Bottom line up front (BLUF): Doug Wolfberg’s message is clear and deliberately uncomfortable: in EMS, the standard of care is never declared in advance, it is decided later, in court, based on whether actions were reasonable under the circumstances. Protocols, guidelines, journal articles and position statements may inform that judgment, but none of them are the standard of care.
Innovation becomes legally expected only when evidence, professional acceptance, and legal expectations converge and can be defended through expert testimony. For EMS leaders and medical directors, this creates a non-delegable, ongoing duty to actively evaluate and update protocols based on current evidence and judgment, rather than waiting for consensus bodies or fixed review cycles. In short, the greatest risk is not thoughtful change, it is passive delay.
Editor’s note: This year’s National Association of EMS Physicians (NAEMSP) annual meeting hosted a remarkable array of presentations on clinical issues, as well as one very well-attended track containing a set of well-received sessions delivered by leading EMS lawyers.
This three-part series brings together a tightly connected set of conversations that define the current legal reality facing EMS leaders, medical directors and clinicians. From how standards of care are judged, to the daily operational risks of refusals, to the once-unthinkable rise of criminal charges against EMS providers, these sessions collectively explore how decisions made on scene are later interpreted in courtrooms, regulatory hearings and the court of public opinion.
In “Fads, trends and clinical standards of care,” Douglas Wolfberg, Esq., dismantled the assumption that protocols, guidelines or consensus statements are the standard of care, instead explaining how standards are determined retrospectively based on reasonableness, evidence and expert testimony.
That legal framing sets the stage for “Getting past ‘no’ when the patient needs to go,” in which Samantha Johnson, Esq.; and Lekshmi Kumar examine refusals as a systems issue — one shaped by culture, training, access to medical control and defensible capacity assessment — rather than isolated provider judgment.
The series then closes with “‘Guilty’ criminal charges against EMS providers: What does it mean?” in which Eric Jaeger, Esq., confronts the uncomfortable reality that criminal prosecution is now part of the EMS risk landscape, driven by video evidence, shifting prosecutorial norms and heightened scrutiny of clinical decision-making.
Together, these sessions form a coherent narrative: EMS law is no longer a theoretical concern reserved for rare lawsuits. It is a daily operational reality shaped by protocols, documentation, behavior and leadership choices. This series is intended to help EMS leaders understand not just what the risks are, but where they originate — and how deliberate system design remains the strongest defense.
When does innovation become the standard of care?
Doug Wolfberg Esq opened his session by grounding the room in a reality EMS leaders often sense, but rarely articulate clearly: standards of care are not declared in advance, and they are not created by enthusiasm, consensus statements or shiny modern technology. They are determined after the fact, in court, by people who were not there and often do not work in EMS.
At the heart of his discussion was a deceptively simple question that carries enormous operational and legal weight: when does innovation become the standard of care, and when does an existing practice become obsolete? EMS leaders live in a constant, “damned if you do, damned if you don’t” space. Adopt a new intervention too early and you risk liability if it fails or proves premature. Adopt it too late and you risk liability for not keeping up with what others claim is best practice.
| MORE: When ‘we’ve always done it’ meets evidence, protocols and the law
Wolfberg was clear that the standard of care is not a protocol, a guideline, a position paper or a journal article. It is a retrospective legal determination about whether a clinician acted reasonably under the circumstances of a specific case. That definition is deeply unsatisfying for a profession that prefers clarity and checklists, but it is the reality of how courts function. Protocols and guidelines may be evidence of the standard of care, but they are never the standard itself, and no judge will instruct a jury to defer automatically to them.
He spent time addressing how protocols are often misunderstood at both extremes. Some people treat them as carved in stone, believing that any deviation automatically creates liability. Others dismiss them as meaningless suggestions that cannot be used in court. Both views are wrong. In litigation, protocols are simply evidence. Attorneys will use them if they help their case, judges will decide whether they are admissible, and juries will decide how much weight they carry. Importantly, protocols themselves can be scrutinized and even alleged to be negligent if they lag accepted practice.
Wolfberg cautioned against confusing standard of care with scope of practice. Scope of practice is prospective and regulatory; it defines what a clinician is allowed to do. Standard of care is retrospective; it asks what should have been done in a particular case. They two intersect, but they are legally distinct and mixing them up leads to false assumptions about protection and liability.
Who decides standards of care?
When it comes to who decides the standard of care, the answer, predictably, is “it depends.”
- In civil cases, judges control evidence, but juries typically decide what was reasonable.
- In criminal cases, the first and often most consequential decision is made by a prosecutor, frequently an elected official responding to public pressure, video footage and community outrage.
- In administrative cases, state EMS regulators and administrative law judges can impose discipline independent of civil or criminal outcomes. Each pathway carries different risks, timelines and standards.
Wolfberg emphasized that most cases hinge on expert testimony. Courts rely on expert witnesses because EMS care is considered beyond the understanding of lay jurors. Each side presents experts, and the standard of care becomes, in practical terms, whatever version of reasonableness the jury finds more credible. It is not about what is “right” in an absolute sense, but about what can be convincingly explained and defended.
A particularly important wild card in modern EMS liability is legislation and regulation. Increasingly, lawmakers are stepping into clinical territory, sometimes creating what is known as negligence per se, where violating a statute or regulation effectively establishes negligence without further debate. Wolfberg pointed to post-Elijah McClain ketamine laws and statutes restricting how EMS clinicians discuss non-transport as examples of how political response to high-profile cases can directly shape clinical practice, for better or worse.
Equipment mandates further complicating this landscape by requiring services to carry items that may no longer reflect current evidence, even if their use is clinically outdated.
So, when does innovation become the standard of care? Wolfberg’s answer was intentionally uncomfortable. It happens when evidence, authoritative guidance, widespread adoption and legal expectations converge in court and are reinforced by expert testimony. Only then does a practice truly cross the line from “emerging” to “expected.”
Your duty to care
Wolfberg’s closing message was directed squarely at medical directors and EMS system leaders. They carry a non-delegable duty to ensure their protocols reflect what they believe to be the current standard of care. That responsibility cannot be outsourced to national organizations, delayed by fixed revision cycles or postponed while waiting for consensus statements that may lag evolving evidence. Protocol stewardship is not episodic work. It is a continuous obligation, and failure to treat it that way is itself a risk.
The takeaway was clear if unsettling. In EMS, innovation does not become safe when it becomes popular. It becomes safe only when leaders are willing to defend it, with evidence and judgment, in front of a jury that will decide long after the sirens have stopped.
| MORE: On-demand webinar: Don’t become a cautionary tale: EMS litigation update
Memorable quotes from Doug Wolfberg
- “A standard of care is a retrospective legal determination whether a clinician acted reasonably under the circumstances.”
- “Protocols, consensus statements, position papers, journal articles — those things may all be evidence of the standard of care, but they are not binding on courts, and they are not conclusive in litigation.”
- “Ultimately, the standard of care is going to be what the prevailing party’s expert witness convinces the jury that it is.”
- “If you violate a statute or regulation that prescribes that you do a specific thing, which can be negligence per se — there’s really no argument or defense.”
- “Agency leaders and medical directors have a non-delegable duty to collaboratively ensure that their protocols always reflect what they believe to be current standards of care.”
