[Editor’s Note: Read part one of this story here.]
While medication and other clinical errors are among the most common mistakes that result in claims, state laws limit their success, said Matthew Streger, a founding partner of Keavney & Streger in New Jersey
“For example, in New Jersey, if the agency and its workers can show that they acted in good faith, the plaintiff will have insufficient evidence to bring a case,” said Streger, whose firm primarily represents EMS agencies, assisting them with risk mitigation and policy development. Other states provide discretionary immunity to EMS workers and paramedics to allow for ‘heat of battle’ decisions without fear of a lawsuit.”
There are certain situations for which immunity would not apply such as placing a patient face down on a stretcher, or clinical actions where the providers are required to act with no discretion, said Streger, a licensed paramedic.
David Givot, a former paramedic turned EMS license defense lawyer in Palm Desert, California, said one of the biggest problems is confirmation bias, i.e., misjudging a scene prior to arrival and making assumptions based on that belief.
“As a paramedic myself I’ve experienced countless occasions where I’ve arrived to find something completely different than what was indicated by dispatch,” said Givot, a columnist for EMS1.com and founder of thelegalguardian.com, which offers resources to EMS providers.
“It’s key that workers arrive on the scene with an open mind,” Givot said.
Another common problem, Givot said, undertreating the patient on the way to the hospital.
“This is a big source of liability in the back of the ambulance,” Givot said. “In some instances, the workers might not be trained on a new piece of equipment or a technique or the worker might not reassess the patient on the way to the hospital.”
Other trending case types
While ambulance crashes may be one of the top reasons that claims are filed, there are other ways that ambulance transport to and from the scene can go wrong.
A huge area of liability for EMS workers, said Streger is patient drop cases.
“Ambulance personnel can drop the patient while putting the person on the stretcher or the stretcher itself may tip over,” Streger said. “EMS workers can also sustain back and other injuries from repetitively lifting and carrying patients.
He added that this area of liability is not completely preventable, but better training, equipment and policies can go a long way to reducing cases.
“Many agencies now use chair carriers when going from floor to floor, but there is more to be done,” Steger said.
“Patient Not Found” cases are also common and can have tragic consequences.
Streger said EMS workers must at least make “a good faith” effort to locate patients who are not where the dispatcher said they would be.
“Sometimes the patient is on the side of the road or at an intersection that is not immediately visible,” Streger said. “In other cases, the person gives an incorrect address to the dispatcher. Either way, EMS workers need to look around and search the immediate area and do their best to find any patients.”
On April 10, 2018, 16-year-old Kyle Plush died in Cincinnati, Ohio after the third-row seat of his minivan collapsed on him and law enforcement personnel failed to find him after searching the scene.
“While it’s rare for individual EMTs to be sued in these cases, the EMS agency itself is at risk,” Streger said.
Instances in which the patient refuses care can also lead to liability, but such cases are less frequent than those in which the patient was not located.
“These calls involve EMS providers assessing the patient and the patient refusing to accept transportation, but because an assessment is performed, these cases have less potential for liability,” Streger said.
Raising awareness
Pennsylvania-based Page, Wolfberg & Wirth partner Stephen Wirth, whose firm represents EMS agencies and fire departments around the country.
Wirth said while some cases come down to unavoidable human error, many of the complaints are related to professional fatigue, a lack of compassion and unconscious bias that could affect how a particular group of patients is treated.
“The majority of the patient complaints we deal with have a lot to do with poor attitude, and lack of empathy or respect toward the patient,” Wirth said. “Sometimes it’s just plain old apathy and what is now being called ‘compassion fatigue,’ which comes from being overworked and stressed from the challenges of performing a very difficult job. These can all adversely impact how a patient is treated.”
In serious cases like a significant heart attack where there have been mistakes made by the EMS providers, a common defense is that the outcome would not have been any different even if the care had been “textbook,” Wirth said.
“In other words, the wheels of tragedy were already set in motion by the condition that prompted the call to 911 in the first place, and it is often hard for plaintiffs to prove that the intervention–or lack of intervention–by EMS was the legal cause of the harm to the patient,” he said.
And while government agencies and workers may have qualified immunity, Wirth said it won’t protect against liability if gross negligence can be proven or if the entities acted in a reckless manner or were indifferent to the patient who needed help.
Wirth said the industry needs to do more to raise awareness about the unconscious biases that EMS providers can develop to help them avoid making improper assumptions about patients when arriving on the scene.
He said EMS agencies must create a “culture of accountability,” in which all high-risk patient care incidents are reviewed regardless of the outcomes, medical errors are properly and promptly reported, and EMS providers are educated on best practices.
“The public also needs to be educated about when they should call 911 and when not to call 911 for an ambulance, as often patients call for an ambulance who do not medically need one, and that adds to the compassion fatigue that paramedics are experiencing,” Wirth said. “There is plenty of blame to go around but the problems can’t be corrected unless they are identified and addressed.”
