EMS case law? AMA Refusals, Death, and Documentation

Our friend Valerie DeFrance, who runs the EMS House of Defrance from way up in the Vast Frozen Wasteland facebooked this article this morning and you need to read it.

http://www.leagle.com/unsecure/page.htm?shortname=inmoco20100921246

Yep, check that URL. It’s from a site that specializes in putting out snippets of case law and this one’s simply all-too-common.

You should read the article, or at least skim through the salient points, because this affects you personally. You as an EMS provider should know about this. Pay attention to this case and what it means to you.

In this case, a Paramedic/EMT-B ambulance responded to a person experiencing Chest Pain and Difficulty Breathing. This is a quote from the article: (The emphasis is mine)

The unit arrived at decedent’s home and Respondents performed a primary survey of the decedent ten minutes after the initial call was placed. Respondents followed up on their primary survey with a secondary survey a minute later. They then obtained a set of vital signs. Based on their examination, Respondents diagnosed decedent with acid reflux and recommended a treatment of over-the-counter Maalox/Gaviscon. Believing decedent was in no immediate medical danger, Respondents left the home fifteen minutes after arriving.

The next morning at approximately 10:30 a.m. decedent again called 9-1-1, still complaining of difficulty breathing and chest pains. An ambulance unit from Community Fire Protection District was again dispatched to decedent’s home arriving five minutes later. This unit was manned by a different two-person team than had responded the night before. After finding the decedent was experiencing pain across the chest and into the back, shortness of breath, diaphoresis and nausea, the team began administering emergency treatment with oxygen, aspirin and EKG. At 10:55 a.m. the team initiated emergency transport of decedent to DePaul Health Center where he was admitted ten minutes later. At the Health Center decedent was diagnosed with cardiac arrest and pulmonary embolism and began receiving treatment. The treatment was unsuccessful and decedent died at 4:00 p.m. on 11 July 2008.

So do you see a problem there?

First off, I’m assuming they obtained an AMA refusal form (and if they didn’t, they’re idiots). This case highlights exactly what I’ve always said about refusals being worthless. There’s no mention of the patient having refused transport here. In fact, this isn’t a case on whether or not the EMTs actions were correct or incorrect. This is simply a case to see whether or not they have protection under the doctrine of Sovereign Immunity. It looks to me like they were basing their defense on whether or not they have that legal protection, not basing it on their thought that they provided proper care. It looks like they were assumed not to have provided it. In this case, a signed refusal meant nothing. If they were successfully sued with no mention of the AMA form, what good is it?

Second off, it’s in the official record that their PRIMARY survey took less than a minute… and I can believe that if they were solely attempting to rule out an immediate life threat. That’s what the primary survey is for. As evidenced by the fact that the deceased lasted another ten hours, I can assume that there was no immediate threat to his life. However, they then did a “secondary survey” one minute later and cleared the scene with what I assume to be an AMA refusal in just fifteen minutes. So if we time this out, they made it to the patient’s side in one minute, did two assessments, obtained a refusal, and cleared the scene in 15 minutes? That’s one minute to grab gear and walk to the patient, a minute to rule out immediate life threats, a few minutes to do a secondary assessment and vitals, with no mention of an EKG, and a few minutes to carry whatever gear they took in back to the truck, get back in the truck, and clear? Um… Either these are the fastest medics in the West, or they did a very poor assessment.

And the guy died. And they got sued. And they lost. And they freaking deserved to lose.

The second crew seems to have provided proper care for the patient, and that is evidenced in the case outcome. In fact, the lawyers and the judge seem to have made it a point to show the poor care provided by the first crew in contrast to the proper care provided by the second crew. It’s clearly evident here and I’ll bet that if we were to go to that agency and inspect it, we could probably see the difference in dedication and motivation between the first and second crew. The first paramedic comes off as lazy, callous, and stupid whereas the second paramedic comes off as competent and caring. I’d be willing to bet that this is honestly the case. That the first medic was a “good enough” medic who often encouraged AMA refusals and performed just to the bare minimum and the second medic was somewhat better than the first.

So how, as EMS providers, how do we protect against the precedent set by this case law?

The answer is still now as it always has been, do a thorough assessment every time, kick the decisions up to the physician, and document, document, document. This case was in 2008 and if you were doing EMS back then, you know that a 12-lead EKG was the standard of care. This patient should have had a working diagnosis (Chest pain), attempts at making a differential diagnosis (lung sounds, History and Physical Exam, EKG, SpO2, and trended vital signs and 12-leads) and should have been transported. If the patient wanted to refuse, the physician medical control should have been contacted and this should have been documented. The time limit of 14 minutes of assessment and/or care in this case is evidence that this didn’t happen. The medics blew his call for help off and the patient died.

Here’s what I would have done: I would have performed a thorough patient assessment including lung sounds, ABD assessment, and a history. I would have gotten the OPQRST of the patient’s complaint, and performed serial 12-lead EKGs. Then I would have transported. If the patient refused, I would have transmitted the 12-lead EKG, spoken with a physician about the case, and attempted to have the physician speak with the patient. This all would have been thoroughly documented.

Patients have the right to refuse care if they are conscious, alert, and oriented. They have this right even if they’re being stupid. We have the responsibility to help them make a proper, rational decision and to show that we made every effort to provide them with the best possible information. Proper patient care and excellent documentation are the way we protect against these types of lawsuits… and that really hasn’t changed.

This kind of situation can and does happen. Protect yourself and your agency by never becoming lazy. Document! Document! Document! Do your best every time. Be thorough and don’t succumb to mediocrity just because it’s easy. It will catch up to you just like it did to these two.

————————————————————

For more tips on EMS documentation:

  • Anonymous

    The only legally defensible refusal is an informed refusal.

    And unless your documentation reflects all of the steps you took to inform the patient of the risks of his decision, and his response to your efforts, that signed refusal form is a worthless piece of paper.

    It take more time to document a refusal properly than it does to document a transport.

  • http://thehappymedic.com the Happy Medic

    “First off, I’m assuming they obtained an AMA refusal form” In my system that only works in the other direction. Only the Pt can sign out AMA and only then in certain circumstances. The way this reads, dude was left at home on purpose.

    This was no mistake in my opinion, but a calculated and weighted decision not to complete a task.
    Had this been me and the patient did refuse transport, I’d have him on the recorded line with medical control to chat about it.

  • http://twitter.com/phxgonline PhxG Online

    Rogue medic said it best
    “Dangerous medics kill people.”
    http://roguemedic.com/2010/09/rather-than-one-excellent-medic-making-everyone-look-better/

    • Ckemtp

      Rogue medic always does. I love that guy.

  • http://twitter.com/phxgonline PhxG Online

    So I re-read the case and am concerned in how the defendants repeatedly returned to the immunity defense. This made me wonder that if the patient was complaining of chest pain and shortness of breath why not take the guy to the hospital as a precautionary measure. Perhaps there’s no mention of a refusal because they never got one and immunity is their only option.

    This keeps pushing me to the conclusion, yet again, that fire based EMS is typically less concerned for the well being of the patient than for not having to be there in the first place. This attitude of “I’d rather be sleeping or at a fire than here with you” brings us back to the argument of “Jobs we don’t do” again.

    (This is not to impugn all fire based medics, but there sure does seem to be more and more lately that have apathy towards EMS)

  • CBEMT

    They probably would have gotten away with it where I live. The IAFF and other municipal unions have spent a lot of time and lobbying power over the years making sure that state law will prevent almost any lawsuit against any public employee for actions “in the course of his or her duties.”

  • Christopher Updike

    I especially like that they “diagnosed” acid reflux and “prescribed” maalox! If that doesn’t show inadequacy right there, I don’t know what will!

    • http://roguemedic.com/ Rogue Medic

      Are you diagnosing inadequacy? ;-)

  • Pingback: EMS case law? AMA Refusals, Death, and Documentation – Life Under the Lights | Rogue Medic

  • http://twitter.com/staroflifelaw Star of Life Law

    Hold ya’lls horses. This opinion does NOT state that a “signed refusal means nothing.” This opinion does NOT deal with informed consent. This opinion does NOT deal with patient refusals AMA.

    This opinion DOES deal with Official Immunity of a publicly-employed medical professional IN MISSOURI. And only that.

    This opinion is from an appeal of summary judgment from the trial court. Summary judgment motions are typically heard fairly early in a case’s life. The paramedics and the department moved the Trial Court to dismiss the case via summary judgment on the grounds that they were immune from suit under Official Immunity. The trial court agreed with them, granted their motion and dismissed the case. The plaintiff’s then appealed the dismissal to the appeals court.

    From a legal standpoint this is not a big deal, in my opinion. The appeals court denied Official Immunity because they determined that the first call was not a “true emergency situation.” The Court of Appeals has remanded the case back to the trial court, where presumably, the case will continue on negligence and wrongful death grounds. The defendant’s may also appeal this ruling to a higher court (and likely will) prior to that though

    I highly doubt that the defendants entire case hangs on this technical point. They will fight the negligence and wrongful death claim.

    The reason you raise issues like Official Immunity, is because if you can’t be dragged into court to begin with, there is no utility in wasting time and money preparing for a full defense on the merits.

    The presence or absence of an Informed Refusal AMA will go to the heart of negligence and wrongful death, and is of really no consequence for consideration of Official Immunity, hence why I believe it is not discussed in this opinion. A refusal is immaterial to consideration of Official Immunity.

    For the seminal primer on Informed Refusals and Present Mental Capacity of Patients, Google Gene Gandy.

    Star of LIfe Law
    http://www.staroflifelaw.com

    • Greg

      I agree with Star of Life Law. Everyone is jumping to a lot of conclusions based on an appeal which really has nothing to do with the actual patient care of the case.

      Have I missed a link to the original case? Everyone is making suppositions based on the summary written in this appeal. I would like to see the actual run report or see transcripts of the testimony to really see if their actions were inadequate.

      Imagine how things changed if they performed 12 leads. Or if they used the phrasing “suspect: GERD R/O: AMI”. Or if they closed by stating that their patient was informed of the risks of refusal and he stated “I don’t give a crap, I am not going anywhere”.

      Armchair quarterbacking is easy. At least watch the actual game if you are going to be an armchair QB and don’t make the call from a short secondhand summary!

      I have googled forward and backward for news stories (not the best source either) or the original court case without success. If anyone has more detail please post.

      Greg

  • Too Old To Work

    StarofLive, who I have to link to, has this exactly right. I’m not a lawyer, nor do I play one on TV. I did, however, work with a paramedic/lawyer for several years and we spent a lot of time discussing cases like this.

    As SoL points out, this case is precedent only in MO, and possibly only in the district covered. It might in fact be appealed the MO Supreme Court who could overturn the Court of Appeals decision. At which point it would precedent in MO, but only MO. I think there is a good chance that the Court of Appeals erred in it’s definition and interpretation of “emergency response”. That is the course I would take if I were the district’s attorney.

    Official (or soveriegn) immunity statutes vary from state to state. Generally the issue of whether not a specific incident is covered revolves around whether the acts at issue are Ministerial or Discretionary in nature. Discretionary duties are, as the name implies, open to a wide range of options by the official(s) involved. Ministerial duties are those in which there is no latitude. Those duties MUST be performed as prescribed by law. Generally, but again subject to variations in state law, discretionary acts are immune to civil suit, while ministerial duties are not.

    I’m veering into post length commentary here, but I’m going to persist anyway.

    It’s also important to keep in mind that appeals to a higher courts must involve questions of law, not questions of fact. There is no “Trial De Novo” at the appeals level. Which is why there is no mention of a signed refusal since that would not change the question of immunity at all.

    From the little bit of information in the record, it seems that this was a case of paramedic initiated refusal of transport. I know some systems, primarily fire based, engage in this behavior, but personally I consider it risky bordering on negligence. It’s also a good argument against that aspect of EMS 2.0. The few studies done so far show that we are terrible at deciding who needs to go to the hospital and who can safely stay home. The record is silent as to whether or not the crew obtained any sort of ECG, let alone a 12 lead. Knowing that would help to determine the appropriateness of their exam, but we’ll just have to guess.

    Finally (you knew I’d get here) a refusal, signed or not, is worthless without documentation to support it. Arguably it is worthless in and of itself, but a well documented refusal can certainly help if the matter goes to trial, a department review, or regulatory agency. Crappy documentation never helps.

  • Pingback: Chest Pain Refusals | Rogue Medic

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  • g69onguitar

    If it feels funny from stem to stern then take um to the hospital or explain why!!!

  • Pingback: Perils of Paramedics Pursing imProper Patient Refusals | Life Under the Lights

  • Anonymous

    Personally, I would like to think all of us that are healthcare providers would give the crew the benefit of the doubt. The basics of managing any patient refusing transport is something every rookie EMT is familiar with. Until it is shown that this crew did not do their jobs, could we refrain from even incidental accusations of them being moronic, calleaous bums? For now, we just have to be patient and recognize that we simply don’t have the answers to form an opinion. I feel bad for the patient that passed away. But I feel sorry for the initial crew that responded to his call for assistance. I am sure they are having a tough time.

    • http://roguemedic.com/ Rogue Medic

      Casey72,

      This is presented as an example of something to learn from. None of the EMS personnel are named, so protecting their reputations is not a factor.

      You mention giving the anonymous crew the benefit of the doubt.

      We should give the patient the benefit of the doubt.

      That is our job.

      Did the crew provide adequate information for an informed refusal? 

      We do not know.

      Could the crew have spent more time trying to persuade the patient to go to the hospital, or did they see just another case of reflux

      We do not know, but having been in EMS for a couple of decades, I have seen that plenty of times. 

      Does EMS screw up like this? 

      Absolutely.

      Should we provide any encouragement to anyone who thinks that this is in any way acceptable?

      Absolutely not. 

      .

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I am a paramedic trying to advance the idea that the Emergency Medical Services can be made into the profession that we all want it, need it, and know it deserves to be.

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  • Comments
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