A Lesson in Negligence - Administration and Leadership - @ JEMS.com

A Lesson in Negligence

EMS and the Law


W. Ann Maggiore | | Tuesday, June 26, 2007

An RSI case involving MD assistance, documentation & protocol deviation

A recently published decision from the Northern District of Illinois federal district court has some important lessons to teach EMS personnel about documentation in the context of a rapid sequence induction (RSI). The opinion denied the EMS agency s Motion for Summary Judgment, a motion usually filed by defendants in an attempt to achieve dismissal of a case prior to trial. For this type of motion, if the defendant can show that the facts of the case are not in dispute, they may be able to get the case dismissed as a matter of law.

In this case, the plaintiff s estate sued the paramedics, the EMS agency, an urgent care physician and the hospital emergency department (ED) after an anaphylactic reaction resulted in the patient s demise due to anoxic brain damage.

Case background

Shirley Johnson experienced an anaphylactic reaction after eating Chinese food. She had a known sensitivity to peanuts. Her husband, Richard, took her to an urgent care center, where he informed Dr. Drubka, the physician on duty, that she was having trouble breathing. Dr. Drubka found Mrs. Johnson in severe respiratory distress. The center called 9-1-1 immediately, and paramedics arrived about four minutes later to find the patient still in the passenger s side of her car. They assisted in removing her from her vehicle and placed her into the ambulance. Dr. Drubka informed the paramedics that she needed to be intubated immediately and offered his assistance. They rejected his offer and initiated transport.

Johnson remained in the ambulance for 30 minutes. A patient care report that the paramedics generated at the conclusion of the call raised a number of issues, including the reason for two failed attempts to initiate an IV, the failure to place an oral airway, the amount of time that elapsed prior to intubation attempts and whether the final intubation attempt was successful. The parties also disputed whether the paramedics administered epinephrine to Johnson; despite the fact that both paramedics testified that they had done so, there was no documentation in their report of the drug being given.

The paramedics report indicated that they administered three separate dosages of Versed (a drug used for conscious sedation) because the patient s jaw was clenched and they wanted to attempt intubation. The applicable protocols allowed administration of etomidate (a paralytic) if the patient was not sufficiently sedated to intubate within 60 seconds, but there was no evidence that the paramedics administered the drug. The paramedics testified that the reason for the unsuccessful intubation attempts was the patient s clenched jaw, although the plaintiffs argued that the providers simply failed to comply with protocols. Finally, plaintiffs alleged that the third intubation attempt, which the paramedics testified was successful, was actually an esophageal intubation.

The ambulance arrived at the hospital about three minutes after the final intubation attempt. The paramedics testified that they had applied a capnography device and confirmed tube placement, and had also listened to the stomach and the lungs to reconfirm. Plaintiffs denied that the paramedics took these actions, pointing again to the patient report that made no mention of confirmation of endotracheal tube placement. The ED physician, Dr. Urgo, rechecked the tube and found that it was in the esophagus. He testified that the patient was pulseless and apneic on arrival, and that she was also cyanotic and had an extremely distended abdomen. He testified that it took him four attempts over 20 25 minutes before he was able to accomplish intubation.

The paramedics testified that the tube must have become displaced as Johnson was removed from the ambulance because her head was jostled as they moved the gurney. Plaintiffs argued that it took only about 60 seconds to move the patient into the ED, and that there was not enough time to account for her cyanosis and the abdominal distention.

Plaintiffs alleged that the paramedics conduct was willful and wanton. Under Illinois law, willful and wanton conduct is required before liability can be found against EMS providers. Willful and wanton conduct has been described as a hybrid between negligence and intentional behavior, and indicative of a reckless disregard for the safety of others. The line between negligence and willful and wanton conduct is, at best, a thin one.

A battle of the experts ensued in the briefing, with both sides filing affidavits of expert witnesses supporting their position. Frank Nagorka, an Illinois attorney and practicing paramedic, testified by affidavit that the paramedics fell below the standard of care when they failed to follow Dr. Drubka s orders regarding intubation and refused his offer of assistance with securing the airway. Nagorka also said that they should have taken the patient into the urgent care center to stabilize her and obtain a secure airway prior to transport, and that EMS failed to follow their own RSI protocols. However, the EMS agency presented an affidavit from an Illinois physician who said the paramedics actions were appropriate within the scope of their training, and that their acts were not willful and wanton.

The court, after a lengthy discussion of the willful and wanton standard, noted that deviations from protocols have been found sufficient to clear that hurdle, although that may not happen under the facts of every case. The court denied the motion, and the case proceeded into litigation.


This case is instructive in several areas. The physician on scene may have been able to provide additional assistance in securing the airway, and the paramedics may have allowed him to assist for the benefit of the patient. The paramedics documentation was deficient, and their defense was greatly hampered by the conflicts between their testimony and the report they generated immediately after the call. Finally, the issue of whether protocol violations rise to the level of willful and wanton behavior is one that courts will revisit in EMS litigation in states that provide immunity for all negligence with the exception of willful and wanton actions.

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Related Topics: Administration and Leadership, Legal and Ethical, Operations and Protcols

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