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.

We make a difference.

Everyone hears the propaganda about how EMS makes a difference.  Some of it might even be true.  I’ve had a few calls in my career where I’m at least somewhat convinced that having trained EMS providers on scene made some difference for the patient.  A couple of heart attacks, a couple of allergic reactions, and a couple of difficulty breathings remind me of how my partners and I might have saved a life.  Countless hands held, pain meds given, and nausea meds administered remind me of how the “little things” might make more of a difference than management in the administrative offices ever will be able to quantify.

But that’s not the difference I made today.  Today, I made a difference for two of my colleagues.  Between my presence on some EMS Facebook groups and this blog, people know who I am and what I stand for.  Even more importantly, because of the nature of social media, people know who I consider my EMS family.   One colleague, a younger EMT, came to me today and asked me the age-old question about their readiness to advance to paramedic.  We had a good conversation and a few laughs and I hope that at the end, I was some help.  Shortly after that, a paramedic colleague called me with questions about recertifying.

Neither of these calls were a big deal in the grand scheme of things.  But if we, those of us who consider ourselves to be “good” providers, motivated by the right things in emergency medicine, don’t make ourselves available as mentors, resources, or peer support providers, then someone else surely will.   These may be the the Low Information Voters who chant the shopworn phrases of low EMS standards.

So, for those of you who consider yourself to be good medics, you’re not truly a good medic until you’re helping someone else grow and advance.  The only way to grow the numbers of “good” medics is to not give an inch of ground to the “meets minimum standards” team.  And that means making yourself available and approachable to your EMS friends, family, and colleagues.

It’s that important.  Really.

And I couldn’t let this go without thanking a few unnamed physicians, a few people on the old Yahoo Groups, some Austin/Travis County EMS paramedics, and the family I grew into at Harris County ESD-1.  Each of y’all saw something in me, even when I didn’t.  Each mentoring opportunity I have is but a small attempt to pay each of you back.

Think Nationally. Act Locally.

There are a lot of new ideas floating around EMS these days.  Compact licensure for EMTs and paramedics just like nurses already have.  Community paramedicine.  New educational standards.  And the list goes on.

Here’s why many of these well-intentioned ideas remain just that — well-intentioned ideas.  Many well-intentioned EMS opinion leaders with well-intentioned ideas have no idea how, or more importantly, where a well-intentioned EMS idea makes into law.

With a few notable exceptions (EMTALA, HIPAA, and CLIA coming to mind immediately), most EMS laws and regulations are creatures of state government.  Overall, emergency medical services are provided at the local level and are regulated by state statutes and administrative rules/regulations.

I see a lot of EMS folks wanting either Congress or some national body (e.g. National Association of State EMS Officials, the National Association of EMTs, or the National Registry of EMTs) to DO SOMETHING, DAMMIT!   I don’t always oppose their ideas (well, except for my healthy dose of skepticism about the so-called “Field EMS Bill.”), but they’re usually barking up the wrong tree.   If you want to make changes to the regulatory framework of EMS, you need to quit looking toward Washington.

As a valued service to my minions and other readers, I’ll tell you the way to fix EMS.  First, learn where your state’s EMS laws are located in statute.  Second, learn where the state administrative regulations regarding EMS can be found and which state agency or agencies create, implement, and enforce these regulations.  Next, learn who your state representative and senator are.  Also, learn who are the senior management in your state’s EMS regulatory entities.  And learn who are the chairs of the legislative committees overseeing EMS laws.

And then, when you want to change how we do EMS, contact those people.  Write, call, email, or better yet see them.  While the results may not be as sexy as going to Washington DC in a hotel doorman’s uniform and getting pictures posted online, the results will be more effective, easier, and might just improve EMS. One state at a time.

Negligence for Dummies

Ok, I’ve adapted this lesson from a Facebook post I’ve made, but I’ve given some thought to explaining some legal concepts that impact EMS and this is my first effort.  Please let me know if this is helpful and if you’d like to see other legal topics explained.

Please understand that while I’m a lawyer, I’m not your lawyer and my explanation will be pretty generic, because the law is going to differ in each state.

There are four elements that are required to prove up a negligence case. You must have all four of these for the plaintiff to win their case. Duty, Breach, Causation, and Damages.

Duty — This means that you owe a responsibility of reasonable care to another while performing an action which could cause harm. Generally speaking, duty does not attach until you are either dispatched to the patient or you assume patient care. Abandonment a separate claim/lawsuit that occurs when you assume patient care and relinquish said care prior to being relieved by a provider of equal or higher training/certification.

Breach — In short, this is breaching the standard of care. Standard of care means what an ordinary, reasonable provider of similar skill and experience would do in a similar situation. While we often discuss state protocols, card courses (CPR, PHTLS, etc), textbooks, and expert witnesses, ultimately, these are all factors and evidence that will be assist the fact-finder in the case (the jury in a jury trial or the judge in a bench trial) establish what the standard of care is.

Causation — In other words, did your acts and/or omissions cause the harm to the plaintiff?

Damages — Was there actual harm that can be quantified to the plaintiff? Did the plaintiff suffer physical, economic, or psychological damages that the trier of fact (whether the jury or the judge) can quantify into monetary damages?

As I mentioned at the beginning, you’ve got to have all four of these elements for the plaintiff to succeed with a claim for negligence.

I’m happy to help explain further, but since I’m not your lawyer and, unless you’re in Texas, I’m not licensed to give legal opinions for you, I’d prefer not to discuss specific case(s) that you might’ve been involved in.

Hope this helps!

Clickbait for you. Frustration for me.

Right now, the EMS social media is abuzz with a piece of so-called religious rights legislation that’s passed the Michigan House of Representatives.  In short, the legislation allows for a person to claim a religious exemption from other laws that infringe upon their religious rights.  Currently, legislation such as this is most commonly championed by Christian social conservatives as an attempt to nullify local and state gay rights provisions.  Our “friends” at EMS1 are headlining this as “Will Michigan allow EMS providers to withhold care based on the patient’s sexuality?”

Here’s my take as an EMS provider, attorney, and someone who’s analyzed state legislation for over a dozen years.  Oh, and also as someone who completely supports the rights of gays and lesbians, including the right to marry.  This bill doesn’t impact EMS one bit.  Not one iota at all.  Doesn’t even mention EMS. I am not YOUR lawyer (although, for the right retainer and hourly rate, that COULD change…), but I can’t see how this proposed piece of legislation changes the duty to respond and the duty to act for EMS (or the fire department or police either).

Also, the bill has only passed through the Michigan House of Representatives and still has to make it past the Michigan Senate and get the signature of the Governor.  As I’ve said before, the legislative process is designed to kill legislation, not pass it.  The chances of a bill getting becoming law are slightly better than my getting a lucrative basketball contract, but probably not as good as your next EMS shift not getting to transport a non-acute patient.

I blame two parties for this kerfuffle and misinformation.  One, somewhere out there, there’s probably a well-meaning and sincere gay rights activist who took the conclusions of this legislation well past the logical extreme.  Second, the lemmings of EMS social media AND the EMS websites blindly posted this without any research, whether out of a lack of legal understanding, believing in a specific agenda, or just trying to drive up clicks.

I’m going to do something I only do occasionally and only when I’m really peeved. I’m calling a publication out by name.  EMS1 — You guys should know better.

As the great American President Abraham Lincoln once said, “Don’t believe everything you read on the internet.”

An Open Letter to the EMS Media

Ambulance Chaser here.  Overall, I’m a huge fan of EMS media, both online and print, and making EMS information available online to our fellow professionals.  However, I’ve noticed a disturbing trend in several of the EMS websites and publication.  The articles related to law and EMS legal issues tend towards sensationalism, inducing panic and fear amongst providers, click-bait, or stirring up business for the attorney writing the article.  Articles on liability tend to report on isolated, extreme cases out of trial court verdicts or settlements, which do not create binding law anywhere.  And more than one article has ended with information about how to contact the attorney-author for more solutions to the problem they happen to be writing about.  And we know that HIPAA and privacy issues are routinely invoked as bogeymen waiting to trap unsuspecting EMS providers, when we all know that realistic common-sense measures address most compliance issues.  But that doesn’t drive up “clicks” on the website nor clients to the lawyers to purchase a tailor-made compliance handbook and checklist.

And let’s not even talk about the constantly invoked specter of losing your license, getting sued, or gasp, going to jail.  Yes, EMS provider liability exists.  (Honestly, in my opinion, I think more providers should be sued for some of their acts.)  But the liability for EMS providers and EMS systems is a creature of state law in the overwhelming majority of cases.  Continually citing an attorney who practices in one of the worst possible states for tort liability is at best, fear mongering, and at worst, disingenuous.  It’s as self-interested as for a CPAP vendor to write an article on how and when to use CPAP.  Heck, most of the publications put that kind of obvious infomercial in a “special supplement” to the magazine.

And heck, we’re ignoring several of the big issues in the legal arena that continually “bite” EMS — wage and hour claims, employment discrimination claims, tort liability for vehicle operations, and compliance with state administrative regulations.  But of course, it’s much “sexier” to write about some case where some medic in West Cornfield got sued because of a bad outcome for the patient.  Posting an article like that, of course, brings out the legal experts who populate Facebook and social media.  And that drives up the clicks on the website.

For EMS to progress, we are going to have to develop our own core of “experts” in fields related to EMS, including law, politics, and policy.  At the risk of sounding exceedingly self-interested, I believe I fit into that role.  I am one of the few attorneys who’s actively practicing both law and paramedicine.  I bring a focus on addressing and managing risk to legal issues, including those in EMS.  Additionally, with much of my career being in state government, I have a real understanding of the political, regulatory, and advocacy processes that many in EMS do not possess. (If you’ve read my blog in the past, you know my thoughts on what’s right and wrong on our efforts at advocacy and politics.)

I’m not asking for a column or a position (although I’d certainly be open to it).  What I would respectfully request as an reader as well as a practicing EMS provider is that we demand the same excellence in media addressing EMS legal issues as we would clinical issues.

Sorry for what seems like a more self-interested post than usual, but, to a large extent, what the EMS media is publishing as legal education is just not what most providers need.

On Liability

As an attorney and a paramedic, I’ve definitely got opinions on medical malpractice and liability.  As some of my devoted minions (well, all two of you outside of family), I’ve experienced my own issues with healthcare liability, not all of which I’ve blogged about.

First, my legal profession deserves a huge chunk of blame for this.  We’ve convinced the public, either deliberately or by omission, that a bad outcome automatically equates to malpractice.  This just isn’t true.  No one in the medical world is able to work miracles or reverse irreversible processes.  We will all die of something eventually and sometimes, even in the best settings, there is nothing that can be done for that.

However, the medical world bears some fault as well.  The medical world regularly fails to understand how the legal system works and as such, probably makes things worse.   The things I see most often are administrators and risk managers who try to mitigate risk down to zero.  As such, good medicines, good interventions, and good clinical judgment get banished in the name of “patient protection.”  The acceptable/tolerable risk to the healthcare liability watchdogs, accrediting bodies, and risk managers becomes ZERO.  As but a simple example of that, look how Phenergan (promethazine) has greatly been displaced as an anti-emetic in the emergency and prehospital settings by Zofran (ondasterone) because of the concerns about vascular damage.   Yes, the danger exists, but there are steps to mitigate the risk.  However, for the people whose livelihood is made by “protecting” clinicians from the lawsuit bogeyman, zero risk is tolerable.  So, when you have a patient who’s vomiting up their Zofran orally-dissolving tablets, thank risk management.  <GRIN>

Additionally, the risk management types like to hide transparency or accountability behind the fear of litigation.  As such, we end up with “peer reviews” where medical misadventures are hid behind laws that shield the providers from accountability.  These inspire a belief amongst laypersons that the professional community shields its own.  Even if the provider receives discipline or remediation after a peer review, it’s considered confidential by law (at least in Texas). In my opinion, this limits transparency and accountability and enhances the “coverup” feeling that patients and/or their families sometimes feel.

Many people who’ve experienced a bad outcome come to lawyers in the hopes that the bad outcome can be explained.  Granted, some come for the litigation jackpot, but there’s also a great number of people who seek legal counsel because of an honest desire to find out what happened.

My solutions are simple.  It’s getting them into place that would be the hard part.

Step 1: Accountability and transparency.  First, any explanations or apologies provided by healthcare providers should be excluded, as a matter of law, from serving as evidence of liability.  Second, peer review confidentiality should be waived to the extent in the event that a provider does receive remediation or a loss of privileges that the complaining party is informed.  However, this waiver still should not be admissible for purposes of establishing liability.

Step 2: Judges should start dismissing frivolous claims.  Period.  This alone would go a great deal toward fixing the frivolous lawsuit issue.  Judges already have the power, but many are afraid to use it because campaign contributions often come from the same lawyers who file the suits.  For the plaintiffs’ lawyers out there, this has got to be preferable to tort reform statutes that limit access to the courts.

Step 3: Here’s my solution to the litigation lottery jackpot.  I’d establish healthcare liability courts in addition to the current court system.  If you want to file your suit in the “regular” courts and try to persuade twelve people who couldn’t get out of jury duty of your righteous anger, then by all means file in “regular” court.  Just understand that damages will be capped at a certain amount and that you won’t get a windfall for “pain and suffering” or other unquantifiable claims.  Healthcare courts would exist without any damage caps.  Here are the two catches.  First, no juries.  Your case will be heard and decided by a judge with expertise in medical liability.  Second, the court can also appoint its own expert to examine the facts of the case and issue a report to the judge. To me, this would lessen the influence of the “hired gun” expert witnesses used by both plaintiffs and defendants.

The pendulum of medical liability constantly swings back and forth between two extremes.  I believe that both extremes fail to satisfy justice.  The legal community needs to understand that bad outcomes aren’t automatically to be associated with wrongdoing. And the medical community owes it to the public it serves to accept responsibility and accountability when something does go wrong.  It goes back to preschool — there’s a great deal of healing power in a simple, sincere apology.  “I’m sorry” goes a long way.