Florida Verdict May Threaten EMS Availability


Ambulance service held liable for failing to “do what was necessary” before accepting emergency transport of pregnant patient.

I mentioned this case in a previous Healthcare Update.

A child was born at 25 weeks gestation – 15 weeks premature – and was not breathing. Babies born at this age have a viability of 50-70%. In other words, up to half of children born at this age of gestation die. The family called 911. The paramedics arrived, performed CPR on the child, and brought the child back to life. I know a lot of physicians who would have difficulty resuscitating such a premature infant.

These paramedics should have been commended as heroes for saving this child’s life.

Instead, they were sued and found liable for $10 million.

The plaintiff attorney stated that “the paramedic should have evaluated her before they transported her.”

In its verdict, the jury found that the ambulance company “was negligent by accepting the transport task” and the company showed “reckless disregard” in rendering its services.

So instead of getting to the mother as soon as possible, getting the baby out, performing CPR, and saving his life, the attorney apparently believes that the paramedics were supposed to diddle around arguing about whether or not to transport the mother to a hospital. Good idea. Let’s write that requirement into all future Florida EMS protocols. We can call it the “Kelley Amendment” – named after Bob Kelley, the plaintiff’s attorney in the case.

After the verdict, the ambulance company may soon have to determine whether it can stay in business.

A past-president of the American Ambulance Association is quoted as saying “EMTs and paramedics will go on the call until lawsuits like this break the bank and they can’t go anymore. That is $10 million that comes out of the ability to provide care, and the community will suffer because of that cost.”

As I’ve asked in the past … which is more important – perfect care or available care?

Jurors in Florida’s Volusia County seem to have made their decision.

It will be interesting to see whether the jurors’ decision to award an additional $10 million to someone who had the benefit of excellent care yet who experienced a bad outcome will affect the future availability of emergency transport in Volusia County and other Florida counties.

My guess is that few EMTs will want to work in Volusia County any more.

Regardless of the verdict, you EMTs are still heroes in my book.

UPDATE May 23, 2010
Additional facts about the case (and commentary) from the Editor in Chief of JEMS


  1. Does the Ambulance Service not have insurance? And has the insurer, or anyone, paid the $10 million?

    I’m guessing yes and no. So the cries of demise of ambulance service is premature.

    Why would you name the amendment after the plaintiff’s attorney? There was presumably a PHYSICIAN that testified for the plaintiffs without whom there would have been no case. That is the person who in large part deserves credit for the victory.

    • The issue of whether the EMTs had insurance is a red herring – and I believe one that cannot be brought up in court. Last time I heard, jurors were not allowed to know whether a defendant had insurance (or how much) before deciding on an award amount.

      Insurance is simply placing a bet with a bookie that you’ll eventually take a liability hit, and hope the bookie will cover (some of) your liability. If you mis-guess on the liability, you are still bankrupt. Note that on average insurance premiums are (and have to be) *more* expensive than paying liability awards.

      • “The issue of whether the EMTs had insurance is a red herring – and I believe one that cannot be brought up in court.”

        You are correct. However, when one is looking at the issue of whether the company is financially viable if it has to pay this verdict – which is what WC is trying to frighten with, then it does matter:

        “After the verdict, the ambulance company may soon have to determine whether it can stay in business.

        A past-president of the American Ambulance Association is quoted as saying “EMTs and paramedics will go on the call until lawsuits like this break the bank and they can’t go anymore. That is $10 million that comes out of the ability to provide care, and the community will suffer because of that cost.””

        You’re right on the bet that insurance is. However if you think premiums collected have to be more than paid claims you’re incorrect. Many very successful insurers will operate at an underwriting loss. Warren Buffett’s annual newsletter to shareholders does a nice job of explaining that in more detail, but in a very readable manner.

    • Barack Obama's Communist Legacy on

      Actually, one of the biggest expenses in medicine now IS the cost of insurance.

      Your presumption that insurance money doesn’t come out of the pockets of the insured hospitals and in turn the pockets of their patients betray you as an economic ignoramus.

      I’m glad that the global economic system is about to collapse on account of brainless, selfish twits like you.

      You’re going to learn a lot about reality before you starve to death, after government is no longer their to steal stuff from other people and give it to you, because there won’t be anything for them to steal on your behalf.

      How much food and water do you have stored up for the cataclysm. Or are you waiting for a government program. I hope you are.

      • Funny name. Actually I’m probably far more libertarian than you. What is clear is that you don’t know how medical funding works and the inability of providers to pass that cost on. With certain exceptions that is.

    • This is OUTRAGEOUS to me. I watched my only son die in my garage while local EMS took 32 mins to travel 1.2 miles to my home then stood idly by, REFUSING CPR based on their “diagnosis” that his neck was broken and there was “nothing that they could do” (he had a pulse when I was doing CPR, and, by the way, his neck was NOT broken, nor was there ANY damage to even his trachea-per autopsy), but EMS kept screaming at me (and my 17 year old autistic daughter), things like, “Oh, come on, you’re an RN, get over it, his neck is broken, just look at how floppy his head is”). If that wasn’t enough, I was not allowed back into the garage to do anything myself. And I couldn’t do a thing about it…then, or now.

      Now we have these idiots filing claims over those who DO?

      THANK YOU TO THOSE WHO FILED THE SUIT: I wonder who else will suffer the horrific, disabling, life altering, devastating loss of a child as a result of this lawsuit. Again, THANKS!!!

  2. And at least get your facts right, WC. I realize sometimes in your zeal to frighten people that you get in a rush, but the jury actually did not find the ambulance company liable for $10M. It was $8.6M – still a very large number (although given the child’s condition maybe just economic damages).

    There’s no need to embellish when the truth will do just fine. Although it is odd to see you try and frighten providers with misleading posts and then complain about defensive medicine. I wonder if you simply forget what you write the minute you post it? You do that quite a bit.

      • I would imagine the life care plan and future medicals for that child is well into the millions, wouldn’t you? Not to mention what the mother already owes Medicare/Medicaid or her health insurer if she had one. You do know that a large chunk of most awards goes right back into the medical industry right? An injured party has costs that are incurred regardless of whether the paying party is the person who caused a harm, the taxpayer, or a health insurer. And if the latter two find out there’s the responsible party, they have a right to get reimbursed.

      • How delightfully Dickensian. I’m quite sure Jacob Marley would concur with your actuarial assessment. Come to think of it, we should all “get on with it and decrease the surplus population.”

  3. “As I’ve asked in the past … which is more important – perfect care or available care?”

    This question doesn’t make sense. Given the number of medical errors every year v. the number of claims, it would appear that the people are not and have never demanded “perfect” care. In fact, we’re evidently quite willing to live with many, many mistakes. Even ones causing significant damages.

    Oh wait – sorry, that’s just a no thought slogan, isn’t it. My bad. Carry on with the nonsense!

  4. I cannot believe such a thing. I wonder what the angle really was.
    And yes, Matt, I am disgusted that a physician would testify for the plaintiff in such a case, but honestly it does not surprise me. There are many unethical MD’s out there.
    Hence the reason we need medical courts and no more career expert witnesses but that is for another time….

    • How exactly does having a whole new, expensive taxpayer supported bureacracy where we let the foxes guard the henhouse solve this problem? There will still be expert witnesses, there will still be attorneys, and there will still be insurers trying to keep from paying. The only change is that now the taxpayers pick up the cost for all these “experts” on the bench rather than the insurers who agreed to assume that risk. The kid’s care costs don’t change.

      I don’t know if this case was decided rightly or wrongly. I do know that the jurors in the jurisdiction affected heard all the evidence and made a decision. I haven’t, so I don’t know that I’m in a position to question them.

      • I bet those jurors don’t know diddly squat about medicine and honestly I could not trust them to make a proper decision either way. An FDA-like panel of MD’s and other health care providers could decide cases more fairly than lay jurors, provided all financial incentives or other conflicts of interest were addressed beforehand. We are often our own harshest critics and I don’t think we would be like “foxes guarding the henhouse”.

  5. Meanwhile, while the tiny percentage of costs in medical care that malpractice affects is debated ad nauseum for the benefit of liability carriers, things like this:


    are happening which are indicators of our near future. These are the real drivers of cost, yet they generate little interest from WC, and really many physicians. They’re a little harder to get inflamed about and scapegoat people with, I guess.

  6. Wasn’t this with regard to an interfacility transport?

    If I remember correctly, the hospital and transferring physician “settled” and the EMS system didn’t, and this was the end result.

    I disagree with you that this verdict will negatively effect EMS availability, but I certainly hope that it’s a wake-up call to EMS systems that they shouldn’t allow hospitals to “dump” high risk OB transports on them without taking every precaution (for example, sending an appropriately trained nurse or physician along on the transport).

    The excuse that the hospital can’t spare any personnel is ridiculous. They just don’t want to pay for it.

    EMTALA says that it’s the transferring physician’s responsibility to determine the type of equipment and level of training of personnel required for interfacility transports, but this verdict suggests that’s a gross oversimplification.

    Paramedics should say “no” to unsafe interfacility transports, they should have protocols that dictate when a minimum of a paramedic/RN critical care team is required, and active or preterm labor should be on that list.


    • “Paramedics should say “no” to unsafe interfacility transports, they should have protocols that dictate when a minimum of a paramedic/RN critical care team is required, and active or preterm labor should be on that list.”

      Yep. There were big flashing red lights on the patient: preterm labor at 25 weeks, and the order was for transfer to a specialized facility for the delivery. If the EMS service couldn’t handle that (which appears undisputed), they shouldn’t have accepted it.

      Instead, they reached for the quick buck. “Sure, we’ll take ya, it’ll be fine” is not the standard of care.

      • The hospital that the patient was currently at said even they couldn’t handle it. If a hospital can’t handle it, I really doubt _any_ ambulance will be able to handle it either.

        So take your pick:

        1)Keep the patient at a hospital that can’t handle it.

        2)Transport the patient in an ambulance that can’t handle it with the hope the patient(s) remain stable until they reach a facility that can handle it.

        The only logical answer is choice #2 but of course the lawyers would like you to think it is up for debate. That way they can sue you whether you pick choice #1 or choice #2 because they want everyone to believe there was a choice #3 where you could wave a wand and everything would have miraculously turned out alright.

        Honestly, how is this case any different than if this woman collapsed on the street in preterm labor. When the ambulance was called, would they show up and say wait a minute, we can’t handle this! Sorry maam, the lawyers told us we should just say “no” to transporting you to a hospital that can handle it. Does that sound reasonable to anyone besides the lawyers?

        I’m also wondering if Florida’s absurdly high malpractice premiums for obstetricians had anything to do with the first hospital not having an obstetrician capable of treating her.

        Absurd lawsuits leading to absurd judgements, absurd judgements leading to high malpractice premiums, high malpractice premiums leading to less obstetricians in florida, less obstetricians means this woman had to travel further in an emergency. Yet matt, max and every other lawyer will insist that yet another absurd lawsuit against the EMS will somehow make it better and insure that this “will never happen again”.

      • “Honestly, how is this case any different than if this woman collapsed on the street in preterm labor.”

        You don’t see the difference between (a) an EMS responding to a 911 call and (b) an EMS responding to an intrafacility transfer?

        From the little bit we know about this case, it seems there was indeed an option #3. The doctors thought they were using it: the EMS company told them so. Turns out, the EMS company was just blowing smoke, accepting every transfer they were offered.

        The EMS company was taking a risk by doing that. Sometimes, the risk gets realized.

        On another note, there’s virtually no chance the plaintiff here will get the sticker price on that verdict. Virtually no one collects on a verdict that exceeds the insurance limits.

      • Max,

        Here is the “little bit” we know about the case.

        The initial ED doctor made the call that his facility could not handle the case. Let me translate: The patient needs to be transported to a hospital that has the facilities and specialists capable of taking care of the patient.

        What happens when someone calls 911 for a medical emergency: A patient needs to be transported to a hospital that has the facilities and specialists capable of taking care of the patient.

        So yes, the two cases are very similar, in fact, the EMS is doing the exact same job in both cases.

        Unless you can show that there was a mobile NICU ambulance that could have responded in the same amount of time and it simply wasn’t called, I’d really like to know what you think could have been done differently that would result in either:

        1) A better outcome for the patient(s)


        2) Not getting sued by lawyers because everything was done “right”.

      • DensityDuck on

        I can’t really imagine what kind of sick cynical mind you have, that you’d look at a screaming mother in labor being turned away from a hospital and say that the decision to take her to another hospital was a cash grab.

  7. Yes, yes, Matt — we get it. Lawyers are the noble defenders of the poor and downtrodden, while those evil ambulance drivers — who make what? $15/hour — are butchering our kids. Doctors and paramedics = bad, lawyers = good.

    • I’m sorry, did you misread? Doctors are very well educated professionals who you should have much more respect for. And being a paramedic is a very difficult job – you should be more appreciative of what they do.

      Lawyers do all kinds of things, not just represent the poor. Many work just for insurers and Fortune 500 companies. Some just represent small businesses or do real estate transactions. None of those things are inherently good or bad. And I daresay there are very few downtrodden insurers.

    • Have you worked with or been on the “transport” end of a paramedics “pick up”. Bad…..only if they’ve been doing it for a few years.

      What’s the difference between God and a paramedic? God doesn’t think he’s a paramedic.

      About 8 out of 10 think they are the cats ass……can do whatever the (*&*^ they want; question the need for transport (that’s questioning physcians who call to have patients from their offices taken to the ER……if the patient is bleeding from every orifice, they question the “need”).

      I’ve been on both the receiving and sending end of paramedics, and let me tell you, a class in empathy and a few slaps to the jaw is absolutely necessary in this profession).

      Shall we discuss the most recent Firemedic who used his cell phone to videotape the dead body of a young girl, post MVA…..then posted it on the internet for the parents to eventually find? He was ON DUTY and int his video, on can hear where he actually comments that “you can smell the alcohol”, or something to that affect. It was later discovered she had been pickling all day with her grandmother and subsequent ETOH was NEGATIVE.

      So, yeah…..LAWYERS/MEDICS=mostly bad and give the entire profession a bad name.

      • FYI: I am a Paramedic, have been for a while. I do not resemble any of your descriptions!!! Maybe it’s YOU with the “god” like complexes and arrogance issues and others just respond to your ignorance!! Get a life and bash another profession…….try idiotic bloggers like yourself!!!!

  8. WC, Matt deserves a hand. Without his comments, your site would be far less lively. Besides, as Justice Holmes once said, “It’s a court of law, not a court of justice.”

  9. Evidently you haven’t provided the whole story — how can we make a decision based on your story unless you present all the facts. I’m disappointed in you.

  10. I heard about this case last night from our paramedics. Their solution was to slow code to make sure you have time to document. When you got someone barely making it their old mantra was load and go, pump the chest to the U.

  11. Hey, for all of you who don’t think defensive medicine adds cost. Why does the chart for a patient with an umcomplicated appendectomy have 56 pages? This is just the clinical pages.What are the man hours and the cost just to generate all this?

    • You guys keep repeating that someone says defensive medicine doesn’t exist or add costs. Who?

      What is said is this:

      1. Defining defensive medicine is next to impossible. Every doctor has a different definition and it rarely if ever applies to their own care. Sure they’ll admit it in the abstract but they’ll still bill for it.

      2. Every time you talk about it’s used to justify some reform that will supposedly save billions. But then when we do that reform, nothing changes. Costs don’t go down and your actions don’t change. Just like the access promises. And then there’s always some other reform we then need and you promise that THEN it will work.

      3. You have no idea if defensive medicine, however defined, actually improves your defense. It would seem it does not given how you believe there are more lawsuits and you say you’re doing more defensive medicine than ever. Yet you want us to enact your reform in response to your actions which may or may not actually do anything.

      4. The cost argument is bullshit. The only thing that will contain costs is the end of the third party payment system or single payer with significant rationing. All the tort reform in the world won’t change this clear fact. How do I know this? Because we’ve had tort reform for 30 years. And the state that has had it the longest is in the worst condition from access to costs.

      I’m sorry but those are hard truths.

      • The truth is that you have little to no knowledge of what goes on, but you spout off about it continually her. The irony is that you call any of these “truths”.

        When was the last time you entered a hospital as a professional? Looked at a chart? Had any medical training whatsoever?

        But your knowledge of defensive medicine is great, I’m sure.

      • Where exactly do we disagree on the above? For example, do you think it’s easy to define defensive medicine and physicians have no dispute about it? Really?

        Are you aware of some instance where we’ve enacted your reforms to limit defensive medicine and the cost of healthcare has gone down? If so, do tell. I’m working off the known information, but if you know of something else by all means share. If you’d like sources for my conclusions, I’ll be glad to share.

        If you don’t have a source, and it’s just your opinion, that’s fine. We’ll have to agree to disagree and you can continue to disregard the facts in reaching your conclusion.

      • But at the end of the day, where’s your solution for it? We’ve tried the ones physicians have pushed through the legislatures so far to no discernible effect.

      • DensityDuck on

        “Defining defensive medicine is next to impossible.”

        Oh, but it’s easy for non-physicians to say what isn’t defensive medicine?

      • Not at all. It’s a lobbying term that can mean about whatever the speaker wants it to. Finding broad agreement on what specific procedure or action actually constitutes it is next to impossible.

  12. This was going to be a bad outcome and a big judgment no matter what…

    Choice A) Baby stays at the first hospital without OB, gets delivered, gets cerebral palsy (because no matter what the trial lawyers want you to believe- study after study have refuted the link between delivery issues and cerebral palsy)

    Choice B) This is what happened and the kid still gets cerebral palsy

    But no one seems to mention the fact that the mother chose to come to a hospital without OB…even though its standard practice for OBs to tell patients which hospitals in the area they can and can’t go to…but gosh, a little personal responsibility is WAY too much to ask…

      • Again, if you have some proof, then put it out there. The reality is you don’t. It is extremely rare that CP is caused by the actions of physicians, I agree. However, there is no study that says it is impossible for a physicians’ actions or inactions to result in that injury. Again, that’s a fact.

        Since you, or I for that matter, have no idea how many CP cases there are or how many lawsuits resulting from them, it may be that CP lawsuits are even rarer than either of us imagine.

        But as always, if you have other information, please share.

      • There are no studies that show that anything is impossible. That’s not what they do. It’s like me asking you to prove that the moon isn’t made of green cheese.

        I don’t actually expect you to understand though. You don’t know what you don’t know.

    • No, but some of us acknowledge that and don’t mouth off about areas in which we lack knowledge.

      You don’t and often lecture a group of professionals about how they practice despite that.

      • You must not read closely. I have no comment on purely medical issues. My comments are confined to legal and political issues where they interact with medicine. As to the merits of particular procedures and how they were performed I have no comment.

        I take it you are equally offended by physicians opining on legal matters?

      • Defensive medicine is a lobbying term used to justify various political actions. So yeah I comment on it. Not sure what other actions you’re referring to.

      • Defensive medicine is a real phenomenon and consists of ordering multiple unnecessary tests, keeping unhappy patients in the hospital, etc. based on the threat of litigation.

        The fact that you don’t believe it exists or is minimal at best shows your ignorance of what actually goes on in a hospital. You quote studies. We quote ourselves and our colleagues who actually practice this medicine.

        It’s a shame you and your ilk actually influence juries with this lack of knowledge of what actually goes on in the hospital.

      • “The fact that you don’t believe it exists or is minimal at best shows your ignorance of what actually goes on in a hospital.”

        Again, you’re not reading closely. I don’t care if you say it exists or not. Again, as I said before, on this subject:

        1. Physicians really can’t agree that X procedure is defensive and Y isn’t.

        2. Even if you are doing it, you have no idea if it works. If the “defensive” medicine actually “defends” you. Judging by how much you say you’re doing, and how many lawsuits you claim there are, it would seem that it’s not working at all.

        3. You have no solution for it. The only solution you ever put before a legislature is damage caps. Well, we’ve tried that. For decades. And it doesn’t appear to reduce the number of tests you order.

        That’s why I say “defensive medicine” is just a lobbying term which you use to justify whatever it is you’re currently asking for. It’s impossible to define or get physicians to agree on as applied to specific procedures, and it never seems to be reduced.

        You don’t need a medical degree to understand that.

    • If study after study have refuted the link between delivery issues and CP, then why did the plaintiffs prevail?

      In order to prevail, the plaintiffs had to provide medical expert witness backed with medical evidence to prove that the CP was more likely than not due to delivery and transport issues. The defendants should have had an easy time refuting that issue. That they failed indicates that they were at fault, the jury disregarded the evidence and/or the EMS management is incompetent.

      Why are the plaintiffs lawyers being blamed? You can’t win a lawsuit without medical expert testimony. You can’t win it without medical studies. You can’t win it without a plaintiff. You can’t win it without a jury. Doctors complain about the one party they have very little control over yet don’t want to challenge or educate the people that give them the ammunition.

  13. funny how matt will chide anyone on this forum for ever defending a doctor in a case because the ‘facts’can’t possibly be known, yet he will defend ANY outcome of a courtroom. just makes it obvious why he has zero credibility

    • I defend the outcome in the courtroom because I’m deferring to the fact those people have heard the evidence and i haven’t. Now in cases I’ve litigated and heard the evidence in I have at times disagreed with the verdict.

      I’m surprised you find deferring to the people who heard the evidence before reaching a conclusion such an offensive concept. It strikes me as common sense.

      I defer to the jury when i read that they find for the doctor as well.

  14. It has been commented that in a significant percentage of malpractice cases where a judgement was rendered against the hospital or doctor, reviews by experts have determined that no malpractice was actually done. I am also certain there are cases where malpractice was done, and the MD or hospital was exonerated. I don’t remember the actual percentages and have better things to do than look it up, but the post and reference here was recent. To any one but a trial lawyer, if this is the case we should come up with a better system and some states have tried. My state requires such suits go before an independent panel to determine worthiness. The plaintiff can still sue if the panel feels the case has no merit, but usually won’t. According to our hospital attorney, this stops a lot of cases from being pursued. There are doctors and lawyers on the panel and I think the panel members try to act as ethically as a jury would. This still allows seventh amendment rights if the plaintiff chooses to use them. It also allows the doctor the seventh amendment right to defend himself or herself if that person disagrees with the panel, though I believe in most cases a settlement would be the usual route to go.
    As far as expert witnesses for both sides in the courtroom, they’re getting paid and so have a financial conflict of interest which might color their judgement. I gave a deposition once concerning whether a certain condition of one of my patients was a result of an accident she was in and was told by the attorney that it didn’t matter what I said, the opposing side would find an expert to say the opposite.
    I do agree that in this particular case we dont know enough. It may be that the level of transport which was optimal was not available. An example occurs where a county has one ACLS certified flight crew and a situation where 2 individuals need it at the same time. Then ground transport might have to be chosen for one person as the best next alternative. (and for those of you who think this doesn’t happen, there are western states where entire counties may not have a doctor). I hate to say it but I agree with Matt’s usual argument on this one, we don’t know the details of the case enough to make too much of a comment.

    • “To any one but a trial lawyer, if this is the case we should come up with a better system and some states have tried. My state requires such suits go before an independent panel to determine worthiness. The plaintiff can still sue if the panel feels the case has no merit, but usually won’t. ”

      I don’t know why you don’t think “trial lawyers” (?) wouldn’t want a system that moves faster and is more accurate for the victim. After all, the plaintiff’s attorney gets no benefit from delay – just the insurer.

      What your state has done though is fine I guess. But there we’ve got yet another bureaucracy which the taxpayers pay for.

      ” I hate to say it but I agree with Matt’s usual argument on this one, we don’t know the details of the case enough to make too much of a comment.”

      I never understand why this is such a hard concept for people – to defer to the people that heard the evidence.

  15. This is the timeline of the events per the Orlando Sentinal:


    12:05 a.m., Sept. 21, 2003: Margarita Chess, about 25 or 26 weeks pregnant, arrives at Bert Fish Medical Center complaining of labor pain and contractions.

    Dr. John Milton, the Bert Fish emergency room doctor, examines her and determines she is in the early stages of labor but tells her she must go to another hospital because Bert Fish has no birth center equipped to care for such a premature infant.

    Milton calls Halifax Medical Center in Daytona Beach and speaks with obstetrician Dr. Thomas Stavoy. Though Halifax has a neonatal intensive care unit, Stavoy said the hospital lacks some of the specialists for babies born before 28 weeks’ gestation.

    Stavoy doesn’t accept the requested patient transfer and decides Chess should be sent to Arnold Palmer Hospital for Children in Orlando. Though the distance is more than an hour’s ride, he determines that based on Milton’s initial exam, it would be “extremely unlikely” she would deliver in less than an hour.

    Milton calls Arnold Palmer Hospital, and the hospital agrees to take Chess. He also calls EVAC ambulance to transport her.

    The ambulance arrives and transports Chess. Fifteen minutes into the ride, her water breaks, and she suddenly gives birth to Addison, who was born breeched and had trouble breathing.

    The ambulance paramedic performs CPR and uses an oxygen mask on the baby.

    The ambulance was diverted to Central Florida Regional Medical Center in Sanford, about five minutes away. Both Margarita Chess and her son were later sent to Arnold Palmer.

    Addison Chess, now 6, weighed 1.7 pounds at birth and suffered a lack of oxygen to the brain, leaving him with cerebral palsy.

    Source: Volusia County court records

    • Maybe so. It’s also entirely possible that these 12 people simply have a different opinion than you or I. Most of us think our take on something is the objective truth to be applied by all and will tolerate no dissension and indeed take any disagreement as a personal insult.

      I’ve disagreed with the results in cases I’ve handled and even disagreed with the appellate court when they shot my theory down as well. That’s the way society works sometimes, in all facets. Sometimes the guy you or I “know” is the absolute best choice to be president doesn’t get elected for example.

      A jury is an expression of society’s position as to a dispute. You’re simply not going to always agree but that really doesn’t mean they’re objectively wrong. There are precious few objective truths in this world and none of us are the final arbiter of any of them.

      • “An ignorance so shining and conspicuous as yours–now I have it–go on a jury. That is your place.”
        Mark Twain

      • Pithy. It’s amazing how many of you believe you’re so much smarter than anyone who has ever served on a jury. Must be that Fristian humility you all share.

  16. Several things about this post.

    First, an interim post went up for some reason. The links and the picture weren’t working and some of the final wordsmithing changes I wanted to make weren’t saved. I fixed the photo and the links, but left the post as it was because I don’t want to change the content of a post after people have commented on it.

    Next, Matt is correct. The ambulance service won’t have to pay out an “additional” $10 million. The was a setoff of $1.6 million dollars that was already paid by other defendants to settle the case. I had corrected that error, but the change apparently didn’t take place when I scheduled the post.

    Regarding Max’s comment that it is uncommon for a plaintiff to collect a verdict more than insurance limits, I agree to a point. That argument would then encourage to have any potential defendant have miniscule insurance limits to minimize a payout. Doesn’t happen in the real world. In addition, I’m sure that plaintiff attorneys don’t just say “You won $10 million, but it’s too much of a bother to collect the other $5 million, so we’ll leave it at that.” Attorneys have a fiduciary duty to their clients and failing to vigorously represent their client’s interests in collecting from a judgment debtor would be a breach of that duty.

    Regarding the circumstances, I was under the impression that this was a 911 call from a private home, not an intrafacility transfer. Thanks to Gene for posting the timeline.

    In either case, I am still unable to comprehend what everyone thinks the “right” course of action should be in all future cases.
    On 911 calls from home …
    Do paramedics evaluate the patient at the scene so they can “do what is necessary” before deciding to “accept a transport task”? Those are the quotes the plaintiff attorney used. If someone appears too ill, do the paramedics then refuse to transport the patient to the hospital? If we argue this course of action, recall the uproar that occurred when the off-duty paramedics failed to transport the patient having an asthma attack in the coffee shop. Which way do we want things?
    On intrafacility transports …
    Are we now requiring that paramedics have more knowledge than the doctors who want to transport the patients? Before “accepting a transport assignment” do the paramedics have to get on rubber gloves, examine a patient’s cervix, review the fetal heart monitor strips, maybe do a “fern” test to see whether there’s amniotic fluid present?” Then they are required to override a physician’s decision to transport a patient to a facility with a higher level of care?
    What an idiotic argument.
    That’s like saying a secretary has to research the legal arguments a lawyer uses before typing a brief or requiring retailers to do exhaustive checks on all parts in the products they sell to make sure that there are no “hidden dangers.”
    The physicians stated that they didn’t believe that the patient was going to deliver the baby. Why should the paramedics have refused the transport? Ooops. They left home without their crystal ball. Forgot.
    In the future, perhaps paramedics should just refuse all intrafacility transports, because you never can tell when someone will have a bad outcome on the way to the next hospital. If this sounds silly, then Matt or Max give us some prospective rule to use to determine when paramedics should and should not agree to transfer patients … sans crystal ball, of course.

    Let’s say that the paramedics did do a gyne exam, reviewed the fetal monitor and determined that they didn’t want to do the transfer. Then what? The woman has her baby at the hospital and the paramedics lose their jobs because they refused to bring the child to a tertiary care center as directed by the physician.

    This case is all about a game of hot potato. There was going to be a bad outcome no matter what course of action was taken. It just so happened that the paramedics who did an exemplary job of keeping this child alive were the ones who happened to get burned.

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  18. On all our EMTALA transfers (of which this case would be, considering the need for a higher level of care), a form is signed by me listing risks and rationales for transfer, including but not limited to worsening of medical condition, MVA en route, etc. These are known and accepted risks of transfer. Claiming that the EMS folks should not have accepted the transfer is like sticking your head in the sand, or somewhere else dark. This kid was going to have a bad outcome any way you slice it, not because of bad care (or delays in care, which would have resulted if the mom had NOT been transported), but because he was a 25 WEEK PREEMIE. People need to learn that bad sh!t is going to happen in medicine sometimes and that isn’t anyone’s FAULT. This is the difference between medicine in America (which has 24 hour EMS services in most places) and the rest of the world (which doesn’t). Sue enough providers and eventually emergency physicians like me, nurses, paramedics, and other healthcare professionals will be leaving medicine in search of less stressful careers. Malpractice law comes to mind.

  19. —“On intrafacility [sic] transports … Are we now requiring that paramedics have more knowledge than the doctors who want to transport the patients?”

    No, but we should require that paramedics act as patient advocates and not allow practices that put patients at additional unnecessary risk.

    —“Before “accepting a transport assignment” do the paramedics have to get on rubber gloves, examine a patient’s cervix, review the fetal heart monitor strips, maybe do a “fern” test to see whether there’s amniotic fluid present?”

    Not at all. It’s enough that the reason for the transfer was preterm labor.

    —“Then they are required to override a physician’s decision to transport a patient to a facility with a higher level of care? What an idiotic argument.”

    No one has said anything about overriding the physician’s decision to transfer the patients to a higher level of care. I am questioning the manner in which the patients were transferred, so let’s not create a false dilemma.

    The most specious argument of all is that there’s no difference between EMS picking up a patient from home and EMS picking up a patient from a hospital.

    Home > EMS > Hospital = escalating levels of care.

    Hospital > EMS > Hospital = significant reduction in the level of care on the way to the receiving hospital.

    The hospital wasn’t equipped to handle high risk OB patients. I get it. That doesn’t mean the hospital (or the transferring physician) should have handed the patient over to EMS and washed their hands of the consequences. “I didn’t think she’d deliver” isn’t good enough.

    —“In the future, perhaps paramedics should just refuse all intrafacility transports, because you never can tell when someone will have a bad outcome on the way to the next hospital. If this sounds silly, then Matt or Max give us some prospective rule to use to determine when paramedics should and should not agree to transfer patients.”

    This isn’t about refusing transports. This is about risk management and sending the appropriate personnel along on transports. It doesn’t guarantee good outcomes but it’s the right thing to do.

    Here is the prospective rule you asked for.

    A minimum of a nurse/paramedic critical care team will be required in the following circumstances:

    1.) Active or preterm labor.

    2.) Intubated patients or patients likely to require intubation en route.*

    * Respiratory therapists can take the place of a nurse if paralytics are not required.

    3.) Critically ill children under the age of 6.

    4.) Any patient with unstable vital signs, with the possible exception of fresh trauma that has not yet been to the OR.

    5.) When the paramedic in charge of the call feels that the transport is unsafe or outside of the paramedic’s scope of practice.

    Any conflict between the transferring hospital and the transport team should be referred to the EMS system’s Medical Control Physician.

    This should all be spelled out ahead of time in an Interfacility Transport Protocol so everyone knows exactly what is expected.

    • As a former EMT-B, I have been on the short end of the stick on these interfacility transfers. One that comes to mind was a patient with significant burns who was shot up with dilaudid just before transport with EMT-Bs (who have no narcan or advanced airways) and having only gotten about 500ccs of fluid prior to transport and none while enroute to the burn center. I felt frustrated sometimes because the ER doctors did not seem to understand the gravity of the situation if something went wrong and how helpless we would have been in those cases.

      Those all sound like reasonable guidelines but it this case it wouldn’t have helped. Having a “nurse/paramedic” critical care team wouldn’t have changed the outcome on this case versus the presumed Medic/Medic or EMT/Medic crew. You could have had an OB and a neonatologist with all the resuscitation equipment in the world in the back of that ambulance and, chances are, the outcome would have been the same. In this rare situation there really is no such thing as “appropriate personnel”

      Don’t get me wrong- I applaud such guidelines and forward thinking to plan for those such situations and I feel that we should do more of that.

      Either way this was going to be a bad outcome that was primarily caused by the mother’s decision to go to a hospital without OB.

      • Steve –

        Just so we understand each other, I’m not talking about adding a nurse and taking away a paramedic. I’m talking about having both a paramedic and an experienced nurse (or a physician) in the back of the ambulance and an EMT or paramedic driving. We’re not really in a position to say whether or not it would have made a difference.

        Blaming the victim in this case is really appalling. Do you also blame chest pain patients who report to hospitals without cath labs? She was having a medical emergency and went to the emergency department. Sounds reasonable to me.


    • Tom,

      Escalating care from an insufficient level to a still insufficient level doesn’t put you in a much better situation than reducing an insufficient care level temporarily to an even more insufficient care level. It is still insufficient care!

      EMS isn’t designed to provide sufficient care to any and all possible complications that may occur on the way to the hospital. In fact, I would argue that every patient being transported by EMS is being exposed to insufficient care. Otherwise why are they headed to a hospital? Why not just pull over and treat the patient if they can “handle it”.

      You are essentially arguing that in this case, no EMS should have transferred this patient unless they were prepared to deal with a infant born at 25 weeks term. I sincerely doubt that even the handful of “mobile NICU” ambulances available in certain large metropolitan areas would feel comfortable with that scenario.

      But lets play your game. Say EMS shows up and decides to refuse transport on the grounds they can not provide sufficient care should the infant be born during transport. Your rules say the EMS system’s Medical Control Physician will now make the call. He can either decide it is in the best interest of the patient to authorize transport and this scenario plays out the exact same way with him getting sued. Or he can refuse transport, return the patient back to the initial hospital and “wash his hands of the consequences.” In other words, your plan didn’t really change anything.

      I really don’t see what the debate is about… Everything was done absolutely as it should have been done given the circumstances and it is a travesty our legal system punishes the medical personnel who did their best in a bad situation.

      Keep on believing we can sue our way to better healthcare and better EMS services. It has worked out wonderfully so far.

      • Of course you can’t sue your way to better healthcare. With rare exceptions that’s not the point of a civil lawsuit. It’s not going to fix a problem it isn’t designed to fix.

      • Only the most careless reading of my previous post would lead someone to the conclusion that I’m advocating paramedics refusing interfacility transports. I made it quite clear that I’m talking about risk management, and sometimes that’s taking every precaution that you can under the circumstances. At a minimum, a nurse (or a physician in the absence of an OB nurse) should have been sent along on the transport. To me, the lawsuit is less relevant than our duty to protect the patient.

      • If the EMS physician gets involved and has all the facts of a case like this, it is most likely that the EMS physician is going to back the crew’s refusal to transport the patient without additional on-board resources. What Tom seems to be talking about is getting the EMS physician involved so that the discussion ends up between two physicians instead of the sending physician insisting that EMS take the patient.

        Both the sending physicians and their hospital and nursing administrators need to realize that their liability doesn’t end when their doors close behind the patient in the IFT ambulance. What happens in these cases is that the IFT service shares in the liability, like it or not.

        Stating that there is no difference between refusing 911 scene call transports and interfacility transfers is indeed creating a false dilemma. Scene call patients generally have no patient care. Starting their care with EMS and then taking them to the closest appropriate facility escalates the level of care.

        Hospitals staffed with physicians have a higher level of care than virtually any EMS unit, regardless of how under-prepared they feel they are for a 25-week labor.

        As for lawsuits, sometimes they force the defendant – and people like the defendant – to engage in smarter behavior in the future.

        We should also provide our providers with the protocol-driven ability to “Just say No” to interfacility transports beyond the providers’ abilities and scope of practice.

      • Tom,

        Are you sure you aren’t advocating paramedics refusing interfacility transports? Because on the JEMS thread you say the following:


        “Reply by Tom Bouthillet on April 8, 2010 at 3:31pm
        I couldn’t have said it better myself. Bravo!


        Skip Kirkwood said:
        How many of you (or your services) have been “pressured” in to taking an inter-hospital transport whose needs were beyond your scope to meet, AND “the hospital didn’t have” a nurse/physician/respiratory therapist available to send with you […] any reasonable plaintiff will allege that the involved EMS agency HAD A DUTY TO REFUSE TO ACCEPT THIS PATIENT that they were objectively unable to care for.”

        It was caps and bolded and you seem to enthusiastically agree completely…

        An ambulance with the staff and equipment to treat a 25 week term infant likely doesn’t exist. Adherence to your prospective rule results in this patient never being transported and 100% certainty this infant will be born at a facility that can not handle it.

        I don’t doubt your sincerity in wanting to avoid unnecessary risk for your patients. However, in this case, the additional risk was minimal as the infant was going to have bad outcome whether he was delivered at the first hospital or during transport. Given these conditions, attempting transport was absolutely the right call.

      • ” the additional risk was minimal as the infant was going to have bad outcome whether he was delivered at the first hospital or during transport.”

        How did you reach that conclusion? Is it not possible for a non-bad outcome in this situation?

      • Matt,

        Consider the following:

        1) A 25 week term infant has a 50/50 chance of mere viability in a NICU

        2) The initial hospital does not even list Obstetrics as a service they provide.

        Is it possible for a non-bad outcome? It is already a miracle the infant survived, but the chances of having no long term deficits from being born this early at that hospital? I can’t give you any hard statistics, but it is infinitesimal.

        I agree the ambulance represents a lower level of care than the initial hospital. But even if we assume 100% certain death/grave harm to the infant if he is born during transport, that is still relatively not much additional risk from near certain death/grave harm at the initial hospital.

        This is a very sad case, but the reason everyone is up in arms is that this child’s injuries were due to being born at 25 weeks term, not from anything the physicians or EMS crew did wrong.

      • “This is a very sad case, but the reason everyone is up in arms is that this child’s injuries were due to being born at 25 weeks term, not from anything the physicians or EMS crew did wrong.”

        How does one reach that conclusion without reviewing, at a minimum, the medical records?

        It seems that you’re arguing that even if there was malpractice, because the chances were small that the child would live anyway that no liability should attach. Is that right? And if so, what would your survival percentage rate be where malpractice would be excused? I don’t see that position as patently unreasonable but I think you’d need to tighten it to make it legislatively viable.

      • This will be my last word on the topic, at least here on White Coat’s blog. This is in response to Xhy’s remarks on May 24, 2010 at 3:01 pm.

        “Are you sure you aren’t advocating paramedics refusing interfacility transports? […] An ambulance with the staff and equipment to treat a 25 week term infant likely doesn’t exist. Adherence to your prospective rule results in this patient never being transported and 100% certainty this infant will be born at a facility that can not handle it.”

        Consider the following from “Medical Direction of Interfacility Patient Transfers” by ACEP.

        “Review of the statutory and other legal controls over interhospital transfers have recently been precipitated by amendments to COBRA, and the fining of a Texas physician for transferring a high-risk obstetric patient without following statutory guidelines (Inspector General vs. Burditt). In the Burditt case, the patient was transferred in “active labor,” but the ambulance in which she was transferred did not have fetal monitoring and the patient was not accompanied by a physician trained in emergency delivery. What is disturbing about this violation, is that the administrative judge interpreted the statute to require a more sophisticated ambulance transfer than is generally available. If this interpretation is in fact correct and “qualified personnel and transportation equipment” requires a higher level of care than what is generally available, then the statute establishes a very stringent standard for transport. A transfer will be judged appropriate only if preparations are made to make the transfer as safe as possible for a given condition, regardless of what resources are typically used or available.”

        So to me the standard is “as safe as possible under the circumstances”.

        As for Skip Kirkwood’s comments on JEMS Connect, the key words were “the hospital didn’t have a nurse/physician/respiratory therapist available to send with you”.

        I’ve seen this play out in real life, and the reality is that the hospital will come up with the nurse or respiratory therapist if the EMS crew conditionally accepts the transport.

        I don’t agree with refusing interfacility transports unless there is no other option. My suggestion in light of this case is for each EMS systems to take proactive steps to help prevent misunderstandings and to promote best practices and patient safety.

        This should be handled over a cup of coffee at a regular scheduled meeting with all of the stakeholders involved with interfacility transports, not between an individual doctor and paramedic at 0300 with tempers and egos flaring.

      • Matt,

        I didn’t say no liability exists. If the EMS did something egregious such as stopping for a coffee break mid transport and that was the reason they didn’t reach the other facility in time I could understand the lawsuit. But I have not read anything suggesting that something like that occurred. Given the facts they knew at the time, everything was done appropriately and gave the patient the best chance of a better outcome. There was no breach of duty and therefore there can’t be any injury resulting from breach of duty.

        Even the plaintiffs lawyer doesn’t argue the child’s injuries were the result of any medical care either provided or withheld by the EMS or ED physician:

        “However, the plaintiff’s attorney said the key issue wasn’t whether the ambulance could have refused to transport, but whether the paramedic did what was necessary before accepting the patient.

        “The paramedic should have evaluated her before they transported her. Otherwise, the ambulance runs as a taxi service,” Bob Kelley said.”

        Whitecoat has already explained why this is bad idea, but the article continues:

        “Experts are worried the verdict could imply extra decision-making that might not be ideal in similar situations

        “It is troubling from the paramedic’s standpoint because it forces them to make an independent decision as to whether the doctor made the right call to transport,” University of Florida law school professor Lyrissa Lidsky told the newspaper. “They may have to potentially say no to avoid liability… We want the person with the most knowledge and the most sophisticated medical judgment, presumably the emergency room doctor, to make that decision.””


        Once again, there was no magic option #3 in this case. If EMS did what the lawyer suggested, the lawsuit would have been filed wanting an explanation as to why a paramedic with less training than the ED physician could over rule the decision to transport resulting in the child being born at an ill-equipped facility. It is a no win situation for everyone involved other than the lawyer.

      • Again, if this is what you believe I suggest you get the records and then do something about it. Would you make medical decisions based on a newspaper article describing a patient’s condition? Of course not. So why would you reach conclusions on malpractice in the same manner?

        Maybe not everyone agrees with you on the standard of care. That happens sometimes. We all have to accept we are not the final arbiter of truth.

        But I do encourage you to take action. This is a problem that can be solved if you can convince enough people you’re right once you’ve learned all the facts.

    • “Require that paramedics act as patient advocates and not allow practices that put patients at additional unnecessary risk”
      This is administrative doublespeak. To determine whether a patient is put at “additional unnecessary risk”, the paramedic still has to second guess the medical staff. So we have now come up with a weasel term and everyone can cheer about how avoiding “unnecessary risk” should be the standard. But “unnecessary risk” still is left undefined. Kind of like saying commenters should be liable when their comments create an “additional unnecessary risk.” No one cares until there’s a bad outcome.
      As it stands now, all that happens is that every time there is a bad outcome, the clipboard brigade and plaintiff attorneys whip out their retrospectoscopes, point their fingers, and say “that was an additional unnecessary risk.” Your proposed definition does nothing to improve the situation.

      I never equated transports between facilities and transports from a scene. I did use an alternative argument to show that regardless of where the transport begins, requiring paramedics to second guess the decisions of physicians is a very bad idea.

      “Sending appropriate personnel on transports” is more administrative doublespeak. If you are saying that paramedics are not qualified to transport patients in your five categories, then why are paramedics allowed to go to 911 calls to patients who could be in those categories? Dispatch should send OB nurses to anyone calling 911 who is pregnant. Paramedics can’t handle a patient in active or preterm labor, right? Pediatric intensivists should be sent to calls where children under six chould be critically ill. Respiratory therapists should be on any call to a patient with dyspnea because those patients could possibly require intubation. While we’re at it, why don’t we pull trauma surgeons out of surgery to go to the scene of an accident. Funny how you only want the paramedics to act as “patient advocates” half of the time.
      Why is it that paramedics have the competence to go to home calls for patients who may be critically ill, but they don’t have competence to transport those same patients between hospitals after the patients have been stabilized?
      Your argument unravels regardless of how you try to answer that question.

      I agree that medics should be required for certain transports. Intubated patients – probably. Vasoactive drips – probably. There was an article in Pediatrics showing that specialized transport teams improve outcome for critically ill children. Absolutely.
      Unstable vital signs? Pleeease. His heart rate is 101. We’re not taking him. His respiratory rate is 21. Call someone else.
      Paramedics can already call medical control if they don’t feel comfortable transporting a patient. All this verdict will do is make paramedics second-guess themselves and feel “less comfortable” transporting any patient who has a potential for a bad outcome. No one wants to be at the receiving end of the next $10 million judgment. If there’s any possibility that a patient might have a bad outcome during transport, now paramedics will be more likely to just call someone else.
      Then the patient in need of specialty care waits. And waits. And waits. How many patients will suffer bad outcomes from waiting as the “golden hour” ticks away? “Sorry, the helicopter isn’t flying, this patient is having an active MI, and he failed thrombolytics. After reviewing his laboratory exams and his most recent EKG, I don’t feel comfortable transporting him to the nearest hospital with a cath lab.” You’ll need to call someone else.
      Even federal EMTALA laws don’t require certainty that a patient won’t suffer a bad outcome during transport.

      Despite a lack of studies showing a benefit to the practice of using specialized transport teams, your logic has the potential to become yet another “standard of care” without a basis.
      Sorry, but I think our paramedics … and our patients … deserve better than this.

      • I see nothing wrong with a paramedic “second-guessing” whether or not an interfacility transport is being conducted in a manner that is safe or appropriate for the patient. In fact I believe that paramedics (and nurses) have a duty to respectfully question authority when it comes to patient safety.

        Sending appropriate personnel on transports isn’t “administrative double-speak” and labeling it as such does nothing to refute my argument. This is simple risk management, I feel that any reasonable person can see the difference between a 9-1-1 call and an interfacility transport.

        What you refer to as “my logic” is really just a combination of best practices derived from various articles and policy statements, including those of the American College of Emergency Physicians. So I would suggest it’s already the standard of care.

        Considering the current tone of this discussion, and the fact that no one’s opinion seems to be changing, I’m happy to leave everyone to their own conclusions. This is ultimately a topic that needs to be addressed at the local level by every EMS system that performs interfacility transports.

        Have a wonderful day.

      • Tom,

        While I believe that you mean well, your blithe and unsubstantiated assertions about “best practices” and “standard of care” scare me.
        Show me references to the “best practices” in such situations. Show me the consensus on why your position is the “standard of care.” We’re talking about policies that will affect emergency medical transport all over the country. Inner city and rural transports. Abundance and dearth of providers. Your conclusory statements don’t cut it with me.

        You flippantly cite “various articles and policy statements” as support for your assertions, yet conveniently fail to cite even one of them.
        Here is a link to all of ACEP’s EMS policies. Please do show me the ACEP policy statements that support your position.

        You realize that your logic fails when asked to justify why “appropriate personnel” are required during interhospital transports, yet are not required when responding to a 911 call. Instead of trying to answer the question, you dodge it with more administrative doublespeak. “It’s simple risk management,” of course. Sure it is. Retrospectoscope included.

        You state that paramedics “have a duty to respectfully question authority when it comes to patient safety.” It’s obvious that these paramedics DID question authority prior to the transport because they were told that the physicians did not believe there was an imminent risk of delivery. In your prior comment you mention that the EMTs relying on the doctor’s statement that “‘I didn’t think she’d deliver’ isn’t good enough.” So questioning authority a little bit apparently isn’t good enough in your book.
        Notice though, how you never did mention … what IS good enough? How much questioning does a paramedic have a “duty to perform” (more of your unsubstantiated doublespeak) before determining that a transfer is “safe” and how should the EMT make that decision?

        Of course, it’s convenient for you to suggest that everyone address issues like this at the “local level”. What a “feel good” idea.
        How do you know that transfers weren’t already addressed at the “local level” in the Florida case?
        If they were addressed at the “local level” then I’m sure you would have found some other nit to pick and pointed at how egregious it was that no one found it before.

        Arguments like yours scare me because they give the lay public the impression that medicine should be perfect. Bad outcomes should never occur and if they do occur, they are because some knucklehead medical provider didn’t follow the “best practices” that you can’t define or the “standard of care” that doesn’t exist. Bad outcomes don’t just “happen”, they happen because no one “talked about things beforehand” or because no one “promoted patient safety.” All vague, seemingly reasonable reasons why the bad outcome should never have occurred.

        Meanwhile, some poor paramedics get roasted for doing an exceptional job and the availability of EMS services in some community is jeopardized because Monday morning quarterbacks can find some theoretical fault for an outcome that was, “to a reasonable degree of medical certainty” unavoidable.

        Be afraid people. Be very afraid.

      • Are you really lecturing people for making vague assertions based on minimal knowledge of the facts and the dangers of the public getting the wrong idea as a result?

        Really? Irony, thy name is Whitecoat.

      • Really, though, I know you were smiling when you were typing the reply to Tom. There’s no way you posted the original post and then accused him of that without chuckling to yourself.

  20. The best damn OB in the world could have delivered this kid, in the most state of the art facility and it still would have had CP.
    This case disgusts me.

  21. Tom:

    “At a minimum, a nurse (or a physician in the absence of an OB nurse) should have been sent along on the transport.”

    And what is he/she going to do? The exact same thing as the paramedic. Or, get in the paramedic’s way.

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  23. This is the most absurd thing I have ever read. I am speaking with EMS background. Everything that was done is just as it should have been done. EMT/Medics are trained to handle extremely bad situations with very little equipment. Even if you would have had a nurse or doctor on board they wouldn’t have been able to do any more then the Paramedic, you are limited to the equipment you have on your rig. Even if they had been able to get Air Med to transfer the patient… it would have still had the same outcome, as it was 15 minutes into the ride that the child was born… 1 hour transport via ground is about 25 mins via air, so that would have made no change. EMS CANNOT refuse transport, if you refuse transport guess what… you get sued. You give the best possible care given the circumstance and pray you don’t get sued. For you guys to say that Paramedics/EMTs are a LOWER level of care, I laugh, HA… Do you realize what we do in an uncontrolled environment, using our limited equipment to increase the pt. chance of survival significantly if not save them all together? In my experience the patients EMTs lose are the patients who didn’t have a chance to begin with no matter who responded on scene. These guys did an AMAZING job saving that child and are slapped in the face for it… hmmm… Yeah, I think this verdict will hinder pt. care and it will prevent people from joining the service… Maybe that’s what needs to be done, all EMT/Medics need to go on strike so people can see what they are missing, get your self out of that mangled vehicle, having a heart attack get yourself to the hospital. EMS providers are taken for granted all too often, you people need to wake up, think about it next time you have to call 911, do you really want the person who responds to be thinking about potentially getting sued or trying to save your ass? Just disgusted by this whole thing! America is way to sue happy!

    • Great post…I am an ED doc with 15 years as a paramedic and agree totally. The Paramedics did a great job doing what they do. SAVING LIVES!!! We have people posting on here about refusing the transport, or having a nurse or doc on board etc… They obviously have never worked in the field before. We have a nationwide shortage of medics, nurses and docs..yet we should start staffing ambulances with all of the above..makes no sense. Every time the patient leaves the care of a doc to be transported anywhere for any reason with any diagnosis..is is a decrease in level of care for the out of hospital time in hopes that the patient get to the other facility with more resources. Its what we do…the jury doesn’t understand it, and the plaintiff lawyers loves it. Lets get 6 Er docs and 6 paramedics as the jury and do another trial…we can’t do that because that would be a “jury of our peers” and that doesn’t pay big bucks….

  24. I’ve been discussing this case with my (non-physician scientist) spouse. He had a lot of good comments about acceptability of risk, training levels of those involved, and normal procedure with regards to transporting women who are in labor (preterm vs/ active, etc). He’s good for the “lay” person perspective, though as a uber-logical and fatalistic scientist, he is not what the prosecutor would have wanted for the jury.

    I think that there everyone involved was faced with an impossible decision. A woman in pre-term labor who could deliver at any minute OR not for weeks at a hospital not capable of providing anything more than NRP (if that). Choice (A) – stay at the original facility until delivery (which, again, could be WEEKS) without OB facilities or a NICU, (B) to transfer to a close, slightly more advanced facility (sounds like a Level 2 nursery)who would likely stabilize and transfer or (C) to transfer to a farther away, but most skilled (Level 3) NICU. Another decision point would be to use the “normal” EMS transport (I assume paramedics) or to request a NICU specific transport service. Some Level 3 NICUs will send either a NNP or NICU doc along to pick up a preemie, though I don’t know if they would do this for a woman “just” in preterm labor.

    This could have easily happened at my last hospital: Level 2 trauma one hour from the nearest Level 3 NICU and about 15min from a Level 2 NICU. The policy was not to transport anyone in ACTIVE labor (pre-term was OK). Active labor was to be delivered by the ER docs and then transport mom and baby. In the interest of disclosure, I am a PEDS ER doc. I did three years of a Peds residency, the maximum amount of NICU (not by choice) and all my residency moonlighting was done in a Level 2 NICU. I was the best trained person in my last hospital to care for an “uh oh” preemie delivery. And I would have been intubating and CPR-ing with one hand and on the phone with the nearest level 3 with the other.

    From what I understand, most ER residencies do one month of NICU, usually as an intern (when you can barely find your butt with both hands – if I remember my internship correctly). NRP was not required at my old hospital for the ER, nor was it required during my Peds ER fellowship. I can intubate an insect, but that doesn’t mean I could save a 25-26wk preemie. I MIGHT have a better chance than the paramedics at saving that kid, but I might not. Would an ET tube helped more than a BVM? CPR done differently? Hell, I doubt my pharmacy stocked surfactant (I know it’s not in the ER pyxis). I would have made the same choice that the original ER doc did. That baby had the best chance if mom got to a Level 3. And unlike a full term birth, preemie births can happen in minutes after water breaks.

  25. I transfer people a lot, working at a rural hospital with few subspecialists. Prior to leaving, the patient signs a form in which the risks of transfer are stated. I always write down, “deterioration of condition during transfer”. The fact is that the risk of transfer is less than the risk of remaining in the lower level facility or we wouldn’t be transferring. What is so hard to understand about that? The level of transfer used is what I judge is needed – basic life support versus ACLS. To use a level lower than needed is wrong but to use a higher level is a waste of resources and might put another patient at risk who needs it. ACLS ambulance crews aren’t stocked in the supply department, they are a limited resource. Using Tom’s hypothesis EVERY transfer would involve ACLS, as there is always a chance something unexpected would happen and failure to use this level is not taking “every precaution”.
    Also, more training DOESN’T NECESSARILY MEAN better outcomes on a transfer. If I ever need to have cpr done on myself I’d much prefer it be done by paramedics who do it every day than a cardiothoracic surgeon who never does it. What can be done in an ambulance is pretty damn limited. If the finest neonatologist in the world were in that ambulance I doubt the outcome would be different.
    I don’t know of too many situations where physicians are available to ride in an ambulance. In this particular case, I doubt you could find an obstetrician who would ride along – availability and liability reasons (and hearing about this case would reinforce my decision NOT to get involved if I didn’t have to). Sometimes the best you can do is get the patient as quickly as possible to a higher center. This IS risk management.
    There’s an Indian myth or legend that the world is on the back of a giant turtle, who is on the back of a still bigger turtle, etc. If you ask what is at the bottom, the answer is that it’s turtles all the way down. You can always say that more should be available than you have but we work in the real world.

  26. It seems to me that this case is really striking a chord with many of you, yet if you believe it’s wrongly decided, you’re not really doing the very obvious thing to make sure it doesn’t happen again.

    Were I as incensed as you, I would:

    1. Get the transcript (all you have to do is find out which judge and call his court reporter). It is entirely possible that a journalist trained neither in medicine or law didn’t give you all the facts you need to make a decision in a 500 word article about a multi day trial with a lot of evidence. Stop channeling your inner Bill Frists and get educated on it before getting all bent out of shape.

    2. Examine the expert testimony.

    3. Decide if you agree or don’t that the standard of care was met.

    4. If you don’t, see if your position is shared by many of your colleagues (after they’ve read the evidence of course) and the leaders of whatever trade association represents the defendants.

    5. Promulgate a standard agreed on by those actors in the industry, and sanction anyone who testifies that the standard was not met. Publish that standard – make it clear that this is how one is to act when faced with a situation like this.

    Someone pointed out earlier that you’re mad at the one person who actually did his job well – the plaintiff’s lawyer who successfully represented his client. He’s not going to start doing a subpar job for his client because you ask. So why don’t you address what you CAN fix?

    Remember, damage caps wouldn’t mean much in this situation, since the life care plan was likely in the multimillions anyway. Sure, you’d have told this poor kid his lost quality of life was what a surgeon makes in a year, but if you’re scared about multimillion verdicts that’s cold comfort when you’ve got that much in economic damages.

    So, do like WC did last week when he went to Washington – ACT.

  27. Matt, Your ideas are good. However, there are many guidelines out there for things like when to order CT scans for injuries, when to order CT scans for headaches, when to give thrombolytics for strokes, when to order mammograms (if you want to kick a hornet’s nest try wrestling with this subject). We are swimming in guidelines. They don’t always protect the doctor very well if the patient has a bad outcome. I truly wish they did. But the idea is good.

    As far as the plaintiff’s attorney being the one person who actually did his job well — please read the posts by EMT’s, Pediatric ER specialists, etc etc etc.? That is, the guys who actually should know what to do in this situation.

    • “They don’t always protect the doctor very well if the patient has a bad outcome. I truly wish they did.”

      Something is protecting them, because there are a heck of a lot more bad outcomes than lawsuits. However, I’m not talking about a guideline, I’m talking about stating “X is the standard of care when Y.”

      As to the posts of the other EMTs and such, literally no one here has seen the evidence. At this point I’m inclined to defer to those who sat through multiple days of trial than those who read short newspaper articles. They are speculating. We KNOW the plaintiff’s attorney did his job well.

      • Once again Matt you fail to comprehend the concept that in this country as far as liability goes the “standard of care” is actually defined on a case by case basis by 12 people in the courtroom. Following Clinical guidelines don’t necessarily protect . And in the ER almost every day I see a unique case that would not fit into any type of accepted guideline

      • Steve you continuing to say this doesn’t necessarily make it true. I realize many people think their beliefs are objective facts, but I promise it’s not the case. The SOP for most malpractice cases once they come in the door and an attorney decides to look at them further is to hire a consulting expert who will never testify to give their opinion as to the viability of the case. You’re not shopping for a testifying expert at that point, you’re wanting to confirm that a case exists. How? By having that expert review the standard of care and tell you if it was met.

        I didn’t say there wouldn’t be unique cases, but from the comments it does not appear that this situation is all that unique.

        However, if you’re going to resist the idea of establishing them in some situations because you can’t agree, you really have no standing to bitch when another physician testifies that it wasn’t met.

      • Got me there Matt, so you are saying that usually the SOC is decided by a paid one expert witness and an attorney weighing what he thinks the case might be worth to him. My bad, thanks for clarifying.

      • Again, Steve, you’re not reading closely. The consulting expert gets paid regardless of what he finds the viability of the case to be. He won’t make any more money beyond the examination because he won’t be testifying.

        Think about it – the plaintiff’s attorney, whose time and money are at risk, has an economic DISincentive to pursue a case that has no merit (yes, I’m sure it occasionally does still happen), so getting an unbiased opinion is important. Smart allocation of resources makes sense no matter what you do.

        You seem to have trouble with the concept that the expert is paid to review the file. I’m sure the attorneys on both sides would like to get expert opinions for free, but I am unaware of any physicians offering that service for free. Are you?

        You also seem to have trouble with the attorney assessing the economic viability of the case. I’m not sure why. You I assume make investments don’t you? Do you not assess the viability of a return before putting your money and time on the line?

      • And if that expert wants to continue being called to review those cases, they WILL be more sympathetic to the plaintiff.

        I know several of these professional whores who haven’t an ounce of ethics in their body. Money is money.

        But just keep telling yourself what a noble deed they’re doing.

      • I’m reading just fine. I know he is getting paid regardless, but he and the attorney are effectively deciding the SOC. When it goes to a trial the SOC is decided by the jury. And when the whore finds what the attorney likes the whore gets to make a lot more money throughout the trial. They don’t hire a second whore when they find as easy one they like. (I have been on the other end of it twice in trial. The attorney got nothing, but the whore loved every minute of it.) I have no problem that an attorney assesses the viability of a case….but then don’t claim that you are benevolently walking on superior moral ground just fighting for ‘victims’ as you like to put it.

        And actually I am mandated/forced/compelled to give expert witness testimony for free probably 2-3 times a year by the DA or Public Defender. If you know how to get out from this subpoena abuse without being in contempt of court I am all ears.

      • Actually, there are two experts who state the standard of care at a trial, at a minimum.

        But again, you’re not reading clearly. Most plaintiffs firms (and defense for that matter), will have a DIFFERENT expert pre-trial or early in the case than they have testify. The first one is the one I’m referring to.

        If you want to call every physician who testifies for the plaintiff or defense at trial a “whore” because they get paid for all their time, well that’s your conclusion. Seems a bit broad, but too each his own.

        “but then don’t claim that you are benevolently walking on superior moral ground just fighting for ‘victims’ as you like to put it.”

        Never have. I do feel better about working for the plaintiff’s side than for insurers, but that’s in large part due to not having to deal with all the insurance paperwork, which I’m sure you can understand. I like helping people, but I know very quality people on the other side. In fact, malpractice defense lawyers are usually top notch attorneys.

        “And actually I am mandated/forced/compelled to give expert witness testimony for free probably 2-3 times a year by the DA or Public Defender.”

        That’s a criminal matter, and I’m sorry you feel it to be so intrusive to do your part to help with the criminal justice system. Perhaps we can get a Constitutional amendment to free you up from your civic duty.

      • “And if that expert wants to continue being called to review those cases, they WILL be more sympathetic to the plaintiff”

        This is the kind of statement made by someone who has no concept of the economics of the situation from the plaintiff’s perspective.

        I didn’t claim they were doing a “noble” deed. They perform a service for a fee, same as you. I’m not in the habit of judging the personal morality of people I haven’t met and don’t know well.

      • “Actually, there are two experts who state the standard of care at a trial, at a minimum.

        But again, you’re not reading clearly. Most plaintiffs firms (and defense for that matter), will have a DIFFERENT expert pre-trial or early in the case than they have testify. The first one is the one I’m referring to.”

        Absolutely 100% BS. I know you don’t have much actual courtroom malpractice experience. I have far more than you with my trials. In each there was the plaintif only had one expert witness which was also the one they retained for pretrial opinion.

      • My friend, I doubt you’d know this but your consulting expert is often not discoverable. So you have no way of knowing who the plaintiffs utilized. Unless they inexplicably shared their trial prep with you. Did they?

    • And actually I am mandated/forced/compelled to give expert witness testimony for free probably 2-3 times a year by the DA or Public Defender. If you know how to get out from this subpoena abuse without being in contempt of court I am all ears.

      Are you called up as a fact witness(i.e. treating physician) or expert witness? Big difference.

      • very common to be called in as a fact witness but then once the PD/DA has you on the stand the line of questioning directs toward expert witness territory.

  28. disgusting.

    also, as always am amazed with how much time & energy people are willing to waste down here.

  29. Pingback: Why lawyers and dumb jurors threaten your health « For What It’s Worth

  30. I am a volunteer EMT with a rural ambulance service in Idaho.

    We are the only ALS service for a county bigger than the State of Deleware. We have a population of 11,000 people.

    Our hospital has 20 beds, 1 OR, 3 beds in the ER. We do have a CAT Scan, and 3 days a week, a mobile MRI is available 8-5.

    The nearest trauma center is 75 miles away, in Boise. The nearest air ambulance is 25 miles away, but it will take you to the trauma center. There are no burn centers in the State. There is a very good NICU in Boise. But again, it is 75 miles away.

    We are lucky, the air ambulance service stationed a helicopter so close just in the past 18 months. Prior to that, the closest helicopters came out of Boise.

    We average 1 ALS inter-facility transport to Boise per day. Each and every day. The hospital averages at least 1 air transport per week.

    The defensive solution for our Doctors is to rely on air transport more. This will greatly increase the costs to our patients. It also will affect the financial viability of our ALS service.

    If the voters in our community don’t approve a tax-override tomorrow, our ALS service is in danger of being lost anyway.

    Increased air transport will help the air transport company, but will put added financial stress on our ALS service.

    I think Matt places too much reliance on juries and their ability to “examine the evidence”. It has been proven over and over again, that all too often juries have empathy for the struggling plaintiff with the sick child. The plaintiff is looking at a lifetime of huge medical costs. The jury wants to help them. They don’t really understand the science. All think is “someone should help these people”. All juries don’t do that, but way too many do.

    • “t has been proven over and over again, that all too often juries have empathy for the struggling plaintiff with the sick child.”

      Considering that physicians win in front of the jury 75% of the time, I’d like to see where this was “proven”.

      • If physicians win 75% of the time, it seems this is proof enough that too many money seeking cases are brought against docs. When the physicians “win” how much money and time does this still cost them to defend themselves and does the “loser” repay them. I think we all know the answer is NO. We have a winner take all system…Vegas style…play and if you win you win big…if not who cares about the doctor his insurance or his time..he WON his case

  31. Disgusting verdict, but Matt isn’t that far off regarding malpractice costs. Lakdawalla and Seabury found in an NBER article last year that the overall economic effects would be negligible, but that perhaps a targeted approach might be more effective. They also found that for every 10% reduction in malpractice associated costs, there was a 1-2% increase in patient mortality.

    These are the parts that aren’t always talked about.

    Also, Texas in 2003 enacted the strongest malpractice reform to date, but a study found that testing expenditures increased by 50% after the reform passed. Medicare expenditures, which were on their way down, increased as well. So, cost savings not so much….

    Just wanted to provide an economics perspective.

  32. Once upon a time a doctor performed a questionable surgery on my mother in law, and she died on the table. We consulted attorneys but none would take the case as she was old and ill and there was little chance of a large recovery. The aging medical examiner saw nothing wrong with the care provided. We spoke to the medical society in the state but they could not/would not tell us anything about this doctor.
    This doctor went on with his career until one day he nicked an artery during an appy, but closed anyway. The teenage girl suffered anoxic brain damage with severe lasting disabilities. Then the truth about this doctor’s frightening record came out and he lost his license.
    Too bad no lawyer (or the medical society) would do anything when my mother in law died. Could have prevented a lot of harm.

    • While that is unfortunate and sad and potentially an indictment of medical societies and lawyers I am unsure how it is in anyway relevent to this discussion.

      • My apologies. I suppose I was trying to make the point that there can be bad actors on any side. In most of the posts above, each side mostly defends its own profession.

        Bowing out,


  33. I still don’t get it, and we don’t need the trial transcript to discuss this case. And I don’t see it as a malpractice case. The EMS was sued. I still don’t understand why though. As mentioned above, the transfer form should have said something about loss of life or limb or function resulting from delays in treatment and transport. Why was this not enough to protect the EMS?

  34. So let me get this right…If I transfer the pt to a facility who can handle the situation..I get sued…If I keep her without resources I get sued…if the paramedics refuse they get fired or sued…if they transport and she delivers they get sued…if they don’t do CPR and help the newborn they get sued…but if they do and save the child they get sued…seems like a theme here…thank goodness the jury of 12 highly intelligent professionals with a high level of medical training (ie…peers ) knows best….As a paramedic of 12 years and now ED physician it is tough for everyone caring for a patient in this situation, and tough for the plaintiff lawyer too. He had to work hours upon hours for his millions….

  35. Congratulations Charles for a cogent analysis to which even Matt had no retort. Good way to end this thread. Until the next time…

  36. Adan R Atriham on

    And that why…. I am not practicing in the US any more. Now I jump from country to country helping those in need and enjoying medicine with out the fear of unlawful lawyers stepping on me white coat.

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