A comment from Flash Larry on “Who is the customer / You make the call”

So Flash Larry blew up my blog, again, with one of his comments. Really though, I appreciate your comments, Flash. Ladies and gentlemen, I have a notion that Flash is more knowledgeable than most of us could hope to be.

My previous post questioned what the correct action would be when an EMS unit is told by a healthcare provider and a company policy to transport a patient to a certain hospital, and what the consequences of transporting that patient to a hospital that is not equipped to handle the specific problem. In this instance, interventional cardiology.

I have pieced together Flash’s reply, and added my comments as well.

He begins:

 The issue here is one of informed consent. In my state, a patient has the absolute right to be transported to the facility of his choice with one exception.

 This is always a good topic, the one of “informed consent.” What exactly is “informed consent?” Are we to inform each patient each time we establish an IV that there is the risk of catheter shear, which could cause an embolism? Are we to inform the patient, or family member, each time we administer dextrose that there is the risk of infiltration, which could cause tissue necrosis and the possibility of loss of the affected limb? I think that might be going a little too far.

I do not think informing the patient of their current medical problem and the care that is necessary is going too far. We get into that in just a little bit. Stand by.

 The exception, which bears discussion: The regulations state that if the EMS service medical director has established a “reasonable distance” for transports that the medical director can override the patient’s wishes if the patient wants to go further than the “reasonable distance.” The intent of the regulation was to prevent a patient from demanding transport to a distant city. It is my understanding that the medical directors of some services are establishing “reasonable distances” that insure that patients go to particular hospitals of their choice. The matter has not yet been litigated but at some point, it will be and then a jury will determine what constitutes a reasonable distance. That will be interesting both in the courtroom and in the newspapers.

 Flash answered my question before I had time to ask it: Just how far is a “reasonable distance?”

My company has a policy that states, in essence, we will transport a patient to any hospital in a county that is contiguous with ours. And that seems reasonable. In the previous scenario, Roundthecorner Medical Center and St. Elsewhere are in two contiguous counties.

I once worked in a city in which ambulance service was provided by two privately owned hospitals. The hospitals and EMS services got along very well, because they had the patient’s best interest in mind. While I worked for both services at the same time, it was routine to transport patients to the hospital of their choice, regardless of what was on the side of my ambulance. “Which hospital would you like to go to?” became a staple question during my assessments.

 I don’t know what the laws are in your states but here it appears that the ambulance service rule is denying the patient the right to informed consent, which is actionable at law in several ways. As all of you know, patient consent is required before you treat them. Under the law of my state, if a mentally functioning patient is informed as to what you’re doing and doesn’t express opposition, then consent is presumed (this arose out of a patient who did not expressly consent but did not object to care and then turned around and sued for failure to obtain consent. The appellate courts ruled that the plaintiff should have expressed opposition at the time of care rather than suing later).

 Frankly, I do not know the specific laws in my state, but I will be a good little blogger and go research them.

When the word “actionable” is used, I have to ask “actionable against whom?” As far as I can tell, it is my duty to provide the informed consent, and I am responsible if my actions violate the law, regardless of company policy. If my company policy requires that I physically touch each and every patient, yet I physically touch a patient who has refused my touching, then I have commited battery, and no company policy is going to provide me coverage in a court of law.

A far-fetched scenario, I know.

However, the second part of consent is that it must be informed. The patient must be informed of his condition and risks of treatment. Therefore any rule that states otherwise is contrary to law.

Therefore, this patient should be informed that his EKG shows what may be an imminently serious cardiac condition that is usually effectively treated by a particular procedure, be told what the different facilities can and cannot do, what your recommendation is and what you’d do with another patient in the same condition for whom you had not received specific orders. It is not necessary to tell him that they screwed up the 12-lead but that yours shows something different than what they got when they took it and things might have changed (they do, actually).

The patient is then able to make his own informed choice as to where he should go.

It’s not necessary to suggest, then or later, that the transferring facility made any errors. The most important thing is that your documentation supports your decision.

 The hospital in question, Roundthecorner Medical Center, can perform cardiac catheterization, but cannot perform interventional cardiology. Most often what happens when they perform a catheterization in which a stent is needed, is that the hospital will place an intra-aortic balloon pump, then have the patient transferred to a hospital that is capable of PCI.

While it is not necessarily my purview, I can’t help but wonder if RMC informs those patients “Hey, we couldn’t fix this problem when you came in the door, and we knew that, but we decided to ‘take a look’ anyway. Now we have to put this complicated piece of equipment in your aorta to help your heart pump, wait on a receiving facility to actually accept you, and wait on an equipped, knowledgeable ambulance crew to come transfer you. Sorry we didn’t send you there sooner.”

Whenever I am handed paperwork from any healthcare facility, I look at it, and make not of what they found. I always perform my own tests because, as you say, things change. Things change frequently and often.

 If you do not proceed in terms of informed consent, you and your company (under the doctrine of respondeat superior) could be held liable at law for any injury to the patient caused by taking him somewhere he didn’t want to do or by not informing him of his conditions and the destination options. As well, the paramedic could be in danger of losing his license for violating state regulations. I assure you, if it comes to a court case or administrative hearing, the ambulance service will NOT send in their owners and managers to say, “It’s not his fault, we told him to do that.” They will say, “We never, ever, ever would tell one of our employees to do anything that would be detrimental to patient care or in violation of the law.”

 For those that are interested or don’t know, respondeat superior is Latin for “let the master answer.” In many cases, the employer has to answer for the actions of their employees. It is also known as the “Master-Servant Rule.” Essentially, the employee cannot be held liable for actions that he performs when those actions are required by his employer. Actions that are outside the scope of the law, however, do not make the employee immune to prosecution for those actions.

If, however, the employer says, as Flash alluded, “We never, ever, ever would tell one of our employees to do anything that would be detrimental to patient care or in violation of the law.” and the employer can prove with company documentation that the opposite is true, the employee’s actions could still be actionable.

Ignorance of the law is not a defense.

 Which brings me to a question, CCC? Is that policy that you specified actually in writing anywhere, or is it word of mouth? (see above paragraph if it’s word of mouth or less than explicit)

 This policy is explicit. While not in an employee handbook, it is in writing elsewhere.

 If, on the other hand, you transport the patient to the appropriate facility (18 miles away) WITH the patient’s informed consent, and most especially if you are proven right and the company takes an adverse personnel action against you, the company may be liable at law in a lawsuit brought by the employee for creating a policy that violates state law. I can also assure you that public opinion would not be on the side of the company either, if it became public. Nor, I think, would the patient support the company’s adverse personnel action. Nor, I think, would the transferring office (who must have some reason for wanting them transported to a particular facility) be interested in having it made public.

 Employment law in my state allows an employer to terminate an employee for virtually anything. That isn’t to say that the employer would not be liable for creating a policy that violates state law, however.

I believe the public should know what we are doing, and why we are doing it. But that’s just me.

 Always, always, always do that which is in the best interests of the patient and what complies with the law.

 I have always done what is in the best interest of the patient. While I did not take the Hippocratic oath when I began working on an ambulance, I believe whole heartedly to “do no harm” is the ultimate goal. “Doing harm” can be something as simple as transporting a STEMI patient to a hospital that does not perform PCI, at least in my eyes.

 One of my more famous moments was when I was dispatching one day (yes, I did that too) and with all my units tied up, had a walk-in to the station having a possible heart attack. After warning my units to hold their traffic, I put the patient on high-flow oxygen, went back in and called a competing private service to come get the patient out of our main station. It was the only option I had. It was in the best interest of the patient. Fortunately my boss at the time ever only asked one question when you went outside the box, and that was exactly that. Was it in the best interests of the patient? As he said, every time, “Patient care comes first.”

That’s the way it should be.

I am glad your former boss saw the patient’s well-being as the first and foremost responsibility. Even though we compete with each other, the ultimate goal is the same: take care of people.

Patient care always comes first.

Thanks for your comments, Flash.