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By Orlando Blanco
The Use Of EMS Studies In Litigation: Sword
Or Shield?
It is Safe to say that few ambulance companies have employees
dedicated solely to researching the latest legal/medical literature
on every conceivable issue relevant to the EMS community.
There are numerous articles written on the subject of providing
EMS for mass gatherings, but most of these articles deal with
specific events and are not considered sufficiently authoritative
to be used as an industry standard.
In preparation for trial, our review of state statutes in
22 applicable states found that only two states addressed
standards for EMS at mass gatherings: Pennsylvania and Illinois.
The State of Pennsylvania provides a statutory framework under
Chapter 1013 entitled Special Events EMS that sets
forth general special event EMS planning requirements. In
the State of Illinois, our search did not find a similar statutory
framework; however, the plaintiffs' expert produced guidelines
for the provision of medical care at large-scale events established
by the Illinois State Medical Society in 1984.
In the referenced litigation, the plaintiffs relied upon
one of the best known studies in prehospital care of cardiac
arrest and resuscitation. The work by Dr. Mickey S. Eisenberg
and his colleagues entitled Cardiac Arrest and Resuscitation:
A Tale of 29 Cities was used by the plaintiffs and their
experts to support the plaintiffs' claim of an untimely response
to the cardiac arrest. To everyone's surprise, the plaintiffs'
attempted to use this landmark study, which outlined the published
experiences of 29 communities with out-of-hospital cardiac
arrest, as a sword in an effort to establish a legal standard
for response to prehospital cardiac arrest.
Based upon the data compiled in the Eisenberg study, the
plaintiffs' counsel, through the testimony of two EMS experts,
attempted to establish an eight-minute response time as a
legal standard for responding to cardiac arrest. The purpose
of this approach was clear - the plaintiffs intended to use
Dr. Eisenberg's study as a means to establish a legal and
industry standard for EMS response to cardiac arrest. The
plaintiffs and their experts relied on the study's wide acceptance
by the EMS community to create a benchmark in the jury's minds.
As this case demonstrates, the EMS provider must be prepared
to meet similar challenges based on information available
in research reports and studies recognized and accepted by
the EMS community. Closely scrutinizing information available
in the relevant literature can often result in using the same
information to shield the EMS provider from liability. For
example, in our case, the plaintiffs failed to recognize that
under the Eisenberg study, the plaintiff would have been considered
a survivor (the determining factor being whether the
patient lives or dies), so even though the patient suffered
severe brain damage, she fell in the category of a successful
resuscitation in the Eisenberg study. When closely analyzed,
the Eisenberg study ultimately did not support the plaintiffs'
theory of the case . Nevertheless, the EMS provider should
be prepared for similar attacks by plaintiffs using studies,
reports, and other sources of information in attempts to establish
similar standards of care for providing EMS coverage to mass
gatherings
Documentation Of The EMS Run
Documenting the EMS run through every reliable source available
is often the difference between success or defeat in litigation.
This is particularly true in light of the state-by-state adoption
of legislation providing immunity from negligence to EMS providers.
The EMS Run Form
Without a doubt, the EMS run form is the most crucial piece
of documentation available in any priority-one call. This
document compiles information ranging from medical history
to care and treatment, signs and symptoms, and times. Therefore,
it is not surprising that an inaccurate or incomplete EMS
run form will often expose the EMS provider to legal liability.
More often than not, the documentation error in the EMS run
form is simply the result of poor judgement. A prime example
of this was the documentation of runs at the Gus Macker
Basketball Tournament. Because the paramedics were out
of radio contact with central dispatch, there were no true
dispatch times available to document the EMS run reports for
calls originating at the tournament. In the cardiac arrest,
which became the subject of the litigation, the documenting
paramedic had recorded a dispatch time identical to the unit's
on-scene arrival time. Both had been listed as 12:06 p.m.
In his deposition, the paramedic explained that since no dispatch
times were available at the tournament, and because all calls
responded to were limited to the geographical area of the
tournament, he had chosen to adopt his estimated arrival time
for each call as his dispatch time as well. The plaintiffs'
theory was that the ambulance got lost while responding to
the cardiac arrest emergency (evident by the fact that they
traveled to the wrong court). They argued that the manipulation
of the dispatch time to match the estimated on-scene arrival
time for this cardiac arrest was evidence of nothing short
of a fabrication on the part of the paramedics to cover up
a delayed response. Fortunately, the paramedic who documented
the cardiac arrest had also documented a number, of other
calls at the tournament using the same system of matching
dispatch and on-scene arrival times. By presenting to the
jury all other run forms documented by this paramedic at the
tournament, the jury was convinced that the paramedic had
not intended to fabricate a more favorable response time.
This provider was lucky to be able to produce documentation
of other runs consistent with the paramedic's story. The next
time around, the provider may not be as fortunate.
Ultimately the safest approach is simply to insist on accurate
unambiguous and complete documentation. If there is no true
dispatch time, the paramedic should not provide one simply
to fill up space on an EMS run form. If there is no dispatch,
do not attempt to estimate a time for something that did not
occur! The provider should be aware that every word in the
EMS run form will be given strict scrutiny in a litigation
case.
In summary, the EMS provider must recognize that the EMS
run report provides crucial information from not only a medical
but also a legal standpoint. In fact, it often provides the
very ammunition needed for the litigant to support a case
of liability against the EMS provider. By the time of trial,
the EMS run form, typically no larger than a letter-size document,
will be blown up to emphasize those items that form the basis
of a plaintiff's attack. Be careful not to provide your opponent
with the very rope that he or she will use to hang you!
Alternative Sources of Documentation
In the litigation case, it is important for the EMS provider
to consider and identify all available and potential sources
of information. Documentation of crucial information for the
defense of the provider is not always limited to the EMS run
report. Indeed, in the litigated matter addressed in this
article, the EMS provider was ultimately able to prove to
the jury a response to the cardiac arrest consistent with
the paramedics' quick estimates of time. The provider did
so through the use of a real-time computer log that had been
archived for a number of years prior to trial. By matching
the computer- generated entries from this log with the dispatch
log and reconciling them with the testimony of witnesses,
the provider was able to convince the jury that the cellular
telephone times did not accurately reflect the seventeen minute
response time alleged by the plaintiffs.
Other sources of reliable information include police reports,
fire and safety department reports, medical first responders
run sheets, dispatch logs, and any other documentation generated
in the normal course of the company's business.
Lastly, it is important to point out that any changes made
by the provider to any of this documentation (i.e., updated
dispatch information) may subject the provider to claims of
alteration and fabrication of the original documentation.
Therefore, to the extent possible, any changes should be documented
to ensure that the original altered document is available
for inspection if necessary.
Conclusion
In summary, it is crucial for the EMS community to recognize
that providing medical coverage for mass gatherings will subject
the EMS provider to special liability risks that may ultimately
heighten a company's exposure to litigation. The best approach
requires the EMS provider to scrutinize carefully each special
event and to remain directly involved in every significant
decision that will bear upon the extent, nature, and type
of coverage provided for the event. Although there currently
exists no widely accepted industry standard for the EMS coverage
of mass gatherings, opponents in litigation are likely to
draw from numerous industry information sources, including
studies and reports, to support claims of EMS liability during
the coverage of mass gatherings. Comprehensive and accurate
documentation of runs generally provides the shield necessary
to thwart a plaintiff's claim for liability. The provider
should take great care in ensuring that full and accurate
documentation of the EMS run, together with all available
sources of information, be available to defend the EMS liability
suit.
Orlando Blanco is an attorney who has been actively engaged
in the defense of the EMS community on 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.
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