Litigation: When Your Best Is Challenged

By Orlando Blanco

Most high exposure catastrophic injury cases facing the EMS provider today are one dimensional, prime being when an ambulance enters an intersection against a red light en route to a priority one call and strikes an oncoming passenger car. This case focuses on only one question: Which party had the right of way?

Similarly, most high exposure liability cases arising from care and treatment of a patient are one dimensional. This type of case boils down to whether the medics provided care and treatment in accordance with all applicable standard operating orders.

Although having to defend a one dimensional liability case can hardy be categorized as a stroke of good fortune, almost any EMS provider who has faced the multi-dimensional liability exposure case will tell you that it is the multidimensional liability case that can be a prolonged and highly challenging experience. In every sense, it is truly the case when your best is challenged.

Recently, a Michigan-based ambulance company found itself in a four-week trial facing a multidimensional attack by attorneys representing a severely brain-damaged 17-year-old girl. I had the opportunity to defend and act as trial counsel for the EMS provider. What distinguishes this case from most multidimensional cases was that nearly every facet of liability exposure was encompassed in this one case and included the following:

This article provides a real life illustration of how the EMS provider can and may be subjected to liability exposures in a multidimensional liability case. The reader will gain an appreciation of the changing nature of liability issues for mass gatherings. The hope is that every EMS provider will be able to take steps to prevent and, if necessary, defend itself against costly litigation.

The Case Synopsis

The patient involved was a 17-year-old girl who had just graduated from high school and had been accepted to college, where she was planning to pursue both academics and athletics having excelled in both basketball and volleyball.

Unbeknownst to this girl and her family, she had been born with a congenital cardiac condition known as "Long Q-T Syndrome" which made her susceptible to sudden death from cardiac arrest. It was ultimately traced through genetic testing to her mother who remarkably had never suffered a cardiac episode or symptom.

This particular mass gathering was a three-on-three street basketball tournament known as the Gus Macker Basketball Tournament held in Belding, Michigan, a town of approximately 5,000 people. The patient and her classmates had participated in the tournament the previous summer and were looking forward to returning this summer for their division championship. Over the years, the tournament expanded into a three-day event attracting an estimated 150,000 to 300,000 persons.

Ultimately, medical coverage was coordinated by a Grand Rapids hospital, a long-standing sponsor of this event. Belding was a basic life support community and provided emergency medical services through the local Department of Safety, which included fire department and police emergency and medical technicians. As the tournament continued to grow in size, the need for providing advanced cardiac life-support (ACLS) service became a major concern. Since the community itself did not have this capability, tournament and city officials were required to contract with a private entity for ACLS coverage.

The previous summer, they contracted the services of a Grand Rapids-based ambulance company to provide one ACLS unit operated by two paramedics. The ambulance provider was not involved in the planing and/or coordination of emergency medical services for the tournament; however, this year, ambulance company representatives had joined the tournaments' planning committee. With a decision to increase ACLS presence, the EMS provider was contracted to provide two ACLS units each staffed by two paramedics, and to have a third ACLS unit on call at all times during the tournament weekend.

Accordingly, perimeter access routes, radio and telephone communication plans, and ACLS coverage became an integral part of the planning and training provided to the tournament. Two ACLS units would be physically located at the main medical center tent at all times. Additionally, two paramedics were required to stay at the main medical center near the hospital communications center, ensuring that the assigned paramedics would hear first-hand any call requiring ACLS service.

On the last day, shortly after noon, the patient collapsed minutes after the start of her game. Witnesses, including the patient's parents, testified that she received a pass from a teammate and literally collapsed into a state of unconsciousness. Bystanders who witnessed the collapse noticed she was not breathing and began CPR. The emergency medical services response that followed formed the basis of the plaintiffs' complaint against both the hospital providing medical coverage and the ambulance company.

The emergency medical response proceeded exactly as planned. The court supervisor saw her collapse and summoned his supervisor who was equipped with a hand-held radio capable of instantly contacting the main medical center tent. By the time he reached his supervisor he had already radioed for help. Although there was some dispute as to what was initially communicated to the main medical center by this supervisor by radio, the evidence showed that the main medical center was alerted to a player down and not breathing within a minute of the collapse.

Just as planned, the two paramedics assigned to that unit were standing by when the call was received. Before actually being dispatched, both paramedics ran to their unit. The ambulance followed the pre-designated emergency route bordering the perimeter of the tournament site to avoid the pedestrians and basketball courts filling the streets. This route, adopted as the perimeter access route for all ACLS calls at the tournament, had been initially designated by city police officials who had previously provided emergency medical services. The use of this route, although clearly consistent with the common and accepted practice of the local police and fire departments, would ultimately become one of the plaintiffs' main points of attack.

As with most priority-one runs, the attending paramedic provided navigational directions while his partner operated the ambulance. A color-coded street map that distinguished the different court areas by colors and letters had been produced for the tournament. Because this ACLS unit was never truly dispatched in normal course, each paramedic believed they were responding to an emergency in the blue court area of the tournament; however, the driver had overheard court "blue NN," whereas the navigator heard court "blue N." Upon reaching the first court, the paramedics realized there was no emergency there and turned their attention to court blue NN, where they could see a crowd forming.

According to the plaintiffs' counsel, anyone who doubted that the EMS response had been poorly planned need only to look to the route followed by the ambulance: "This ambulance traveled eleven blocks to reach an emergency located two-and-one-half blocks away!"

Likewise, anyone who questioned the plaintiffs' claim that the ambulance response was significantly delayed by virtue of route followed (17 minutes, according to the plaintiffs' theory) was directed to look at the result, i.e., the plaintiff seated in her wheelchair - the result of severe brain damage occasioned by this delay, as the plaintiffs' counsel argued.

Initially, the defense team's response to plaintiffs' claim of excessive delay in treatment resulting in severe brain damage was simple: both paramedics had estimated two-to-three-minute response time to the emergency. This estimate would be easy to corroborate with dispatch logs; however, there were no dispatch logs! The tournament was taking place outside of the ACLS provider's normal radio range; the paramedics were relying on the tournament's in-house radio network for emergency medical services calls. As a result, documentation of runs normally maintained by dispatch operations was not available to corroborate the ambulance's response time to this emergency.

Instead, the ambulance units at the tournament communicated with dispatch by cellular telephone; the logs for which would provide EMS run documentation, or so we thought. As part of a sales promotion, a local communications company had provided the phones to the ambulance company. Consequently, invoice documentation was not readily available.

Tracking down the cellular phone bill proved to be no easy task, given that the account name was yet unknown. The cellular phone bills took new significance when both paramedics recalled having made a cellular phone call to their central headquarters en route to the emergency. In fact, the ambulance driver who had placed the cellular call identified the dispatcher whom he had alerted en route to the priority-one call. The solution to the response time question seemed simple: locate the cellular telephone bills and pinpoint the exact minute the ambulance unit alerted central headquarters dispatch that they were en route to the emergency.

The consensus held that once the cellular phone bills were located, they would corroborate the paramedics' version of a quick emergency response time. From the very beginning, the one and only benchmark time available for reference was the defibrillation power time. The code summary strips from the defibrillation reflected an initial monitoring time of 12:07:43. It was expected that once the cellular phone invoices were located, the evidence of a call placed shortly after noon would support the paramedics' recollection of a two- to three-minute response time. Surprisingly, that was not to be the case. The cellular telephone bills showed three calls placed to the ambulance's company dispatch around the time of the emergency. Two calls were made at 11:46 a.m., both one minute in duration. A third call of equal duration was made at 11:49 a.m.

Not only did the telephone bill not corroborate the paramedics' testimony, but worse, it seemed to provide support to the plaintiffs' contention of a 17-minute response! When the patient collapsed, she was surrounded not only by family, neighbors and friends, but also by various bystanders and observers, some of whom inevitably became witnesses in the plaintiffs' lawsuit. An understandable pattern began to develop among eye witnesses who were emotionally involved (i.e., the parents, family and friends) recalled response times ranging from ten to twenty minutes. For them, time seemed to stand still.

On the other hand, witnesses who were not emotionally involved to the same degree provided much shorter estimates of response time. These witnesses included the supervisor who had radioed the emergency to the main medical center, various physicians, nurses, and police officers, as well as one of five tournament directors who overheard the radio call from a satellite location adjacent to the court.

Those emotionally involved witnesses who had provided response estimates ranging from ten to twenty minutes were challenged on the basis of their emotional state of mind. Many of these individuals admitted on the witness stand that their emotional state of mind may have affected their estimates of time. To help the jury understand this phenomenon, the defendants retained one of the nation's foremost memory experts to explain how witnessing a traumatic event tends to over-estimate the event's time duration; however, the times indicated on the cellular telephone invoices were not estimates - they were exact! That cellular telephone invoice was not in any way affected by stress or emotion. At trial, not surprisingly, the plaintiffs' counsel blew up the cellular invoice with the designated times clearly highlighted for all, including the jury, to see.

The second part of this article will provide information on the response, changing liability issues for ambulance companies and EMS coverage for mass gatherings.

Orlando Blanco is an attorney who has been actively engaged in the defense of the EMS community in Michigan. He has successfully tried to conclusion a number of lawsuits against ambulance companies involving vehicular accidents, care and treatment cases involving issues of mass gathering medical coverage by EMS.

Editor's Note: This article has been edited to fit the format of the AIJ. To request a complete, unedited version, please contact the American Ambulance Association's Resource Library.

Proceed to Part II