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!

 

For your protection. Really.

Earlier this week, I spoke with a colleague who works for a smaller private transfer provider in Houston who is looking at changing jobs.  On a side note, there are over 200 private EMS providers in the Houston area.  These aren’t 911 services, but rather private transfer operations.

My friend told me about the constant pressure from the current employer to chart things “just so” to make it possible for Medicare, Medicaid, or private insurance to reimburse for the transport.  The new company that they interviewed with removed 12-lead EKG cables from their ambulances because “they were tired of them getting lost.”  Additionally, this private service says they don’t do a lot of 12-lead EKGs on “routine” transports.  Additionally, this employer pays medics who have all of their charts completed correctly early.  Medics who don’t have all of their charts in and/or submitted correctly get paid on the “regular” payday instead.

I’ve got two observations from hearing and seeing some of these antics with some (not all, mind you) of the “mom and pop” services out there.   The first is that I could have a very nice standard of living suing several of these companies on billing fraud and violations of employment law, particularly the Fair Labor Standards Act.

However, minions, you’ve probably already figured that out.   Here’s my heretical thought.   Believe it or not, this is a case where bigger is better.  Namely, the large EMS companies (AMR, Acadian, Rural Metro, Paramedics Plus, etc.) can’t get away with some of these shenanigans.  These companies are simply too large, too visible, and too easy of a target to commit blatant violations of law relating to EMS standards, employment law, and billing integrity/compliance.   The potential loss of licenses and/or financial implications would be too large to comprehend.  That’s why these companies have at least some form of a QA/QI program, a (presumably) competent human resources department, a compliance program, and perhaps even in-house counsel.

So, the next time your large employer institutes some seemingly inane policy, there might actually be a reason to their rhyme. The policy might even protect both you and your employer. Even if not, I’ve never heard of an Acadian paycheck bouncing.   That’s more than I can say for more than one of the small transfer services that pop up like pimples on the face of our healthcare system.

Two quick observations….

About EMS legal/political issues.

1) Most EMS legal issues aren’t actually analyzed by an attorney.  Rather, they’re analyzed by a person with no legal training who is making an exceptionally uneducated guess about what they think a lawyer might tell them.  You know, it’d be like the random attorney reading a 12-lead with no education.

2) People seem to think that if a definition in the law is changed to make EMS an “essential, ” “emergency, ” or some other word attached to service, then the “powers that be” will HAVE to fund EMS.  Anytime anyone says that a definitional change to the law will ensure EMS funding, it’s obvious that they don’t understand law, politics, public policy, economics, or the political process.  If you believe a change in law will fund EMS, look at the amount of lawsuits over the equity (actually, the amount) of public school funding.  This kind of simplistic thinking shows why EMS still isn’t invited to the “big kids’ table.”  And EMS’s simplistic fascination with the next big funding bill is shown in the mindless support of the so-called “Field EMS Bill” that NAEMT hawks as a snake-oil panacea to every EMS problem.  After all, we all know that endless streams of Federal money fixes every problem.

The Dreaded Medical-Legal Lecture

Everyone who’s been through EMT or Paramedic classes vaguely remembers their medical-legal class.  You know, the one that the instructor stumbled though.  He or she probably just basically read the PowerPoint slides verbatim and maybe told some old wives’ tales.  (No offense to old wives.  They’re welcome to read my blog too.)  And the material in the textbook?  Equally vague and nebulous.  This is where you end up with falsehoods like “If I have an EMS sticker on my personal car, I have to stop at any car wreck.” My personal favorite myth is the one about being able to report child/elder abuse to the nurse or social worker in the emergency room. (By the way, that myth may cost you your certification in some states!)

In almost any other part of an EMS education program, we’d never tolerate a lecture to be taught by someone whose only education on the subject came from their initial EMS education.   Can you imagine cardiology taught by someone who’d only sat through the cardiology lecture and never had touched a cardiac patient or even had an ACLS card?  The program would likely be considered a joke at best.  And good luck getting the state or CoAEMSP to accept the program.  (More on accreditation in a future post, by the way.)

Yet, we continue to accept allowing the (dreaded) medical-legal lecture to be taught by virtually anyone with an EMS certification.  Whether for better or worse, we continue to cling to the falsity that EMS legal issues are the same from state-to-state.

A few suggestions to improve EMS legal education:

1) Actually invite attorneys to guest lecture.  Difficult/technical topics beyond an instructor’s skill set should be taught by experts.  (Conflict warning:  I actually give a fun medical legal guest lecture.)

2) Remove specific legal issues from the educational standards.  State laws on negligence, abuse reporting, and Good Samaritan issues vary from state to state.  Teaching the general rule is a disservice to students.  That also means not testing on these issues on the Registry.  Many states require a separate medical-legal exam on state regulations for physicians.  Maybe that should be considered for EMS as well.

3) EMS students should be regularly quizzed/challenged on their documentation.  Documentation practices should be taught as a means of avoiding legal liability rather than the emphasis that employers may have on billing.

4) And, as an absolute must, each EMS student needs to be taught, at the very least, how to find their state’s EMS statutes and regulations.  In the ideal world, state EMS regulators should provide an introduction to the legal issues and regulatory framework in their state.

As the old maxim goes, ignorance of the law is no defense.  Sadly, in EMS, we have so many instructors educating students who now have no defense.

Don Quixote, Perfection, Mentoring, and EMS

Whew, that’s a mouthful.  And my apologies if this blog post comes across as a stream of consciousness rambling.  I’ve got a lot on my mind about some recent observations on some of the EMS Facebook groups.

A few weeks ago, I got “added” or invited to an EMS Facebook group that’s obviously populated by some pretty smart, perceptive medics.  As I’ve already shared my opinion of Facebook EMS groups and the “low information medic” demographic they skew towards, I was happy and excited to join such a group.  However, it’s pained me to watch the Don Quixote habit of tilting at windmills pop up.

Many of the best and brightest in EMS have tilted at EMS windmills over the years.  Bryan Bledsoe has done a great job at pointing out many of the flaws in EMS.  He does it with science, logic, reason, a dash of humor, and an incredibly likeable personality.  Unfortunately, so many of the super smart people in EMS who choose to tilt at the windmills fail in two aspects.  First, they have an incredibly poor sense of timing and perception.  Second, they tend to come across like Sheldon from The Big Bang Theory or The Comic Book Shop Guy from The Simpsons — socially awkward, judgmental, and more than a bit smug.  (Think about it, politics and music aside, socially, would you prefer to hang out with Ted Nugent or Moby?)

Pick our battles.  Yes, there are some low information Facebook groups out there that prey on the lowest common denominator of EMS.  Are we going to be able to change them?  Probably not.  However, those are not the people who are going to advance EMS.  If we pick our battles and learn how to work within the system, in future years, those same low information EMS types will still be on the transfer truck while the smart ones will be in management and clinical development positions.

Find like-minded individuals.  Associate with them, whether formally or informally.  Our national EMS association may have its issues, many of which I’ve blogged about before, but it will still be easier to fix EMS and our EMS association from within rather than merely complaining from the sidelines.  There are plenty of us who are still passionate about making EMS a profession.  Imagine what we could do if even 10% of us decided to run a slate of candidates for our EMS association.   Remember, politics is the art of the possible.  It takes compromise and deal-making to get things done.  These aren’t dirty words — just reality.

Until then, here’s some advice.  First, don’t argue with a moron.  They drag you down to their level and then beat you with experience.  Second, don’t let perfection be the enemy of the good.  I’ve had more than one instance in my EMS career where I wanted perfection instead of what worked.  In the process, I left more than one good place in EMS — and possibly burned some bridges in the process.  Finally, seek out a mentor.  I’ve been blessed to have several mentors in my EMS life.  They’ve given me sage counsel, especially from two perspectives. Number one, the “I wouldn’t do that if I were you” reminder.  Number two, the “Been there, done that” reminder.  If you don’t have a mentor in your vocation or avocation, you’re not setting yourself up to be a complete success.   Many thanks to the mentors I’ve had along the way of my EMS (and legal) career.  I shudder to think how many more mistakes I could’ve made.

More on EMS Advocacy

One thing that really irks me about the so-called “Field EMS Bill” is how people think that creating a single Federal agency for EMS issues will solve the neglect that some perceive that EMS receives from the Federal government.  Of course, the limited government advocate in me says that being ignored by the Feds helps EMS overall.

Having said that, though, let me throw more cold water on the idea of a Federal EMS office, whether it’s in the Department of Homeland Security, Department of Health and Human Services, or even back in the Department of Transportation.   Such an office means that we’d have some sort of voice at the table, yes.  However, it wouldn’t necessarily be a true advocate for EMS.   Rather, it’d probably end up as some symbolic gesture where, at best, the bureaucrats could say that, “Yes, before we cut the Medicare ambulance rate again, we showed it to the Federal Office of EMS.”

To truly advocate for EMS, we need to step up and do what the other professions do.  Namely, we have to involve ourselves in the political process.   We need to donate to candidates, fight bad policies, and campaign like heck for those that do support EMS.  And we need lawyers and lobbyists too — to help draft legislation, to monitor legislation, and to monitor the bureaucracy’s actions and proposed regulations.

There’s no Federal Office of Physicians or Attorneys.  Why?  Because a real profession advocates for itself.

Objection!

Well, as we all know, so many people in the healthcare field think they’re attorneys when they aren’t driving ambulances, inserting a Foley catheter, or writing an order.  Couple that with the pack of lemmings that comprise so many of us online and you’ve got a recipe for a massive EMS legal f–k up.  (I’m only censoring myself for those of my two or three minions who access this from work.  Remember to sign up for minion status.  The Dark Side offers milk, cookies, and Halliburton stock.)

So, today, EMSers on Facebook have been blowing up Facebook over a three year old news report buried on the JEMS website.  See the following panic inducing link:  “Florida Verdict Could Change Way Paramedics React to Calls.”

But other than alarming the EMS world, what does it really mean?  Fortunately, minions, you have a paramedic who’s admitted to the Texas Bar to help you understand what this story means to you.  In short – ZILCH.  Nada.  Nothing.  Don’t change anything you’re doing based on reading this article.  Definitely don’t change anything you’re doing based on Facebook reactions to this article.  (For those of you who haven’t read the Facebook posts, they either say “OMG!  Zombie trial lawyer apocalypse!” or “What was the jury smoking?”)

What does this story teach us?  First of all, as I’ve said when teaching, you never want your patient care judged by twelve people who couldn’t figure out how to get out of jury duty.  (Think Casey Anthony or O.J. Simpson.)   Second, there was almost definitely some ego involved on behalf of the EMS system.  They could’ve settled and avoided a trial, but for some reason, they decided to go to trial even after the hospital and doctor(s) settled.  Too many EMS systems start to believe their PR and think that they are as great as their PR says.

Next, let’s talk about the applicability of the law in this case.  It’s a principle of law, regardless of the jurisdiction in the United States, that trial court decisions (a.k.a. the jury verdict) are not binding decisions on other courts.  Only appellate court decisions are binding on the lower courts under their jurisdiction.  In other words, a Florida trial court decision shouldn’t have any impact on a California EMT or a Massachusetts paramedic.  Only a United States Supreme Court decision truly represents the “law of the land” that applies to all of us.   Even if a Florida appellate court upheld this decision, it would be based on Florida tort law and only apply in Florida.  So, in other words, no big deal really.  Most states’ tort (a.k.a. “personal injury”) law is state-specific.

I haven’t seen any followup articles about any appeals of this case.  Appellate courts base their decisions on how the law should be applied and the decisions are made by judges rather than juries.  In most cases, judges are less likely than juries to be swayed by a sympathetic response to a tragedy.  In other words, the argument that someone is to blame (and has to pay) for a child having cerebral palsy is much more likely to be successful with the twelve people who couldn’t get out of jury duty than a panel of experienced judges who are law school graduates.

I would take home a couple of lessons from this case, though.  First, you never know what a jury will do.  Second, there’s a strong argument for carrying your own personal liability insurance.  In a trial where every defendant is pointing blame at the other, having insurance is a good idea.  Insurance provides a way to pay for a verdict in case you are found liable.  More importantly, liability insurance comes with a “duty to defend.” In brief, that means your insurance carrier will supply you with a lawyer to defend the lawsuit. And finally, there’s something to be said for covering your a– when you’re faced with a sticky situation.  I don’t know all the facts in this case, but if I was a medic and given such an unstable transfer, I’d have at least contacted a supervisor and tried to punt the issue up the food chain.

And on a final note, shame on the local newspaper and JEMS for such a headline.  The headline is inflammatory and completely misrepresents the legal principles involved.  And to the armchair lawyers who think they know the law based on some continuing education class or some war story from a grizzled older paramedic or nurse, law school applications are down.  You might have a chance of getting into law school these days.