Legal Insanity

Another Perspective

 

 
 
 

Bryan E. Bledsoe, DO, FACEP | | Friday, September 21, 2007


Not long ago, my wife made me go to one of those yuppie malls in North Dallas. Finding no acceptable excuse to get out of the trip, I went. In order to avoid the torture of shopping, I told my wife I would take our 6-year-old grandson Andrew to the Merry-Go-Round in the center of the mall. It appeared to be your standard-issue Merry-Go Round and operated by an elderly couple both wearing smiles and cowboy hats. I bought several tokens for Andrew to ride. First, he had to select the appropriate horse. Then, the elderly operator went around securing each child to their respective horse with a leather belt. Then, he checked the entrance and exit gates and assured they were closed. Then, he systematically went back and rechecked each belt. Finally, he went to the control panel to start the ride. First, he had to insert and turn a key that sounded an alarm that the Merry-Go-Round was about to start. Next, he placed his foot onto a pedal and the Merry-Go-Round began to turn at a blazing speed of 3-4 miles per hour. The Merry-Go-Round would only operate if the pedal was depressed. If the operator takes his foot off the pedal, the Merry-Go-Round comes to a halt. I finally asked him about the machine and the redundant controls. All he said was, Thank the lawyers.

Contrast this with Auckland, New Zealand. The most prominent feature of the Auckland skyline is the Auckland Sky Tower which, at 328 meters (1,076 feet), is the tallest freestanding structure in the Southern hemisphere. Not only is there a rotating restaurant on top, but you can do a 192 meter (630 feet) bungee jump from the observation platform. In addition, with reservations, you can don a climbing belt and climb the television antenna on top of the tower. The lines are long and reservations are a must.

I spoke with a high-ranking Member of Parliament at a reception in Sky Tower and asked about the bungee jumping and tower climbing. He said, We don t have the problems with lawyers that you Yanks do. In addition, you can cross the Tasman Sea to Sydney and actually climb to the top of the harbor bridge.

Why is America so uptight? Are we becoming slaves to our own legal system?

I have many friends who are lawyers, and I highly respect them. I feel the legal system is very important. In fact, it is the ultimate system of checks and balances for many things, including health care. I wonder, though, if the founding fathers truly envisioned the legal system as it is today. The fear and costs of litigation have taken away many things that we used to enjoy. It is not uncommon to see apartment complexes and hotels dig up their diving pools and replace them with safer wading pools purely as a risk management tactic. Or, Texaco will dig up the gasoline storage tanks when it closes a station so as not to be sued later over some environmental concern. Sea World has to post signs warning patrons not to try and swim with the killer whales.

When it comes to the law, many Americans see it as another form of the lottery. On television, personal injury attorneys have their clients stand in front of the camera holding a check and saying, Dewey Cheatham and Howe got me $300,000 for my car wreck. Who would not want easy money?

EMS has, for a long time, avoided many of the more frivolous lawsuits. But, with tort reform in certain states and tightening of worker s compensation laws, personal injury attorneys are looking at other targets, and EMS is coming under the crosshairs.

When you have your name on the cover of textbooks, lawyers will seek you out as an expert witness. Such calls used to be fairly uncommon. Recently, the calls are more frequent, and the lawsuits more trivial. I think it is our duty, as textbook authors, to work on some of these cases; however, the legal system can be burdensome in terms of deadlines and schedules. As Jim Page once said, Just do it and get it over with and move on. So we do.

It used to be adequate to simply tell EMTs and paramedics to act in the patient s best interest and everything will be OK. That, unfortunately, is not the case anymore. An attorney friend told me recently about his encounter with a plaintiff s attorney who argued that the failure of paramedics to resuscitate a cardiac arrest victim was negligence. Where did this paralysis of intellect come from? As a rule, the successful cardiac arrest resuscitation rate across the United States has remained at 3% or so for 30 years. Said another way, we only resuscitate three out of every 100 out-of-hospital cardiac arrest patients (higher in certain systems). How can you be negligent for not raising the dead? Will we start to require our paramedic students to read Mary Shelley s novel Frankenstein in addition to their paramedic textbook? It is totally absurd.

While it is impossible to totally avoid potential liability in EMS, there are certain things in my experience that will help to keep you out of trouble:

  1. Always act as an advocate for the patient.
  2. Document everything about the call as completely as you can and as soon as you can.
  3. Do not practice outside the scope of your delegated authority.
  4. Report other EMS team members who are acting illegally or unethically.
  5. Be careful with whom you share confidential information.
  6. Never place yourself in a situation where you might be accused of so-called patient boundary issues.
  7. Carefully and faithfully track all controlled substances.
  8. Identify high-risk situations early (e.g., restraint situations, patient refusals, on-scene physicians, scene conflicts) and notify your supervisor and document the call meticulously.
  9. Make your chart legible and avoid accusations (e.g., the patient was drunk ).
  10. Discuss, with your system management, your coverage for malpractice and consider purchasing your own policy.
  11. Do not be afraid to bring any questions or concerns to your medical director (and avoid working in an EMS system where the medical director simply signs the forms ).
  12. Immediately leave any job that you feel compromises your ethics or principles or that exposes you, as an EMS provider, to unnecessary liability.

When my attorney friend asked what I thought about the plaintiff s attorney who was arguing that failure to resuscitate was a tort, I suggested that said attorney needed to go hunting in South Texas with Vice-President Dick Cheney.

Dr. Bledsoe is not an attorney and never played one on TV. In fact, he did not sleep at a Holiday Inn Express last night. He was last seen pondering the liability of Ferris Wheels at the Texas State Fair. He has a bona fide fear of carnival workers. He can be contacted at bbledsoe@earthlink.net.


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