of Practice for the Tactical Medical
Provider
With the exception of physicians, all tactical
medical providers have a scope of practice that is
regulated by their respective licensing agencies.
Scope of practice is defined as the procedures,
actions, or processes that are permitted for a
licensed individual and are limited by their
education and training, demonstrated competence,
and specific legal authority to perform a given
medical intervention. For instance, in the state of
California, the paramedic scope of practice as
determined by the California State EMS Authority,
the regulatory, disciplinary, and licensing agency
for paramedics, does not permit paramedics to
place chest tubes or central lines. However, the
California Board of Registered Nursing does
permit registered nurses to carry out those
procedures, but only under specific circumstances
and approved protocols. A tactical medic who
exceeds his or her respective scope of practice will
be subject to discipline by the licensing authority,
regardless of whether an offending procedure was
successful or life-saving. Therefore, as a legal
matter, Tactical medics must work within their
respective scopes of practice, even if the situation
suggests performing an intervention beyond the
scope of practice for that particular level of
licensure. A regulated scope of practice cannot be
lawfully exceeded even at the direction of medical
control. To do otherwise exposes that medic to the
loss or suspension of their license and the costs
associated with the investigation and disciplinary
process.
Medical Control
Medical direction, in some form, by a physician
medical director is essential and, in many states
required, for tactical medical providers who provide
ALS care. This provides essential liability
protection and high level medical review for the
tactical medical program of a law enforcement
agency. Similarly, medical care protocols and
Standard Operating Procedures (SOPs) are highly
recommended. These can be adapted to be
practical in the tactical environment from any
number of outside resources, such as established
EMS programs and published care guidelines,
such as those put out by the military Special
Operations medical community. Again, protocols
and medical direction cannot exceed the statutory
scope of practice for the level of licensure of the
tactical medic who delivers the care in the field.
Medical control and protocols are, also, essential
for the use of any medications that will be used in
the tactical setting. This ensures that the
medications are used appropriately and in the
correct dosages. However, as a legal and
practical matter, a very limited use of medications
in the operational setting is recommended. This
avoids concerns of storage, allergic reactions,
expiration dates and medication errors.
Liability Protections
A key concern for tactical medical providers,
because of their unique operating environment, is
protecting themselves not only from liability for
medical negligence, but also from claims arising
under Section 1983 of Title 42 of the United States
Code (42 USC §1983), which protects citizens
from violations of civil rights by individuals acting
“under the color of law”. Section 1983 is used as a
common remedy for cases in which the actions of
law enforcement officers resulted in depriving a
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private citizen of their civil rights. Tactical medics
(those who are not law enforcement officers
themselves) attached to a SWAT team of a law
enforcement agency may potentially be regarded
as agents acting on behalf of that agency and are,
therefore, subject to a Section 1983 claim. The
failure to perform to the standard of care or acting
grossly negligent in the care of a citizen or suspect
while in the role of a SWAT medic could give rise to
a civil rights claim. While an unlitigated legal theory
in tactical medicine, Section 1983 claims are not
without precedence in medical malpractice cases
(see Hopper v.Callahan, 408 Mass. 621, 1990).
The best way, of course, to protect oneself from
liability in any medical care is to act within the
applicable Standard of Care. In the case of the
tactical medic that will be; What the Reasonable
Tactical Medic with like training, education, and
experience would do in the same or similar
circumstances. That standard is being established
and advanced by various professional bodies and
agencies in the Tactical Medicine profession,
including the National Medical Tactical Association,
and are being memorialized by the state licensing
agencies in published standards and guidelines,
such as the Tactical Medicine Operational
Programs and Standardized Training
Recommendations published by the California
EMS Authority in collaboration with California
POST in March, 2010. Demonstrating that a
tactical medic acted within the standard of care
nullifies one of the essential elements of a medical
negligence claim.
Other protections may exist in the specific statutory
immunities from liability adopted by most states to
protect medical first responders from civil liability
for all but gross negligence. These protections
were established largely in recognition of the
uncontrolled and dynamic nature of pre-hospital
EMS and provide something of a shield against the
multitude of lawsuits that would be filed each time
a patient experienced a bad outcome in the field.
In California, the statutory protection for
paramedics is codified under CA Health and Safety
Code, Chapter 9, Sections 1799.102-107. Other
states have similar protections within their
respective EMS Acts.
With respect to Section 1983 claims, law
enforcement officers do have a certain amount of
qualified immunity that could serve as a defense
for potential civil rights violations. Those
immunities may extend to tactical medics, as well.
However, it is unclear whether that defense may be
available in to a tactical medic who is employed as
a contract employee of the law enforcement
agency. In Richardson v. McKnight 521 US 399
(1997), a Tennessee case that addressed the
Section 1983 liability for employees of a private
contract prison corrections company, the U.S.
Supreme Court found that the contract employees
were not entitled to qualified immunity as a defense
to the Section 1983 claim.
Finally, good documentation is critical to both the
continuity of medical care and for establishing the
basis for a defense to a medical negligence claim.
The tactical medical program should establish a
standardized method of documenting all patient
contacts in the field. This does not, by any means,
have to be as extensive a tool as that used in
typical medical or EMS practice. It does, however,
have to document as thoroughly as possible, all
assessments and clinical observations (which are
going to be more practical than vital signs in the
tactical environment), as well as any interventions
on the part of the tactical medic. This includes the
turnover of care to local EMS or an Emergency
Department.
A brief mention of that turnover of care is
necessary. I recommend, and it is the policy of the
tactical medics on my SWAT team, that care of
civilians is transferred to local EMS as soon as is
practicable. This, along with acting with
Copyright ©2013 National Tactical Medical Association™

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professionalism and respect
toward any patient the tactical
medic encounters, reduces the
possibility or an adversarial
interaction by the citizen, who is
most likely either a suspect,
family member of a suspect, or a
bystander. It is important to
remember, however, that the
level of care to which the tactical
medic is transferring a patient
must be appropriate for that
patientsʼ condition, lest it give
rise to a claim of abandonment if
the care of the local EMS
resource is inadequate.
Preservation of Evidence
Finally, the tactical medic must
be conscious of preservation of
as much evidentiary information
as possible in the delivery of care
in the field. As previously
mentioned, almost all patient
contacts will be the subject of
review and probable criminal or
civil litigation, particularly in the
event of an injured SWAT
operator. Care must be taken,
where practical, in removing and
controlling clothing (i.e. cutting
through bullet holes, etc.). Any
removed clothing, equipment or
other physical evidence must be
turned over to the investigating
law enforcement agency and that
turnover must be documented to
preserve the chain of custody.
Finally, it can be expected that
any documentation created by
the tactical medic will be
reviewed and, itself, entered into
evidence.
Summary
The discipline of tactical
medicine is a relatively new area
of EMS and is, as yet, largely
untested in the civil courts.
There are several areas of risk
and potential exposure for civil
and administrative liability for the
tactical medical provider but, as
with all of the other skills that are
required for good tactical
operators, thorough preparation
and high-level, realistic training
will go a long way toward
mitigating those risks and
ensuring that those operators
and citizens for whom we are
responsible as tactical medics
will receive the best care
possible in the operational
setting.
Copyright ©2013 National Tactical Medical Association™

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Copyright ©2013 National Tactical Medical Association™
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NEXT ISSUE:
•Complex wound management
•Field use of ketamine for military and civilian tactical
medics

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