Request By:
David B. Redwine, Esq.
105 South Main Street
Winchester, Kentucky 40391
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Thomas R. Emerson, Assistant Attorney General
This is in reply to your letter stating that you are legal counsel for the Winchester-Clark County Ambulance Board, created jontly by the Board of Commissioners of the City of Winchester and the Clark County Fiscal Court. Your specific question, dealing with liability, is as follows:
"In light of recent court decisions regarding sovereign immunity, please advise me whether individual emergency medical technicians and ambulance drivers employed by the Board, or individual members of the Board, may be personally liable in tort for negligent acts or omissions of such employees or Board members in the normal course of their duties as such."
We are somewhat unclear as to the specific statutory provisions under which your ambulance service operates. KRS 65.710 to 65.730 deal with "Ambulance Service Contracts." KRS 65.730 states in part that a county may provide for ambulance service for all sick and injured persons in the county, either by operation of the service by the county or by the county and any city or cities within the county cooperating to provide such service; or by the county or the county and a city or cities within the county contracting with a private person, partnership or corporation to provide such service. There is no specific provision, however, authorizing the establishment of a joint city-county board to operate an ambulance service existing pursuant to KRS 65.730.
KRS 108.080 to 108.180 deal with "Ambulance Service Districts." KRS 108.110 provides in part that the affairs of the district shall be controlled and managed by a board of directors appointed by fiscal courts and city legislative bodies in the manner set forth in that statute. The procedure for organizing such a district is set forth in KRS 108.100. Since your question deals with the liability of the individual emergency medical technicians, ambulance drivers and board members of the entity providing ambulance service, it is not essential that we know the specific statutory authority pursuant to which the ambulance service exists.
We first direct your attention to KRS 411.148, the "Good Samaritan Act," which provides in part that no person certified as an emergency medical technician by the Kentucky department for human resources shall be liable in civil damages for administering emergency care or treatment at the scene of an emergency outside of a hospital, doctor's office, or other place having proper medical equipment, excluding house calls, for acts performed at the scene of such emergency, unless such acts constitute willful or wanton misconduct. The immunity does not apply to such emergency sites where the emergency care or treatment is rendered for remuneration or with the expectation of remuneration.
In OAG 76-36, copy enclosed, we said that the immunity provided in KRS 411.148 would apply to properly certified emergency medical technicians even though they are paid by an organization for their full-time services. At this point we direct your attention to OAG 76-36, at pages 3 - 4:
"While KRS 411.148 remains unclarified by any reported judicial interpretation, it is our opinion that the phrase 'rendered for remuneration or with the expectation of remuneration, ' as it appears in KRS 411.148(2), refers to remuneration, from the patient or person injured or in distress, to a medical person described in the statute. Under this analysis the statute would apply to properly certified emergency medical technicians, even though they are paid by the Jefferson Department of Public Safety for their full-time services. In these emergency situations the technicians get no extra pay or money from the patients for such services. They [technicians] get paid by the county regardless of whether they give aid to Mrs. Jones or Mary Doe, as the case may be."
We further pointed out in OAG 77-47, copy enclosed, that it is possible that the General Assembly's attempt to limit the liability of properly certified medical technicians may be unconstitutional under Section 54 of the Kentucky Constitution. That section states that the General Assembly cannot limit the amount to be recovered for injuries resulting in death or for injuries to person or property. At this point we do not know of any case interpreting KRS 411.148.
Therefore, in absence of any court decisions on the matter, properly certified medical technicians employed by your organization would be covered by the immunity provisions of KRS 411.148 so long as those persons are not paid directly by the persons to whom they render aid and assistance and further assuming that their actions do not constitute willful or wanton misconduct and that the aid rendered is confined to those places mentioned in the statute. The immunity provisions of KRS 411.148 do not apply to mere ambulance drivers, the board members of the ambulance service organization, or to those medical technicians not properly certified.
In connection with the liability of a county government, a county, as a political subdivision and an arm of state government, is clothed with sovereign immunity as stated in
Cullinan v. Jefferson County, Ky., 418 S.W.2d 407 (1967). Cities are no longer immune from tort liability as held in the case of
Haney v. City of Lexington, Ky., 386 S.W.2d 738 (1964), but modified to some extent in the case of
City of Louisville v. Louisville Seed Company, Ky., 433 S.W.2d 638 (1968). Regardless of the immunity of the governmental entity and even though we are not certain as to the statutory authority pursuant to which the ambulance service was created and now exists, the employes and directors of that ambulance service organization face a potential liability except for properly certified emergency medical technicians protected by KRS 411.148. The immunity of the sovereign, even if it exists and even if it is applicable to the organization operating the ambulance service, is not transferable to the individual employes, directors and officers of that organization.
We direct your attention to OAG 71-82, copy enclosed, where we dealt extensively with the liability of members of a rescue unit formed to serve as an aid to a governmental entity. As was stated in that opinion, the general principle is that for negligent or tortious conduct, liability is the rule and immunity the exception. Thus, the board members of your ambulance service organization, the ambulance drivers and emergency medical technicians not properly certified and exempt from liability by KRS 411.148, may be individually liable in "ordinary tort" for negligence (resulting in injuries to persons or property or in death) in performing their authorized activities and as they may affect various individuals.