EMS data restriction slowing legal process

The South Carolina law that expressly forbids public access to data on EMS operations is also hindering the prosecution of criminal cases in the state.

Fourteenth Circuit Solicitor Duffie Stone said this week that his office — which previously had unfettered access to documents that include EMS incident reports and 911 tapes — now must get a court order to obtain those items. Though Stone said the issue hasn't prevented him from getting convictions, delays have occurred because obtaining a court order can take several days.

"It adds another level of difficulty to an already difficult situation," he said. "...It doesn't stop us from prosecuting, but it's a hindrance. It slows us down."

Stone is calling on legislators to change the law to make exceptions for law enforcement agencies and prosecutors, who need EMS documents and interviews with paramedics to build cases. He said he's already spoken with Sen. Tom Davis, R-Beaufort, and Rep. Bill Herbkersman, R-Bluffton, about a proposed change.

Both Davis and Herbkersman have said they would support new legislation to open access to some EMS records. State Sen. Harvey Peeler Jr., R-Cherokee, has already said he would sponsor a bill to undo the 2004 measure. Peeler filed the original bill that closed records, but said he was unaware of how far-reaching it was.

Jerry Peace, vice-chairman of the S.C. Commission on Prosecution Coordination, a statewide solicitors group, agreed the law should be changed. Peace, the solicitor for the 8th Judicial Circuit that serves Abbeville, Greenwood, Laurens and Newberry counties, compared the state law to the Health Insurance Portability and Accountability Act, or HIPAA, the federal patient privacy law that went into effect in 1996.

"It's more restrictive than HIPAA — and HIPAA is restrictive enough" Peace said.

He said the law must be changed "so prosecution has easy access to the information they need to prosecute cases."

Aside from the problems the 2004 law is creating for prosecutors, it also makes it impossible for news organizations to obtain information on EMS operations. Since July, Beaufort County EMS officials have turned down reporters' requests for all EMS data, citing the 2004 law. The same thing has happened in Richland County.

Here, reporters were seeking information on how long it takes ambulances to get to emergency patients.

In Richland County, reporters were seeking information on a child's death.

Stone first encountered difficulty while prosecuting Jose Herrera, a man convicted and sentenced in the 2007 murder of his wife at their Okatie home. Herrera was tried in March. In the Herrera case, Stone wanted Beaufort County EMS paramedics to testify about what they saw when they entered the crime scene.

"EMS was crucial in determining what the crime scene looked like," he said. "They said, ‘We can't talk to you about this.' "

County officials told Stone the law prevented the paramedics from being interviewed without first obtaining a court order — a process that took several days.

Since then, two other prosecutors in Stone's office have experienced the same issue, he said.

DHEC officials have indicated they're open to changes in the existing law, spokesman Adam Myrick said. Senior DHEC officials met last week to discuss "how we might go about redrafting the regulation to create as much transparency as possible, without violating patient confidentiality or breaching any security concerns," Myrick said in an e-mail.

A DHEC lobbyist will soon contact Peeler to tell the senator of DHEC's "intent to work with him on a redraft this January," Myrick said.