- Email: [email protected]
Spice It Up
Legal Matters
John R. Clark, JD, MBA, NREMT-P, FP-C,CCP-C, CFC, CMTE
Spice It Up In 1709, the English poet Alexander Pope wrote An Essay on Criticism, which included the first record of the idea that “a little knowledge is a dangerous thing.” Pope suggested that having only minimal knowledge about a subject was not as satisfying as knowing everything about a subject. Over the years, this idea has become a warning about not having mastery of a subject and that, somehow, not knowing everything about a given topic is a negative. I challenge you to think in another way. A little knowledge is not dangerous, but instead having a mixed understanding about a wide variety of subjects can allow you to perform well in a variety of dynamic environments under various circumstances because you have a vast body of knowledge to draw on, rather than knowing everything about only a few things. Most of us in transport medicine do this every day. It would be nearly impossible for clinicians to know everything about every condition that they may encounter, so they try to know a little bit about a lot of things so that they can effectively treat and manage a wide variety of patients. Similarly, in law, there are so many laws and regulations on the books, 100% compliance is often a struggle. Think about it this way: Do you fully understand the case law in your state surrounding medical malpractice? Have you memorized every chapter and subchapter of the federal aviation regulations? Can you quote all of the Commission on Accreditation of Medical Transport Systems recommendations? In a legal context, being aware of the basics of negligence, understanding the complexity of notice, and recognizing the application of a standard of care creates a body of knowledge that can make you very good at what you do because you understand many of the issues you encounter in day-to-day practice. In this case, a little knowledge may be a good thing. To expand on this analogy, many pieces may come together to create something that is better together than its many parts. A friend introduced me to a special blend of seasonings called Cline Dust that he and his wife had concocted. It had everything from cayenne to lemon peel. For this discussion, the individual spices represent the little pieces of knowledge that we all collect over time. Individually, they are good, but when a variety of spices are mixed together, the collective is often better than each individually—just like knowledge. For me, Cline Dust has become synonymous with knowledge: it is not one thing that makes it good, it is the sum of its parts that make it better. This month’s column is designed to be the same way. It is a little bit about a lot of things to help you better understand some of the legal issues we face every day. This bit of knowledge may add a little spice to your day. 204
Duty The first case is a historical look at duty. Lee v Mitchell Funeral Home Ambulance Service1 is a 1974 Utah case involving a funeral home ambulance involved in a crash with a patient on board. The basic fact pattern is this: the police were on the scene of a domestic dispute involving a married couple. The husband suffered several superficial cuts to his stomach and arm after the wife attempted to stab him. The wounds were not life-threatening, but the police thought that they were significant enough to warrant medical attention and requested an ambulance. After the wounds were bandaged, the patient and wife were loaded into the back of the ambulance, and they headed off to the hospital. Statements collected from witnesses who were driving on the same road reported that the ambulance passed them going as fast as 75 mph. At one point during the transport, the driver swerved to avoid a cow on the highway. By reports, he sped back up and, several minutes later, struck a second cow on the highway. The patient and his wife jointly sued for injuries sustained in the crash. To establish a duty to care, one has to look at the events that led up to the dispatch of the ambulance. One issue at question in the case is whether the wounds were serious enough to require hospitalization, and linked to their severity is uncertainty as to the necessity of great speed to get Lee to the hospital. A second question is whether the ambulance crew owed a duty to the wife who was a passenger or just to the patient. Frame her in today’s legal standard as the parent who wants to ride along. Because Mrs. Lee was not the patient and was in the ambulance of her own free will, is she owed the same duty as the patient? Duty is the first prong of negligence. To establish negligence, one has to establish a duty existed, there was a breach of that duty, and the breach caused any resultant damages. In this case, the ambulance crew had a duty to the victim because the police requested them to care for his wounds and transport him to the hospital. The duty extends beyond the clinical care to include the safe transport of the patient. The judge wrote in the opinion, “Even with warning lights and sirens, the driver cannot abandon all care” and that because Mrs. Lee contributed to the payments for the health insurance that would cover this ambulance transport, she enjoyed the same duty that the patient received. The judge went on to suggest, “Extra care was required in this instance.” One important concept to consider here is the concept that duty extends beyond just the patient, but anyone who rightfully assumes that you as a care provider are looking out for their best interest. This example should cause you to examine how your program deals with riders, whether they Air Medical Journal 31:5
are students, public relations clients, or family members, and structure your ride-along program in such a way that everyone is given the same protections and accommodations that you would provide to a patient. The second concept worth mentioning is that the collision happened when the ambulance struck the second cow. The reason that this is significant is that the driver already had swerved to avoid a cow. The first cow essentially provided the driver with “notice” that there was livestock in the road, so that when he hit the second cow, he should have known it was going to be there and avoided it appropriately. This example demonstrates the increased risk of liability when one knows about and even acknowledges a problem or safety concern but does nothing to remedy it and an event occurs. How many cows do you have in your program that you have not done anything about?
Wrongful Death The second case is another Utah case from 2000. In Carter v Milford Valley Memorial Hospital,2 Mr. Carter brought a wrongful death action against an emergency medical services (EMS) unit, alleging a delay during transport was the proximate cause of his wife’s demise. The fact pattern started with a 911 call because Mrs. Carter was experiencing chest pain. Paramedics arrived and, after assessment and initial treatment, loaded Mrs. Carter into the ambulance headed for the hospital, approximately 18 miles from the scene. Soon after departure, the driver noticed that the oil pressure gauge was operating erratically. Considering this a possible indicator of a more serious problem that might cause a mechanical breakdown, he radioed for a second ambulance to intercept. The second ambulance was dispatched from the destination hospital to meet the ambulance en route. The transporting ambulance with Mrs. Carter on board never slowed or stopped, despite the erratic gauge, and no mechanical problem manifested. At just about the halfway point, the ambulances met along the road, the second paramedic crew assumed care and switched over some equipment, and Mrs. Carter was transferred. EMS documentation recorded that this transfer resulted in a 20-minute delay before transport resumed. On arrival at the hospital, Mrs. Carter was air-lifted to tertiary care, where she died 9 days later. Mr. Carter, on behalf of his wife, brought a wrongful death action against Milford Valley Memorial Hospital, alleging the delay caused by the ambulance transfer was the proximate cause of her eventual demise and alleged negligent care and maintenance of the ambulance and that such negligence led to his wife's death. The court did not find any negligence in this case and affirmed the paramedic’s actions in their opinion by writing, “Being an EMT or other paramedic requires something beyond a chauffeur’s license and the ability to lift. When the ambulance is called, the patient expects more than a blank stare from the paramedics when symptoms are explained or September-October 2012
observed.” Additionally, the judge opined, “The ambulance was not called simply to transport his wife, something he (Mr. Carter) presumably could have done himself. The paramedics were present to render emergency medical care and attempt to preserve her life during transportation.” It is important to know a little about Carter in that it highlights the fact that much more happens during a patient transport than simply moving the patient from point A to point B. Simply putting someone on the cot and then sitting back to enjoy the scenery is not what this job is about; instead, we provide emergency care designed to preserve a patient’s life during the transport. Another point of Carter is that many triggers can set up a lawsuit. In this case, it was the fact that there was a malfunction of a mechanical piece of equipment that initiated the chain of events leading to the litigation. Ensuring that you have a strong and proactive preventive maintenance program and a well-defined policy or procedure for how to respond to mechanical concerns can help mitigate your risk in a similar situation.
Standard of Care The third little piece of knowledge is about some of those other things that we are called on to know something about but are not the main focus of our patient care role. In this case it was the paramedic’s ability to read a map. In Blatz v Allina Health System,3 EMS was dispatched to an address for a 45-year-old woman with troubled breathing who had recently undergone arthroscopic knee surgery. County 911 tapes indicate that the call was received at 8:50 am, when the patient’s husband called and told the dispatcher that his wife was “having severe chest pains in a bad way right now.” The dispatcher confirmed the family’s address on Halifax Lane. Both a sheriff’s deputy and ambulance were dispatched, and the ambulance was en route at 8:53 am. Ten minutes into the call, the dispatcher started to provide “prearrival instructions” to begin cardiopulmonary resuscitation (CPR) between 9:03 and 9:04 am. The deputy had no problem finding the house and quickly assessed the patient as apneic and pulseless. Unfortunately, the demand-valve mask was missing from the deputy’s oxygen kit, so he and the husband continued layperson CPR until the ambulance arrived. The paramedics were having a difficult time finding Halifax on their map and concluded that Halifax Lane ended at a culde-sac and thought they had missed the driveway because of the way their map showed Halifax Lane ending in a straight line at the top of the page. Rather than proceeding to the end of Halifax, they did a 3-point turn and started looking in the opposite direction for the address. Unable to find the location, they called dispatch to confirm the address. They turned around again and proceeded back down Halifax and continued all the way to the cul-de-sac, where they finally were able to see the Blatz mailbox, the driveway, and the deputy’s car. Dispatch records indicate that the paramedics arrived 18 or 19 minutes after the 911 call. The crew estimated the diversion took about a minute and a half. On arrival, they 205
quickly established an airway, provided 100% oxygen, and initiated an intravenous line. The paramedics testified that Mrs. Blatz’s color improved within 30 to 60 seconds, and her pulse returned within 1 to 2 minutes. Unfortunately, the arrest caused an anoxic brain injury that resulted in a severe loss of mental and physical capacity, leaving her permanently disabled, incapable of caring for herself, and living in a nursing home. The plaintiff alleged negligence against both the sheriff’s department for failing to properly stock or adequately inspect, maintain, and test the equipment and supplies taken to the emergency scene and the EMS, alleging that, because the paramedics were delayed in getting to the scene, they missed the window of opportunity to revive Blatz without brain damage. The plaintiff suggested that “a reasonably prudent driver would have gone the short distance further to a clearly visible turnaround or cul-de-sac.” The district court found for the plaintiff, but the appeal court overturned the jury decision on a variety of procedural issues rather than on the merits of the case. For example, the claim against the deputy was dismissed after the county successfully argued that they should enjoy sovereign immunity. An error in jury instructions caused the case against the EMS to be overturned, but an important fact that this case raises is to what legal standard EMS should be held for duties outside the scope of medical care. The Minnesota court concluded that when paramedics furnish medical treatment to a patient, a medical or professional standard of care should apply, but when paramedics are performing functions not requiring professional training or judgment, such as using an address to locate a home when responding to an emergency, then a heightened standard of professional care is not required. Blatz predicated their negligence claim on conduct that did not involve medical judgment or training. Thus, the district court was correct in determining that the standard of care applicable in this situation should be that of a reasonable person and not that of a medical professional. Essentially, although EMS personnel should know how to read a map (or plug in coordinates), they are only going to be held to the standard of a reasonable person.
Delay in Treatment The final case worth mentioning in the mix of spices is useful to highlight for referring agencies that are not sure of the legal exposure they may have when deciding what mode of transport to use. In Butler v New York State Olympic Regional Development,4 the plaintiff sued for personal injuries sustained in the aftermath of a skiing accident on Gore Mountain. The plaintiff did not seek to recover for injuries sustained in his actual fall while skiing but for damages that were a result of negligence of clinic and staff at the mountain in rendering first aid and delaying required medical care by failing to arrange for his emergency medical transportation to a site of definitive medical care—specifi206
cally, the failure of the defendant’s employees to summon an “ambulance or medevac helicopter.” In Butler, the plaintiff was involved in a skiing accident during which he became airborne and landed on his head and left shoulder. A ski patroller arrived at the scene within 5 minutes of the fall (approximately 12:20 pm), quickly assessed Butler, and determined he had suffered a possible left shoulder dislocation or fracture with neurovascular compromise. A wire splint and rescue sled were requested to transport the patient to the base first-aid station 100 to 150 yards below. The supplies arrived within 4 minutes, and the shoulder and arm were padded and splinted. He was moved down the mountain and arrived outside the first-aid station within 30 minutes of the original injury. Inside the station, a registered nurse examined Butler and confirmed a probable shoulder dislocation but was unable to detect a radial or ulnar pulse in patient’s left wrist. The patient reported he was in severe pain, with no feeling in his left arm and hand. The station did not call an ambulance, and the patient was ultimately transported by a friend in his private vehicle to the nearest hospital 34 miles away, where he arrived at approximately 2:07 pm. During discovery, details emerged that the average response time for the volunteers of the local rescue squad to the mountain is normally 10 to 15 minutes, and then a routine ambulance trip from the mountain to the hospital takes between 35 and 40 minutes. The plaintiff suggested that if an ambulance had been immediately summoned, he could have received emergency treatment between approximately 1:08 pm and 1:13 pm—nearly an hour before his actual 2:07 pm arrival by personal vehicle. Furthermore, the plaintiff suggested that an EMS helicopter would have even further reduced the time to definitive care and would have potentially reduced the damage to his arm. Although this is an interesting point and all working in helicopter EMS can make a similar argument, the court held, “We cannot agree, however, with claimant’s contention that the Court of Claims erred in ruling that on the proof presented, defendant could not be found to have been negligent based on its employees’ failure to summon a medevac helicopter from Albany Medical Center. While claimants offered testimony that the one-way trip for a medevac helicopter from Gore Mountain to Albany Medical Center is 18 minutes, no evidence was adduced regarding the criteria for dispatch and whether they would have been dispatched under these circumstances.” The court found that the plaintiff made a prima facie case that negligence in delaying the removal of claimant from the scene of the accident and failing to secure emergency medical transportation proximately caused claimant’s injuries. (Prima facie means Latin for “at first look” or “on its face,” referring to a lawsuit or criminal prosecution in which the evidence before trial is sufficient to prove the case unless substantial contradictory evidence is presented at trial.) The Emergency Medical Treatment and Active Labor Act clearly places the burden of selecting the mode of medical Air Medical Journal 31:5
transport on the referring physician in a true hospital setting, but Butler is important in that it suggests that the responsibility of the referring agency to select the appropriate mode of transport has some role in the outcome of patient care. Although the court held short of saying the helicopter was the best mode of transport, it did say that a delay caused by the first aid station to appropriately transfer the patient to definitive care contributed to his injury. This is powerful knowledge to possess when marketing your program.
Conclusion The pitfalls of duty, wrongful death, standard of care, and delay of treatment are all hiding right around the corner on every transport. For these cases, a little knowledge is not a dangerous thing, but by knowing a little bit about the concepts explored here, you can better prepare to mitigate your risk in similar situations. First, remember that for a claim of negligence to be successful, all 4 components must be proven: a duty to act existed, the duty was breached, damages resulted from the breach, and a causative link exists between the breach of duty and the damage. Other areas of concern include maintenance programs, upto-date policies and procedures, protocols that mirror an accepted national standard of care, and appropriately functioning equipment to support that standard of care. Finally, a delay in getting the right patient to the right facility in the right amount of time can be and often is a problem. Some delays you can control and others you cannot. Make sure that you control and limit the things that you can and have a plan to try mitigate things outside of your control. Recognize that you can be sued at any time by anybody for any reason. That does not mean you have done anything wrong, but having a robust mechanism to defend yourself and your program is important. Providing excellent care is not always enough to avoid being named in a legal action, and your best friend during a trial will be excellent documentation. I would also encourage you not to wait until you have been served with a lawsuit to find counsel. You and your program should be on a first-name basis with a lawyer who understands transport. Get the attorney to ride along, hang out with the crews, and do an occasional education session for you. What medical transport does is very different, and the hospital's general counsel or the county attorney may not have the insight to best defend you on a transport gone bad. Teach them what they need to know about transport before you are dealing with the deadlines of litigation. Spicing up your mitigation strategy with a little knowledge about all of the topics that could face your program is a good idea. Maybe a little bit of Cline Dust is what you need to limit your and your program’s exposure.
John R. Clark, JD, MBA, NREMT-P, FP-C,CCP-C, CFC, CMTE, is a member of the board of directors for the Board for Critical Care Transport Paramedic Certification (BCCTPC) and legal advisor and member of the board of directors for the International Association of Flight and Critical Care Paramedic Paramedics (IAFCCP). Editor’s Note: While the information in this article deals with legal issues, it does not constitute legal advice. If you have specific questions related to this topic, you are encouraged to consult an attorney who can investigate the particular circumstances of your individual situation. If you have an issue you would like to see addressed in a future issue of AMJ, please contact the author at [email protected] to suggest a topic. 1067-991X/$36.00 Copyright 2012 by Air Medical Journal Associates http://dx.doi.org/10.1016/j.amj.2012.06.020
References 1. 2. 3. 4.
Lee v Mitchell Funeral Home Ambulance Services. 606 P.2d 259 (Utah 1980). Carter v Milford Valley Memorial Hospital. 996 P.2d 1076 (Utah 2000). Blatz v Allina Health System. 622 N.W.2d 376 (Minn. App. 2001) Butler v New York State Olympic Reg. Dev. 292 A.D.2d 748 (March 2002).
September-October 2012
207
John R. Clark, JD, MBA, NREMT-P, FP-C,CCP-C, CFC, CMTE
Spice It Up In 1709, the English poet Alexander Pope wrote An Essay on Criticism, which included the first record of the idea that “a little knowledge is a dangerous thing.” Pope suggested that having only minimal knowledge about a subject was not as satisfying as knowing everything about a subject. Over the years, this idea has become a warning about not having mastery of a subject and that, somehow, not knowing everything about a given topic is a negative. I challenge you to think in another way. A little knowledge is not dangerous, but instead having a mixed understanding about a wide variety of subjects can allow you to perform well in a variety of dynamic environments under various circumstances because you have a vast body of knowledge to draw on, rather than knowing everything about only a few things. Most of us in transport medicine do this every day. It would be nearly impossible for clinicians to know everything about every condition that they may encounter, so they try to know a little bit about a lot of things so that they can effectively treat and manage a wide variety of patients. Similarly, in law, there are so many laws and regulations on the books, 100% compliance is often a struggle. Think about it this way: Do you fully understand the case law in your state surrounding medical malpractice? Have you memorized every chapter and subchapter of the federal aviation regulations? Can you quote all of the Commission on Accreditation of Medical Transport Systems recommendations? In a legal context, being aware of the basics of negligence, understanding the complexity of notice, and recognizing the application of a standard of care creates a body of knowledge that can make you very good at what you do because you understand many of the issues you encounter in day-to-day practice. In this case, a little knowledge may be a good thing. To expand on this analogy, many pieces may come together to create something that is better together than its many parts. A friend introduced me to a special blend of seasonings called Cline Dust that he and his wife had concocted. It had everything from cayenne to lemon peel. For this discussion, the individual spices represent the little pieces of knowledge that we all collect over time. Individually, they are good, but when a variety of spices are mixed together, the collective is often better than each individually—just like knowledge. For me, Cline Dust has become synonymous with knowledge: it is not one thing that makes it good, it is the sum of its parts that make it better. This month’s column is designed to be the same way. It is a little bit about a lot of things to help you better understand some of the legal issues we face every day. This bit of knowledge may add a little spice to your day. 204
Duty The first case is a historical look at duty. Lee v Mitchell Funeral Home Ambulance Service1 is a 1974 Utah case involving a funeral home ambulance involved in a crash with a patient on board. The basic fact pattern is this: the police were on the scene of a domestic dispute involving a married couple. The husband suffered several superficial cuts to his stomach and arm after the wife attempted to stab him. The wounds were not life-threatening, but the police thought that they were significant enough to warrant medical attention and requested an ambulance. After the wounds were bandaged, the patient and wife were loaded into the back of the ambulance, and they headed off to the hospital. Statements collected from witnesses who were driving on the same road reported that the ambulance passed them going as fast as 75 mph. At one point during the transport, the driver swerved to avoid a cow on the highway. By reports, he sped back up and, several minutes later, struck a second cow on the highway. The patient and his wife jointly sued for injuries sustained in the crash. To establish a duty to care, one has to look at the events that led up to the dispatch of the ambulance. One issue at question in the case is whether the wounds were serious enough to require hospitalization, and linked to their severity is uncertainty as to the necessity of great speed to get Lee to the hospital. A second question is whether the ambulance crew owed a duty to the wife who was a passenger or just to the patient. Frame her in today’s legal standard as the parent who wants to ride along. Because Mrs. Lee was not the patient and was in the ambulance of her own free will, is she owed the same duty as the patient? Duty is the first prong of negligence. To establish negligence, one has to establish a duty existed, there was a breach of that duty, and the breach caused any resultant damages. In this case, the ambulance crew had a duty to the victim because the police requested them to care for his wounds and transport him to the hospital. The duty extends beyond the clinical care to include the safe transport of the patient. The judge wrote in the opinion, “Even with warning lights and sirens, the driver cannot abandon all care” and that because Mrs. Lee contributed to the payments for the health insurance that would cover this ambulance transport, she enjoyed the same duty that the patient received. The judge went on to suggest, “Extra care was required in this instance.” One important concept to consider here is the concept that duty extends beyond just the patient, but anyone who rightfully assumes that you as a care provider are looking out for their best interest. This example should cause you to examine how your program deals with riders, whether they Air Medical Journal 31:5
are students, public relations clients, or family members, and structure your ride-along program in such a way that everyone is given the same protections and accommodations that you would provide to a patient. The second concept worth mentioning is that the collision happened when the ambulance struck the second cow. The reason that this is significant is that the driver already had swerved to avoid a cow. The first cow essentially provided the driver with “notice” that there was livestock in the road, so that when he hit the second cow, he should have known it was going to be there and avoided it appropriately. This example demonstrates the increased risk of liability when one knows about and even acknowledges a problem or safety concern but does nothing to remedy it and an event occurs. How many cows do you have in your program that you have not done anything about?
Wrongful Death The second case is another Utah case from 2000. In Carter v Milford Valley Memorial Hospital,2 Mr. Carter brought a wrongful death action against an emergency medical services (EMS) unit, alleging a delay during transport was the proximate cause of his wife’s demise. The fact pattern started with a 911 call because Mrs. Carter was experiencing chest pain. Paramedics arrived and, after assessment and initial treatment, loaded Mrs. Carter into the ambulance headed for the hospital, approximately 18 miles from the scene. Soon after departure, the driver noticed that the oil pressure gauge was operating erratically. Considering this a possible indicator of a more serious problem that might cause a mechanical breakdown, he radioed for a second ambulance to intercept. The second ambulance was dispatched from the destination hospital to meet the ambulance en route. The transporting ambulance with Mrs. Carter on board never slowed or stopped, despite the erratic gauge, and no mechanical problem manifested. At just about the halfway point, the ambulances met along the road, the second paramedic crew assumed care and switched over some equipment, and Mrs. Carter was transferred. EMS documentation recorded that this transfer resulted in a 20-minute delay before transport resumed. On arrival at the hospital, Mrs. Carter was air-lifted to tertiary care, where she died 9 days later. Mr. Carter, on behalf of his wife, brought a wrongful death action against Milford Valley Memorial Hospital, alleging the delay caused by the ambulance transfer was the proximate cause of her eventual demise and alleged negligent care and maintenance of the ambulance and that such negligence led to his wife's death. The court did not find any negligence in this case and affirmed the paramedic’s actions in their opinion by writing, “Being an EMT or other paramedic requires something beyond a chauffeur’s license and the ability to lift. When the ambulance is called, the patient expects more than a blank stare from the paramedics when symptoms are explained or September-October 2012
observed.” Additionally, the judge opined, “The ambulance was not called simply to transport his wife, something he (Mr. Carter) presumably could have done himself. The paramedics were present to render emergency medical care and attempt to preserve her life during transportation.” It is important to know a little about Carter in that it highlights the fact that much more happens during a patient transport than simply moving the patient from point A to point B. Simply putting someone on the cot and then sitting back to enjoy the scenery is not what this job is about; instead, we provide emergency care designed to preserve a patient’s life during the transport. Another point of Carter is that many triggers can set up a lawsuit. In this case, it was the fact that there was a malfunction of a mechanical piece of equipment that initiated the chain of events leading to the litigation. Ensuring that you have a strong and proactive preventive maintenance program and a well-defined policy or procedure for how to respond to mechanical concerns can help mitigate your risk in a similar situation.
Standard of Care The third little piece of knowledge is about some of those other things that we are called on to know something about but are not the main focus of our patient care role. In this case it was the paramedic’s ability to read a map. In Blatz v Allina Health System,3 EMS was dispatched to an address for a 45-year-old woman with troubled breathing who had recently undergone arthroscopic knee surgery. County 911 tapes indicate that the call was received at 8:50 am, when the patient’s husband called and told the dispatcher that his wife was “having severe chest pains in a bad way right now.” The dispatcher confirmed the family’s address on Halifax Lane. Both a sheriff’s deputy and ambulance were dispatched, and the ambulance was en route at 8:53 am. Ten minutes into the call, the dispatcher started to provide “prearrival instructions” to begin cardiopulmonary resuscitation (CPR) between 9:03 and 9:04 am. The deputy had no problem finding the house and quickly assessed the patient as apneic and pulseless. Unfortunately, the demand-valve mask was missing from the deputy’s oxygen kit, so he and the husband continued layperson CPR until the ambulance arrived. The paramedics were having a difficult time finding Halifax on their map and concluded that Halifax Lane ended at a culde-sac and thought they had missed the driveway because of the way their map showed Halifax Lane ending in a straight line at the top of the page. Rather than proceeding to the end of Halifax, they did a 3-point turn and started looking in the opposite direction for the address. Unable to find the location, they called dispatch to confirm the address. They turned around again and proceeded back down Halifax and continued all the way to the cul-de-sac, where they finally were able to see the Blatz mailbox, the driveway, and the deputy’s car. Dispatch records indicate that the paramedics arrived 18 or 19 minutes after the 911 call. The crew estimated the diversion took about a minute and a half. On arrival, they 205
quickly established an airway, provided 100% oxygen, and initiated an intravenous line. The paramedics testified that Mrs. Blatz’s color improved within 30 to 60 seconds, and her pulse returned within 1 to 2 minutes. Unfortunately, the arrest caused an anoxic brain injury that resulted in a severe loss of mental and physical capacity, leaving her permanently disabled, incapable of caring for herself, and living in a nursing home. The plaintiff alleged negligence against both the sheriff’s department for failing to properly stock or adequately inspect, maintain, and test the equipment and supplies taken to the emergency scene and the EMS, alleging that, because the paramedics were delayed in getting to the scene, they missed the window of opportunity to revive Blatz without brain damage. The plaintiff suggested that “a reasonably prudent driver would have gone the short distance further to a clearly visible turnaround or cul-de-sac.” The district court found for the plaintiff, but the appeal court overturned the jury decision on a variety of procedural issues rather than on the merits of the case. For example, the claim against the deputy was dismissed after the county successfully argued that they should enjoy sovereign immunity. An error in jury instructions caused the case against the EMS to be overturned, but an important fact that this case raises is to what legal standard EMS should be held for duties outside the scope of medical care. The Minnesota court concluded that when paramedics furnish medical treatment to a patient, a medical or professional standard of care should apply, but when paramedics are performing functions not requiring professional training or judgment, such as using an address to locate a home when responding to an emergency, then a heightened standard of professional care is not required. Blatz predicated their negligence claim on conduct that did not involve medical judgment or training. Thus, the district court was correct in determining that the standard of care applicable in this situation should be that of a reasonable person and not that of a medical professional. Essentially, although EMS personnel should know how to read a map (or plug in coordinates), they are only going to be held to the standard of a reasonable person.
Delay in Treatment The final case worth mentioning in the mix of spices is useful to highlight for referring agencies that are not sure of the legal exposure they may have when deciding what mode of transport to use. In Butler v New York State Olympic Regional Development,4 the plaintiff sued for personal injuries sustained in the aftermath of a skiing accident on Gore Mountain. The plaintiff did not seek to recover for injuries sustained in his actual fall while skiing but for damages that were a result of negligence of clinic and staff at the mountain in rendering first aid and delaying required medical care by failing to arrange for his emergency medical transportation to a site of definitive medical care—specifi206
cally, the failure of the defendant’s employees to summon an “ambulance or medevac helicopter.” In Butler, the plaintiff was involved in a skiing accident during which he became airborne and landed on his head and left shoulder. A ski patroller arrived at the scene within 5 minutes of the fall (approximately 12:20 pm), quickly assessed Butler, and determined he had suffered a possible left shoulder dislocation or fracture with neurovascular compromise. A wire splint and rescue sled were requested to transport the patient to the base first-aid station 100 to 150 yards below. The supplies arrived within 4 minutes, and the shoulder and arm were padded and splinted. He was moved down the mountain and arrived outside the first-aid station within 30 minutes of the original injury. Inside the station, a registered nurse examined Butler and confirmed a probable shoulder dislocation but was unable to detect a radial or ulnar pulse in patient’s left wrist. The patient reported he was in severe pain, with no feeling in his left arm and hand. The station did not call an ambulance, and the patient was ultimately transported by a friend in his private vehicle to the nearest hospital 34 miles away, where he arrived at approximately 2:07 pm. During discovery, details emerged that the average response time for the volunteers of the local rescue squad to the mountain is normally 10 to 15 minutes, and then a routine ambulance trip from the mountain to the hospital takes between 35 and 40 minutes. The plaintiff suggested that if an ambulance had been immediately summoned, he could have received emergency treatment between approximately 1:08 pm and 1:13 pm—nearly an hour before his actual 2:07 pm arrival by personal vehicle. Furthermore, the plaintiff suggested that an EMS helicopter would have even further reduced the time to definitive care and would have potentially reduced the damage to his arm. Although this is an interesting point and all working in helicopter EMS can make a similar argument, the court held, “We cannot agree, however, with claimant’s contention that the Court of Claims erred in ruling that on the proof presented, defendant could not be found to have been negligent based on its employees’ failure to summon a medevac helicopter from Albany Medical Center. While claimants offered testimony that the one-way trip for a medevac helicopter from Gore Mountain to Albany Medical Center is 18 minutes, no evidence was adduced regarding the criteria for dispatch and whether they would have been dispatched under these circumstances.” The court found that the plaintiff made a prima facie case that negligence in delaying the removal of claimant from the scene of the accident and failing to secure emergency medical transportation proximately caused claimant’s injuries. (Prima facie means Latin for “at first look” or “on its face,” referring to a lawsuit or criminal prosecution in which the evidence before trial is sufficient to prove the case unless substantial contradictory evidence is presented at trial.) The Emergency Medical Treatment and Active Labor Act clearly places the burden of selecting the mode of medical Air Medical Journal 31:5
transport on the referring physician in a true hospital setting, but Butler is important in that it suggests that the responsibility of the referring agency to select the appropriate mode of transport has some role in the outcome of patient care. Although the court held short of saying the helicopter was the best mode of transport, it did say that a delay caused by the first aid station to appropriately transfer the patient to definitive care contributed to his injury. This is powerful knowledge to possess when marketing your program.
Conclusion The pitfalls of duty, wrongful death, standard of care, and delay of treatment are all hiding right around the corner on every transport. For these cases, a little knowledge is not a dangerous thing, but by knowing a little bit about the concepts explored here, you can better prepare to mitigate your risk in similar situations. First, remember that for a claim of negligence to be successful, all 4 components must be proven: a duty to act existed, the duty was breached, damages resulted from the breach, and a causative link exists between the breach of duty and the damage. Other areas of concern include maintenance programs, upto-date policies and procedures, protocols that mirror an accepted national standard of care, and appropriately functioning equipment to support that standard of care. Finally, a delay in getting the right patient to the right facility in the right amount of time can be and often is a problem. Some delays you can control and others you cannot. Make sure that you control and limit the things that you can and have a plan to try mitigate things outside of your control. Recognize that you can be sued at any time by anybody for any reason. That does not mean you have done anything wrong, but having a robust mechanism to defend yourself and your program is important. Providing excellent care is not always enough to avoid being named in a legal action, and your best friend during a trial will be excellent documentation. I would also encourage you not to wait until you have been served with a lawsuit to find counsel. You and your program should be on a first-name basis with a lawyer who understands transport. Get the attorney to ride along, hang out with the crews, and do an occasional education session for you. What medical transport does is very different, and the hospital's general counsel or the county attorney may not have the insight to best defend you on a transport gone bad. Teach them what they need to know about transport before you are dealing with the deadlines of litigation. Spicing up your mitigation strategy with a little knowledge about all of the topics that could face your program is a good idea. Maybe a little bit of Cline Dust is what you need to limit your and your program’s exposure.
John R. Clark, JD, MBA, NREMT-P, FP-C,CCP-C, CFC, CMTE, is a member of the board of directors for the Board for Critical Care Transport Paramedic Certification (BCCTPC) and legal advisor and member of the board of directors for the International Association of Flight and Critical Care Paramedic Paramedics (IAFCCP). Editor’s Note: While the information in this article deals with legal issues, it does not constitute legal advice. If you have specific questions related to this topic, you are encouraged to consult an attorney who can investigate the particular circumstances of your individual situation. If you have an issue you would like to see addressed in a future issue of AMJ, please contact the author at [email protected] to suggest a topic. 1067-991X/$36.00 Copyright 2012 by Air Medical Journal Associates http://dx.doi.org/10.1016/j.amj.2012.06.020
References 1. 2. 3. 4.
Lee v Mitchell Funeral Home Ambulance Services. 606 P.2d 259 (Utah 1980). Carter v Milford Valley Memorial Hospital. 996 P.2d 1076 (Utah 2000). Blatz v Allina Health System. 622 N.W.2d 376 (Minn. App. 2001) Butler v New York State Olympic Reg. Dev. 292 A.D.2d 748 (March 2002).
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