We Need More Lawyers

Shakespeare wrote in Henry VI, “The first thing we do, let’s kill all the lawyers.” Even as a practicing attorney, I can empathize.  As I like to say, ninety-nine percent of attorneys give the rest of us a bad name.  Or there’s my other favorite attorney joke, “What do attorneys use for birth control?  Their personalities.” But joking aside, the Shakespeare quote is often misinterpreted. In fact, many have argued that the villain in Henry VI proposed killing all the lawyers because they ensure the rule of law exists, that is a fair system where people understand the rules and are held accountable to follow said rules. In other words, we need lawyers for the system to work.  And I’d submit to you that one of the reasons why the EMS system isn’t working is precisely because we need more lawyers.

As I stated above, lawyers make sure the rules are understood and followed.  All too often in EMS, that doesn’t happen.  In EMS, people make arbitrary decisions that are rarely applied fairly, much less with an understanding of the law.  In the National Registry testing and renewal process, I’ve heard and witnessed stories of various EMS functionaries refusing to sign renewal paperwork, all without giving an explanation of why.  The National Registry even has a process for a former paramedic to recertify provided certain conditions are met, including obtaining the signature of your state’s EMS director.  In Texas, a previous state EMS director refused to engage in this process based on the vague claim that he did not believe he had “authority” to sign the document.  Again, an EMS provider harmed by an arbitrary and probably incorrect view of the law.

Another example of EMS arbitrariness routinely comes up with state licensing laws, particularly relating to reciprocity, the process of moving your certification from one state to another.  More than one state has laws and regulations requiring state residency and/or employment prior to granting reciprocity. The problem is that such a requirement appears to fly in the face of legal precedent established by the United States Supreme Court in the case Supreme Court of New Hampshire v. Piper, 470 U.S. 274 (1985).  In the Piper case, the Supreme Court found that a New Hampshire state law requiring one to be a resident of their state before being admitted to practice law was unconstitutional.  The parallel to several states requiring state residency and/or employment for EMS reciprocity is striking, yet EMS continues to ignore it, either from sheer ignorance or perhaps believing that EMS is “special enough” that a Supreme Court case might not apply to it.

Much of my day as an attorney is spent counseling clients on what the law means, how it applies, and how we can use the law to mitigate risks. In EMS, we routinely seem unwilling to seek such guidance, preferring instead to rely on “we already know what a lawyer is going to tell us.” We see this all the time with policies. The classic examples in EMS often seem to revolve around HIPAA. People routinely use HIPAA as an excuse for failing to get patient follow-up or why EMS can’t see transfer paperwork.  EMS managers routinely sign contracts and make personnel decisions without the benefit of legal counsel and may end up subjecting themselves and/or their employers to liability as a result.

Even with education, EMS “leaders” are often unaware of the regulatory and legal hurdles that may exist with the current push toward EMS degrees. Namely, most of the accrediting organizations that accredit colleges and universities require that college faculty possess a terminal degree in their academic field. This oversight may, again, be an example of EMS “leaders” not seeking the counsel they need.

Finally, EMS needs lawyers to keep our profession honest and to uphold standards. The latest viral video on EMS social media is of two South Carolina EMTs appearing to refuse to treat or care for a patient lacking the adequate mental capacity to make a decision. At some point, a lawyer needed to be involved, whether in the initial EMS education process to teach actual medical-legal concepts as opposed to myths and urban legends, providing legal advice as to capacity and refusals, or in the aftermath of liability or licensure.

I’ve had very little overlap between my legal career and my volunteer work in EMS.  (Having said that, if you have the ideal position that combines both, I’m open to discuss…) However, for EMS to grow and develop as a profession, we need more lawyers, not less.  EMS needs the protection that lawyers provide, both from risks outside the profession and in many cases, from ourselves.

Comments

  1. Skip Kirkwood says:

    You are correct, sir. In EMS, “legal urban legends” provide most of the guidance, followed by canned medico-legal lectures delivered by people with no knowledge or understanding of the law.

    Unfortunately, you have to have a potential client who knows that legal advice is needed. Too many in EMS live their lives in “Quadrant Four,” where they “don’t know what they don’t know” and thus don’t have the sense to ask important questions.

  2. Gene Gandy says:

    A very pertinent post, Wes. EMS law might better be called EMS Legal Myths. A popular one is “if I carry malpractice insurance I will be sued.” Another one is that if one is certified as any level of EMT he must stop and render aid at every incident. A similar one is that if one puts a Star of Life sticker on his rear bumper, he may not pass up a collision in the roadway, et cetera.

    All, of course, balderdash and minor annoyances. Worse, much worse, is the almost complete lack of understanding of the legalities of patient refusals. I have yet to see more than one or two services’ refusal forms that are valid and will withstand legal attack. And the difference between documenting a fact and a conclusion seems to be a cosmic mystery for many.

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