Legal explanation, arguments for fire engine transport of sick child

For every action in EMS there are consequences — sometimes positive and sometimes negative — but sometimes you do what you gotta do


Sometimes a split-second decision opens a can of worms. And sometimes a split-second decision smashes that can of worms open with a sledge hammer. EMS providers know that there’s no time to wonder which it will be; sometimes the can just needs to be opened.

Such was the case in Fredericksburg, Virginia when Capt. James Kelley and his crew arrived to find a toddler unresponsive after an alleged seizure and, rather than wait for the ambulance, transported the child in the fire engine to the hospital — three minutes away.

Kelley and his crew are credited with saving the child’s life. In return and paradoxically, he and Sgt. Virgil Bloom were suspended and subsequently reinstated for violating the policy that prohibits transporting patients in non-transport vehicles.

Our decisions open that can of worms
Many years ago, I wrote about doing what’s right versus doing what’s allowed in EMS. I pointed out that, "…for every action there are consequences, sometimes positive, sometimes negative but always consequences. You have to sleep at night and you have to look yourself in the eye every day. If you can sleep at all, what do you dream? When you look at yourself, who do you see? Finally, ask yourself a simple question … What consequences are you prepared to face and how willing are you to face them?"

The case at hand demonstrates my point exactly. Kelley and his crew were faced with what they believed to be a life-determining situation and they responded as most of us would; by choosing life. As an EMS provider, I commend them.

The law, on the other hand, cannot readily see the penumbra; the spaces or colors in between black and white. By design, the law sees fact for fact and compares facts to laws as written. The law is intended to be blind — that sword cuts both ways.

Malum in Se: Wrong or evil in itself
The law sees some things as being wrong because by their very nature they are wrong; murder, rape, robbery, etc. This case is obviously not that.

Malum Prohibitum: Wrong because it is prohibited
On the other hand, the law also recognizes that some things are considered wrong because the book says so; those things are frequently subject to change as society matures. In the not-so-distant past, interracial marriage was illegal and it was legal to smoke on an airplane. Society has deemed both of those laws worthy of change.

Presently, it is simply Malum Prohibitum for an EMS provider to transport a patient in a vehicle not designated as a patient transport vehicle and there is no room for interpretation. Someday, maybe even as a result of cases like this, society will bend and the rules will change. Until then, the laws are what they are.

Arguing in favor of the paradox
Emergency responders are exactly that: emergency responders. They are tasked with the very difficult job of assessing situations, assessing patients and making split-second decisions about how best to manage everything.

In most cases, the law recognizes how challenging it is and affords some leeway.

This crew arrived to a situation they reasonably believed to require action more immediate than waiting an unknown length of time for an ambulance. It does not really matter whether they were right; it is only necessary that their conclusion be reasonable.

I was not there and I have no reason to doubt them. In fact, we as a community of professionals and as a society must [be able to] trust that they made the best, most rational, most reasonable decision under the circumstances. If we can’t, then the whole system collapses under the weight of uncertainty.

The child was transported successfully and without incident. Moreover, they are credited with saving the child’s life. I don’t have any context for what that means, so I must accept it at face value.

The simplest argument in favor is this: In EMS, you do what you gotta do!

And, I agree.

Arguing against the paradox
Laws, rules, policies, protocols and procedures are all created and implemented to protect patients as well as providers. They are created with an understanding that EMS is dynamic and that we have not come close to seeing everything there is to see or knowing everything there is to know.

The rules of EMS are established — those that established them would say — after careful consideration, analysis and research. Policies are effectively written in the blood of those who came before and violating those policies, even with a happy outcome, is more dangerous to society than not.

Policy and protocol understand that resources don’t always arrive at the same time and that, quite often, transport resources are delayed. The system is designed to manage that reality by having first responders who can initiate care in anticipation of the subsequent arrival of more advanced and or transport resources.

In this case, the law would argue that the fire engine lacked proper restraints and the equipment necessary to manage a radical change in the patient’s condition. The patient could have been harmed just as easily as helped under countless predictable and unpredictable scenarios during the brief transport. The fact that there was no bad outcome is irrelevant, but the potential harm is enough.

The law says that the system only works when all of the pieces and parts function as intended.

And, I agree.

Conclusion
Both angles of the paradox can be true at the same time.

On the record, as an attorney who defends EMS providers, I say that providers can only find true safety, security and protection within the confines of policy, protocol and procedure as intended. Changes and improvements in thinking and practice must be codified before they are implemented; policies are intended to benefit patients above all and they should be followed with great faith and integrity.

Off the record, not as an attorney, but as an EMS provider, I say this: Consider the consequences and how willing you are to face them … then, do what you gotta do knowing there will be a price to be paid.

To Kelley and Bloom, I say this: Kudos!

If this was in California, I would defend you for free.

About the author

David Givot, Esq., graduated from the UCLA Center for Prehospital Care (formerly DFH) in June 1989 and spent most of the next decade working as a Paramedic responding to 911 in Glendale, CA, with the (then BLS only) fire department. By the end of 1998, he was traveling around the country working with distressed EMS agencies teaching improved field provider performance through better communication and leadership practices. David then moved into the position of director of operations for the largest ambulance provider in the Maryland. Now, back in Los Angeles, he has earned his law degree and is a practicing Defense Attorney still looking to the future of EMS. In addition to defending EMS Providers, both on the job and off, he has created TheLegalGuardian.com as a vital step toward improving the state of EMS through information and education designed to protect EMS professionals - and agencies - nationwide. David can be contacted via e-mail at david.givot@ems1.com.

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  11. Pediatric Care
  12. Transport
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