To Transport or Not to Transport? Part 1 of 2

EMS and the Law


 
 

W. Ann "Winnie" Maggiore, JD, NREMT-P | | Wednesday, June 27, 2007


The question of when it's medically and legally safe to leave a patient at a scene after EMS assessment is a thought-provoking one. According to the 2005 JEMS 200-City Survey (February 2006 JEMS), 71.3% of U.S. EMS systems allow providers to treat patients without transporting them, and 35.7% have a policy that allows EMS to refuse transport. When can we evaluate a patient but not transport them? When is patient refusal not a refusal at all? Is it ever appropriate to encourage a patient to go to the ED by private vehicle?

This article explores the inherent dangers of "no transport" situations and addresses incidents when EMS providers decide that transport is not needed or encourage a patient to sign a refusal form.

Case No. 1: You're called for a "baby not breathing." You're on ALS mutual aid to a town six miles from your station, in another fire district. BLS arrives first and reports back that the baby is now breathing fine, and you hear her crying loudly. On arrival, you find a four-month-old female in the arms of one of the BLS providers, in no apparent acute distress. According to the baby's father, she was vomiting and suddenly became limp, and her extremities turned blue. He says she stopped breathing but started again after he called 9-1-1. Your assessment finds all vital signs within normal limits.

Should this baby be transported by an ALS unit? Yes, according to Dr. Laura Kay, MD, medical director for the Santa Fe County and Los Alamos fire departments in New Mexico. "This baby had an ALTE-apparent life-threatening event. She needs a full workup to evaluate for possible causes of her presentation, including reflux, seizures, RSV, dehydration and sepsis. This will require a full evaluation in the Emergency Department. Sending her in by private car-or, worse yet, not sending her in at all-is asking for trouble."

This is clearly a case when, although there's no "emergency" at the time EMS sees the patient, a serious emergency occurred only minutes earlier, and transport in an ALS unit is appropriate. Deterioration en route is possible, and management to include the following may be necessary as indicated by further history and physical assessment: blow-by oxygen, cardiac monitoring, blood glucose assessment and IVF therapy.

Case No. 2: You're called to an affluent suburb for a "58-year-old woman passed out." En route, you learn from dispatch that the patient is now awake but "still clammy." You arrive at an upscale home to find a group of 10-12 well-dressed women having a small gathering. One of them, who identifies herself as a retired RN, tells you the patient was sitting and talking to her when she suddenly slumped over, and "almost had a seizure." She tells you the patient remained unconscious for about 30 seconds, then regained consciousness and vomited. Alcohol is not a factor. When you arrive six minutes after dispatch, the woman is conscious and alert, although still very pale and clammy. Her vital signs are all within normal limits, but her pulse rate is 100 and her 12-lead ECG shows a borderline sinus tachycardia without ectopy. She has no significant medical history and takes only an antihypertensive medication. She does not want to go to the hospital.

Is it safe to send this patient to the hospital with a friend? "No," says Kay. "You can't determine why this otherwise healthy woman suddenly lost consciousness in the prehospital setting. She needs a full evaluation-one that can't be done by EMS. If you put her in the car with a friend, she could arrive at the hospital in cardiac arrest in the back seat of the car-not an optimal situation." The differential diagnoses in this case include dysrhythmia, seizure, TIA/CVA, drug intoxication/overdose and syncope due to dehydration, bleeding or other causes. At a minimum, this patient should receive oxygen, an IV and cardiac monitoring en route to the hospital.

Negligence is defined as a failure to act as would a reasonable EMS provider with your training given the same or similar situation. Is it reasonable not to transport a patient who appears in no acute distress when you see them? If a patient isn't actively refusing transport, are there any situations when it's reasonable to suggest that a patient go to the hospital by other means? Should EMS ever encourage a patient to sign a refusal form? EMS resources are not limitless, so we must also consider whether we should conserve valuable resources rather than spending them on a patient who may not need them.

What the studies show

There's no simple answer to these questions, and a careful case-by-case assessment is essential. A series of studies conducted in different areas of the U.S. have shown that EMS providers are incapable of adequately evaluating patients to determine whether alternative means of transport may be appropriate. This inability to fully assess a patient largely results from the lack of laboratory facilities and radiography in the field.

A study from the Oregon Health Sciences University evaluated the use of protocols allowing EMTs to determine the need for treatment and transport.1 This study concluded that 3-11% of patients who EMS determined did not need transport later had a critical event, and it recommended that EMS systems should determine what rate of "undertriage" was acceptable.

The authors of this study followed up a year later with another publication looking at hospital follow-up of patients categorized in the field as not needing an ambulance, using a set of EMS protocols.2 The second study concluded that the protocols led to a 9% undertriage rate and further found that patients with psychiatric complaints and dementia were at high risk for undertriage by EMS.

"EMS can't even really do a full physical exam with a patient's clothes on," says Mark Hauswald, MD, an emergency physician and associate dean for clinical affairs at the University of New Mexico School of Medicine in Albuquerque, and the author of one of the studies.

Hauswald's study was a prospective survey that linked medical record review. Paramedics completed a brief questionnaire for each patient transported to the university hospital in a one-month period.3 Ambulance transport was defined as "needed" if the charted differential diagnosis included diagnoses that could necessitate treatment in the ambulance. ED care was defined as "needed" if treatment of these diagnoses would necessitate resources not available in local urgent care centers. In his study, paramedics recommended alternative transport for 97 patients, 23 of whom needed ambulance transport, and recommended non-ED care for 71 patients, 32 of whom needed ED care. The study concluded that paramedics can't safely determine which patients do not need ambulance transport or ED care.

Another study from 2002 found that in the urban system studied, "paramedics cannot reliably predict which patients do and do not require ED care."4 This study took place in a large Florida county (with more than 1 million residents) with a two-tiered, dual response to 9-1-1 calls, with eight local fire departments with ALS capability and a private ALS ambulance transport service. The study found that for 85 cases in which paramedics felt that ED transport was not necessary, 27 patients met the criteria for ED treatment, 15 were admitted, and five were admitted to an intensive care unit. These two studies make it clear that when paramedics make a decision against transporting a patient, that decision carries a high level of risk.

Finally, another study from Minnesota looked at paramedics who worked eight-, 12- and 16-hour shifts to determine whether the non-transport rate varied in the final hour of the paramedics' shifts, concluding that "[t]here was a statistically significantly smaller number of patients signed off in all phases of the eight hour shifts." The study recommended that "[d]ecreasing shift lengths to eight hours will significantly reduce the number of patient sign-offs and result in less potential liability."5

No transport in medical cases

The following medical case involved a "no transport" decision and resulted in a wrongful death suit against EMS.6 The plaintiff called 9-1-1 after his mother experienced difficulty breathing and became unconscious. On EMS arrival, she had regained consciousness. The paramedics evaluated the patient, who had emphysema and a tracheotomy, and was on home oxygen. She did not want transport. Although the son requested transport, he ultimately signed a form, at his mother's direction, refusing transport.

A few hours later, her condition worsened, and the same EMS crew returned, this time transporting her. She went into cardiac arrest during transport, and died after seven days on mechanical ventilation. The son filed suit, alleging that EMS should have transported her the first time he called. The parties disputed the events that led up to the failure of EMS to transport. Testimony indicated that the son repeatedly asked EMS to transport her but that the paramedics said she was not sick enough to go. He also testified that he felt coerced into signing the refusal form, and that his mother was disoriented and unable to make an appropriate decision about transport.

In this case, the EMS medical director, Dr. Kevin Merigian, testified that the paramedics had followed protocol and could not force a patient into transport if they refuse it. The trial court, however, found that the paramedics had failed to fill out several of the evaluation categories on the run form and had been in too much of a hurry to complete the report, indicating an incomplete evaluation in violation of a state statute requiring a "full evaluation" prior to a decision not to transport. In particular, a box regarding "fainting" was not marked despite the initial call for a patient who had passed out.

The trial court also found that the son's signature on the refusal form was invalid, because he was not adequately informed of his mother's condition due to the incomplete assessment. Ultimately, the appellate court reversed a verdict against the paramedics because the plaintiff failed to present any expert testimony. However, this case clearly demonstrates some of the problems with "no transports" and refusal forms.

Two cases from Ohio involve failures to transport address stroke patients. In one, a plaintiff filed suit, alleging EMTs failed to transport him one night despite the fact that he told them he thought he was having a stroke.7 The EMTs told the patient's wife he was suffering from a "panic attack" and that his vital signs were fine. The next morning, he had obvious neurological deficits, and was subsequently diagnosed with a stroke. He testified that he told the EMTs he had double vision, and they said he would have to walk to the stretcher. He said he was unable to do so. The run sheet showed that the patient had said he had vertigo, ringing in his ears, tingling in his fingers and a "hard time standing." He had also vomited.

In the second suit, a woman awoke with dizziness, had difficulty grasping objects with her left hand, and fell down twice. The run form filled out by EMS stated that "[s]quad [was] not needed, patient felt dizzy and wanted checked out; no problems found." The plaintiff suffered a stroke the following day. Because in Ohio, EMTs are immune from all but willful or wanton errors, the court dismissed both cases. However, the care rendered by EMS can be seriously questioned.

In making a decision not to transport in medical cases, EMS must first consider the reason for the initial 9-1-1 call. Calls for chest pain, trouble breathing, neurological dysfunction, or sudden changes in level of consciousness are serious until proven otherwise. The patient's age and underlying medical history should be taken into account. EMS should thoroughly assess and document the patient's condition.

If vital signs, including oxygen saturation and blood glucose levels, are within normal limits, consider the distance to the hospital; a private transport to a hospital five minutes away is much different than one to a hospital 30 minutes across town. Patients should not be permitted to drive themselves to a hospital after an encounter with EMS. EMS should also be very wary of leaving a patient who will be at home alone. In those cases, if you're considering a "no transport," you should ask if someone can come stay with the patient.

It's also important to remember that women may have unusual presentations of cardiac events, as will patients with diabetes. An unexplained loss of consciousness always merits a full hospital evaluation, preferably with EMS transport and constant cardiac monitoring.

EMS providers who work in high call volume systems often become cavalier and are quite comfortable in pulling out a refusal form any time a patient has no obvious acute illness or injury. Many of these forms become legally meaningless, because they are signed by patients who have not had a full assessment, or a discussion of what may happen if they refuse transport, so the refusal is not "informed." Further, some EMS providers actively discourage patients from EMS transport if they feel they're not serious enough to warrant it. This is a dangerous game of "Russian Roulette," and although no harm may result from this approach nine times out of 10, the 10th time could result in a lawsuit for wrongful death when the patient dies after EMS leaves with a ill-gotten refusal form in hand.

Some EMS run forms even have check boxes for "transport not needed." If your system uses such forms, your medical director should define the types of situations in which transport may not be needed according to system protocols. Checking that "transport not needed" box could lead to a legal disaster if a patient, who has been seen by EMS but not transported, later decompensates, because a plaintiff may easily claim negligence for failing to properly assess the patient. A poster-size trial exhibit of that report will go a long way toward impressing a jury that the EMS system didn't do its job.

Part two of this article will discuss non-transport decisions in trauma cases, destination decisions and EMS system abuse.

References

  1. Schmidt T: "Evaluation of protocols allowing emergency medical technicians to determine need for treatment and transport." Academic Emergency Medicine. 7(6):663-669, 2000.
  2. Schmidt T: "Hospital follow-up of patients categorized as not needing an ambulance using a set of emergency medical technician protocols." Prehospital Emergency Care. 5(4):366-370, 2001.
  3. Hauswald M: "Can paramedics safely decide which patients do not need ambulance transport or emergency department care?" Prehospital Emergency Care. 6(4):383-386, 2002.
  4. Silvestri S: "Can paramedics accurately identify patients who do not require emergency department care?" Prehospital Emergency Care. 6(4)387-390, 2002.
  5. Caulkins CG: "Do paramedics make an effort not to transport at the end of their shifts?" Emergency Medical Services. 30(10):83-85, 2001.
  6. Holt v. City of Memphis, 2001 WL 846081 (Tenn. Ct. App.).
  7. Weber v. City Council, 2001 WL 109196 (Ohio App. 2 Dist.).



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Related Topics: Administration and Leadership, Legal and Ethical

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W. Ann "Winnie" Maggiore, JD, NREMT-PWinnie Maggiore is an attorney and paramedic in Albuquerque. She is a shareholder at the law firm of Butt, Thornton & Baehr, PC where she defends physicians, dentists, oral surgeons, nurses, paramedics and other health care providers, as well as law enforcement officers, against lawsuits and administrative enforcement actions. She is an author of many EMS legal publications, a member of the JEMS editorial board, and holds a volunteer faculty position in the Department of Emergency Medicine at the University of New Mexico.

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