COVID 19, Free Money, and Excuses

Posted on April 20, 2020 Written by
This is a bit far afield from my usual blogging about the world of EMS, but if you think big picture above and beyond considering what clinical skills an EMT or paramedic should have, maybe this is exactly about EMS.
A couple of things about COVID-19 and business and government. As most of y’all know, I’m a practicing attorney with over 16 years of experience in government law, so I think I have some qualifications to comment.
 
1) In regards to the availability of the various loans, contracts, and grants, especially to small businesses and individuals that all levels of government are providing, it’s no surprise to me that they’re not getting where they need to be. Government moves slowly, even when it’s trying to move fast. And when it does move fast, it often fails to consider how the program will work. (See the current Paycheck Protection Program loans and how they seem to really overlook certain businesses, especially the restaurant business.) There’s an art to doing business with or getting money from the government and it usually takes a level of sophistication to navigate it. Sometimes, it’s not merit that gets the money as much as it’s the person or company that knows how to fill in the paperwork best. Early in my career in state government, the state agency that I worked for regularly contracted for advertising services for a public relations campaign. The company that regularly got the contract had hired one of our agency’s former office managers.  One of said manager’s duties prior to leaving state employment was reviewing contracts and preparing the bid and contract documents.  In other words, that company knew exactly which forms to fill out and what answers were expected on the document. And how does this relate to EMS?  Simple. Let’s think about some of the EMS grants out there.  We know that certain EMS agencies nationwide have the expertise to apply for grant funding.  These same agencies get every grant they apply for  Meanwhile, there are small EMS services struggling to keep supplies on the ambulance that have neither the time nor the savvy to navigate the grant process while at the same time, the right large systems get a WMD trailer, a HazMat truck, and a tactical medicine supply that would keep the Green Berets and SEALS stocked for the next ten years.  Or there’s a Federal grant program available only to certain types of recipients.  For example, a grant for EMS may only be available to local government entities or to fire-based departments and will completely overlook private non-profit departments.  Moral of the story?  It often takes a lawyer or at least someone savvy with the ways of government to tap into the “free government money” that the media reports on.  And just as surely as the media will report on two things after this pandemic goes away.  First, they’ll report on some entity that did or didn’t get the money and why that’s a travesty.  Next, when the pandemic stockpiles get recreated and funded, there will be a story within the next two years about “exposing government waste” and a “warehouse full of supplies that no one has ever used.”
2) Failures.  The truth is that COVID-19 is causing unprecedented failures, whether in business or healthcare. And those failures need to be documented and measured so that we don’t make the same mistakes in the next pandemic or disaster.  BUT… it’s also a convenient excuse for failure too. There are stories of deaths being attributed to COVID-19.  At least here in the Lone Star State, death certificates allow for the listing of contributing factors.  So, while COVID-19 might have killed someone, their underlying conditions may have contributed. Or maybe the underlying conditions killed the patient, but the COVID-19 contributed.  COVID-19 might be the cause of death or it might contribute.  This applies outside of medicine too. Lately, I’ve been reading about restaurants “closing due to COVID-19.”  Yes, COVID-19 was probably the final straw.  But if you had a business already in decline, maybe COVID-19 was only the contributing factor.  Or you could have self-inflicted factors caused by your own business decisions. See also the restaurant that refused to allow delivery services BEFORE the pandemic and then closed one of their locations, even for to-go orders, at the first quarantine action by local government. Business, especially the restaurant business, is a Darwinian process with low profit margins.  Relevance to EMS?  I’d also note that EMS is known for low financial margins and is heavily reliant on government funds, as is much of healthcare.  Throwing any disruption into this narrow financial margin and there’s bound to be a financial catastrophe. (See also: nursing homes) In short, it’s always easier to blame an outside event than your own failings and decisions. Case in point being a long time local restaurant deciding to close “due to COVID-19” at the same time that the owner planned to close in the next few months due to retirement and rising rents.
3) And I’ve saved the most controversial post for last.  Let’s talk about quarantines, “stay home, stay safe,” or the popular phrase “flatten the curve.” I am the absolute first to say that COVID-19 isn’t the flu.  It’s a literal pandemic.  And we know that, right now, there’s neither a cure nor a vaccine. As such, we have to take drastic actions to slow the spread of the disease, save lives, and equally importantly, save the foundations of our healthcare system. And to get people to take drastic action, we have to create a sense of urgency. As such, we’ve told people to stay home.  We’ve closed schools and offices and told people to work from home if they can.  We’ve made the decision to take a massive hit to the economy to spare lives and lessen the strain on our healthcare system.  That decision is a no-brainer.  It’s the right decision and it remains so, especially without either a cure or vaccine for this disease. But the models predicting catastrophe have changed and reduced their estimates.  Granted, some places in the United States, like the New York City corridor, have born a terrible price.  (Population density is a real curse in pandemics.) At this point, if ever, we’re unlikely to know if the decrease in deaths is due to our social distancing efforts, better treatment regimens, or a flawed modeling scheme. At some point, whether now or at a still to be determined time, we will have to reopen the country and our economy.  The cure for the pandemic may be the death of our economy.  Clearly, we’re going to have to address this — and smarter minds than my own will have to weigh in.  I am pleased that our political leadership is looking for advice from those outside of the medical field.  While the medicine is crucial in this discussion, my own experience is that the medical community, probably more than any other field I’ve been exposed to, tends to believe its knowledge of healthcare trumps all other concerns and their expertise on health requires immediate deference on all other fields. Regardless, I’ve noticed that our society has changed over the four decades that I’ve been around.  Whether its societal evolution, the 24 hour news cycle, or a climate where social media gives everyone, even the unqualified, the same ability to spread their opinion, we’ve changed. The biggest change I’ve noticed is that our modern society is afraid. We’ve grown to demand safety over all else and find any risk intolerable.  Risk must be mitigated to an infinitesimally small factor. In other words, Karen from Nextdoor has become the avatar of our society.
Sorry for the rambling and the massive diversion from the usual EMS discussions.  Or wait…. maybe this discussion of government, failures, and risk versus safety is EXACTLY what EMS needs to advance.  As I’ve harped more than once, the practice of medicine (including EMS) involves much more than scientific knowledge and clinical skills. Medicine is like engineering or architecture — it applies sciences to human problems.  As such, medicine has to factor in more than the hard sciences.
Thanks for listening.
Filed Under: Law, Politics

Election Night (Not what you think)

Posted on November 7, 2018 Written by

Election Night brings out the worst in many of us. In large part because of the 24 hour news cycle amplified by social media, we get way too invested in politics and sometimes let our mouth overload our rear. (Pro-tip for those of us who love politics and love discussing it, private groups are the way to go on Facebook.)

I saw some of the worst behavior come from my fellow members of the Bar. Many attorneys I know were posting things that I wouldn’t have expected from dispassionate professionals.  The comments (and they were from both sides of the political aisle) ranged from sour grapes, veiled passive-aggressive statements, or out and out statements that they’d be unfriending people. (Another pro-tip here.  I do know some of these people and it speaks volumes as to their professionalism and whether I might believe they have the temperament to handle a case I might refer their way.)

Late last night, a post started making its way through EMS social media showing a paramedic saying (in part), “I’ll start asking if you are a trump (sic) supporter – if you are, y’all will die in my ambulance.”  The response from EMS was swift and gave me a great deal of hope for our emerging profession.  Everyone denounced it.  Whether you wanted to “make America great again” or identified as a democratic socialist, everyone agreed that this sentiment had no place in EMS.  And they spoke up.  Not only did they speak up, they made a point to notify this guy’s employer and the various licensing entities that they didn’t want him in our profession.  At least one employer terminated their relationship with him by morning and at least one licensing agency is aware of his temperament to practice as a paramedic.

Regardless of whether the gentleman deserves to remain employed or certified as a paramedic, our profession spoke with one voice and said that we won’t tolerate such a mindset. And my other profession, the profession of law, has become so politicized and activist (on both sides) that we have, at least in some part, lost track of what we’re supposed to be doing, namely zealously representing our clients and providing them with sober counsel.

Last night, EMS stepped up and took a stand for our profession.  And for a change, we did it better than the lawyers.  Pardon me while I brag on being a paramedic. We’ve beat the other professionals at being professional and separating the personal from the professional.

Filed Under: EMS, Law, Politics

What does the patient/client want?

Posted on May 11, 2018 Written by
I’m trying to put some complex and jumbled thoughts into words here, so bear with me. As some of you may know, I’ve dealt a ton with health issues for various family members over the years, especially over the last few months. One thing that I’ve seemed to notice is that too many people in healthcare think they’re helping when they’re substituting their own wishes and priorities for that of the patient and their loved ones. Further, many professionals in both medicine and law forget that the patient/client and their families have a life outside of and in addition to the matter currently being addressed. The outside world rarely pauses and often refuses to pause so that a patient/client or their family can reschedule the outside world at a moment’s notice all because someone feels that their little niche or agenda has to be addressed right this minute.

As a result, the patient and their family feel that the providers of all kinds, whether physician, nurse, therapist, or case manager, are dictating to them rather than caring for them. It can easily make the patient and family feel as if they have no control over matters relating to their care. Example: “You have to be here for a very meeting. Today.” Reality: Here’s the same discharge plan that we’ve been discussing for several weeks. 
 
People often feel an absolute loss of control of their care and their wishes. And when people feel they’ve lost control of their own affairs and that their wishes aren’t being heard, they’ll find another way to ensure they’re heard, whether in court or in filing a complaint with a regulatory agency. The nature of our healthcare and legal systems being what it is, the courtroom or administrative complaint is the only way that some clients/patients and their families feel that they will be heard.  (Free legal advice: it takes a lot less time and money to be nice up front and explain things early than it does to answer a lawsuit or an administrative complaint.)
 
Part of being a professional is in recognizing that the patient/client still maintains autonomy – the right to make their own decisions. Your job is, within the confines of the law and ethics, to help that patient meet their stated needs and goals. Being a professional means giving a patient/client the services and all of the information they need to make a good decision, then abiding by that decision and putting the patient/client first.  Heck, even as a lawyer, clients go against advice all of the time. Look how many criminal defendants insist on testifying in their own defense.  Look how many DWI suspects agree to take field sobriety tests and take the breathalyzer, even though they’re basically giving the evidence to convict themselves.  As I like to remind professionals of all sorts, people have the right to make bad decisions.  Fundamentally though, as a professional, we exist to provide services to our patients/clients in accordance with their wishes. 
 
This should ring true whether it’s medicine or law. And it’s a good prescription for limiting your involvement with lawyers to represent you. As another EMS colleague of mine says, “We can suggest, but forcing patients to do what they don’t want buys lawyers nice cars.”
Filed Under: EMS, EMS Legal, Law

Things You Don’t Hear In A Law Office

Posted on August 4, 2016 Written by

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.

Filed Under: EMS, Humor, Law

Part of Being a Professional

Posted on March 15, 2016 Written by

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.

Filed Under: EMS, EMS Legal, Law

You Don’t Understand What We Do

Posted on January 26, 2016 Written by

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.

Filed Under: EMS, EMS Legal, Law

Opining on Protocols

Posted on January 22, 2016 Written by

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.”

Filed Under: EMS, EMS Education, EMS Legal, Law

Negligence for Dummies

Posted on December 9, 2014 Written by

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!

Filed Under: EMS, EMS Education, EMS Legal, Law

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

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
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