La. Op. Atty. Gen. 234, La. Atty. Gen. Op. No , 1994 WL (La.A.G.) Office of the Attorney General State of Louisiana

Transcription

1 La. Op. Atty. Gen. 234, La. Atty. Gen. Op. No , 1994 WL (La.A.G.) 61-LAWS-General 90-C PUBLIC RECORDS 107-A SPECIAL DISTRICTS LSA-R.S. 9:2793 & 9: LSA-R.S. 33:9101 & 33:9102 LSA-R.S. 33:9105 & 37:1731 LSA-40:1234 & 40:1235 LSA-R.S. 40:1235(A)(2) LSA-R.S. 44:1 et seq. LSA-R.S. 44:3-44:3(A)(7) LSA-R.S. 44:31 & 45:791 et seq. Atty.Gen.Op. No Atty.Gen.Op. No Atty.Gen.Op. No Office of the Attorney General State of Louisiana Opinion No January 7, 1994 Answers several technical questions on the operations of a 911 Communications district. Mr. James Spruel, Jr. Assistant District Attorney Dear Mr. Spruel: Our office is in receipt of your request for an Attorney General's Opinion regarding the operation of the emergency telephone system, known as 911. You have asked several questions, which we will respond to separately.

2 QUESTION NO. 1 Do 911 operations fall under the Good Samaritan law? The Local Emergency Telephone Systems law, LSA-R.S. 45:791 et seq., provides for the establishment, services, and enforcement of systems, with a primary emergency telephone number of 911. The Good Samaritan law can be found at R.S. 37:1731, which provides for a limitation on liability for licensed physicians, surgeons or nurses, whether licensed in this state or out of state, for licensed veterinarians and licensed dentists, with certain exceptions. A certified basic, intermediate, or paramedic emergency medical technician who renders emergency medical care to a person in the performance of his medical duties is also immune from civil damages in accordance with R.S. 40:1235, with certain exceptions. Additionally, R.S. 9:2793 provides for a limitation on liability for persons who gratuitously render emergency care at the scene of an emergency, with certain exceptions. In response to your first question, it is the opinion of this office that the 911 operations do not specifically fall under the Good Samaritan law; however, any licensed physician, surgeon, or nurse who renders gratuitous service at the scene of an emergency, any certified basic, intermediate, or paramedic emergency medical technician who renders emergency medical care in the performance of his medical duties, and any person who gratuitously renders emergency care to a person at the scene of an emergency is immune from liability under LSA- R.S. 9:2793, 37:1731, and 40:1235, with certain exceptions. QUESTION NO. 2 Do 911 operations have any protection under sovereign immunity? Your second question relates to the assertion of a cause of action against a local 911 communications district. Our research on this question reveals two statutes that may apply where emergency care is administered by a public entity, parish governing authority, police department, sheriffs' office, or fire department, LSA-R.S. 9: and 40:1235(A)(2). R.S. 9: states, in pertinent part: *2 A. No person shall have a cause of action against a public entity or the officers and employees thereof for damage to property at the site of a crime, accident, or fire, including without limitation the destruction or deterioration of property, caused while the officer or employee was acting within the course and scope of his office or employment and while taking reasonable remedial action which is necessary to abate a public emergency, unless such damage was caused by willful or wanton misconduct or gross negligence. * * * LSA-R.S. 40:1235(A)(2) states, in pertinent part: (2) The immunity granted herein to basic, intermediate, and paramedic emergency medical technicians by the provisions of this Part shall extend to parish governing authorities, police

3 departments, sheriffs' offices, fire departments, or other public agencies engaged in rendering emergency medical services and its insurers with respect to such emergency medical services unless the emergency medical technician employed by said agencies would be personally liable under the provisions of Paragraph (1). * * * In response to your second question, we refer you to the above quoted statutes, however, we will refrain from giving an opinion on the specific liability or limitation of liability of a local 911 emergency telephone system, since this matter is one that should be decided by the courts. Additionally, we should point out that the provision allowing for the creation of communications districts, LSA- R.S. 33:9101, provides that such districts shall have the... power to sue and be sued in their corporate names.... QUESTION NO. 3 When the 911 center is giving information to a responding agency on a call that involves an HIV positive party, is the center subject to the Public Records Act and what are the obligations of the center regarding the right to privacy of the HIV positive party? In response to your third question, we refer to an earlier opinion to you, Number , which deals with several questions on the Public Records Act (LSA-R.S. 44:1 et seq). In Opinion Number and , enclosed herein for your information and review, we opined that 911 data is subject to the Public Records laws because the communications district is a political subdivision and therefore, the information must be disclosed unless it is specifically exempt. LSA- R.S. 44:3 does not specifically exempt a communications district's records on an HIV positive caller to the 911 communications district. Additionally, we hereby repeal that part of Opinion Number which is in conflict with this opinion, due to the repeal of LSA-R.S. 44:3(A)(7) by Act 59 of (Opinion No enclosed herein.) QUESTION NO. 4 Can the 911 center give information on HIV positive status to a responder either by telephone or radio? We assume your fourth question is whether the 911 communications district may give information from their records on the HIV positive status of a John Doe, if they have such information, to a person or medical technician who calls 911 and requests such information prior to rendering, for example, CPR. LSA-R.S. 44:31 mandates that a person of the age of majority be allowed to inspect, copy or reproduce a public record. The law does not state anything about whether the agency has to respond by telephone or radio. *3 We refer again to our earlier opinion, Number , in which we

4 opined that the detailed procedure for handling an E-911 call is to be determined by the governing authority of the communications district. The law does not exempt communications district's records with regard to the HIV positive status of a person, therefore, it is our opinion that the governing authority has the implied power to establish these specific details for handling 911 calls with respect to a request for public records by telephone or radio. QUESTION NO. 5 Is there any state or federal law or regulation requiring 911 centers to give medical self help, also known as pre-arrival instructions' over the telephone? If such a requirement exists, what level of training is mandated? We are unable to find any state or federal law or regulation requiring a 911 center to give medical self help or pre-arrival instructions over the telephone to a citizen. However, LSA-R.S. 40:1234 does provide for voice contact between an emergency medical technician and a physician at the scene of a medical emergency. These provisions specifically provide the duties of an emergency medical technician and his/her authorization to perform certain functions from voice contact with a physician, including the necessary training requirements. QUESTION NO. 6 The General Subscribers Service Tariff of South Central Bell indicates that a standard feature of the 911 service is that alternate routing in case of call overload is a part of their system. This term refers to having an alternate 911 answering point. Would a district created under R.S. 33:9101 be in violation of any statutes or regulations should it not have an alternate answering point? LSA-R.S. 33:9105 provides four methods for responding to emergency calls that an emergency telephone system shall be capable of utilizing: the direct dispatch method, the relay method, the transfer method, or the referral method. The governing authority of the district is responsible for selecting the method that it determines to be the most feasible for the parish. It is the opinion of this office, that a communications district is required to comply with R.S. 33:9105. If South Central Bell wants to provide the service of alternate routing, a district which may not choose such service would not be in violation of R.S. 33:9105, since alternate routing is not a requirement of an emergency telephone system. However, a district is required to maintain a separate number for non-emergency telephone calls, and may maintain a separate secondary backup number in accordance with LSA-R.S. 45:795. QUESTION NO. 7 The 911 center receives calls from persons threatening suicide. If such a person asks that the police not be contacted, is the district

5 exposed to liability if the police or any other intervenor is contacted? What exactly are the rights of such a caller? In response to your seventh question, we refer you to the language of LSA-R.S. 33:9102, which provides for the purposes of a communications district, in pertinent part, as follows: *4 It has been shown to be in the public interest to shorten the time required for a citizen to request and receive emergency aid. The provision of a single, primary three-digit emergency number through which emergency services can be quickly and efficiently obtained will provide a significant contribution to law enforcement and other public service efforts by simplifying the notification of public service personnel... Such a simplified means of procuring emergency services will result in the saving of life,... It is the opinion of this office that a communications district's purpose is to provide life saving aid to all persons who choose to use the 911 emergency telephone system. Although we cannot opine on the liability of the district in this factual matter, it is our opinion that the district should provide emergency aid to a caller who threatens suicide. Furthermore, we refer again to our earlier opinion, Number , in which we discussed a caller's level of expectation of privacy, as follows: [I]t is the opinion of this office that there is no obligation of an operator to inform the caller that a call is being recorded. A caller would generally expect this information to be dispatched so that the help they need will be sent. Therefore, a caller's expectation of privacy is low. A caller is using a public service and requesting help... Once again, in certain situations it may be necessary for a caller to be informed that the call is being taped such as if a person threatening to commit a crime is calling. These decisions can only be made on a case by case basis. Further, we opine that it is the communications district's responsibility to provide specific guidelines for handling such a call dealing with a suicide attempt. QUESTION NO. 8 The 911 center often receives calls where a request is made by the caller to remain anonymous. When this call is turned over to the police, is the 911 center exposing the district to liability by providing the police with the names? The main concern here is when the caller is not the listed telephone subscriber. Again, we are unable to render an opinion on a factual matter which can only be decided by the courts. However, we suggest that the communications district make specific provisions for handling such a matter. QUESTION NO. 9

6 What are the obligations of the district when it has dispatched a privately owned ambulance to a medical call which then refuses to transport the patient? The district normally dispatches another private provider to handle the transport. Is the district thereby assuming any responsibility to provide transportation? If a second or all private providers refuse to transport a patient, what are the responsibilities of the 911 center? Our response to your last question depends on the type of method under which the communications district operates its emergency telephone system. Out of the four methods in LSA-R.S. 33:9105, the transfer method and the direct dispatch method require that the telephone service directly transfer a request for emergency services to an appropriate public safety agency or other provider of emergency services or dispatch the appropriate emergency service unit. *5 The direct dispatch method is a telephone service to a centralized dispatch center which provides for the dispatch of an appropriate emergency service unit and a decision as to the proper action to be taken. The relay method is a telephone service which receives the information from the caller and relays such information to an appropriate public safety agency or other provider of emergency services for dispatch of an emergency service unit. The transfer method is a telephone service which transfers a request for emergency services to an appropriate public safety agency or other provider of emergency services. The referral method is a telephone service that provides the caller with the telephone number of the appropriate public safety agency or other provider of emergency services. Therefore, if the communications district operates under the transfer method or the direct dispatch method, it is our opinion that the district has a responsibility to fulfill its obligations and is assuming a duty to provide transportation from a public safety agency. Furthermore, the district should provide specific provisions for handling this matter, especially the situation of having all private providers refuse to transport a patient. It may be in the district's best interest to enter into some sort of contract with the private providers, so as to ensure itself of service at all times and to relieve itself of the liability that may occur should all private providers refuse to transport a patient. We hope that this opinion has answered and addressed any and all questions that you may have concerning this matter. Yours very truly, Richard P. Ieyoub Attorney General By: Angie Rogers LaPlace Assistant Attorney General Note TO RETRIEVE THE FULL TEXT OF THE ATTACHED OPINION(S) SET FORTH AT THIS POINT, ENTER THE FOLLOWING FIELD SEARCH:

7 CI(92-209) CI(90-576) CI(88-134) La. Op. Atty. Gen. 234, La. Atty. Gen. Op. No , 1994 WL (La.A.G.) END OF DOCUMENT