Administration and Leadership, Columns

Pro Bono: Protect Yourself and Your Agency from Airway Liability

Issue 8 and Volume 40.

Airway cases present a unique liability risk for EMS providers. Cases where patients require ventilation assistance are risky right out of the gate; the consequences of inadequate oxygenation can be catastrophic. And if hypoxia is attributable to negligent acts or omissions of an EMS provider, jury verdicts or monetary settlements in cases where patients experience permanent deficits or death can easily reach seven or eight figures.

Although these cases present an elevated clinical and legal risk to EMS providers, there are steps that can reduce the potential for liability. First, recognize that airway management cases are particularly protocol-driven. Your agency’s medical director should ensure that your airway protocols reflect the standard of care, keeping in mind that new research and airway management techniques are always evolving, so your protocols must evolve too. Outdated protocols can themselves be evidence of negligence.

Because airway management is protocol-driven, your documentation should demonstrate protocol compliance in all respects. Be sure all elements of your protocol are satisfied through a comprehensive patient care report (PCR) narrative. Your PCR should address the clinical indications for intubation, a relevant assessment ruling out any contraindications; any adjuncts, drugs or devices used in intubation and airway management; the number of intubation attempts made; complications encountered; steps taken to ensure proper tube placement; and ongoing monitoring of ventilatory efforts. If endotracheal (ET) intubation attempts are made and are unsuccessful, alternative airway management techniques employed must be fully documented.

Documenting unsuccessful intubation attempts is as critical as documenting successful ones. The standard of care doesn’t require perfection; the law doesn’t demand that a challenging manual skill such as ET intubation be successful on the first try. However, if there are prior unsuccessful attempts before establishing an airway, those must be documented, specifically including the times the attempts were made, ventilatory alternatives that were utilized between unsuccessful attempts, and the time intubation was successfully achieved. Fully describing the steps to ensure proper tube placement and ongoing monitoring, such as end-tidal carbon dioxide (EtCO2), are an essential part of airway PCR documentation. 

Some providers have told us they omit some of the “standard” or “routine” parts of their airway management protocols since those things are “always” done. Plaintiffs’ lawyers and juries won’t necessarily buy that explanation. As we like to say, if it’s something you always do (e.g., monitor EtCO2 during tube placement), then it should be something you always document.

Finally, a narrative on any intubation PCR should document the patient’s condition at the time care is transferred. There have been cases where a patient’s airway was compromised subsequent to delivery at the ED; ensure you’re protected by documenting if the airway was patent and if ventilatory efforts were successful at the time of arrival at the hospital and transfer of care.

Close and careful peer review of airway cases is also an important part of the post-care process. Ensuring a continuous quality improvement (QI) process is in place is key. Be sure any QI documentation related to peer review is kept separate from patient care documentation and de-identified to the maximum extent possible so as to maximize legal protection of that information in accordance with your state law.

Pro Bono is written by attorneys Doug Wolfberg and Steve Wirth, founding partners of Page, Wolfberg & Wirth, LLC, a national EMS industry law firm. Visit the firm’s website at or find them on Facebook, Twitter or LinkedIn.