The law is far from settled on whether communications between EMTs and their patients are privileged and thus prohibited from being introduced against the patient at a trial.
The courts have now added one more legal opinion to the mix of cases. That case is The People vs. Mirque (738 NYS2d 471, decided February 2003). The facts of the criminal case against the defendant Mirque are as follows.
Just before 4 a.m. on April 21, 2001, Charles Mirque, was involved in a serious motor vehicle accident. Mirque was driving a jeep that collided with another vehicle. Mirque’s jeep then collided with a pillar supporting an elevated train track. Mirque’s nephew, a passenger in the jeep, was rendered unconscious and trapped inside the jeep. The Fire Department extricated the victims.
Mirque only suffered an avulsed forehead and other minor injuries. An EMT with the fire department transported Mirque to a local hospital fully immobilized. While loading Mirque into the ambulance, the EMT noticed a strong odor of alcohol on Mirque’s breath. The EMT asked the Mirque if he had consumed alcohol, and the defendant stated that he had. The EMT added this information to the Pre-hospital Care Report (PCR).
Mirque was charged with Driving While Intoxicated, Reckless Driving, and Reckless Endangerment. The issue in the criminal case against him was whether Mirque’s statements to the EMT in the ambulance were admissible into evidence. The defendant’s attorney argued that the statements made to the EMT were privileged pursuant to New York State’s civil practice procedure laws, section 4504 (CPLR 4504).
CPLR 4504 states as follows:
“Confidential information privileged. Unless the patient waives the privilege, a person authorized to practice medicine…shall not be allowed to disclose any information which he acquired in attending a patient in a professional capacity and which was necessary to enable him to act in that capacity.”
The court noted that this statute, often referred to as the “physician/patient privilege”, is designed to encourage candor between patient and physician so that proper care can be given, to make it unnecessary for a physician to choose between the duty to honor a patient’s confidences and the duty to give evidence in court, and to protect patients’ privacy. CPLR 4504 does not include EMTs or paramedics in the list of health professionals covered by the privilege. Moreover, the statute does not extend the privilege to people who work with health care professionals.
The court noted that the statute has been interpreted by other courts to extend to people acting on behalf of the physician. For example, the privilege has been extended to a dental hygienist whoworks for a dentist. Another court also extended the privilege to all those “acting in concert with covered medical personnel”.
On the other hand, a number of courts have specifically stated that a patient’s conversation with an EMT is not privileged. One court, discussing whether the EMT is an extension of the physician and would thus be covered by the privilege, held that:
“The physician and emergency medical technician serve complementary but completely different functions…In the absence of acting as an agent for a physician, not the case here, the emergency medical technician is not charged with the responsibility for gathering information for diagnosis and/or treatment, but only with the job of preventing further illness or injury through welllearned sophisticated and thoughtful first aid.”
The Mirque court admitted that the issue is a close one that might be decided either way. The court also admitted that the small body of prior case law concerning statements to an EMT does not establish any clear rule.
The Mirque court acknowledged that an EMT is not hired by a physician and is not truly acting for the physician. However, the court stated that “the EMT is nevertheless acting as an agent for and assistant to the hospital’s medical staff when interviewing the patient and reporting the results of that interview to the hospital. The court stated that one of the EMT’s most important roles is to interview the patient and relay that information to the hospital, especially in situations where the patient loses consciousness after speaking with the EMT.
The court states that “A patient faced with a life-and-death emergency should not need to concern himself with the precise nature of the employment relationship between the EMT who has come to the patient’s rescue and a particular physician or registered nurse. The patient should rather be encouraged, to the degree reasonably possible, to simply speak the truth to the EMT-while there is still time to speak-without worrying about such legal niceties The concerns and calculations of a litigious world have already intruded too far into the sphere of medicine. A patient bound for the hospital by ambulance should not be required to master the rules of agency before speaking freely”.
The Mirque court thus ruled that “where, as here, an EMT speaks to a patient and obtains medical information and then reports that information to the hospital’s medical staff, the statutory privilege of CPLR Section 4504 applies.”
A few cautions should be provided before relying too heavily on this court’s decision. First, the court is a lower court. Thus, the opinion is not binding upon any other court throughout the state. Another trial court could refuse to follow this court’s decision, just as this court refused to follow another trial court decision.
Second, look at the language carefully from the court. Although the judge initially states that all statements made to an EMT should be privileged, he then appears to limit the privilege to only apply to that information relayed by the EMT to the hospital. It is unclear whether the judgeintended to extend the privilege to all information obtained by the EMT, regardless of whether it was for the purpose of treatment, and regardless of whether or not it was relayed to a hospital.
What might not be privileged is information obtained by the EMT that neither the patient nor the EMT intended to be for the purpose of treating the patient, or for relaying to the hospital. For example, if the EMT asks the patient if he ran a stop sign, and the patient admits that he had, a court might have to determine whether or not the use of that statement was obtained for treatment purposes.
Whether or not statements are privileged which are obtained by an EMT for the purpose of treating a patient is still far from clear. One thing is for sure. No EMT should ever promise a patient that such statements are privileged.