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.

On clinical hypocrisy

EMS systems, especially ones with big PR machines, like to claim how their clinical guidelines or protocols and their style of medicine are process driven.  Heck, one of the current trends in medicine that I really like are checklists because they remind us how to do the process right each and every time, thus accounting for human error.  These checklists and processes mean that, in theory, consistent patient care is delivered.  Consistency is important.  Heck, consistency explains why you stop at a fast food chain when traveling — you know what you’re going to get.

So, in theory, I like process-driven. Process-driven means you’re thinking about the big picture.  It means you’re accounting for the fact that your providers are human.  As such, humans make mistakes and need reminders, especially when you’re in the last hour of an overnight shift and you’ve been running without food, drink, or sleep for a while.

Here’s the rub.  When someone reports a clinical error in a process-driven system, should the outcome or harm to the patient matter?  Does a medication error become less serious when the patient doesn’t die?  Or, on the other hand, if you violate the process and the patient improves, does that mean there’s no clinical error?  It pains me to say that these claims of process-driven medicine are sometimes just that — claims.

When you lessen the consequences to your medics/employees because the patient wasn’t harmed, it’s not process-driven.  It’s not a “just culture” environment.  What it is is hypocrisy.  That’s right.  Hypocrisy.  Google defines it as: “the practice of claiming to have moral standards or beliefs to which one’s own behavior does not conform.”

What should EMS define these events as where the process is violated, but there’s no harm to the patient?  The simple answer from this attorney/medic is that you count your blessings, do a root cause analysis of how and where the failure occurred, and remediate, reeducate, or discipline as appropriate.

Here’s what The Joint Commission says:  “A sentinel event is an unexpected occurrence involving death or serious physical or psychological injury, or the risk thereof.  Serious injury specifically includes loss of limb or function.  The phrase, “or the risk thereof” includes any process variation for which a recurrence would carry a significant chance of a serious adverse outcome.  Such events are called “sentinel” because they signal the need for immediate investigation and response.”

Until we consider clinical errors to be sentinel events that warrant investigation and response based not solely on bad outcome, but on “risk thereof,” we’re fooling ourselves into complacency.  Most importantly, we’re failing our patients.  “There but for the grace of God go I” should not be a reassuring whisper to oneself after an error occurs without harm to the patient.  Rather, it should be the words that strike fear into one’s conscience to make sure such a sentinel event is investigated, remediated, and addressed such that it may never happen again.

EMS Week Resolution

So, it’s EMS Week.  Hopefully, by now, you’ve gotten your free cafeteria meal and/or slices of Little Caesar’s pizza from your local hospital, assuming the nurses didn’t eat it before you got there.  You might’ve even gotten a t-shirt or some other motivational knickknack. It probably has some inspirational saying and lots of Stars of Life festooned all over it. After all, you’re a lifesaver.  You race the reaper.  You’re special, dammit!

Ok, time for us to take a minute and grow up.  I mean, for real.  Last night, I got involved in an online discussion about EMS providers in an unnamed state (let’s call it the Keystone State, for the sake of this discussion) being required to retake the National Registry if they were even a half hour short on continuing education.

Gasp.  Horror.  OHMYGOD — ZOMBIE APOCALYPSE!  How dare these people be held accountable?  We’re always saying EMS doesn’t get trust or respect from the rest of the healthcare and public safety world.  Why?  Because we don’t want accountability.  Whether or not you like the rule, it’s there.  And if you’re a professional, you have to take responsibility for maintaining your certification.  And yes, that includes taking the initiative to maintain and keep up your continuing education hours.  No one else, other than you, has that obligation to yourself.  In other words, if you want to maintain the ability to feed yourself as an EMT or a paramedic, you’ve gotta get the CE hours.  No way around it.

So, when everyone finally realizes that’s part of the deal to being a medic, then the argument comes out that no other healthcare providers have to take the licensing exam again if they don’t have their CE hours.  Whose fault is that?  It’s ours.

But how is it our fault?  Quite simply, we’ve given up (and probably never had) any semblance of being interested in or capable of self-regulation.  How many EMS people know how their state’s EMS legal and regulatory framework is set up?  Know where to find your state EMS Act?  Know where to find the physician licensing statutes?  (Because that’s probably got the information about what and how a physician can delegate practice to EMS providers.)  Know where your state’s EMS administrative rules are?

Ok, do you know how these things are created?  Can you describe how a bill becomes a law in your state legislature?  Can you describe how an administrative rule or regulation is adopted in your state?  Know what a public comment period is?  Know how to file a public comment?

If you don’t know, or worse yet, if you don’t care — you are why EMS is held back.  I will guarantee you that part of why nurses have the power in the healthcare world is because nurses are organized.  They fight like hell to maintain their own professional regulation.  They have state nursing associations to fight at the state capitol and to tangle with bureaucrats and regulators.  And as such, they, along with physicians, dentists, and even lawyers have their own professional regulatory boards.  And these boards, wait for it — they’re largely made up of the professionals that they’re licensing and regulating.  Us?  Most states don’t have an EMS regulatory board.  We’re slammed into the state health and human services bureaucracy right there with the tanning salons, tattoo parlors, and giving immunizations and running mental hospitals.  No wonder we’re neglected.

It’s a lot more fun to bash lawyers.  But good administrative lawyers who can deal with the regulatory machine and lobbyists who know the state legislative process are what EMS needs to advance.  Where’s EMS at the state capitol?  Not present, except for maybe a congratulatory resolution during EMS Week.  It’s the political version of Miss Congeniality or “everyone gets a trophy.”

Meanwhile, our national EMS association that claims to be the voice of EMS continues to tilt at windmills at the Federal level and think that passing the so-called Field EMS Bill and its grant funding mechanism will fix EMS.  Nope.  Not hardly.

What will fix EMS is when we grow up, demand self-regulation as profession, and grow the political skills to make it happen — and then keep it.

Let’s make EMS Week 2014 the point at which EMS grows up and becomes a profession.  But first, grab that last slice of Canadian bacon and olive pizza before Tina from Radiology gets it.

A case with relevance to EMS?

Here’s a law firm’s press release worth reading.   Why?  Because it actually provides an appellate law citation.  In this case, it’s from the New York Court of Appeals, which makes the decision binding case law in New York.

The case determined that, in the state of New York, emergency department physicians have no legal duty to detain an intoxicated patient and prevent them from leaving the emergency department.

I’d note that this case only applies to New York and the facts of the case only apply to the legal duties and obligations relating to an emergency department physician.  But this is a case that applies regularly to EMS, assuming we deal with intoxicated patients.   The laws applying to EMS are likely different than the physician patient relationship and will definitely differ in other states.  It’s a case that’s eventually going to happen to EMS and this appellate case potentially might give us some clues as to how courts, at least in New York, might view the issue.

But the legalities of dealing with an intoxicated person are much more relevant to EMS legal issues than constant crowing about the supposed illegality of EMS providers making a diagnosis, whether EMS stickers on your car create a duty to act, or any of the other legal nonsense that EMS legal discussions regularly devolve into.

 

Two contradictions in healthcare.

1) The nursing lobby continues to push for advanced practice nurses to have more privileges, but continues to oppose EMS providers being able to practice community paramedicine or function as EMS providers in the emergency room.  Why?  Because that’s supposedly unsafe for the patient to be seen and treated by someone with less education than a nurse.   Funny.  That’s the same argument that physicians use to say that advanced practice nurses still need limitations on their scope of practice and for physician oversight.

2) You know the people in EMS who claim that EMS providers are legally prohibited from providing a diagnosis because only a physician can?   Funny, aren’t they providing legal advice without the benefit of passing the bar exam?  And by the way, their legal opinion also happens to be wrong.

Critical thinking.  It’s contagious.  Here’s hoping you catch it.