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The Legal Guardian
by David Givot

Doing what's right versus doing what's allowed

A medic has to make a tough life-or-death decision

By David Givot

As I continue to travel the country discussing EMS/Legal issues with providers and agencies of every description, one question comes up over and over and over without fail: If the choice is life or death, is it okay to function within [our] scope of practice but outside medical control? Like most of my answers, this one begins with "Well, I have a client…"

My client attended and completed paramedic training in South Dakota. Among the skills she learned and practiced was Rapid Sequence Intubation (RSI), an aggressive treatment for the most life-threatening circumstances. She went to work in the Washington State, where she was tested again and licensed to perform RSI — a skill she was able to use in the field. She ultimately moved with her husband to Riverside County, California, where she worked as a paramedic onboard a rescue ambulance and built an impeccable reputation for quality care and compassion.

During a particularly devastating wildfire season, it seemed as if most of Southern California was burning. With local resources tapped, firefighting agencies from throughout the western United States converged on the area to either fight on the frontlines or backfill fire stations in outlying communities. Such was the case of a paramedic engine company from Richland, Washington; the same community where my client had worked – and performed RSI. The Richland crew was stationed to cover in the same Riverside County jurisdiction as my client.

As fate would have it, an off-duty fire captain from the very station in which the Washington crew was at the ready, was involved in a roll-over vehicle accident and critically injured. Within minutes, a local engine company — the Richland paramedic-engine company, and my client in her rescue ambulance, were on scene.

They found the fire captain unconscious and unresponsive, with decorticate posturing and respirations in the single digits with minimal tidal volume. The patient's clenched jaw and vomiting made airway management virtually impossible. The Richland crew, operating on mutual aid protocols which allow them to function as if they were home, quickly determined that RSI was indicated. Although RSI is not within the California or Riverside County paramedic scope of practice, everyone on scene concurred that RSI was indicated and an available option for the Washington paramedics.

One of the two Richland paramedics quickly attended to the intubation, while the other saw to the RSI drugs, Lidocaine, Etomidate, and Succinylcholine. Amid the chaos and added tension of the scene, the second Richland paramedic called out for some assistance from the local paramedics who hastily declined for lack of experience, training, or authorization to perform RSI...except my client.

My client, without hesitation, offered to put her experience, training, and out-of-state, though current, licensure to work toward saving the life of the fire captain — who is also her co-worker and friend.

In a flash, my client pushed two of the RSI drugs, the Richland paramedic quickly followed with the third, and the ET tube was placed, secured, and the patient rapidly transported to the trauma center.

The backlash
The patient made a 100 percent recovery and is back to work; however that is not the most dramatic outcome of the call. My client spent most of the next year dealing with the backlash from the agency, the hospital, the local EMS authority, and the State of California. There were investigations, reviews, incident reports, interviews, and intra-agency remediation of the most absurd nature. After all that, she spent yet another year fighting the revocation of her paramedic license by the State EMS Authority.

Ultimately, we brought the matter before an Administrative Law Judge for a hearing that lasted two days. While the story of the hearing is complicated and entertaining, it is too long to discuss here. Simply put, one of the pivotal issues was whether she acted unreasonably and with reckless disregard for California law when she assisted in the RSI.

If she was reckless and unreasonable, then she would face the maximum penalty of full license revocation. If, based on the totality of the circumstances, her conduct was reasonable and not demonstrative of her "rogue medic" propensities, she faced the bare minimum of a small fine and nothing more.

I believe the turning point was when the Judge asked my client one simple question: "If you had it to do all over again, in the exact same situation, after all that you have gone through, would you do it again?" My client sobbed quietly, tears streamed down her face. Then, she took a deep breath, regained her composure and turned to the Judge. She looked him square in the eyes and said, "If I had it to do all over again? The exact set of circumstances? Yes. I would do it again. If the choice is life or death, I will always choose life."

In my closing argument I conceded that my client functioned outside medical control and beyond her California scope of practice. But, I added, she functioned within her training and experience and within her then-current Washington State licensure in a situation that left her with an impossible circumstance and a non-choice; help and save a life or withhold and watch her friend die. "This," I told the Judge, "was a no-brainer. She was faced with a life and death decision and she chose life." In contrast, the attorney for the State EMS Authority argued that my client was a rogue medic with a Wild West mentality who had no regard for the rule of law. In response to my argument, the State's attorney argued that her license should be revoked because "Paramedics are not there to determine what is or isn't a life and death situation" And, much like your reaction, all eyes in the court drew wide open and all jaws dropped. That, however, is the position of the State EMS Authority.

When it was all said and done, the Judge agreed that my client exceeded her California scope of practice, but that her conduct was neither reckless nor unreasonable. He recognized that the confluence of circumstances was a freak of fate and timing and not likely to ever happen again to anyone anywhere, much less to my client. He saidthat although she admitted she would do it again, the circumstances would never present themselves to make it possible to do so. With that, he ruled that a simple fine was appropriate and no further punishment necessary. Months later, with a very minor adjustment, the State agreed.

When I am asked about doing what's right versus doing what's allowed, my answer is this: 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?

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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