Why The Advice Is Rarely Free

Anyone who knows me (especially on Facebook) knows how much I rant about giving free legal advice.  To be more exact, I rant at the expectation that some in EMS have that they are entitled to ask me for free legal advice.  (But Wes, it’s just a quick question!)  That would be the same as asking an EMT who does transfers to give my dad a free ride to a doctor’s appointment, because, after all, it’s just a quick ride over to that clinic on the other side of town. As I’ve said more than once, I’m a volunteer paramedic, not a volunteer lawyer.

Kidding and ranting aside, I do get it, at least somewhat.  For a lot of us who are attorneys, we may be the only attorney that our friends know.  And I think that may be even more the case in EMS.

Law pays my bills and EMS keeps me sane. (Think on that one for a while.) Having said that, I need a law license to pay my bills and those things that could potentially jeopardize my license are things I typically try to avoid. Just like in EMS or any other licensed profession, as a lawyer, I’m subject to certain legal and ethical obligations. In my case, as a Texas attorney, my ground rules are largely set by what our State Bar refers to as the Texas Disciplinary Rules of Professional Conduct.

Generally speaking, my obligations to you start once an attorney-client relationship is established. I would refer you to Part 10 of the Preamble of the Texas Disciplinary Rules of Professional Conduct which states, in part, “Most of the duties flowing from the client-lawyer relationship attach only after the client has requested the lawyer to render legal services and the lawyer has agreed to do so.” In other words, if I’m providing you legal advice, the attorney-client relationship may well exist and I’m under all of those professional, ethical, and legal obligations.  Even if it’s “just a quick question,” please understand and respect me when I say that you need to seek legal counsel. After all, “legal services” constitutes what I do.  I’ve heard a few folks say, “Well, I’m just asking your opinion since you’re also a medic.”  If that’s the case, why was I picked out of every EMS provider you know to provide guidance on a legal question?

Please understand that another one of my obligations as an attorney is to only provide representation on matters that I’m competent in. Rule 1.01 states, again, in part, “A lawyer shall not accept or continue employment in a legal matter which the lawyer knows or should know is beyond the lawyer’s competence…”  I primarily do administrative law and government contracts.  I know about EMS law because it’s a field that’s near and dear to my heart personally.  That doesn’t mean that I know anything about your child custody, your speeding ticket, or your Aunt Erma’s will.  It’s the same as expecting your orthopedic surgeon to read an EKG.  Sure, they’re licensed and permitted to do such, but would you really trust their opinion?  More importantly, would you trust an orthopedic surgeon who’s actually willing to read and interpret an EKG?

As I’ve said more than once when discussing legal issues, both the underlying facts of the case as well as the laws of the jurisdiction make a huge difference in providing legal advice or in answering a question.  That’s why most of us who are lawyers have a favorite answer — it depends. Also, because lawyers need all of the facts and to find out the relevant law, it’s rarely just a short answer that we can give quickly. When you combine this with the duties that attach to an attorney-client relationship, you can hopefully understand why I’m loathe to wade into a social media debate about the law.  These debates often become a debate about what the law should be rather than what the law is.  If you want to change what the law is to your version of what the law should be, the political process exists for that very reason.

Also, just like I wouldn’t ask or expect my EMS friends and colleagues in Vegas to come to Texas and immediately start practicing as medics, please understand that my law license is issued by Texas.  I can provide legal advice in Texas — and no other state until or unless I apply to become licensed in another state.  As there’s no National Registry of Lawyers, the reciprocity process for attorneys (if it’s even granted in other states) tends to be a bit more complex and expensive. Otherwise, I end up taking another state’s bar exam to get admitted.  For reference, the Texas Bar Exam is offered twice a year and is a two and a half day exam.  That explains, at least in part, why the Registry exam didn’t seem like too much of a hurdle in comparison.

When I get tagged into or dragged into these debates online, it creates a dilemma for me and my fellow medic-lawyers. One colleague of mine recently noted to me that replying to “Facebook lawyers” puts us in an awkward position because even replying to or arguing with their positions, even when clearly and blatantly wrong, could be construed as providing legal advice. And when it’s about a specific instance, that’s even more likely to be considered providing legal advice — which is the practice of law.

Hopefully, these thoughts give you a better understanding of my mindset about not wanting to give legal advice, even if it’s “just a quick question;” why I like to say “it depends;” and why I recommend you get legal counsel of your own if you do have a question.  In Texas, our State Bar offers a lawyer referral service to find legal counsel.  For EMS issues affecting your liability or license, insurance coverage is available which may include legal representation.

I love our EMS community (ok,  most of the time) and I am always in favor of EMS providers being better educated on the laws and regulations that affect our practice.  However, please understand that while I am a lawyer, I am not your lawyer.  And for those of you who I’ve actually given “free” advice to, I hope you might understand and appreciate what exactly is involved when I do that. Being a lawyer is as much a part of my identity as being a medic — and both are a form of public trust that I sincerely value and hope to maintain.

 

A Time To NOT Volunteer

If you know me or you’ve come by this blog a few times, you know I’m very passionate about the role of volunteers in the world of emergency services, particularly in the fire and EMS world.  Today marks a change.  One, I’m about to give some very broad, generic “free” legal advice.  Two, I’m about to tell you NOT to volunteer.

Event medical standbys. At least in Texas, those fall into a massive loophole where they’re not subject to any regulation from the state. In Texas, transport providers (officially called “EMS Providers”) and “first responder organizations” are subject to state regulatory requirements.  Because event medical standbys don’t fit into Texas’s definition of EMS Provider or First Responder Organization, they’re completely outside the purview of our state EMS regulatory system.

These events always say “BLS only” or “CPR/first aid” but seem to recruit heavily from the ranks of EMS providers. If they truly only want “BLS” or layperson aid, why are they recruiting so heavily from EMS?  Simple.  They want EMS providers on site, but they’ve gotten some legal or risk management advice to not call it an “EMS standby.”  They think that by saying it’s only first aid that their liability will somehow be limited.  Truth be told, I’m not sure if it would or wouldn’t be limited.  But I know this much from law school — anyone that can be sued will be sued, both collectively and individually.  While you may not end up being found liable, I can guarantee that will not protect you from either a suit or the lawyer’s bills to represent you.  (Speaking of which, you do have your own EMS liability insurance to protect you and provide for legal representation, don’t you?)

This is the closest you’ll ever get to free legal advice from me. Just say no. You’re unlikely covered by any medical direction or protocols, which begs the question of what you’re doing there and whether you’re practicing “medicine” or delivering EMS care. And if all they want is “BLS” or first aid, why are they asking you to be there by virtue of you holding an EMS certification? I’ve helped at these events before and it feels very odd to be there without the ability to function at your certification level, assuming they’ve even verified your certification.

In the very best case, you’re probably going to be poorly equipped.  You’re even more likely to be expected to supply your own gear. And I will virtually guarantee that if something bad happens, you will be on your own. The worst part? Many of these events are for profit. Those that aren’t are usually run by nonprofits that have plenty of money for everything besides real EMS coverage. Many of these so-called event medicine companies have a business model based on you being an “independent contractor,” meaning that they’ll throw you to the sharks and claim that they had no oversight of you.  In other words, helping some of these events out for free as a “volunteer” isn’t much better than offering to drive Lyft or Uber for free.

If you truly want to “feel good” by volunteering, get a t-shirt, and/or be thanked for your service, there’s probably a volunteer service within an hour’s drive of you that would actually benefit from your volunteer hours. To me, it’s really ironic is how many paid firefighters/EMTs jump at the chance to work at these events and then say how volunteering “holds back the profession” and artificially lowers salaries.  If that’s the case, then it’s high time that we tell each and every one of these large public events that they need to provide EMS coverage just like they have porta-potties, trash collection, food service, and security on site.

The Semi-Regular Reminder on EMS Politics

Yep. It’s that time again. “EMS On The Hill Day” is just around the corner.  As we all know from EMS social media and the EMS “Powers That Be,” AKA:the usual conference speakers and the people who now provide consulting services to fix the messes that they created in the first place, merely showing up one day in Washington DC in a uniform that’s a cross between Idi Amin and the Knights of Columbus will magically fix all that is wrong with EMS.

 

I’ve worked in state government for years.  I’ve been a lawyer for years.  I’ve been involved in many political campaigns and involved in political parties.  I’m telling you — that’s not how any of this works.

 

We can fix EMS through the political process.  But it’s going to take more than one day per year in Washington DC.  Here’s what it’s going to take.

  1. MONEY.  Money fuels politics.  The reality is that politicians need money to get elected.  Money buys access to the game.  In other words, you can’t watch the game if you don’t have a ticket.
  2. All politics is local.  This famous quote from Tip O’Neill is so true. The Federal government has a limited role in the provision of EMS services, much of which relates to the role that Medicare/Medicaid funding plays. Local governments make the decisions on how to provide (and fund) the EMS system.  State governments typically are the ones who license and regulate EMS personnel and services.  And here we continue to think that the solution to EMS lies in Washington DC. State EMS associations need to step up the advocacy game.  Period.
  3. This is a year round sport.  EMS has to be engaged in the advocacy process year round.  Even in states like mine where the Legislature only meets every two years, there’s plenty going on in the “off season,” which is when interim studies happen and future legislation gets planned.
  4. It’s all about the staff.  Elected officials’ staff members are the subject matter experts and they help the officials develop their positions.  Their schedules are usually much more open than the elected official — get to know them and turn them into your ally.  In turn, they may well call upon you for input — and influence.
  5. The regulatory process matters. Getting legislation passed is great.  But oftentimes, the devil is in the proverbial details.  That’s why it’s imperative to be involved in the rulemaking process and in monitoring how the various regulatory agencies implement and interpret the law.
  6. Funding matters.  When you get funding, things happen.  If you want to fix EMS, fix the laws and regulations that reimburse EMS for being a transportation service rather than a medical service.
  7. Present the image of being professionals.  You want the elected official or their staff to consider you a professional they’d trust, not someone who looks and acts like they just got out of a clown car.

 

Of course, we all want the quick and easy answer to “fix” EMS.  We’ve been trying the quick and easy answers for years and here’s where we are.  Maybe it’s time we try what the adults have done to get their various professions a seat at the table in terms of funding and professional recognition from government.

Part of Being a Professional

There’s a lot of debate on what EMS is, including whether it’s a profession.  Some would say that we are; some would say that we aren’t. Personally, I think that we have the potential to become a profession, depending on some decisions that EMS collectively makes, especially regarding education and entry into EMS.

But there’s one thing that I’ve found is a hallmark of some of the traditionally accepted professions, such as law and medicine.  Namely, we recognize that our patients/clients have autonomy — in other words, the right to accept or reject our advice in most cases.

In our Anglo-American legal system, people have a legal right to make bad decisions. It’s very rare that we, in any field, can substitute our own decisions and force someone else to do what we think is “the right thing.” It’s a hallmark of the liberties that our country and legal system are based upon.  It’s a quick, slippery slope and a short, dangerous trip to allowing the power of the government to intrude on any decision that anyone makes at any time.

So, the next time you think you “know best” when you want to force a patient to accept transport or put them on that backboard because you can, ask yourself what a professional does.  You’ll find the answer rarely involves substituting your personal judgment for your patient’s free will.

Respecting your patients, including respecting their free will go a long way toward enhancing professionalism — as well as avoiding meeting legal professionals.

It’s an EMT (or Paramedic) Card, Not a Hero Card

Recently, the Internet has “blown up” over the two firefighters who, instead of waiting for an ambulance, put a seizing infant in their engine company and transported to a local hospital.  Of course, I wasn’t there and as such, it’s virtually impossible to know everything about the call in question.  However, that’s never stopped the attorney (or medic) in me from applying the 20/20 hindsight spectacles.

First things first.  Pediatric calls scare all of us in EMS.  We rarely have either much training or experience in pediatrics.  Combine that with the all-too-natural instincts to panic when there’s a sick child and it’s a recipe for making some rash decisions.  Not necessarily a wrong decision, but a rash decision.  Most pediatric seizures resolve on their own and those that don’t require ALS medications.  Also, the cab of most fire trucks aren’t set up for patient transport and/or treatment.  Much like the National Registry exam, much of EMS (and medicine in general) is about choosing the “best” answer to your problem.  I can think of very few cases in which transporting a patient in the back of a fire apparatus is the best answer.  The legalities of using a vehicle not licensed for patient transport aside, it’s a potential legal quagmire in the event of a bad outcome.  The back cab of a fire truck is NOT set up to safely transport a patient, especially a child, much less provide working space (or even equipment access) for a medic to treat a patient.  For the overwhelming majority of medical patients, “scoop and run” or “load and go” went out with the Cadillac high-top ambulance.  We’re medical professionals.  We need to be taking care of business, making good decisions for our patients, not panicking, and then playing the “hero card” when we are held accountable for our decisions.

Of course, like anything in law or medicine, the more you know, the less absolute your answers become.  But that’s another topic for another post….

You Don’t Understand What We Do

One of the recurring things I see with EMS memes and t-shirts is the theme that “you don’t understand what we do.”  This sentiment is usually expressed along with some gory or chaotic EMS scene intended to show just how hard and heroic it is to be an EMT or a paramedic.  Funny how these scenes never show the more mundane dialysis transfer or posting the ambulance at an intersection.  But I digress.  Being a medic, I understand the realities of EMS, especially the unpredictability, the inability to know what will happen next, and yes, even the occasional chaos.

Last night, a good friend of mine who’s been around EMS for a while told me about an encounter they had with an older medic they occasionally work with.  My friend was explaining and sharing an article about the Folstein Mini-Mental Status Exam, its applicability to EMS, and how the standard chart notation of “A&OX4” for alert and oriented times four is rather insufficient, especially in the legal setting as it is conclusory and often lacks further context or explanation in the medic’s chart. The other medic, let’s call him T-Rex, because he approaches dinosaur level knowledge, argues that he’s been to court multiple times and no attorney has ever challenged him.

Let’s stop right there. Putting my lawyer hat back on, I can, with a pretty high degree of certainty, tell you why no attorney has challenged T-Rex on his documentation.  The documentation of “A&OX4” is not relevant to what the attorney is asking about. I’ll further surmise that, fortunately for him, he wasn’t the defendant a lawsuit in which the patient’s present mental capacity was a key part of the plaintiff’s claim.  In such a case, I can assure you that the questioning from opposing counsel would have taken a much different tone.  Additionally, the questions that the lawyer asked would have most likely been guided by an expert witness or two with knowledge of EMS.  The experience of being examined or deposed by opposing counsel is rarely a fun experience, even when the lawyer comes across as being friendly.  Nay, especially when the lawyer comes across being friendly.  The probing nature of the methodical examination and questioning of each and every aspect of everything you did on that call is the mental version of a simultaneous colonoscopy and root canal, both of which are occurring without the benefit of pain management or sedation.

So, my dear EMS friends, I ask you this.  Don’t presume to understand what a lawyer does, why they do it, or how they do it.  Having had the benefit of law school, I can assure you it’s as foreign of an experience to an EMS provider as the work of an EMS provider is to an attorney.  We just don’t have “cool” t-shirts or memes to tell you how awesome it is to be an attorney or how you don’t understand what an attorney does.  Maybe I should get some t-shirts printed up with Tom Cruise saying, “I want the truth!”

Until the t-shirts get printed, here’s hoping that each of you never have to find out exactly what it is that a lawyer does or how we think.

Opining on Protocols

As Bill O’Reilly says, if you must opine, keep it pithy.  I may not be pithy, but I must opine.  Lately, I’ve noticed a recurring trend on EMS social media when discussing protocols.  Namely, people are convinced that deviating from protocol makes you immediate prey and fodder for attorneys.  Well, that’s simply not true.

Here’s some good news.  First, most attorneys aren’t that interested or knowledgeable about EMS and what we do.  Second, while deviating from your protocols may well get you in trouble with your medical director and/or your bosses, it’s not going to make you automatically subject to a lawsuit.

Let’s discuss that a bit further.  Most claims against EMS for a bad outcome are going to be based on negligence.  I’ve discussed negligence before, but as a reminder, the four elements are a duty to the patient, a breach of that duty, causation of harm, and damages.  So, in order to prove a negligence claim based on a breach of protocol, one must first prove that deviating from protocol breached the duty to the patient.  In other words, the plaintiff is going to have to prove that the protocols represent the current standard of care.  In many cases, many EMS systems have outdated protocols that do not represent the standard of care.  For example, look how many EMS systems still backboard the majority of trauma patients or require high-flow oxygen for all patients.  In the case of high-flow oxygen for cardiac and stroke patients, the current science in fact reflects that high-flow oxygen actually harms patients. Next, the plaintiff will have to prove that the deviation from protocol caused harm to the patient and that the harm caused damages.  That’s a high burden to overcome.  In other words, the plaintiff is going to have to prove that what you did or didn’t do was the reason there’s a bad outcome.  Especially in critical or high acuity patients who had a bad outcome (IE, death), there’s often an argument to be made that, no matter what EMS or other medical providers did, the patient might have died regardless.  The reality is that we just aren’t going to get every patient back.

And let’s consider one other thing about protocols. Sometimes protocols are blatantly wrong and following them is just as wrong.  Let’s pretend that your protocols suggest you administer a clearly incorrect dose of medicine.  Blindly following them does not shield you from liability.  As a trained medical professional (which is what we’re all striving to be), you have an obligation to clarify and/or refuse to follow a clearly wrong order.  The “just following orders” defense went out with the Nuremberg trials at the end of World War II and remains just as legally and morally invalid as it was then.  If EMS providers want to be considered as the professionals we should be, then we can’t hide behind the doctors’ lab coats when we’re practicing medicine that is clearly wrong and/or harmful.

Of course, nothing here constitutes legal advice.  I’m just trying to clarify and educate here.  If you’re that worried about the attorney boogeyman, your time and money would be better spent on buying EMS professional liability insurance and/or consulting with a lawyer admitted to practice in your state.  Sadly, I’m afraid that some of the people most worried about the legal boogeyman would rather spend their time repeating legal myths and dogma they heard third or fourth hand in a war story during their initial EMT class’s medical legal lecture.

In conclusion, the law is a complex and nuanced topic that is dependent on the statutes and case law of the particular jurisdiction as well as the facts of the case.  That’s why those who’ve attended their one mandatory medical legal class have absolute certainty in their wrong answer and why attorneys with three years of law school after four years of undergraduate education say, “It depends.”

System Abuse. Yet again.

System abuse.  That’s a term we commonly hear in EMS.  And as soon as we start talking about system abuse, the talk invariably turns to EMS providers’ favorite solution for system abusers.  Namely, the idea that EMS providers should be able to refuse transport to system abusers.

First of all, what constitutes a system abuser?  We all know at least one of these creatures by name in our local service area. Yet, in my eleven years in EMS, I’ve yet to hear an agreed-upon definition of system abuse.  It’s like the definition that former Supreme Court Justice Potter Stewart created for pornography — namely, that he knew it when he saw it.

Next, failing to provide treatment/transport to a so-called system abuser is a recipe fraught with peril.  EMS medical directors, as a matter of risk management, have to write their protocols and policies to mitigate the risk of a poor decision being made by the worst provider in the EMS system.    We’ve all seen or heard about “that guy” in our local system.  The guy who missed a STEMI.  The guy who doesn’t manage pain.  The guy who took a trauma patient to a local community hospital.  Bluntly, when the doctor (and the lawyers) think about it, the safest, easiest, least risky decision is to encourage every crew to transport (or at least offer to transport) every patient every time.

The average EMS provider has no idea of what they don’t know.  Most EMS education programs excel at creating the impression that, by teaching a set of skills to “fix” some very acute medical emergencies, the average EMS provider is “doing everything that a doctor does.” After any period of time on the street working as an EMS provider and seeing the reality of our calls, we find our assessment skills in particular make us ill-suited for the reality of modern EMS — namely, the unscheduled delivery of primary care, urgent care, and the occasional emergency care.

I don’t have a solution for system abuse.  However, I can tell you where the solution starts, at least in my eyes.  To comprehensively address EMS system abuse, EMS providers need to work with EMS physician medical directors to develop a local protocol defining system abuse, providing alternative dispositions for these patients, and providing comprehensive medical oversight to mitigate the risk of deviating from the current accepted paradigm of taking every patient to the hospital emergency department.

My cynical side says that instead, one of two things will happen.  One, we’ll just keep complaining and wishing that we had the ability to turn away patients.  Two, some vendor will come up with some technological “solution” that just makes things more of a hassle than to just provide a ride to the ER.

As much as I love the practice of prehospital medicine, I sometimes think that the worst enemy of EMS is the average EMS provider. The solution to system abuse and almost every other EMS challenge is to raise the standard of what constitutes the average provider.

Another example of not talking to the lawyers.

One of the recurring themes that I notice about EMS and about EMS management in particular is that people regularly avoid asking a lawyer for advice and instead rely on what they think a lawyer would say.  Of course, without the benefit of law school, your legal opinion is about as dangerous as relying on a Facebook post promoting raw cinnamon or vinegar instead of chemotherapy or surgery to treat cancer.

I regularly see these examples of legal sophistry masquerading as “protecting the organization from liability.”  I usually have a knowing chuckle at these instances. But today, one just captured the prize for “what the heck are they thinking?”

I have a good friend who’s a paramedic for an unnamed Scandinavian EMS operation that’s expanding into the USA.  Said friend of mine is also one of the smartest people I’ve ever met with an EMS certification.  He reminds me a lot of myself a few years ago.  He’s smart and eager to improve EMS.  Like the old version of the Ambulance Chaser, though, he’s also impatient and more than willing to tell you that your’e wrong.  When he becomes older, wiser, and more tactful, I have no doubt that he’s going to change EMS.

Recently, he posted a picture of teaching his partner some airway management techniques.  Shortly after that, he was disciplined for “unauthorized training.”

Yep.  Let that sink in.  Unauthorized training.  What kind of corporate nimrod came up with that?  Clearly not someone with a either the benefit of law school or any current knowledge of EMS practice.  When the literature says that EMS providers are terrible at airway management, that airway training is lacking in EMS initial education, and that continuing opprtunities to practice and master airway management are lacking, we have some corporate lackey discplining a medic for maintaining mastery of his profession and for sharing his knowledge with another medic.  Corporate is more worried about the training being authorized than about the medics under their employ receiving any training in airway management at all.  Risk management, indeed.

All I can to those people is that the Ambulance Chaser’s unofficial opinion is that you’re a bunch of Falcking idiots.

Thoughts On The Detroit EMS Incident

If you’ve been around any of the EMS social media over the past two days, you’ve heard a story about a Detroit EMT who refused to respond to a baby in cardiac arrest.

Were her acts disgusting?  Absolutely.  Are they immoral?  You bet.  Do they violate every ethical norm that EMS provider subscribe to?  Damn straight.

Should she lose her job?  Already happened.

Should she lose her EMS certification?  I’d argue that she should.

Should she be sued and held liable in civil court?  I’d love to take the case.

But of course, everyone in the social media world wants more than that.  They want her charged with a crime.

As the resident curmudgeon attorney in these parts, let me dump some cold water on that. After that, I’ll dump some more cold water on that.  First, tell me the crime to charge her with.  Second, can you tell me the elements of the crime?  Why?  Because you’re going to have to prove each and every one of them beyond a reasonable doubt to a jury of twelve people who aren’t smart enough to get out of jury duty.

When actions are so repugnant that we all turn our heads in disgust, our visceral reaction is to say that some sort of crime must have been committed.  The good news, and yes, it’s truly good news, is that our country and our legal system make it incredibly hard to charge, prove, and convict someone of a crime.  Rightfully, we’ve created an incredibly high standard of proof for criminal cases — because we are taking away someone’s freedoms.

Our individual rights should never be subject to the whims of a majority, much less a vocal minority.  As an American, I believe in our freedoms enshrined in the Constitution.  As an attorney, I’ve sworn to uphold these freedoms.  As an EMS provider, I wish that more of my colleagues appreciated these principles.