Don’t Forget Mechanism of Injury

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Mistakes are going to happen in the field.  But just because one of your crews might have made a mistake or been involved in an accident does not mean that you have no defense if a patient later claims that he or she was injured in that accident.  Even if liability appears likely, don’t forget to analyze whether the mechanism of injury fits the injury the plaintiff is claiming.

Let’s consider a hypothetical to illustrate.  During a significant snowstorm, your ambulance responds to a motor vehicle accident, say a frontal collision.  Because of the weather, other ambulances are busy responding to various accidents in the area.  In this accident, Driver A has multiple leg lacerations and is put on the unit’s stretcher and placed in the back of the ambulance.  Driver B is complaining of neck and back pain, so he is placed in a c-collar and removed from his vehicle, put on a spine board with a CID in place as well, then put on the “bench seat” in the back of the ambulance and secured on the bench seat with multiple straps, so both patients can be taken to the hospital for evaluation and treatment.

As the ambulance is beginning to leave the scene, it hits a patch of ice and the front of the ambulance goes into a ditch nose-first.  The ambulance is quickly wenched out of the ditch and proceeds to the hospital without further incident. 

Driver B later files suit, alleging that his body and the spine board he was on slid forward during the ambulance’s accident and the top of his head struck the side of a metal cabinet, injuring him.  Eventually, Driver B is diagnosed with Brown-Sequard Syndrome, an injury to one side of the spinal cord that causes loss of motor function on the same side of the body as the lesion and loss of sensation on the opposite side.

First of all, your ambulance crew might not be guilty of any negligence for the ambulance going into the ditch.  Negligence is determined based upon the circumstances that existed at the time, and the severe weather conditions might form a basis for arguing that there was no negligence.  But even assuming the crew is found to be negligent in the operation of the vehicle, you still have a defense to liability because the mechanism of possible injury in the accident does not fit the injury the plaintiff is claiming.

Remember, Driver B/the plaintiff was involved in an MVA before your crew responded.  Did his Brown-Sequard injury result from the flexion/whiplash type forces his body experienced in the frontal MVA, or from the compression type forces his head and neck might have sustained when the ambulance went into the ditch and his spine board slid forward slightly on the bench seat?

A neurologist, neurosurgeon or biomechanical engineer should be retained to provide analysis and possible testimony.  In this hypothetical, the answer would be that the Brown-Sequard injury most likely resulted from the original MVA.  According to the medical literature, Brown-Sequard can be caused by penetrating injuries to the spinal cord or by whiplash or flexion-extension type forces.  There is no medical literature to support the claim that Brown-Sequard can be caused by compression forces. If the patient’s head and neck sustained any force when when the ambulance went into the ditch, it would have been compression.

This is simply one example.  Mechanism of injury can become an important factor in any number of situations–patient drops, claims of “rough handling,” stretcher mishaps, etc.  Don’t assume you owe a patient damages just because an accident happened.  Make sure the mechanism of injury fits the injury for which recovery is sought.

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If You Drop the Ball, Don’t Bill the Call

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If a grieving family, whose loved one died after an ambulance arrived late to a call, receives a bill from the EMS service a few weeks later, is that going to make the family more or less likely to pursue possible litigation against the EMS provider?  This is not just a hypothetical question; I have seen it play out in reality.

There is a good chance that emotional catalyst for litigation will come into play in a recent incident in the District of Columbia.  See Man Billed For Ambulance That Arrived Too Late.

If your EMS service has a troubling call, such as a delayed response or some patient care issue that causes you to suspect it might lead to litigation, put a hold on billing.  That alone might not prevent a lawsuit, but if the patient (or surviving family members) are undecided about filing a lawsuit, and then they receive a bill for the call, that could very well be the proverbial straw that breaks the camel’s back and puts them on a path toward litigation.

In other words, if you drop the ball, don’t bill the call.

 

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Make Sure You Can Find Your Way Without GPS

GPS HandA chronic asthmatic boy in Worcestershire, England died of heart failure after it took an ambulance 24 minutes to arrive in response to an emergency call for a severe asthma attack at the boy’s home.  The EMS service’s response time target for the area is eight minutes.  The unit that was dispatched in response to the call experienced a malfunction of its GPS system and had difficulty finding the scene.

The West Midlands Ambulance Service denied claims that it relied solely on GPS.  This is an issue that is likely to arise more often as GPS technology becomes more sophisticated and more affordable, and more and more EMS services are using GPS technology at least to some degree.

GPS equipment, like any equipment, is subject to occasional failure or malfunction.  Every EMS service that operates long enough will have an ambulance break down or experience a flat tire while on an emergency call.  In those situations, if there is an adverse patient outcome, how the service dealt with the vehicle breakdown or equipment malfunction will be heavily scrutinized. 

Did the service have an adequate maintenance and inspection procedure in place?  Did the company have a back-up plan in place in the event of a vehicle breakdown or equipment malfunction?

If there is a lengthy response time due to a GPS error, the analysis will be similar.  Does the EMS service perform regular maintenance and review of its GPS technology to make sure it is performing properly?  Does the service provide adequate training of its personnel in the use of the GPS system?  Does the service have map books or other back-up systems in place if there is disruption of the GPS system?

If your service experiences a GPS malfunction and there is a bad patient outcome, you WILL be second-guessed, so make sure you can answer the questions posed above in a persuasive way.

More information regarding the Worcestershire incident can be found at Boy Dies After Ambulance’s Sat Nav Broke .

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Protect Patients’ Personal Information–Not Just Medical

Of course, all EMS professionals are aware of their obligation to maintain the confidentiality of their patients’ medical information.  But a Tennessee EMS service recently learned that problems can arise with personal information contained in billing records.

The Sumner County (Tennessee) Emergency Medical Service uses a third-party vendor, Advanced Data Processing, Inc. (ADPI), a Florida company, to process patient billing.  ADPI had access to personal account information, including names, Social Security numbers and dates of birth, of Sumner County EMS patients.  An ADPI employee stole the information and sold it in October to a ring suspected of filing fraudulent tax returns with the IRS.

According to news reports, Sumner County EMS plans to continue using ADPI for billing.  The service is apparently satisfied that ADPI had reasonable safeguards in place and that the incident was an aberration in otherwise quality service.

Whether your service does its own billing or uses a third-party vendor, it’s a good idea to review your policies and procedures regarding the handling of patient information on a periodic basis.  If a dishonest employee is determined to steal patient information and use it for financial gain, you need to have safeguards in place to discover the theft as soon as possible and take prompt steps to minimize the damage to your patients.  

At a minimum, patients should be notified that their information has been compromised so they can monitor their bank accounts and credit reports to watch for any suspicious activity.

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Regulatory Fines Can Hurt!$!

The Antioch (Illinois) Rescue Squad learned the hard way that regulatory violations can hurt.  The service was recently fined $5,000 each for three regulatory violations, for a total of $15,000. 

Two of the violations involved improper access to prescription drugs and the third violation was based upon staffing ambulances with unqualified personnel during emergency transports.  Check out this article, Antioch Rescue Squad Fined $15,000 for State Violations of EMS Act, for more information about the penalties.

To reduce the risk of stiff regulatory penalties, an EMS service should:

1.  Have clear written policies and procedures and a documented pattern of enforcing those policies.

2.  Foster a cooperative rather than an adversarial relationship with your assigned regulator.

3.  Get legal counsel involved as soon as you become aware of a possible regulatory issue.  With good legal advice, you might be able to avert a problem or at least minimize the impact of any violations.

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Tennessee Court of Appeals Holds EMS Has No Duty to Call for Closer Response Outside Its Jurisdiction

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The Tennessee Court of Appeals recently held that Nashville-Davidson Metro EMS (“Metro”) had no legal duty to call for a much closer ambulance in Robertson County to respond to an MVA just inside the Davidson County line, even though the Robertson County EMS unit was only three minutes from the crash and the closest Metro unit was 10-15 minutes away.  It is unclear at this point whether the plaintiff is going to pursue appellate review by the Tennessee Supreme Court.

The plaintiff’s son was involved in a two-vehicle rollover accident just inside Davidson County near the Robertson County line.  The neighboring EMS services apparently have a mutual aid agreement, but it is not triggered unless a request for assistance is made.  In this situation, Metro did not ask for assistance from the neighboring service.  The plaintiff’s legal theory was that Metro EMS was negligent because a reasonable service under the circumstances would have requested aid, but Metro failed to do so.

The court of appeals ruled that Metro’s duty of reasonable was not broad enough to require Metro to request aid from outside its geographical jurisdiction, even if the neighboring service might have reduced the response time.  Additional information regarding this case can be found at  Metro Had ‘No Duty” to Summon Closer Ambulance.

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A Wonderful Time in Prescott, Arizona

I spoke at the summer meeting of the Arizona Ambulance Association meeting in Prescott, Arizona earlier this week.  My presentation related to emerging issues in EMS automobile litigation.  If you’re interested in getting a copy of the PowerPoint, please contact me.

The AzAA meeting was very informative.  I was able to sit in on presentations by the medical director of a large EMS company regarding interesting new ways that paramedics will fit into the overall practice of medicine and the delivery of medical services.  I also enjoyed a presentation regarding pre-hospital malpractice claims by a couple of attorneys from the Phoenix law firm of Jones, Skelton & Hochuli.

I had a great time at the conference, and I would like to thank Glenn Kasprzyk of Lifeline Ambulance in Prescott for inviting me.

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Kentucky Ambulance Accident Results in Lawsuit

I will be speaking at the Arizona Ambulance Association Summer Conference this week about emerging issues in EMS automobile litigation.  No matter how much an EMS service trains its employees, no matter how good your program is, whether it’s based on EVOC or CEVO, accidents will happen.  And if an accident is serious enough, a very creative, motivated plaintiff’s attorney will scrutinize your EMT/paramedic and the training and supervision you provided more intensely than you thought possible.

Just recently, another new lawsuit was filed in Kentucky in connection with an intersection accident involving an ambulance on an emergency run.  For a news report about the case, see Former EMS Ambulance Driver Sued For February Wreck.  

The EMS employee who was driving is no longer employed by the service.  According to the report, the EMS director seems to believe that fact insulates his service from potential liability for the accident.  I don’t read the Kentucky statutes that way, but we’ll continue to monitor the case and see what happens.

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South Carolina EMS Negligence Case Yields $150,000 Settlement

A South Carolina man recently settled his malpractice claim against the Beaufort County EMS for $150,000.  Beaufort County EMS personnel responded to an emergency call after the man was beaten near Hilton Head in 2008.

The plaintiff alleged that the paramedics mishandled his treatment, resulting in brain injuries and a month-long hospital stay.  Beaufort County EMS denied liability.

The plaintiff originally sued for $600,000, but the parties ultimately settled for $150,000.  Additional details regarding the nature of the malpractice claim and the terms of the settlement were not released due to confidentiality provisions in the settlement agreement.

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35-Minute Response to Heart Attack Call Leads to Lawsuit

The family of a 59-year-old man who died of a heart attack has sued the Toronto EMS and the City of Toronto, as well as several individual paramedics and dispatchers. The suit papers seek damages in excess of $10 million Canadian based upon an alleged “unforgivable delay” in the EMS response time.

The ambulance crew arrived at the man’s apartment building 35 minutes after the first 911 call. Witnesses in the apartment building lobby claim that the man turned blue while waiting for the EMS personnel to arrive.

The coroner’s inquest determined that there were three separate 911 calls regarding the man’s heart attack. The call was not upgraded to high priority until the third call. Paramedics who responded to the initial call “staged” their response and waited for police a short distance from the man’s apartment building, allegedly out of fear that the scene might be dangerous.

The lawsuit alleges that the first-response paramedics were negligent in failing to properly assess the safety of the scene and that the Toronto EMS dispatchers failed to properly prioritize the man’s serious condition.

In the wake of criticism from the Ontario Health Ministry surrounding this incident, Toronto EMS has reportedly changed its policy on “staging.” The subsequent change in the staging policy will likely be inadmissible in the wrongful death lawsuit. Most Canadian provinces, like most American states, follow English common law. Under the common law, subsequent remedial measures are generally not admissible to prove negligence at the time of the event in question; this rule promotes the public policy of encouraging remedial measures after an injurious event.

The 35-minute delay here will be difficult to defend. However, the parties in the case will no doubt explore medical causation issues. The plaintiff has to prove not only a breach of the standard of care (in this case, an unreasonable delay in beginning treatment), but also that the breach of the standard of care caused injury or damage. In this situation, that will require proof that the gentleman more likely than not would have survived if treatment had been initiated within a customary, reasonable response time.

I will monitor this case and see how it develops.

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