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.

When you’re managing risk….

After seeing some of the less stellar EMS providers out there, I can certainly understand why EMS systems and physician medical directors engage in risk management.  I would too and I encourage it.  EMS providers are great at reacting to medical emergencies and physicians, by and large, are great at medicine.  However, in my humble (ok, laugh) opinion, the professionals who know how to manage and mitigate risk are attorneys.

Several EMS systems attempt to manage and mitigate risk by creating an extensive field training/credentialing/clearance to practice model.  The lawyer in me is skeptical.  Allow me to throw out some legal analysis that I believe illustrates some additional risks that this paradigm creates.

1) Whether we like the National Registry or not, we can all agree that they’ve spent a great deal of time, money, and effort in producing a test that can be validated and defended. How many other organizations can defend their testing processes?  How many EMS systems can defend their field training processes?  I can assure you that this is an employment and/or civil rights case waiting to happen, particularly if adverse action is taken and you can show some discrepancies in how some people were treated versus others.

2) As we all hopefully remember from medical-legal 101, the standard of care is “what would a reasonable and prudent provider of similar education and experience do?” We also know, that generally speaking, Good Samaritan laws as well as other state-specific statutes often hold EMS providers to a willful conduct or gross negligence standard.  Assuming that you’ve created this extensive process to authorize a provider to function in your EMS system, I believe that you may have created a system where what might be ordinary negligence could potentially be considered gross negligence since they went through some extensive process that could be argued to hold them to a higher standard of care.

3) I think there’s potentially increased liability for the EMS system and the physician medical director.  Imagine this one well-placed question from a plaintiff’s attorney.  “So, you had this medic for X number of months.  And Medic So-And-So still made an error in calculating the drug dose.  What exactly was your system and FTO Such-And-Such doing during these X months of field training?”

4) While anecdote is neither law nor science, I could very easily imagine a case where a state licensed advanced provider who is not locally “credentialed” could be in a time-sensitive situation with a bad outcome. Imagine a pediatric seizure patient who did not receive benzodiazepines because the provider was neither equipped nor authorized to provide advanced care.  I can virtually guarantee that this family will be sympathetic plaintiffs and they will be able to find an expert witness who will testify that their child would not have suffered an anoxic brain injury had the first arriving provider been able to administer the proper medication(s).

Do I think that EMS systems should turn providers loose on day one?  Absolutely not.  I also believe that the field training process should focus on operationally integrating a provider into the local EMS system and that the appropriate way to develop providers medically is through the quality improvement and continuing education processes.  But then, how many EMS systems have developed these processes?

I believe a field training process needs to exist.  There are several strong, validated programs out there, most notably the EMS FTEP program out there.  Why reinvent the wheel when you don’t have to?  Combining a strong, proven FTO process with a rigorous QA/QI process and ample opportunities for continuing education and professional development is my recommendation for real EMS risk management.

About That License

I get it.  Becoming an EMT is a big accomplishment for many, even including me years ago.  It was pretty cool to know about things and do things that the “rest of us” don’t get to do.  And the same is true if and when you make the jump to paramedic.  You might even get some neat t-shirts to flaunt that you’re an EMT or a paramedic — and especially proud of it.  The really neat part is that your state gives you a piece of paper or plastic that identifies you as an EMT or paramedic, which means you’re “officially” able to do EMS things.

I have another card in my wallet as well.  It’s my card from the State Bar of Texas that identifies me as a Texas attorney.  It means that I get to do things that others can’t do.  It’s a bit of a long road to get one of these cards.  It takes a four year undergraduate degree followed by three years of law school.  Then, the licensing exam.  It’s a two and a half day exam, given only twice a year.  And it means I get to give legal advice and represent (and counsel) clients about the law.   When you learn the law, you learn that few things are in a vacuum.  A statute alone means very little.  You need to look at the definitions that might be found in other places.  You need to look for relevant court cases applying the statute.  You need to look for regulations implementing that statute. And then you figure out how all of these things apply to the facts of your client’s case.

So, when as an EMT or paramedic with the benefit of a four hour medical legal lecture that was read by another EMT or paramedic who’s not an attorney and the slides were prepared by the textbook feels that they know the law enough to read a statute back to me and claim that’s what the law is, I do get a bit offended.  In my world, that’s the same as some attorney who’s not a paramedic hooking someone up to an IV because they saw a YouTube video.   Just like there’s more to being an EMT or paramedic than knowing how to do some random skill(s), there’s more to being an attorney than reading back a statute.  That’s why it takes a while to become a lawyer.

And that, my friends, is why I get offended when some EMT feels that they know what I know based solely on reading a statute and misinforming their colleagues.

In conclusion, I’m incredibly proud to be trusted by my state as both a paramedic and an attorney.  And I will continue to protect both of my professional identities from those who haven’t been admitted to practice in either profession.