Search Terms: Liability, JEMS, risks, litigation, risk management, reductions of risks, appropriate standards, effective protocols, good clinical judgment, effective training, competent clinicians, hazards, unpredictability, negligence, failure to conform, policies and procedures, standard of care, common types of risks, prearrival instructions, response-mode recommendations, Parents Against Negligent Dispatch Agencies (PANDA), dispatch prioritization, emergency motor vehicle accidents, use of warning lights and siren, uniform responses, continuing education, patient care report, 1995

Journal of Emergency Medical Services (JEMS), Vol. 20, No. 7, July 1995
David Harrawood, RM, REMT-P; Patrick Shepler, RM, NREMT-P;
Michael Gunderson, REMT-P

Liability: Is EMS Putting You Out On a Limb?

A woman contacts a 9-1-1 center when her husband suffers a heart attack. She doesn't understand why she is not given CPR instructions similar to those she has seen on television.

An EMS crew contacts a supervisor after they find out they placed an endotracheal tube in a patient's esophagus.

The city attorney contacts EMS administration and advises that a lawsuit has been filed for damages resulting from improper operation of an emergency vehicle, which resulted in a motor vehicle accident. The victim is now a quadriplegic.

An EMS medical director receives official notification that a lawsuit has been filed against her for disallowing a paramedic to practice as such.

Not only are EMS systems and the people who work in them exposed to many types of risks every day, but all indications, the frequency and severity of these risks are increasing (1). To deal with these risks and to help protect themselves from litigation, it is important that EMS systems and providers practice proactive preventative "medicine"-namely risk management.

Risk Management is not new to business, industry or health care, but it is relatively new to EMS. Basically, risk management refers to the identification, investigation, analysis, evaluation and, hopefully, reduction of risks within an organization. Specific to EMS, it monitors both administrative and clinical activities that relate directly and indirectly to patient care.

Taken one step further, risk is minimized by helping ensure patient safety and outcome through proper application of appropriate standards of care (effective protocols) and good clinical judgment (effective training) by competent clinicians (effective hiring) using safe equipment (effective fleet and equipment maintenance). In other words, risk management is intended to minimize the hazards associated with unpredictability.

Negligence Is as Negligence Does

EMS systems have a responsibility, or duty, to serve their communities in a timely and competent manner. This responsibility begins when a call for assistance comes into the dispatch center and generally ends with transfer of care to the receiving facility. The people who call EMS expect that each step in the process will be handled quickly, safely and appropriately.

Negligence is the failure to exercise a degree of care considered reasonable under the circumstances, resulting in an unintended injury to another party (2). When applied to medicine, negligence is defined as conduct that falls below the established standard of care.

Four distinct elements are necessary to prove medical negligence:

    • A duty to act and/or standard of care exists
    • There has been a failure to conform to that duty or standard of care.
    • A link exists showing the failure caused injury to the complaining party.
    • There has been an actual loss or injury which can be measured for compensation in monetary damages (3).

The degree of care considered reasonable is defined by the organization' policies and procedures, which thereby become its standard of care. As national standards evolve and become better defined through research, experience and industry consensus, EMS systems-regardless of their size, geographic location or level of sophistication-may be held to a higher degree of accountability. According to Julie Yard, senior assistant county attorney with Pinellas County, Fla., "The potential for litigation increases in direct proportion to the growing sophistication of the profession, demand for services and scope of practice. In other words, risk increases, and managing that risk becomes increasingly important."

EMS has become an integral part of the health care system, and we, as EMS providers, are thus becoming accountable. The media's exposure of EMS nationwide has increased public awareness and expectations of our performance and our effect on patient outcome. Furthermore, the media's portrayal of dramatic prearrival instructions-with positive and sometimes miraculous outcomes-has created an expectation of the exception, not the rule. If these expectations are not met, the stage is set for potential litigation.

What Are the Risks?

To effectively implement risk management in EMS, a knowledge of the common types of risks and claims is required. While few studies have addressed the types and causes of EMS litigation, those studies that have been published identify the most frequent claims as involving delay in EMS arrival, ambulance collisions, poor patient assessment/treatment and refusals of care, and personnel issues (1,4,5). Broken down further, these categories are dispatch, response, quality of care, and hiring/firing policies.

Dispatch

According to Brett Patterson, an instructor for the National Academy of Emergency Medical Dispatch Consultants in Salt Lake City, many 9-1-1 agencies do not provide prearrival instructions or response-mode recommendations partly because of a fear of litigation. "It·is not uncommon today," he said, "that EMS simply identifies the basic nature of the emergency, verifies the patientās location and dispatches units, generally in an emergency mode."

Now consider the following call as reported in Dispatch, the National Association of Emergency Medical Dispatch newsletter:

In a drowning case in south Florida, a 13-year-old plucked the lifeless body of her 18-month-old sister from a swimming pool, raced to the phone, called 9-1-1 and was told to stay on the line, as paramedics were being sent. After asking two or three times what was happening without a satisfactory answer, the [13-year-old] finally pleaded with the dispatcher, "Can't you tell me what to do?!" She was told, "Just stay on the line." No instructions were ever given, the [18-month-old] was eventually resuscitated, lived a year as a complete vegetable, and died. By the way, the 13-year-old's favorite TV show was "Rescue 911." Does the fact that the entire nation gets an in-service lesson on standard of EMS care every night on CBS cause a bit of concern in light of these tragic events? It should (6).

The victim's mother sued the city and then went on to form a citizen's organization called Parents Against Negligent Dispatch Agencies (PANDA). Unfortunately, there are numerous cases similar to this one, in which agencies are being sued for not meeting the public's expectations.

So what is the future of EMS dispatch? Will prearrival instructions become the standard of care? A National Association of EMS Physicians (NAEMSP) position paper on emergency medical dispatching published in 1989 suggests it already has: "Dispatch prioritization is an essential element of any EMS system, for it establishes the appropriate level of care, including the urgency and type of response. Standard, medically approved telephone instructions by trained EMDs are safe to give and in many instances are a moral necessity (7)."

It is becoming clear that EMS agencies can, should and will be held accountable for their actions even before physical contact is made with the patient.

Response

Emergency motor vehicle accidents are another area of significant risk, one that can have grave consequences for responders and the public.

An emergency response consists of a clinical decision that must balance the medical urgency of the situation against the risk such a response poses to the patient, the public and the clinicians. But is it a violation of generally accepted standards not to respond to all 9-1-1 calls in an emergency mode? An NAEMSP position paper on red lights and siren policies suggest it is not: "EMS dispatch agencies should utilize an emergency medical dispatch priority reference system that has been developed in conjunction with and approved by the EMS medical director to determine which requests for prehospital medical care require the use of warning lights and siren (8)."

In addition, emergency response agencies must evaluate how many vehicles are needed for a 9-1-1 call. According to Richard Lazar, an attorney who specializes in EMS law, it is often dangerous to send multiple EMS units to a scene. "Statically, the chance of an accident increases exponentially [with the number of vehicles] dispatched hot to the scene," he says (9).

Quality of Care

Field care represents the types of risks most typically associated with medical negligence. These risks include problems in evaluation, treatment, choice of destination and refusals of care (5).

Fueled by personal injury attorneys seeking to represent alleged victims of medical malpractice, the number of claims against health care providers has dramatically increased during the past decade (1,4,5). Indeed, attorney advertisements on billboards, radio and television have become commonplace.

These attorneys are looking for clients to represent in cases such as auto accidents, slips and falls, nursing home injuries, injured children, spine injuries and wrongful deaths. EMS is at risk of being named in these types of lawsuits because it provides emergency care and transportation for most of these patients. The attorney's expert will closely review all treatment provided to the patient, beginning with the call to 9-1-1.

Not all lawsuits against EMS systems or individual clinicians arise from clinical errors, however. They are often the result of a lack of compassion and communication or of poor customer service skills at all levels of the organization.

Consider the following hypothetical scenario:

It's 11pm on a Tuesday, EMS responds to a private home to find an elderly man in cardiac arrest. The victim is defibrillated, and ALS procedures are performed. Despite the caregiverds' best efforts, the patient dies in the emergency department. The patientās children are moved to the quiet room, where the doctor informs them their father has died.

In the days that follow, the family questions whether the care provided by the paramedic was proper. Finally, the son calls the EMS provider to describe his concerns and to try to understand the rationale for the procedures performed. He talks with a supervisor, who shows a great reluctance to speak of the incident, discuss the care that was provided or even seem sympathetic. The EMS provider, missing an opportunity to defend and educate, forces the family to seek other lines of communication. The family turns to an attorney.

Having people in the EMS organization who deal with the public in a caring and compassionate manner can go a long way in reducing anger, frustration and the likelihood of a lawsuit.

Hiring, Firing and Negligent Retention

A recent article in Inc. magazine reported, "The number of discrimination lawsuits has risen by more than 2,200 percent over the past two decades; they now account for an estimated one-fifth of all civil suits filed in the U.S. courts. Defense costs can run anywhere from $20,000 to $200,000 depending on the length and complexity of the case (10)."

Hiring decisions made with disregard for equal employment opportunity laws or in violation of confidentiality can expose an EMS organization to punitive measures from government regulatory agencies and lawsuits from the affected person. Firing someone without appropriate considerations for due process can also bring lawsuits and fines. If an EMS organization retains personnel in clinical contact positions despite uncorrected clinical deficiencies, lawsuits for negligent retention may result.

EMS Risk Management Strategies

While many systems do not have the resources for a full-time risk manager, this should not limit the implementation of risk reduction techniques. Risk management principles can and should be practiced by every member of the organization.

Pre-Loss Strategies

The most effective way to manage risks is to reduce or eliminate them before they occur through the following "pre-loss" risk management strategies.

    • Insurance-Insurance is a contract whereby the insurer agrees to cover financial damages against its client for specific types of losses. The insurer accepts these financial risks in return for payment (premiums). Risk-retention is a form of self-insurance or internal funding for a specific sum or dollar amount not covered by insurance (i.e., deductible). The amount may be secured and held in an account (funded) or borrowed on an as-needed basis (unfunded).
    • Protocols-According to Pinellas County Medical Director Joseph Ryan, MD, protocols are best defined as uniform responses to specific clinical situations which tend to produce the safest and most reliable outcome. Protocols should, of course, be based on scientific research rather than anecdotal experience or politics. Protocols help define the system's standard of care.
    • Education-Continuing education is critical to reducing risk because it reinforces system protocols and expands providers' knowledge of out-of-hospital medicine. Education should include regular testing to ensure that every person demonstrates proficiency in critical skills. Risk management concepts and customer service skills should be part of all CE programs.
    • Documentation-The patient care report (PCR) is the patientās property. It can-and will-be used in court to support or condemn your or your agency's actions. Think of the PCR as a videotape of the patient care delivered; if a procedure is not written down (i.e., caught on film), it is presumed not to have taken place. The plaintiff's attorney will try to show that legibility and completeness on a PCR are analogous to the quality of care delivered to the patient.
    • Past claims-Identification of trends in the types of claims against EMS both on a local and national level will allow a system to proactively evaluate and modify protocols and training methods and, if necessary, to make changes in system configuration.
    • Quality improvement (QI)-The importance of an effective QI program as a way of reducing risk cannot be overstated. QI activities support risk management efforts by attempting to improve processes, policies and standards, thereby reducing risk. EMS systems that fail to implement QI methods to monitor system performance will have variance in the quality of care provided. This inconsistency in care may lead to recurring injury to patients, which can result in litigation.

Frequency vs. Severity

A common problem in implementing an effective risk management program is determining what to monitor. Given the fact that most EMS systems likely have limited resources, it must be determined what will have the greatest impact in reducing risk. Should QI efforts be used to develop ways of tracking procedures or events that occur frequently, or should they track those with high risk (severity)?

Consider, for example, establishing IVs. While the frequency of performing the procedure is typically high, the inability to establish an IV carries low risk. In contrast, intubation is typically performed much less frequently, but the severity of an unrecognized esophageal intubation can be devastating to the patient-and, ultimately, to the organization (see Figure 1).

Considering the frequency with which IVs are performed, the cost of tracking this procedure would likely outweigh the benefit. Therefore, in the effort to match cost with benefit, it is probably better to track those procedures with high risk, such as intubation.

Post-Loss Strategies

There are several strategies EMS organizations can use to limit or contain their risk after an incident with the potential of an claim has occurred. These are called post-loss strategies.

    • Investigation-Getting information about an incident as soon as possible dramatically improves accuracy and reliability. The investigation should include examining the PCR, detailed incident reports and tape audits when available, followed by a recorded interview with the crew. Such an investigation enables the EMS service to determine the cause of the incident and make the necessary changes to avoid such incidents in the future.
    • Patient/family questions-Never ignore the patient or family members if they question the care provided. Instead, empathize with their concerns (never admitting liability), and take the opportunity to educate them about the procedures performed. If they are not satisfied, ask them to submit their complaint in writing, and ensure them that an investigation will take place and any appropriate action taken.
    • Protocols-When an incident occurs, polices and procedures should be evaluated to see if they were in place and what impact their compliance÷or noncompliance÷had on the event. Determine if your agency has a policy. If it does, determine if it was followed, and if not, find out why.
    • Remediation/evaluation-The crew members involved should be educated and tested on the local standard of care (e.g., intubation skills). Failure to correct clinical deficits may be cause for later allegations of negligent retentions.

Conclusion

Every facet of how EMS responds to, treats and transport patients has inherent risks. Furthermore, as standards of care become better defined, EMS will be held more accountable for its actions. As Lazar states, "Negligent EMS systems will cause injury to innocent patients and will be sued. Such systems will discover that politics does not justify negligence. Negligence, however, does justify litigation. If EMS systems lack the political will to correct EMS system defects, the legal system will provide its own retrospective form of quality assurance (11)."

Despite these inevitable risks, properly applied risk management strategies can directly benefit patient safety while improving clinical outcomes. They can also minimize on-the-job injuries and financial losses secondary to the unpredictability EMS systems must deal with.

References

  1. Morgan DL, Wainscott MP, Knowles HC: "Emergency medical services liability litigation in the United States: 1987 to 1992." Prehospital and Disaster Medicine. 9(4):214-220, 1994.
  2. American Heritage Dictionary. Springfield, Mass.: Merriam-Webster, 1985.
  3. Hoffman AC: "Torts" In Legal Medicine; Legal Dynamics of Medical Encounters. Second Ed. St. Louis: Mosby-Year Book, 1991.
  4. Soler JM, Montes MF, Egold AB: "The 10-year malpractice experience of a large urban EMS system." Annals of Emergency Medicine. 14:982-985,1985.
  5. Goldberg RL, Zaitche JL, Koenigsber MD, et al: "A review of prehospital care litigation in a large metropolitan EMS system." Annal of Emergency Medicine. 19(5):557-561, 1990.
  6. Clawson JJ: "Canāt you tell me what to do?!" Dispatch. Summer:32-33, 1991.
  7. "Emergency medical dispatching" (National Association of Emergency Medical Physicians position paper). Prehospital and Disaster Medicine. 4(2):163-166,1989.
  8. "Use of warning lights and siren in emergency medical vehicle response and patient transport." (National Association of Emergency Medical Physicians position paper). Prehospital and Disaster Medicine. 9(2):133-136,1994.
  9. Lazar RA: "Dispatch and the law: how to avoid the 9-1-1 litigation blues." JEMS. 14(2):34-40,1989.
  10. Finegan J: "Law and disorder." Inc. 16(4):64-71,1994.
  11. Lazar RA: EMS Law. Rockville, Md.: Aspen Publications, 1989.

Figure 1: Risk of Low to High Frequency and Severity

FREQUENCY

S low high

E

V l losing patient valuables No second blood pressure, missed IV

E o

R w

I

T h

Y I Esophageal intubation refusal of care

g Emergency vehicle accident Inadequate documentation

h Medication error

CONSIDERATIONS FOR THE FIELD CLINICIAN

As a field clinician, you probably don't think about risk management on a personal level, but you should. As an EMT or paramedic, you are vulnerable to many of the same types of risks your employer is. Medical malpractice lawsuits, emergency motor accidents, on-the-job injuries and personnel matters can affect you on a personal level.

It may be useful for you and your partner to think of yourselves as a business franchise. As such, you get the company uniform, vehicle and policy manual, but the responsibility for actually doing the work for the customer rests with you and your partner. You should therefore take steps to help protect yourself and your system from risk.

    • Establish-and monitor compliance to your own rigorous standards and policies, which you have hopefully set above and beyond the minimums established by the "franchise corporation."
    • Develop-ways to prevent, reduce and eliminate your risks within the constraints of your franchise agreement. When you see ways in which the corporate polices can be improved, let the "corporation" know. Share your ideas with your fellow "franchise owners." Examples could include identification of outdated protocols or unsafe or outdated equipment.
    • Consider-post-loss risk management strategies such as personal insurance, which would cover errors, omissions and malpractice. With a new perspective on risk management, you will come to think of training, continuing education, documentation and customer service in a whole new light.