Things You Don’t Hear In A Law Office

In honor of some of the things I hear in the EMS world, I decided to see how they’d translate to the legal profession.

If these new lawyers would spend some time as legal assistants before going straight to law school, they’d understand how the legal system really works, not all that book learning.

  • Lawyers save clients, legal assistants save lawyers.
  • If I work as a paralegal for a few years, can I just apply for transition to attorney and pay the fees?  After all, my attorney has been letting me do attorney work and just making sure I don’t screw it up.
  • Our state has a special kind of paralegal that can do everything a lawyer can do, but they don’t get a full law school education.  They call a senior attorney or a judge if they need to do certain legal skills.  We couldn’t afford lawyers in our community anyway and there’s no law school nearby.
  • My bar exam cut off after two and a half days, did I pass?
  • Lawyer: I’m here to sue your butt, not kiss it.
  • My law school professor said….. (Actually, this might work since law school professors are supposed to be subject matter experts in their field.)
  • Even though the law says no, I’ve seen it work with a jury!

Yet, if you put in the EMS analogies to these statements, you’d see how common they are to EMS. Maybe this is why lawyers are presumed to make “big bucks” and EMS providers don’t “get the respect we deserve.”

My advice for improving EMS?  Let’s police our own profession.  Let’s get rid of the idiots. Let’s improve the minimal standards above and beyond “minimal competence.” And I guarantee the wages and working conditions will improve.  Just ask the nurses that we continually have an inferiority complex with.

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.

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.”

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.”

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.

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.

 

On Politics

I rarely get political here for two reasons.  First, my political beliefs are all over the place.  I’m overall somewhere between conservative and libertarian on most issues.  When it comes to foreign policy, I often make Dick Cheney look like George McGovern.  But I also think that Elizabeth Warren and Bernie Sanders may be right about the Wall Street crowd being bad for our economy long-term.   Second, most of y’all are here to read my EMS brilliance, or what passes for it.   However, I ask your indulgence as I go off on a rant against a trend in American politics that I don’t like.

In short, if your ideas or agenda can’t win in the political arena, that should tell you something.  You’re not winning.  Either accept the defeat graciously or you repackage and resell your ideas to the public.

However, instead, we find both sides, but primarily the modern Left, resorting to enacting public policy through litigation and/or the “public health” arena.

Texas and several other states have been the subject of litigation by anti-death penalty activists seeking to expose the suppliers of execution drugs.  While they couch their arguments in terms of the public’s right to know, the reality is that they are using the courts and the legal process to try and enact a political agenda that hasn’t won in the legislative process.  As an attorney, I try to view the courts as the means to resolve a dispute between two parties rather than as a way to enact social changes.  If you want to enact social changes, run for office on your platform and see how it stands with the voters.

And let’s look at “public health.”  Years ago, I imagined the word of public health as focusing on epidemiology and disease prevention.  Now, the way to control people’s lifestyle has become through the “public health” process.  Want to ban trans fats?  Simple.  Call it a public health crisis.  Want to ban big Cokes?  Call it a public health crisis.  (And yes, the Texan in me calls every soft drink a “Coke.”  Welcome to Texas, the only state you’ll be asked what kind of Coke you want and it’s ok to answer with, “I’ll have a Sprite, thanks.”)  Want to ban guns?  Call it a public health crisis.  To me, the real public health crisis is how many parents ignore science in favor of Jenny McCarthy and refuse to vaccinate their children.

What we really have here is a public policy crisis where those people who want to enact unpopular agendas resort to an alternative way to enact them.  And on that note, I return you to your regularly scheduled internet agenda of cat memes.  Thanks for listening, y’all.

What medical types don’t understand

I’m fortunate enough to practice both law and paramedicine regularly.  As a result, I see a lot of ignorance where lawyers don’t understand medicine.  Namely, that lawyers continue to mislead the lay public that a bad outcome equals malpractice.

But I find healthcare types regularly blaming lawyers for so-called “defensive medicine.”  The latest one of these came from the respected (well, as respected as a blog can be) physician blog KevinMD.  The blog posted an opinion piece about a Boston jury awarding over $4 million in a malpractice verdict for an emergency department physician misdiagnosing a patient who later died of viral myocarditis.

Let me tell you again (because I’ve blogged about this before) what a jury verdict or a settlement should mean to the average healthcare provider, whether a CNA, paramedic, or attending physician at a world renowned medical school — NOTHING. Zero. Zip. Nada. Zilch. Nil.  You get the message.  A jury verdict, settlement, or even a plaintiffs’ firm’s press release have no binding legal authority.   They are meaningless except, perhaps, maybe to the specific case at hand.

So, then, what law should a healthcare provider pay attention to?  Quite simply — federal and state statutes in your jurisdiction, including the administrative regulations adopted by your jurisdiction’s licensing/regulatory authorities.  Also, you should pay attention to reported case law from appellate courts in your federal and state jurisdictions.  These are the laws and interpretations of law that you’re under.   Nothing else. Not even on odd-numbered Thursdays.

So, in short, to my fellow healthcare providers — learn the law.  Learn to recognize the phobias of law.  Learn to recognize and avoid panic and hysteria over any jury verdict you hear in the news. And learn when to call BS.  And just like you get mad when someone consults Uncle Ernie instead of a doctor, learn to consult someone schooled in the law when you have a legal question.

Obligatory final caveats and disclaimers.  This isn’t legal advice.  I’m not your lawyer.  I don’t want to be your lawyer.  This is just my personal opinion expressed through my blog.  My opinions are my own and don’t reflect the opinion of any employer, past, present, or future.  Objects in mirror may be closer than they appear.  Press hard, three copies.

AND FOR CRYING OUT LOUD — QUIT READING MEDICAL BLOGS AND WEBSITES FOR LEGAL GUIDANCE!