Clickbait for you. Frustration for me.

Posted on December 9, 2014 Written by

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.”

Filed Under: EMS, EMS Legal, Law, Politics, Rants

An Open Letter to the EMS Media

Posted on July 2, 2014 Written by

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.

Filed Under: EMS, EMS Education, EMS Legal, EMS Politics, Rants

On Liability

Posted on June 30, 2014 Written by

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.

Filed Under: EMS Legal, Law, Politics

On clinical hypocrisy

Posted on June 11, 2014 Written by

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.

Filed Under: EMS, EMS 2.0, EMS Legal

EMS Week Resolution

Posted on May 21, 2014 Written by

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.

Filed Under: EMS, EMS Legal, EMS Politics, Rants

A case with relevance to EMS?

Posted on May 3, 2014 Written by

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.

 

Filed Under: EMS, EMS Legal, Law

Two contradictions in healthcare.

Posted on May 3, 2014 Written by

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.

Filed Under: EMS, EMS 2.0, EMS Education, EMS Legal

What medical types don’t understand

Posted on March 20, 2014 Written by

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!

 

Filed Under: EMS, EMS Legal, Law

Legal Learning

Posted on February 14, 2014 Written by

Over the past few years in EMS, we’ve heard a lot about “standardizing” EMS across all fifty states in the US, whether it’s the Institute of Medicine’s report or the recently adopted National EMS Education Standards and Instructional Guidelines.   Fair enough.  The proverbial Mrs. Smith’s COPD probably won’t be too different between Peoria, Illinois and Peoria, Arizona.  Oxygen, breathing treatments, and medications work the same across state lines.

From my perspective as an attorney, paramedic, and occasional EMS educator, one thing that shouldn’t be part of a standardized curriculum is the dreaded medical-legal section.  Besides my ongoing pet peeve that medical-legal is the one EMS topic we continue to allow to be taught by the uninformed, we continue to assume that a one-size-fits all approach to medical legal education suffices.  Aside from a few Federal law issues (HIPAA, EMTALA, and CLIA most notably), the overwhelming majority of EMS law, particularly the regulatory framework and tort law, is decided by the individual states.  Other issues, such as advanced directives and medical direction/protocols are equally dependent on state law.

For aspiring medics to be truly informed on their respective legal issues, the best thing that we could do is to take the following steps.  1) Remove the legal curriculum from being part of a national curriculum. 2) Ensure that the legal principles taught in initial EMS education programs are taught by experts and/or developed by the appropriate state regulatory body. 3) Ensure that any testing on EMS legal principles is done at the state level.

But hey, what do I know?  It’s not like I’m a lawyer or anything.

Filed Under: EMS, EMS Education, EMS Legal

On liability…..

Posted on December 16, 2013 Written by

Another observation from the Ambulance Chaser on EMS liability.  Yes, it’s true that there’s a ton of immunity from civil liability for EMS providers, especially those employed by a government agency.

Here are some other truisms that didn’t make the cut.

1) Immunity from liability doesn’t equal immunity from suit.  In other words, there’s absolutely nothing to prevent you from being sued for any reason or no reason at all.  And guess who’s going to pay for your legal fees?  Yep.  You guessed it.  In most cases, you’ll be paying for an attorney.   Even if your employer provides legal counsel, be certain of who they represent.  Your legal interests and your employer’s legal interests may not necessarily be one in the same.

2) Lawsuit aside, you can always face administrative liability from your state or local EMS regulatory body.  What does that mean?  Quite simply, even if you can’t be found civilly liable for your foul-up, it’s quite easy to even inadvertently violate your area’s EMS laws and regulations, especially since most of them have a generic rule saying “don’t be a Whatshisname.”  Granted, you probably won’t be subject to a huge financial hit like you would from a lawsuit.  However, you’ll still probably want an attorney to defend your certification/licensure.  And yep, that governmental body can sanction, restrict, or revoke your certification.

3) Finally, just like any other employer, someone can always complain to management about you.   So, yep, your bosses may have the supervisors, HR department, or the clinical folks investigate you.  And management definitely considers employees to be their greatest asset — until said employee becomes a liability.

So, here’s some advice that I borrowed (with permission) from Mr. Too Old To Work, Too Young To Retire, who’s now happily retired from a large third-service New England EMS system.

1) Answer the radio when the dispatcher calls you. Or the page, or the phone, depending on how you are dispatched.

2) Go to the call as quickly as safely possible.

3) Be courteous to the patient and family.

4) Take them to the hospital.

5) Keep them warm, as in make sure they are comfortable and have a blanket.

 

And the other advice from your friendly neighborhood Ambulance Chaser — GET LIABILITY INSURANCE.  It’s not just about the ability to pay a lawsuit judgment (which we know is unlikely), it’s about the insurance company having to provide you with a lawyer if you’re sued.  And many liability policies cover legal fees relating to an administrative complaint or hearing as well.   To me, your livelihood is worth it.

Filed Under: EMS, EMS Legal
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