Whoa, whoa, whoa!!! Thud – then just silence. The medic turned around to see two EMTs stand up covered in blood as her patient, now unresponsive, lay sideways on a gurney on the ground. What had just happened? In the middle of an ambulance transport and having just reached the destination, the medic stood up from the jump seat and turned around as her two EMT partners both unloaded the gurney.
In what was just a couple of seconds, when she turned back around after heaving the commotion, she had an instant gut sinking feeling. Simultaneously, the medic had to take rapid action to care for a now trauma patient. This simply is not supposed to happen – someone is going to get sued. Although she didn’t have my hands on the gurney, would she now have some liability in this?
Above all else — be reasonable, be kind. While an understanding of professional negligence in the setting of EMS could be a full semester class in law school and years of legal practice, at its core, it’s quite simple. Be reasonable, be kind, and your risk of legal jeopardy at all levels and in all three of the proverbial buckets, discussed in Part II of this series, decrease dramatically.
While, duty, breach of duty by falling below the standard of care, causation (actual and proximate), and damage. 6 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 1138, 1450-1460) are the elements that a plaintiff needs to prove for negligence, being reasonable and kind can be a shield that prevents that analysis from ever happening.
While one can and should try to embrace principles of just culture and extreme ownership in leadership and life, the law doesn’t care about just culture, extreme ownership, or looking beyond the outcome. The law is often more ruthless – what actually occurred matters.
In the above situation, what happened was a patient ended their ambulance transport with injuries that they didn’t have at the start of their transport. Put in eloquent legalese – this is bad. Negligence requires establishing that one had a duty, that one breached that duty by falling below the standard of care, that the breach of duty by falling below the standard of care actually caused harm, that the harm caused was of the type that could have reasonably been foreseen by that action, and that that harm actually resulted in damages. 6 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 1138, 1450-1460.
Here, the case was pretty simple and the elements of negligence could almost certainly be easily met. Although the medic didn’t have her hands on the gurney, whether or not she would have liability would have likely hinged on what another reasonable paramedic would have done in that same situation and what her job duties were. Likely, this would have been an issue for a trier of fact, that is a jury. Fortunately, she was never a named defendant and this case never went to trial.
Reasonable
What is “reasonable?” I ask the class “what’s reasonable?” in every new hire academy. The answers vary widely. While most can identify unreasonable when they see it, identifying reasonable can be more challenging.
In the most simplistic terms, look around the room at your peers. Look at those with similar training, education and experience as you and ask yourself, “Would the overwhelmingly majority of them do what I’m about to do?”
If so, you’re likely within the realm of reasonableness. Although being reasonable doesn’t mean that you are following protocols, laws, or may not otherwise be subject to administrative action, if your actions are in line with what a group of similarly situated professionals would do in the same situation, your actions are likely defensible.
If you find yourself going, “I’m going to be the most amazing paramedic and do this thing no one has ever throughout of!” Be careful, be very careful. While, at times, you may need to do that thing no one has ever thought of, rushing to that place should be a rarity, not a norm and, if done, supported with a sound explanation of your clinical decision making.
Be Kind
Kindness matters. I’m a lawyer, not a therapist. Most lawyers are not known for being “kind” so why should you be kind? Simply put, those who are kind, genuine and caring get sued less. So, how does one show kindness? Empathetic communication. Communicate to patients and their family what you are doing and why. Listen to them. Be warm, be understanding.
Numerous research articles have shown that a lack of communication is a primary driver behind medical malpractice litigation and the New York Times published a 2015 article entitled “To Be Sued Less, Doctors Should Consider Talking to Patients More,” highlighting this theory.1, 2, 3
Although this principle has been studied and applied to physicians, the same is true for EMS providers. Litigation is a tool that is often used to extract information and right perceived wrongs whether or not there was an actual wrong.
In many situations, kindness is what can affect the perception of a wrong and, as a result, litigation. It also turns out that being kind leads to increased happiness and health – who doesn’t want to be happier and healthier?
As described above, the medic was about to be sued – or so she thought. But why didn’t get she sued? The patient, a well-off business owner, was met by his wife at the hospital who was, understandably furious.
The patient’s wife feverishly took pictures of everything and everyone. As the patient’s wife stood in the room, the medic approached. With a look of scorn on the wife’s face, they made eye contact, said hello, and spent the next two hours engaged in conversation at the bedside. Not conversation centered around trying to cover one’s tracks or make excuses, but conversation centered around genuine compassion, rapport building, and caring.
Although not possible for every bad situation, it was possible here. Certainly, making statements against one’s interest post a major incident may ultimately increase ones and their organizations legal exposure. It is possible and if not likely that the medics demonstrated kindness was a key reason she was never personally named in the lawsuit despite a litany of other defendants.
So, be reasonable, be kind. Kindness is not weakness, kindness is strength.
Nothing in this article is legal advice and there is no attorney-client relationship that is being created. You should consult with a licensed attorney in your state of practice on any principles discussed herein and must not make reliance on any of this content without consulting with a licensed attorney in your state. Any situations stated should be presumed to not part of any singular incident and have been adapted for this presentation. In most cases, California law is cited for reference. While many general legal theories are the same state to state, laws and their application vary state to state.
This commentary reflects the opinion of the author and does not necessarily reflect the opinions of JEMS.
References
1. Shapiro RS, Simpson DE, Lawrence SL, Talsky AM, Sobocinski KA, Schiedermayer DL. A Survey of Sued and Nonsued Physicians and Suing Patients. Arch Intern Med. 1989;149(10):2190–2196.
2. Hickson GB, Clayton EW, Githens PB, Sloan FA. Factors That Prompted Families to File Medical Malpractice Claims Following Perinatal Injuries. JAMA. 1992;267(10):1359–1363.
3. Vincent C, Young M, Phillips A. Why do people sue doctors? A study of patients and relatives taking legal action. Lancet. 1994 Jun 25;343(8913):1609-1613.
