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.”

System Abuse. Yet again.

System abuse.  That’s a term we commonly hear in EMS.  And as soon as we start talking about system abuse, the talk invariably turns to EMS providers’ favorite solution for system abusers.  Namely, the idea that EMS providers should be able to refuse transport to system abusers.

First of all, what constitutes a system abuser?  We all know at least one of these creatures by name in our local service area. Yet, in my eleven years in EMS, I’ve yet to hear an agreed-upon definition of system abuse.  It’s like the definition that former Supreme Court Justice Potter Stewart created for pornography — namely, that he knew it when he saw it.

Next, failing to provide treatment/transport to a so-called system abuser is a recipe fraught with peril.  EMS medical directors, as a matter of risk management, have to write their protocols and policies to mitigate the risk of a poor decision being made by the worst provider in the EMS system.    We’ve all seen or heard about “that guy” in our local system.  The guy who missed a STEMI.  The guy who doesn’t manage pain.  The guy who took a trauma patient to a local community hospital.  Bluntly, when the doctor (and the lawyers) think about it, the safest, easiest, least risky decision is to encourage every crew to transport (or at least offer to transport) every patient every time.

The average EMS provider has no idea of what they don’t know.  Most EMS education programs excel at creating the impression that, by teaching a set of skills to “fix” some very acute medical emergencies, the average EMS provider is “doing everything that a doctor does.” After any period of time on the street working as an EMS provider and seeing the reality of our calls, we find our assessment skills in particular make us ill-suited for the reality of modern EMS — namely, the unscheduled delivery of primary care, urgent care, and the occasional emergency care.

I don’t have a solution for system abuse.  However, I can tell you where the solution starts, at least in my eyes.  To comprehensively address EMS system abuse, EMS providers need to work with EMS physician medical directors to develop a local protocol defining system abuse, providing alternative dispositions for these patients, and providing comprehensive medical oversight to mitigate the risk of deviating from the current accepted paradigm of taking every patient to the hospital emergency department.

My cynical side says that instead, one of two things will happen.  One, we’ll just keep complaining and wishing that we had the ability to turn away patients.  Two, some vendor will come up with some technological “solution” that just makes things more of a hassle than to just provide a ride to the ER.

As much as I love the practice of prehospital medicine, I sometimes think that the worst enemy of EMS is the average EMS provider. The solution to system abuse and almost every other EMS challenge is to raise the standard of what constitutes the average provider.

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!