The Ambulance Chaser

Last week, several EMS friends and colleagues asked me to look at the recent Kentucky case on EMS liability. Obviously, as a lawyer, my first and foremost answer is always going to be “it depends.” I’d also remind you that even appellate cases are incredibly dependent on the facts of the underlying case and the law in the relevant jurisdiction. If you’d like an in depth analysis of the case or how your organization can learn from this case, get in touch with me. I answer legal questions for a living, ya know?

Having said those disclaimers, though, there are a few things that stand out to me and bear discussion.

First and foremost, it’s quickly glossed over that the medics in question didn’t check their monitor and possibly not even their equipment. There’s no record of the daily check on either in this case. And the monitor failed to defibrillate when it needed to. As my torts professor at Texas Tech University’s School of Law used to remind us, “If there are damages, you must pay.”

Second, the court does an in depth analysis of the medics using the Active 911 phone app to navigate (incorrectly, no less) to the call when the policy manual for the department requires the use of the map book. By operating outside of department guidelines, the medics lost their qualified immunity at least under Kentucky law, under this set of facts. More on that to follow. I’d note two things, though. First, especially in rural or rapidly growing communities, maps are remarkably inaccurate no matter the source. Second, while I don’t have the trial transcripts, a good lawyer might have developed testimony to state that the Active 911 phone app does indeed constitute the use of a department approved map. Active 911 isn’t something people can just randomly download. The department has to subscribe to the service and it’s typically integrated into the Computer Assisted Dispatch (CAD) system.

So this all leads up to a long standing belief I’ve had — and it covers both the mapping issue and the equipment check issue. Namely, if you make it easier to do the right thing, people (typically even including your worst EMS providers) will do the right thing.

Over the years, I’ve encountered many such policies and processes that make it difficult for field providers to do the right thing — to the point that people either don’t do the right thing or don’t do anything at all. I’ll illustrate with a few examples over my nearly twenty years as an EMS professional.

Case # 1 – rural EMS system is worried about compliance and creates lots of policies and processes. One of those processes is to go with a system called Operative IQ for truck and bag checks to be completed at the beginning of each shift. Operative IQ in and of itself isn’t a bad platform. Like any IT solution, it’s all in the implementation. But this truck and bag check takes nearly 45 minutes — and double that time if there’s a spare truck quartered at your station. In other words, guess how many medics did a proper check of 45 plus minutes versus clicking through most things except the ones they deemed important or that required an actual number to be entered?

Case # 2A – As I call this, this is the story of the bags. I was at one rural EMS service that had a large Thomas pack on every ambulance. This was probably the heaviest bag I’ve ever carried in my EMS career. (Heck, if you want to use this bag for a physical fitness exam for new or current employees, let me know. I can hook you up with their chief.) The bag had a full assortment of trauma supplies, a D cylinder of oxygen, various oxygen masks, a complete set of intubation supplies, assessment supplies, and a full panoply of IV supplies. In other words, the bag had everything except one thing. Namely, any medications at all. Where were the medications at this service? Well, they were in a cabinet in the ambulance. Loose. (Except for the small amount of controlled meds which were in a small metal lockbox.) Again, guess how many crews took in the bag? Virtually none. To the point that the bag rarely even got checked. (By the way, did I mention that there wasn’t even an inventory or stocking list so you’d know what you’re supposed to have?) All but the least informed and laziest EMS clinicians know that it’s usually best to bring the gear to the patient and try to stabilize before transporting. But when you have a bag that makes it impossible to do so, you end up with 2 alternatives, both of which are bad. Option 1, just take the stretcher and get the patient in the ambulance. (At this service, this was VERY common with the BLS crews, who’d often resort to the funeral home days of EMS with throwing the patient on a stretcher and driving fast.) Option 2 was to bring in the Thomas pack and go back and forth to the ambulance getting the medications you needed from the shelf. Insert your favorite Benny Hill or Keystone Cops clip there.

Case # 2B – This is how you do it right. I worked at an EMS system on the far outskirts of Houston. They had their challenges – namely, try being the third crew member at a station with only two bedrooms and virtually no options to eat away from the tiny kitchen in the station. But the one thing they perfected was their bag design. First, the cardiac monitor’s pouches also held aspirin, nitroglycerin, and a glucometer. There was a trauma bag with everything to manage a traumatic injury (aside from pain medications) from bandaging and splinting supplies, IV supplies, “Stop the Bleed” type devices, and some basic assessment supplies. There was also a pediatric bag with the pouches color coded with the Broselow tape colors. But my absolute favorite was what they called the “ALS bag” that went in on every call. The bag had IV supplies, airway supplies (including endotracheal tubes and iGel devices), and medications. Better yet, the bag had two plastic cases in them. One was a case with all of the medications and supplies needed to handle an allergic reaction up to and through anaphylaxis. The other case (of a different color) had all of the medications and supplies to handle a hypoglycemic emergency. Finally, the spare medications in the ambulance were in a bag that could easily be removed from the shelf to handle an extended resuscitation or to treat a patient who needed more medications. In short, there was no reason you couldn’t bring the right supplies right to your patient each and every time. Oddly enough, while this service had its challenges, not bringing gear to the patient’s side was rarely, if ever, an issue.

Case # 3 – There are volunteer EMS organizations that issue bags (stocked at the appropriate certification level) to their members for them to respond to calls. That’s a great idea especially in areas where an EMS response may take a few minutes. But if you issue out bags and supplies to people, they need to know what they’re supposed to have AND be able to get the bag restocked without significant heartache or hassle. Otherwise, you end up with members either responding without the items they need to care for a patient or they don’t respond at all because they don’t believe they have what they need to respond. Anecdotally, we can see those things happening either by runs made by members or when a member turns in a bag that’s chock full of expired supplies and medications. How do you fix this? Step one is to make it easier to access the supply room. Step two. Organize the supply room and make the supplies easy to find. Bonus points if you have eager leadership who has taken ownership of the supply issues. Extra bonus points if the supply room now has all of the items that were on back order for eons now easy to find. (The gentleman I’m speaking of is my current EMS hero for this.) Step three. Make the supply/stocking list easy to access. Said current EMS hero recently made the organization’s protocols easy to access via a phone app — and the app includes the supply list for the bags. Speaking purely hypothetically, I know of at least one attorney/paramedic who now has a bag stocked to specifications and with the current meds.

In summary, most people are in emergency services, public safety, or healthcare because they want to help others. And most of those people know that they need to do the right things in order to help others. Most of us also have a relatively low BS tolerance. What does that mean? Procedures and policies that don’t work get ignored or there’s malicious compliance. That undermines respect for the organization, the leadership, and the procedures and policies that DO work. Further, when the bad thing happens (and it will), the lawyers have a field day. Even if the actions (or inactions) of these providers didn’t cause the bad outcome, there’s enough doubt to give a jury (or an insurance company) reason to question what really happened. It’s also a huge hit to the department’s reputation and the profession’s reputation as a whole.

For the leaders (whether formal or informal) in organizations, take a good look at your policies, procedures, and processes. See if they reflect reality. See how much of a “BS factor” there is to each and every one. Revise or even remove the ones that don’t make sense. And when you finally get to something that’s workable, hold people to account. Even if there’s not a negative outcome. Especially if there’s not a negative outcome. As we know, “just culture” doesn’t look at the outcome, it looks beyond that. On that note, when you bring someone in to talk about a violation, ask how and why it happened. Don’t immediately assume malicious or malevolent intent. The explanation might actually solve an underlying problem that you were never aware of. If it’s a department fault, fix it. If it’s an individual fault, remediate them or use the appropriate discipline. A policy that’s unenforced or not applied is a policy that a plaintiff’s lawyer will have a field day with.

As for those of us who aren’t in a leadership role, we need to let leadership know when something doesn’t work. Better yet, have a proposed solution. Hopefully, you’re in an organization that will take action on your concerns – whether making changes or providing insight as to how/why the changes can’t happen — or the current system actually works.

If you’ve made it this far, thanks. If I can be of help to you or your organization, I do make house (or station) calls.