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EMS Litigation - Beyond the Gavel

Several national stories have surfaced recently that has placed the first responder profession in a bad light because the standard of care was allegedly not upheld. Remember the standard of care refers to the degree of attentiveness, and caution that is exercised by you -- the provider. Additionally, it can further be described as how a reasonable, prudent, properly trained medical professional at the same level of training would perform under the same of similar circumstances. The standard is usually determined by the court using expert testimony. There is a professional standard, but also a patient standard, that relates to their expectations.

One recent case in Illinois is the impetus for me writing this blog. The case has been featured in the Associated Press and aired on ABC's Good Morning America. In this case the responders are facing murder charges for being accused of strapping the patient prone on the stretcher in December 2022. Per the autopsy findings, the 35-year-old gentlemen later died of “compressional and positional asphyxia due to prone facedown restraint on a paramedic transportation cot/stretcher by tightened straps across back and lower body in the setting of lethargy and underlying chronic alcoholism.” We enter this field to serve the public, and to do no further harm. We are faced with difficult decisions every day and many times we have to mitigate complex scenarios and provide solutions swiftly. All decisions have consequences and every encounter matters -- we can't lose sight of this.

Medical malpractice, abandonment, negligence, ethical dilemmas, managing high risk refusals, HIPAA, false documentation, DNR's amongst other things - are just a few of the items we have to contend with as part of our daily work. Some would argue that strictly due to the nature of our work, we are at a higher risk for being litigated against. The cases could be civil or criminal, the cases could be handled at the local level or proceed to the federal courts. In the EMS arena, most of the issues are patient care oriented such as abandonment as I mentioned before, but issues around equipment failures, failure to respond, and use of expired OR wrong medications can also come up. To have a favorable verdict against the defendant (the accused), the plaintiff (the individual who brings about or initiates the legal action) must prove the presence of four elements—duty, breach, causation, and damages–through a preponderance of evidence standard.

Duty - the patient (plaintiff) has called 911 and a professional relationship has been initiated with your scene arrival. You know have a duty to act.

Breach - the duty was not fulfilled. It was breached -- this related to the standard of care discussion in the opening paragraph.

Causation - was the firefighter’s or EMS provider’s conduct the actual cause of the patient’s injury. For damages to be awarded, the injury or wrongful death must be causally related and a natural and continuous product of a defendant’s (YOUR) omissions or actions, such as a failure to provide certain care or prevent future damages to the patient (plaintiff).

Damages - awarded by a court of law usually in the form of compensation that can be divided into either compensatory (making the plaintiff whole again in civil cases) or punitive (as a form of defendant punishment).

In summary we are not above the law. The practice of EMS, as in any aspect of medicine, needs to be done with the utmost care with the best care provided to all patients at all times. Since this does not always occur, the legal system is available to encourage and maintain the best medical, ethical, and beneficial care to all patients who need emergency medical services.

April 17, 2023

Author: Joshua Ishmael, MBA, MLS(ASCP)CM, NRP

Pass with PASS, LLC.

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