In Defense of EMTs - Paramedics - Firefighters - Police - Nurses

Patients Say the Darndest Things!

by David Givot

 

On May 20, 2009, a Butler County, Kansas, EMT responded to the call of a 55-year-old male with unknown problems. What he found when he arrived on scene was William "Bill" Moore threatening to hurt himself or others. The EMT followed protocol and procedure and dutifully transported the patient to a nearby hospital.

 

Along the way, however, in addition to answering various questions about his medical and physical condition, Moore confessed that he had killed Carol Mould, who was murdered in her home in Benton in September 2004.

 

This is what we in the legal profession call an "Oh, $#!t!" moment. I am sure the EMT would agree. The EMT reported the confession and Moore was charged with one count of murder in the first degree. On October 7, 2009, the EMT was called to testify at Moore's preliminary hearing where he recounted his version of the call and the confession.

 

In EMS, just like the law, an "Oh, $#!t!" moment is one where, despite all the preparation in the world, you can just never be ready for it. Thankfully, they are relatively rare and when they happen, you can manage your way through them by following  a few simple rules:

 

1.      Remain calm. React like whatever just happened was exactly what you expected to happen.

2.      Quietly consider your immediate safety and that of your coworkers.

3.      Continue with your patient care as appropriate for the conditions.

4.      Report your "moment" to the appropriate authority with the Zen-like rationality of Yoda.

5.      Document every single detail of the "moment", including the events leading up to the "moment" and those that followed. Your documentation will come up again.

 

Looking back on my career as a Paramedic in the field, I think it was the perpetual prospect of a "moment" waiting around any corner that made the job so much fun. Of course, nobody ever confessed a murder to me...though I have suspected a few.

 

Documentation Reality Check:

Documenting what didn't happen can be as important as what did.

by David Givot

 

It was a great story back in 2007 when it first hit the news and for the EMS providers who responded, it was the call of a lifetime: Celestial Love Triangle! Former astronaut Lisa Nowak was accused of driving through the night from Houston and attacking Colleen Shipman at Orlando International Airport because both were vying for the affection of another former astronaut Bill Oefelein.

 

In the big picture, as a news story, it had everything: passion, romance, sex, weapons, stalking, insanity, NASA, and a cross-county race in a diaper. However, as 911 calls go, by itself it was not that exciting; not too challenging from a documentation standpoint...or was it?

 

On October 9, 2009, some two years after the incident, a Florida Judge ruled that he would not throw out the burglary with assault or battery charge against Nowak. At issue was whether Nowak actually attacked Shipman with pepper spray. The prosecution says she did, while the defense denies the allegation.

 

Both sides seemed to recognize that there are inconsistencies with stories Shipman told police, the EMS providers, and in subsequent depositions. Where did the court look for clarification? That's right, the EMS run report. Despite telling the police otherwise, according to an EMT report uncovered by Nowak's defense attorney, Shipman denied having any contact with pepper spray. The judge has ordered Shipman, the police officers and the EMS providers to be re-questioned because of the inconsistencies.

 

Needless to say, if it comes out that the EMS documentation is accurate, Shipman was never attacked by pepper spray, the dynamic of the entire case will change. The course of a felony criminal proceeding will be forever and permanently altered based on EMS documentation that had nothing to do with patient care.

 

If I have said it once, I have said it a million times: EVERYTHING you document matters. The law will creep up behind you when you least expect it and your run report will light up the big screen in court. Even though your patient care is not in issue (yet) each one of your words will be parsed and analyzed, every phrase interpreted; your neatness, spelling, and organization will be evaluated and you will be judged alongside your words.

 

When it is your turn, what will they find? What will it say about you?

 

The Insurance Question

by David Givot, Esq.

 

I am often asked whether EMS providers should carry their own professional liability insurance. The short answer is: YES!!!

 

EMS is the only profession I can think of where the provider places his or her license to practice and livelihood on the line and dares the world to take it away - every shift.

 

Unlike other walks of life, EMS providers earn a living from the unknown. You never know from minute to minute what is going to happen next. With that comes wondering whether a simple and unpredictable twist of fate will cause your world to come crashing down on you.

 

For that and dozens of other reasons, I say you can't have too much insurance. Professional liability insurance is relatively inexpensive and offers much needed peace of mind. However, there are a couple of things to consider when buying a policy.

 

1. Make sure the policy covers legal representation. Some policies only cover damage awards and that won't help when you have spent your life savings to defend yourself.

 
2. Check to see if the policy will cover all aspects of your job; from malpractice to non-patient care issues like driving or harassment claims.

3. Be clear about how your professional liability policy will effect or be effected by other coverage such as homeowner or automobile insurance.

 

Another concern is that lawyers often look for insurance when determining who to sue. Unfortunately, that is very common and many providers have told me that is why they won't carry insurance. While that thought process may be logical, it is not entirely practical. If a lawyer decides to come after you because you have insurance, you have insurance for that and your carrier will fight hard not to pay. On the other hand, if something happens and you are not insured, you could find yourself living a country song when you lose your job, your truck, your house...and maybe your dog.

Good Samaritanism Died in a Car Crash

by David J Givot, Esq.

 

Prologue

On December 18, 2008, in a stunning decision (S152360), it seems the California Supreme Court effectively killed the spirit of the state's "Good Samaritan Law" (HSC§1799.102) along with countless individuals who will now be left to suffer and die by would-be rescuers afraid of being sued.  Since the decision, my email and voicemail boxes have been deluged with questions about how this will effect EMS providers and what it all means in the big picture. So much for a relaxing holiday.

Background

For those of you who don't know, the story begins on Halloween night, 2004. The plaintiff, Alexandra Van Horn and the defendant, Lisa Torti, along with a few others were at the defendant's house smoking marijuana until about ten o'clock when they all decided that going to a bar would be an even better idea. They enjoyed numerous potent potables until about one thirty in the morning when they left the bar -- driving; the defendant was a passenger in one of two cars, the plaintiff was the passenger of the other.

It was not too long before the vehicle in which the plaintiff was driving lost control, struck the curb, and crashed into a light pole at about forty-five miles per hour. The light pole was knocked over and the airbags deployed.

The second vehicle quickly pulled over and both the defendant and the driver of that car got out to help. The driver of the crashed vehicle easily exited under his own power and with very little assistance. The plaintiff, on the other hand, was still sitting in the car when the defendant approached. This is where accounts differ.

The defendant testified that she removed the plaintiff from the vehicle by placing one hand under the legs and the other behind the back to lift her out. The plaintiff testified that the defendant pulled her from the vehicle by grabbing and yanking her arm like a "rag doll."

Another critical, yet conflicting, recollection about the events of that night concerns whether smoke was emanating and fluid was leaking from the vehicle. The defendant contends that billowing smoke and leaking fluid were both present and that she extricated the plaintiff for fear that the vehicle would explode. Others testified that there was no smoke nor was any leaking fluid present.

In either event, there is no dispute that the defendant placed the extricated plaintiff immediately next to the vehicle. The driver sustained only minor injuries from the collision, while the plaintiff is permanently paralyzed.

The plaintiff sued the defendant alleging that her hasty extrication caused the permanent paralysis. The defendant moved to have the case dismissed based on California Health & Safety Code 1799.102, aka the "Good Samaritan Law," which states "No person who in good faith, and not for compensation, renders emergency care at the scene of an emergency shall be liable for any civil damages resulting from any act or omission..." (emphasis added)

The trial court agreed with the defendant as a matter of law and dismissed the case. The plaintiff appealed and the appellate court overturned the ruling. The case was heard by the California Supreme Court... and here we are.

Analysis

In reading the facts, several questions arise - for me, anyway. Were the defendant's actions reasonable? Was it reasonable for the defendant to believe that there was an emergency? Is extrication from a wrecked vehicle considered emergency care? Did the defendant act in good faith? By allowing the plaintiff to smoke marijuana in her home, did the defendant somehow set in motion the events that led to the injury? Finally, did the plaintiff contribute to her own injuries by knowingly driving with someone who was impaired? I am sure that your reading of the facts led to the same or similar questions.

According to the California Supreme Court, none of these questions affected the decision. Instead, the Court - of its own volition - added the word "medical" to the intent of 1799.102 and effectively changed the spirit and meaning of the entire statute.

Writing for the majority, Associate Justice Carlos R. Moreno opines that, because 1799.102 is located within a division of the Health & Safety Code entitled "Emergency Medical Services," the legislators must have intended Emergency Medical Care when they drafted the act. In so doing, he essentially asserts that the legislators were not competent enough to say what they meant when they wrote the law. Justice Moreno goes on to cite other Health & Safety Code sections, which discuss the development, accessibility, and provision of emergency medical services as being conclusive of the legislative intent of the "Good Samaritan Law" to encompass only medical care. Moreover, Justice Moreno draws a correlation between the Code sections that immunize training agencies and professional providers as being dispositive of the legislative intent behind immunizing laypersons.

The Associate Justice goes on to discuss section 1797.70, which defines “emergency” as meaning “...a condition or situation in which an individual has a need for immediate medical attention, or where the potential for such need is perceived by emergency personnel or a public safety agency.”  However, although the phrase “emergency care” is not separately defined, the majority contends that "...section 1797.70’s definition of “emergency” certainly supports the conclusion that the Legislature intended for “emergency care” to be construed as meaning emergency medical care.  After all, if the “scene of an emergency” (§ 1799.102) means a scene where “an individual has a need for immediate medical attention” it logically follows that the Legislature intended for the phrase 'emergency care' in section 1799.102 to refer to the medical attention given to the individual who needs it." 

Ultimately, the court ruled that extricating a person from the wreckage of a vehicle, all other considerations notwithstanding, is not medical in nature and thus does not enjoy the protection of the "Good Samaritan law."

In a thoughtfully conceived and brilliantly written dissenting opinion, Associate Justice Marvin R. Baxter begins by pointing out that nothing in the language of 1799.102 "...limits or qualifies the kind of emergency aid — medical or nonmedical — that an uncompensated lay volunteer may provide without fear of legal reprisal from the person he or she tried to help."

Although the dissenting opinion stretches for some thirteen pages, Justice Baxter's arguments are succinctly summed up in paragraph two:

"A statute’s plain language is a dispositive indicator of its meaning unless a literal reading would lead to absurd consequences the Legislature did not intend...[T]he plain meaning of section 1799.102 does not produce absurd results; on the contrary, it implements sound and logical public policy.  The statute protects from the threat of civil litigation a layperson who, acting as a Good Samaritan, reasonably perceived that another human being needed immediate emergency assistance and intervened, despite possible personal risk and danger, to provide it.  The purpose, of course, is to encourage persons not to pass by those in need of emergency help, but to show compassion and render the necessary aid.  There is no reason why one kind of lay volunteer aid should be immune, while another is not."

Later in his opinion, Justice Baxter illustrates his position by pointing out that "...[A] hiker can be sued if, far from other help, he or she causes a broken bone while lifting a fallen comrade up the face of a cliff to safety, but would be immune if, after waiting for another member of the party to effect the rescue, he or she set the broken bone incorrectly."

Despite his most compelling dissenting arguments, opinions shared by shared by Justices Chin and Corrigan, Justice Baxter concurred with the majority decision to uphold the Appellate Court's ruling, though his grounds were far more logical and based on questions of fact rather than law. 

What does it all mean?

For EMS providers on the job, nothing has changed. However, off the job, and for the average layperson, the floodgates of civil liability hell have opened up to be closed again only by affirmative legislation or contrary Supreme Court action - neither of which will happen any time soon.

As Justice Baxter says in his dissenting opinion, "One who dives into swirling waters to retrieve a drowning swimmer can be sued for incidental injury he or she causes while bringing the victim to shore, but is immune for harm he or she produces while thereafter trying to revive the victim."

The long and short of it is this: Compassion and righteousness no longer rule the day.  The helping hands of strangers - even in crisis - have been shackled by the specter of liability and locked by the State's highest Court.

A society urged to stand at the ready and united against acts of terrorism has been effectively warned about helping in the aftermath; lay rescue efforts will go undone.

Those with no training whatsoever, the same people who put butter on burns, will be forced to discern what is medical and what is not before engaging in an act of good samaritanism. More likely than not they will do the safe thing, which, thanks to Ms. Van Horn and the California Supreme Court, is nothing at all.

As a result, not of the decision, but of the rationale for the decision, humanity will grow even more distant, helping hands will fall idle, and people will die. What you choose to do, based on the foregoing, is up to you.

Conclusion

On Halloween night, 2004 a selfish, impetuous, and utterly inconsiderate Alexandra Van Horn got high, got drunk and got in a car with a driver in the same condition...and they crashed into a pole and she lost the use of her legs; a scenario that plays out with sickening regularity on the streets of America. Rather than take responsibility for her own insidious actions, she deflected the blame upon one person who shared the drugs and alcohol with her; the one person who tried to do something good, regardless of how drunk or stupid or unreasonable it may have been.

As a result, your family member or friend might be left to die in the passenger seat of a Cadillac sinking to the bottom of the Pacific because nobody would help.

Does it seem like I take this personally? It was my mother left to die in the passenger seat of that Cadillac in December, 1974...six years before the "Good Samaritan Law" was enacted.

                                    ________________________

Fire v Private EMS
The Law does not care.
Now, neither do I.
by David Givot


Since about 1987 my position on the age-old debate about Fire vs. Private or Third-Service EMS has unambiguously and unapologetically favored the latter. To say otherwise would be nothing short of gargantuan hypocrisy.

Over the years I have welcomed, if not provoked, boisterous debate on the subject with anyone willing to engage. Using words like greedy and egotistical, obtuse and devious, I condemned the devolution of ALS into the fire service at the expense of providers whose sole focus is the delivery of quality medical care and the patients they could have served. I have warned of the dangers inherent in placing such responsibility in the hands of firefighters who are distracted by non-medical diversions, or worse, drafted against their will into a paramedic program.

I have been steadfast in my convictions for twenty-some years. Until now.

Since I began studying the Law and speaking to EMS providers about how to protect themselves, the majority of my audiences have been fire department based. As a guest lecturer at UCLA/DFH Paramedic School, the students I teach mostly represent area fire departments. I have had countless one-on-one discussions with fire department paramedics, and paramedic candidates, in recent months and I have discovered something that I should have seen long ago...

A few months ago I spoke at the Kentucky State EMS Conference. Between sessions, I was discussing the local EMS delivery system with a veteran - non-fire department - paramedic and I posed the question: Fire or Private, which is the superior delivery system? Of course it was a rhetorical question, I was already sure of the answer. Nevertheless, he surprised me with an answer that was both simple and obvious. His answer was this: "It doesn't matter."

It doesn't matter? Of course it matters. Doesn't it? What?

 "It doesn't matter," he said because any EMS system can only be truly measured one provider at a time. In the end, the delivery system is nothing more than a means of transportation. It is the commitment and dedication of the individual provider that matters. If a provider does not want to be there, it does not matter what the patch on his or her arm says, the patient suffers either way.

Friggin' light bulb!

Since that conversation I have addressed hundreds more EMS providers, discussing the perils and pitfalls of the job as it relates to legal entanglements. Likewise I have had countless interactions with fire department paramedics; opportunities to talk about Law, EMS, and the changes that have taken place over the years and what is coming next.

In each one of those interactions I considered my conversation in Kentucky as a sort of template to interpret some bigger picture meaning behind what they would say; to get some reading as to what kind of provider they are and their words did not disappoint.  That guy in Kentucky was 100% right on the money.

Fire, Private, Third-Service...
Same dog, different fleas.

EMS is not the expression of the sum of its parts. EMS is the individual parts; each provider is EMS and, like the Law, EMS does not care how you get to the scene, EMS only cares about what you do when you get there.

A fire department paramedic who only went through training because of the pay increase is just as dangerous as the private paramedic who hates his job and his employer for paying so little. The dedicated, committed private paramedic who joins the fire department for a more secure future should be no less engaged than the dedicated, committed private paramedic who does not.  The age old and ongoing battle between fire and private (or third service) EMS is the wrong battle.

If there must be a battle over quality patient care, and there must be, it should be between those who are committed and dedicated to the best possible patient care and those who are not. That is the only fight about which the law truly cares; that is the only fight about which providers should care. That is now the only fight about which I care.

The greatest challenge now is convincing providers and provider agencies to look closely at themselves and make the honest determination of where they fit; to recognize that reputations are built and shattered; families are preserved or decimated; lives are saved and lost, one provider at a time.

Like the Law, in EMS there is no half-way: The act was legal or it was not, the care was proper or it was not and for each there is a consequence. The provider with poor skills will ultimately be held to account, as will the partner who knew about it and said nothing. While there may seem to be some gray area in both, rest assured that at the end of the day, the gray is gone.

As a paramedic, my study and understanding of the law has cast an ultra-bright light on just how much the two have in common. It is an understanding of the law that brings clarity to what it means to be an EMS provider, because the law - like medicine - looks only at the facts and likelihoods before committing to a course of action or creating a result.

EMS and the Law are very much alike. Both seem to expand and contract; adapt and evolve as the needs and expectations change; as we learn more about what works and what does not. Each like the other may be defined by the progress of generations or identified by the foibles of those whose interests in quality are diverted by other distractions.

Ultimately, both share a common goal: to make better the world it serves. Ultimately, each is only as strong as those who deliver it.

Which provider are you?

_______________


EMS Documentation:
The Truth about Sticks & Stones
by David Givot

“Sticks & Stones may break your bones, but poor documentation can end your career & cost you everything!”

Patient Care Reports (PCRs)

With every PCR you write, imagine that it will someday be enlarged and projected onto a giant screen for the Judge, Jury, Opposing Counsel, and General Public to see… and pick apart. How is your penmanship? How is your spelling? How well are your thoughts organized? What do these things say about you? How do they affect patient care?
  
It is not uncommon for people to leave such grammatical considerations back in college or even high school. Sadly, conventional wisdom (for many providers) is that PCRs are a matter of function, not form; jot it down and move on – “If they can read the doctor’s handwriting, they can figure out mine.” For many providers, simply spilling information on the form is enough. They argue that spelling is less important than meaning; organization takes too much time; they abbreviate properly where they can and abbreviate creatively where they cannot, and so on.

That line of thinking could cost a career—or worse. To a layperson on a Jury panel, a PCR that may be fully completed and accurate may still seem unreliable or even incomplete if it is sloppy, rife with misspellings, or disorganized. That’s just the beginning.

In this age of instant access to information and news, with YouTube and Google Alerts, the general public has a better view of the world than ever before. We watched the response to the 911 attacks, we watched as EMS workers rushed to save lives in the Minnesota bridge collapse, we watched as police apprehended Rodney King, we watched while OJ, Robert Blake, and Phil Specter got away with murder and all the while we formed our own opinions of what happened based on the snippets from the news or from what was streaming on the internet. We watched, and we judged.

Likewise, from day to day, crew’s quarters and hospital lounges are abuzz with Monday morning quarterbacking based on what was said and what was written about one call or another – and that’s just for fun.

To opposing counsel in a legal action against you, it’s not fun, it’s business. They will use your documentation to try and call into question your competence as a provider. In essence, your skill, ability, and you will be judged by your documentation. Defendants have lost cases for much less.

Another, less common yet still existent favorite of opposing counsel is the documentation phenomena of “magic” vital signs. Magic vital signs are those acquired by EMS personnel who only need to look at a patient to know what they are – without the cumbersome assistance of a BP cuff, stethoscope, or watch. They generally look like this: 120/80, 80, 16. If you ever find yourself documenting magic vital signs, you have much bigger problems than the opposing counsel who will chew you up and spit you out; you are in the wrong line of work. My suggestion is this: Quit your job and do something else before you kill a patient or wind up in jail…or both.

For the rest of us, there are simple concepts and tips to keep in mind with every PCR you write:

--- Print clearly in black ink (unless your agency requires blue)

--- Make sure that your spelling is correct. 

    -- If you are in doubt, look it up or change the word.

--- Use only approved recognizable medical abbreviations, otherwise spell it out.

--- Double check, if necessary, to assure the accuracy of the patient’s name, date of birth, and other identifying information. 

     -- If you are not sure, document that you are not sure and why.

--- Double check each check-box to make sure that everything is covered. 

    -- If something is missing, that part of the assessment may have been overlooked

    -- Confirm or reassess before marking the box. (There’s nothing quite like marking that a glass eye is midrange and reactive to light – I have seen it done)

--- Employ a consistent method for tracking time and document accordingly
 
-- Arrival, departure, transport time, etc.

  -- Treatment times (defibrillation, intubation, medication administration, etc.)

  -- Note times for any significant change in the patient’s condition

  -- Where appropriate, note timing related to occurrences prior to your arrival

     - When the pain started

     - When the injury occurred

     - Etc

--- Make sure that your narrative includes facts & details, rather than opinions and generalities.

    -- A detailed narrative is a sign of a thorough assessment and vice-versa.

--- Be sure to describe what you see and hear (and smell, if necessary) throughout the call.

--- Include your personal pertinent observations (not opinions or assumptions) about the patient and about the circumstances surrounding the call

--- Identify and attribute statements made by others, especially statements about what happened prior to your arrival. 

     “…wife states that’s that…”
     “…Joe Smith, bystander, said…”
     “…first responders report that…”
     “…Shawn Tubbs, the nurse at the facility, told us…”
     “…bartender said that…”
     “…according to Officer Jones (LBPD), several witnesses said…”

--- Wherever possible, identify any witnesses you quote.

--- Be an artist, paint a picture!

--- Organize your narrative such that the reader can derive a complete sequential picture of the call from inception to Emergency Room.

--- Do not rely on check boxes to tell the story

Finally,

--- If you release a patient at the scene, document clearly and precisely EVERYTHING you did and said along with the patient’s response to it

--- If you release a patient at the scene, find at least two witnesses, if possible, to acknowledge your advice to the patient and sign the PCR

--- Be sure to include printed contact information for each witness

--- Unless absolutely necessary, do NOT use fellow EMS providers as witnesses.

    -- Family members are best

    -- Bystanders and law enforcement are decent alternatives

Good documentation takes time and, after the 20th call in as many hours, you may be exhausted. But every PCR must be a careful combination of form and function. That document could follow the patient for a very long time; from the ER to the OR, from the ICU to the rehab center. Every person who sees that report must know with 100% confidence and certainty what you saw, what the patient and witnesses said, what you did, and when you did it.

Billing Forms
For many providers, particularly in the private or third service arena, Billing Forms are the bane of EMS existence. All too often they are submitted with a woeful lack of information and an abundance of blank spaces and boxes. “I don’t have time for that, I have calls to run. Besides, that’s what the billing department gets paid to do!” is the general and flippant rationale behind that very dangerous thought process.

Like PCRs, Billing Forms share time in the [legal] spotlight and they can make for an opposing counsel’s dream-come-true. Because they are part of the patient’s record, Billing Forms can be as critical to your cause as PCRs. They tend to include space for assessment and treatment information and —as they say— if you didn’t write it, you didn’t do it. Even on a billing form and even if it is written on the PCR.

Indeed Billing Forms can be laborious and time consuming and not as alluring to EMS folks as PCRs, but they can be just as important. An incomplete Billing Form (read: Medical Record) can look very, very ominous against you on a big screen in a court room. In the words of Ricky Ricardo, you will have some serious “…splainin’ to do…”

Finally, Billing Forms are not just about the money; instead they are an extension of your care for the individual.  Beyond protecting your own reputation or career, there is an ethical duty to prevent the kind of unnecessary discomfort – and potential devastation – that accompanies insurance claims confusion or threatened credit.

One Last Thing
It is important to note that litigation is ruthless business. When your skills are called into question and large sums of money are at stake, the opposing side will use every means possible to compel a judge or jury to find you liable in a civil suit or guilty in a criminal case.

In addition to whatever else may be used for or against you, your documentation will be projected onto a giant screen in the courtroom for the entire world to see. The lawyers on the other side will slowly and painstakingly pick it apart, piece by piece, and spin every syllable against you – if they can; if, by poor documentation, you let them.

On the other hand, if your patient care skills are solid and your documentation is clear, complete, and precise, the life you save may be your own.

Complacency Kills!
Patients and Careers
by DavidGivot

Prologue

I did my paramedic internship at Los Angeles City, Rescue 66, in the spring of 1989. You might think I am crazy, but I recall that as being one of the best times of my life. My preceptors, Mike Samudio and Kelly McKee were clinically tough, but very fair. They did what they had to do to make sure that I could do what I had to do when I had to do it.

What I remember, and appreciate, the most is that they took the time and spent the energy to make sure that I always considered and appreciated the role of a paramedic from the patient's perspective. With them, even the twentieth patient in as many hours received the attention, respect, and care as the first. The sweet old lady with chest pain, the juiced-up gang-banger with a gunshot wound, and the homeless drunk with a bellyache since 1964 were all treated with the same attention to proper care (as patients) and proper treatment (as human beings).

As it is with many interns, about half way though my internship I became too comfortable with my preceptors and my skills. I recall one particular incident like it was yesterday. It was the middle of the night; I was tired and cranky and faced with (another) young woman who was emotionally upset over something her boyfriend had done. She was in no distress and the very thorough assessment - including an EKG - revealed nothing more than big trouble for boyfriend when he returned. Nevertheless, with the Captain, Engine Company, family members, and preceptors watching, I presented her with disposition options: First, I told her, we could take her to the hospital if she desired. Or, I continued, she could stay home with her family and see her private doctor in the morning. Had I stopped at those two options, there would be nothing about which to write. Of course, I did not. Her third choice, I presented smugly, was "...or we could take you to Disneyland. That always makes me feel better..."

I could see the words as they left my mouth and hit the air. They would not be retrieved. The damage was done. The simultaneous and confounded looks of disappointment on my preceptor's faces said it all. I am reasonably sure that, if I had a tail, it would have instantly lowered and tucked itself between my legs.

When the dust settled, and there was a lot of dust, Kelly McKee pulled me aside and calmly gave me some of the best advice I have ever received: "Dave," he said, "your not going to like everyone you come in contact with. Sometimes you're going to be tired and sometimes you may not want to be there. But, as long as you are, remember this: Complacency Kills. The minute you begin to treat people differently or cut corners, someone is going to die... and it could be you."

I have never forgotten that lesson. I have passed that wisdom on to every intern I ever precepted and tried to apply it in my daily life. Now, I pass it on to you.

I shared my story, albeit rife with sentimentality, to provide a bridge from conceptuality to tangibility; to encourage some reflection on your own career as we analyze a case where complacency did kill.

Wright v City of Los Angeles

On May 19, 1979, witnesses saw a fat man picking up Jerry Wright and hitting him up against the side of a car as Wright screamed, "Help, police, I'm being robbed." Wright tried to get into the car, but the other man pulled him away and continued to beat him. Moments later, a man came out of an apartment across the street and hit the fat man, who fell under the car. The man then helped Wright into the car. When he started it up, it rolled backwards, and then stopped; Wright just sat there.

Moments later, two police officers arrived; one had his gun drawn and pointed at Wright and ordered him to come out of the car, but he did not comply. He remained slouched and leaning against the back of the driver's seat. Another witness urged the police not to shoot, saying that Wright could not get out of the car because he was beaten up or hurt, and that the man on the ground had done it. The officers opened the passenger door and pulled him out, half into the gutter.  One of the officers poked him with a baton, but he did not move. The other officer pushed him over onto his stomach, put his hands behind him and handcuffed him.  He was lying on a grass parkway, with his head leaning over the sidewalk; one of the officers kicked him between his neck and shoulders and moved his head back onto the grass.

Witnesses heard Wright loudly complaining that his head hurt, that he hurt all over and needed an ambulance. The police called for paramedics. Soon after, an ambulance with two paramedics arrived to find numerous police vehicles and officers, and the fat man lying in the street. A police officer directed one paramedic to Wright; the other attended the fat man. The paramedic did not recall being told Wright had been complaining of pain or that he hurt all over and had asked for an ambulance. He knew that there had been a fight and assumed that was why the paramedics had been called, he never asked the police why they had been called.

The paramedic approached Wright and asked him what was wrong or what had happened; Wright did not respond. He asked Wright if he was hurt and Wright said he was not hurt; he did not complain that he hurt all over. The paramedic did not ask Jerry a series of orientation questions. While the paramedic was talking to Wright, he was examining him visually to determine why they had been called to the scene. He then did what he called "...the 60-second examination..." a brief visual examination of the body to determine if there is a life-threatening situation. It was the only examination he did; he did not check a pulse or blood pressure. He did not recall if he touched Wright's skin, although he could have done so while examining his body for visible injuries. After the 60-second examination, he told a police officer if Wright was to be booked he should probably see a doctor first; the paramedics then left.

Wright died at the scene a short time later from Sickle Cell Crisis. The paramedic was found liable and the plaintiffs were awarded millions.

Wright v. City of Los Angeles has become a landmark case for EMS providers where the duty to act is at issue. Recall from my column "Are You Just Down the Street From a Lawsuit," the Zepeda case established that staging away from certain non-secured situations did not violate the provider's duty to act, particularly because the paramedics never initiated patient contact before the police arrived. In Wright, however, the scene was secure and the paramedic initiated patient care by approaching, asking questions, and making a substantive disposition.

When it comes to a provider's duty to act, most every jurisdiction follows the same essential rules: The provider has a duty to act as would a reasonable provider with the same level of training and skill, in the same locality, and under the same or similar circumstances. Acting reasonably is not rocket science, yet so many providers continue to stumble around the standard, guided by what they think they know rather than what they actually know.

One of the first questions for the jury was: did the paramedic have a duty to act? Of course he did. He was summoned to the scene of an emergency to perform the duties for which he was hired; to empirically determine the patient's condition through the use of available diagnostic tools and assessment skills. Likewise, he had a duty not to rely solely on the statements or non-statements of others, including the patient himself.

In this instance, a "reasonable" paramedic would have asked more about the circumstances which led to the response. A "reasonable" paramedic would have been motivated by the story of a fight to do a physical assessment including vital signs. A "reasonable" paramedic would have wanted to know about medical history because that is what reasonable paramedics do; like lawyers, they gather as much information as possible to get to the truth, or to at least reach an informed conclusion. A "reasonable" paramedic knows that what you see is not always what you get.

The next question for the jury was: did the paramedic breach the duty? Where one owes a duty and fails to perform, he is in breach. This was not a stretch for the jury and it will not be a stretch for you either. Chances are, unless you are absolutely clueless, you already know as you walk away from a call whether you did everything you should have - according to local training, protocols, procedures, and standards of care, not according to your psychic abilities and unquestionable experience. If you didn't, then the possibility that you missed something, as infinitesimal as it may seem, will follow you wherever you go... at least until the statute of limitations runs out.

The last questions for the jury included: were there damages and did the paramedic's breach of his duty cause them?

Determination of cause essentially boils down to two words: "But for..." But for the paramedic failing to do the full and complete assessment which was his duty, would Mr. Wright have died as, how, and when he did? The truth is there is no way of knowing.

On the other hand, we do know that if the paramedic had done a full and complete assessment and learned of the sickle cell disease and transported the patient to the hospital, rather than passively suggesting to the police that a doctor look at him if he is to be booked, Mr. Wright would have received advanced medical attention and his odds of survival would have improved exponentially over what he received face down in the grass.

All too often paramedics develop preconceived notions and even generate conclusions before they arrive on the scene. Sometimes that works. If you know you are going to the scene of a vehicle roll-over, it is safe to assume that a trauma center is a probable destination. Or if you are called to the scene of an overdose, person not breathing, you may reasonably forecast the use of Narcan®. Experience tells you certain things.

However, a drunk is not always a drunk. Each patient and every situation is unique, even those you have seen a thousand times. And you will never know until you have done a comprehensive and thorough assessment. Would you do a 12 lead EKG on a 34 year-old female with abdominal pain? I recall an afternoon when my partner and I did, mostly because we could. Wouldn't you know it? She was having an MI.

As long as I live I will never understand how some providers continue to find a disadvantage to doing a full and complete assessment; how, as a matter of course, they rationalize circumstances where it's just to burdensome to check vital signs and ask all of the necessary and appropriate questions. Perhaps it was my training, or maybe it's just me. But it will never make sense.

Next time you find yourself on scene with "nothing," I suggest you prove it.

Wright v. City of Los Angeles: 219 Cal.App.3d 318, 268 Cal.Rptr. 309 Cal.App. 2 Dist.,1990.

Zepeda v. City of Los Angeles: 223 Cal.App.3d 232, 272 Cal.Rptr. 635 Cal.App. 2 Dist.,1990.

Torts-Cases and Materials: Prosser, Wade and Schwartz, 10th (2000)

Perception is Reality, Even When it's Not
Why all news is local
 by David Givot

"Dallas Paramedic Faces Accusations of Sexual Advances"

 "New York City EMT in Pervert Rap" 

 "Paramedic Charged with Stealing Dying Man's Wallet"

"EMT Punched patient on the way to the Hospital"

"Sexual Misconduct Trial of Fired Paramedic Begins"

"Paramedic Didn't Check Pulse, Left Woman for Dead"

The impact of disturbing headlines and even more disturbing stories is not the presumption that one bad apple spoils the whole bunch. After all, one bad apple is just one bad apple.

The true danger, the collateral harm exists between perception and reality; where opinions are formed and judgments are made by those who know less than what their eyes see. When it comes to the world outside EMS, people only see - thus draw conclusions from - what they are shown by the EMS providers with whom they come in contact or those they see in the media.

For generations - at least the two decades I have been involved - true EMS providers have had to work vigorously to win the respect of their Police or Firefighting counterparts. It is still the case that many Paramedics in the fire service are hailed by their peers for their role as firefighters, as if being a Paramedic was a pesky side chore. What's worse, private ambulance EMT's, especially on the West Coast, are treated like step-children at a family reunion - but with less respect. Somehow, the industry seems quick to forget that EMT's are EMS Professionals. Perhaps this is not the case where you work, but rest assured, this phenomenon is pervasive.

By its very nature, this industry precludes "normal" folks from having any understanding whatsoever of the inner-tickings of an EMS provider in any arena.  

 The general public is primarily concerned with one thing:

 Getting help when help is needed.

For that reason, those dedicated EMS providers who believe that quality patient care is the core of the job must continually fight a two-front battle to keep expectations high and standards higher.

First, every person who rides an ambulance or a squad must do everything possible to be the very best, regardless of level of training. That means delivering comprehensive assessments, proper treatment, valuable documentation, and safe transport no matter how tired, burned-out, or bored they may be. And yes, it also means doing so with people-friendly attitudes and sharp, clean uniforms and vehicles.

Second, and perhaps most challenging, each provider must be prepared and willing to hold themselves and their coworkers accountable for the same high standards or seek remedial action, which often means confrontation and turmoil in an already capricious environment.

The common thread between both battlefronts is the Law. The Law already holds providers to a standard and the Law already holds coworkers to a standard. And the Law is an equal opportunity arbiter; when either falls short, both may find themselves on the uncomfortable and sometimes devastating side of legal action for the same incident.

Take for example ongoing cases in Texas, New York, and Michigan where the providers are entangled in allegations of sexual misconduct. Being a strict Constitutionalist, I believe in the concept of innocent until proven guilty - and I would like to believe the best.  Nevertheless, playing Devil's Advocate, let's say the allegations are true.

Did their partners know what they were doing? Was there a known or suspected pattern of such behavior? Was their behavior ignored because they were "great guys?" Maybe, but keep your eye on the ball.

 

Did their partners know what they were doing? Was there a known or suspected pattern of such behavior? Was their behavior ignored because they were "great guys?" Maybe, but keep your eye on the ball.

Inasmuch as these types of incidents, though sexy fodder for the media, are abhorrent and aberrant, it matters less than the misconduct that goes on every day at [almost] every agency: disinterested patient care.

Take a close look around, what do you see? Do all of the EMS providers in your agency, including you, regardless of level of training, take special care to cross every "t" and dot every "i" on every call? 

Does each patient get the same degree of assessment and follow through or are patients sometimes prematurely released from the scene when something better comes over the radio?  

 Is the short-of-breath executive in the office building at noon treated the same as the homeless person retching in the gutter at midnight?  

 Do C-Spine precautions have various degrees; full, sitting, walking?  

More importantly, when you see substandard care, unequal treatment, or actual negligence, what do you do?  If the answer "nothing," then the shadow of impropriety, whether from substandard care or any other misconduct, is cast beyond the malefactors and on to the agencies, all of their respective members, and you. And rightly so because in the Law permissive behavior can be as culpable as affirmative behavior; doing nothing can be the same as actually doing the bad act.

Unfortunately, the ultimate result (for providers) of doing nothing is that good folks, dedicated providers, those who believe in what EMS should be become smeared with the silt dredged up by the few. Blowing the whistle can mean an unbearable work life. Silence means being wrapped in the veil of speculation and speculation becomes truth in the eyes of an uninformed public; the same public who allocate funding and award contracts; the same public who commission background examinations on candidates for future jobs; the same public who sits on jury panels in court and determines damage awards.

 Ultimately, all we can do is our level best and sometimes that means making big decisions; sometimes that means being loyal to the best possible patient care and not to a code of silence - silence that can be shattered by the piercing shrieks of a mother kneeling beside her child's grave... because of what you did or didn't do.

For me, the level best means taking advantage of every opportunity to contribute to the advancement and improvement of EMS and to protect those who provide it.

Take a close look around, what does it mean for you?

__________


Negligence and the EMS Professional
by David Givot

While a negligent act could certainly carry a devastating cost, understanding negligence and how it fits in to the daily life of a provider can help keep the monster at bay.

Simply stated, negligence arises where there is a duty to act, a breach of that duty, and that breach is the cause of damage to another.

DUTY
Each of us owes a general duty of care to everyone; the duty not to intentionally harm anybody and the duty to try to not do anything too stupid.

Legally speaking, there is a general duty not to behave in such a way as to endanger the wellbeing of others. I like my description better.
 
EMS Professionals, on the other hand, owe a much greater duty to the community as a whole while on the job—and even off.

In short, EMS providers have the duty to act as would a prudent, reasonable EMS provider with the same level of training, in the same community, and under similar circumstances. That’s the legal description.

As you can see, the duty is broad-reaching and subject to a great deal of interpretation, nevertheless it can be easily broken down:

1) Behave in such a way as to protect and defend those around you from harm,

2) Act within your scope of practice at all times,

3) Act in accordance with local protocols and procedures at all times,

4) Serve to maintain the dignity of each person with whom you come in contact,

and

5) Continuously repeat steps 1-4.

Duty, itself, is mostly about behavior – how an EMS Professional should behave. But the behavior to which Duty refers is not limited to just patient care.

Duty as an EMS provider extends to the patients and their families, to coworkers and guests, and to the community in general. Your patient care may be second to none, but how do you behave at the station or while driving around town in the ambulance or rescue squad? How clean is the ambulance? How well stocked is the medical box? How much oxygen do you have? The list is virtually endless, and all of it is your responsibility, your duty.

One of the toughest questions about Duty involves other providers. What is your individual duty when a fellow provider is utterly incompetent or worse…criminal? We will tuck that question away for another column. For now, just ponder those questions in light of what you learn today.
 
BREACH
The concept of breach is simple: You did something that you had a duty not to do, or you failed to do something that you had an absolute duty to do. There, that is breach.

Example: Let’s say that the law in your jurisdiction has established an affirmative duty for ALL emergency vehicle operators, even while operating with lights & sirens, to come to a complete stop at red traffic signals.

At 3:00AM you find yourself responding to the report of a cardiac arrest. There is not another vehicle as far as the eye can see, so you are flying down the road. Ahead there is an intersection. It is wide open and you can see for a quarter mile in both directions, not a car in sight. So you are going. Even thgouh the light is red, you can see with 100% certainty that the roadway is clear, so through the red light you go.

Have you breached your Duty? Yes.

The concept of breach does not care whether anyone was hurt or even affected by your act (or non-act). Breach only cares about your behavior relative to your duty. In the example above, there was a duty to stop, you didn’t, you breached.

Is there a negligence claim against you? No. A successful negligence claim requires that all for elements be present.

CAUSATION
Here is where things get a little sticky.

Where you breach a duty (as defined above) AND your breach is the direct cause of damage (I’ll get to that in a minute), then you will be considered a cause of the damage.

But, the Law  generally requires that you also be the proximate (most direct) cause. Thus, it is possible for your breach to cause damage, but if there are unforeseeable, superseding or intervening factors, you may not be completely liable or even negligent.

Example: You have a duty to check every drug prior to administration, but in one particular instance, you forget and administer a drug six months beyond the expiration date.

The patient has a violent reaction and is hospitalized for a month. At the moment, you are in deep trouble.

However, it turns out that the drug manufacturer mislabeled the vial and it contained a completely different drug. Did you err? Yes. But a Court would likely find that (because malpractice is presumed – I will talk about that in a minute also), the manufacturer was the most direct cause of the patient’s injury, thus relieving you of full responsibility, though not necessarily all responsibility.

That was fairly basic, it gets harder.

Anywhere a duty exists and you fail to comply with it, you become part of a potentially long chain of causation and your portion of the damage may be actionable.

Example: The negligent act of another causes harm to a victim. You respond to the victim and render care. During the course of rendering that care, you also act negligently and the patient’s harm or injury is worsened.

The law does not hold medical personell in very high regard, inasmuch as, under the law, malpractice is presumed – read: foreseeable – whenever someone seeks medical attention in response to the [negligence] of another.

In the example above, the original negligent act caused the original ham, but you made it worse. The law expects that and does not relieve the original negligent actor of his liability, but your own negligent act may still be actionable against you.

Yes, it gets even more confusing, but I will leave it at this:

For a negligence act to hold, the negligent act must CAUSE some harm or result in some damage to another. Where you run a stopsign without incident or negligently hang D5W instead of Normal Saline, but no harm is done, then no action for negligence will hold.

However, if you negligently run the stopsign or hang the wrong drug and even the most minute damage occurs, you will be liable for it – and the best excuse in the world will not likely  help you.

DAMAGES
Any physical, financial, and sometimes emotional injury caused by the breach of a duty can constitute this final element of  negligence.

Damages could, conceivably, be as little as a fifty cent phone call; if that call had to be made directly because you breached your duty to the person who made the call — the plaintiff would be entitled to recover the four bits.

Medical expenses, lost wages, physical damage to property, and manifested emotional distress are all typical forms of damage for which a negligence action can be brought.

The important thing to know about Damage is this: the idea is to make the damaged person whole; to place him in the position he would be in absent the neglignet act. Civil law seeks to do that through cold, hard cash – your cold, hard cash.

If you are driving recklessly with your lights & sirens and you smash up someone’s brand new car, you just bought that car. If your failure to properly treat a spinal injury results in damage that would otherwise not have been sustained, it’s coming out of your pocket. If you negligently tell a family member that a loved one is dead… and they are not, you could be made to pay dearly.

FINALLY
To truly understand negligence, one must study volumes of text, review decades of case law, and comprehend complex legal theory. 

You don’t need to do any of that.

To protect yourself against a negligence claim, simply do the following:

1) Behave in such a way as to protect and defend those around you from harm,
2) Act within your scope of practice at all times,
3) act in accordance with local protocols and procedures at all times,
4) serve to maintain the dignity of each person with whom you come in contact, and
5) continuously repeat steps 1-4.