A no-win situation: When medical director orders violate policy

Should Kansas providers face discipline for not transporting a patient who was breathing?


The case of the seven Kansas EMS providers facing discipline after withholding treatment for a self-inflicted gunshot to the head is as troubling as it is frustrating. It is one of those cases that proves conclusively that, sometimes, EMS providers simply cannot win.

What happened. You may recall that on June 19, 2019, a 31-year-old man put a gun to his head and pulled the trigger. Sedgwick County EMS providers responded and arrived on scene within two minutes. According to a Wichita Fire Department paramedic, the patient reportedly had no pulse and was not breathing. That should have been the end of the very sad story. Unfortunately, the story had only just begun.

After one round of CPR, paramedics found a pulse – at which time, the on-scene team care team leader, Paramedic Timothy Popp, contacted and sought the advice of Sedgwick County Medical Director, Dr. John Gallagher. That was about seven minutes after arrival.

"Primum non nocere – first do no harm – is literally the first rule EMTs and paramedics are taught and should be the easiest rule not to break," writes attorney David Givot. (Photo/Getty Images)

According to the investigation, Popp told Gallagher that the patient had no pulse and only snoring respirations. Bodycam footage from police officers on-scene showed that the patient was breathing throughout the ordeal.

After consultation with the medical director, Dr. Gallagher, and presumably at the doctor’s direction, the paramedics discontinued resuscitation efforts. According to Dr. Gallagher in a statement he made to the local media, the injury was “incompatible with survival.” He went on to say that the paramedic “correctly identified that there was going to be no change in outcome for transport to the hospital.” Once again, this should have been the end of an increasingly tragic story. It was not.

Some 10 minutes after efforts were discontinued, Popp called Gallagher again to report that the patient had a “strong pulse.” Gallagher said although the patient would not survive his injuries, he could “theoretically find himself on a ventilator and going for organ donation.”

Twenty-two minutes after the second call to Dr. Gallagher, Popp called a third time to express concern about the fact that it appeared the patient was suffering – as he lay there dying, yet breathing and with pulses, and groaning in what Popp believed to be pain. At the paramedic’s request, Dr. Gallagher ordered and paramedics administered 500 mg of ketamine.

Roughly one hour after the shooting, Dr. Gallagher arrived on the scene and declared the patient was “unsalvageable.” Dr. Gallagher concluded that it was only a “matter of time” before the patient’s brainstem stopped working, causing the patient to die. Gallagher remained on the scene for almost an hour. While he was there, he suggested that EMS leave the patient with police and gave instructions that he be called when the patient “concluded dying.” The police wanted no part of that idea, so fire department EMTs remained on the scene.

Shortly after 3:00 p.m., nearly three hours after the shot was fired, the patient’s vitals remained unchanged. A fire department EMT called Dr. Gallagher to ask when they should begin care. The EMT was told by the doctor to call back in an hour if nothing changed. Dr. Gallagher later called in a hospice team that could not do anything because they lacked both equipment and permission from the patient’s family.

Approximately five hours after EMS initially arrived the first time – having left the dying man with fire department EMTs – paramedics returned to the scene to administer another 500 mg of ketamine to ease the moaning that had resumed – bystanders outside could hear it. The patient was next covered with a white sheet (yes, he was still breathing and had a pulse) and moved to a waiting ambulance that transported him to a hospice facility where he died 10 and a half hours after the shooting.

After an investigation, the Sedgwick County Medical Society – a committee of physicians – agreed that Dr. Gallagher had done the right thing and that both he and EMS provided appropriate care. Nevertheless, the Kansas Board of EMS – the agency that governs paramedic licensure in the state – vehemently disagreed and moved to significantly discipline the providers and called for an investigation into Dr. Gallagher.

Do no harm

Primum non nocere – first do no harm – is literally the first rule EMTs and paramedics are taught and should be the easiest rule not to break. I would argue, here, that both Dr. Gallagher and the EMS providers lived up to that rule … technically. They did not shoot the patient and they did not do anything that put the patient in a worse position than he would have been in had they not responded at all, so, yes, technically, they did no harm.

However, it seems that, from a patient-care-driven perspective, everything about what Dr. Gallagher and EMS providers did (or didn’t do) failed, if not the patient, the system.

Operating in the Penumbra

Penumbra is best defined as a space of partial illumination between the perfect shadow on all sides and the full light … the gray area that is neither light nor shadow. That, you already know, is where much of EMS happens.

On the one hand, everyone knew how this situation was going to end. This patient was never going to survive the gunshot to the head, and acknowledging that fact is pragmatic, not cynical. It is likewise understandable to not want to expend valuable and limited resources to try and change that unchangeable fact. In that regard, Dr. Gallagher was correct in his assessment and direction as the Sedgwick County Medical Society concluded.

On the other hand, EMS providers don’t get to make such determinations in the field, which is precisely why there are governing protocols; pulses and respirations get treated and transported and the rest is left to the receiving hospital.

Conflicting authority

Had the EMS providers on-scene made the determination to leave a patient with pulses and respirations at home to die, absent orders from the medical director, this analysis would be finished by now, but that is not what happened.

In most areas, including Sedgwick County, to my knowledge, paramedics operate under the license and at the direction of a base hospital physician and/or medical director.

Governing agencies and authorities create specific policies, protocols and procedures (scope of practice) for providers at various levels to follow. Providers do so in furtherance of their practice under the direction of a supervising physician and, where reasonable, can deviate (somewhat) from policy and protocol within the scope of practice, when at the direction of the supervising physician. In fact, it can be said that providers are dutybound to follow the orders of – let’s say – their medical director.

What happens, though, when orders from the medical director diametrically conflict with established policies, protocols and procedures? What happens when the medical director directly orders a paramedic to do a thing the paramedic knows to be well-intended and in good faith, but unambiguously violates established policy?

The Nuremburg Defense

We know from history that the Nuremburg Defense does not exonerate unlawful conduct. If your history is a little rusty, the Nuremberg trials were a series of 13 trials carried out in Nuremberg, Germany, between 1945 and 1949. The defendants, who included Nazi Party officials and high-ranking military officers, along with German industrialists, lawyers and doctors, were indicted on such charges as crimes against peace and crimes against humanity. Their defense was singular: they were just following orders. “I was just following orders” has become known, colloquially, as the Nuremburg Defense and it is not enough to shift liability completely. At most, it can be used in mitigation. Such would be the case here.

Indeed, the EMS providers were following the direct order of the most superior medical officer and that fact must be taken into account when considering the totality of the circumstances in mitigation. But was the order reasonable?

The reasonableness test

Under the law, an act is considered reasonable when “a reasonably prudent provider with the same level of training and experience in the same locale and under similar circumstances would engage in that act.” There are various versions of the same verbiage and they all mean the same thing.

So, we are left with two questions:

  1. Was the order reasonable?
  2. Was it reasonable to follow the order?

Given that I am generally defense-minded, I would argue that, for Dr. Gallagher, the order was reasonable. In fact, the Sedgwick County Medical Society – a committee of physicians – agreed that Dr. Gallagher had acted reasonably for a physician. That takes care of question one.

Question two, on the other hand, is altogether different. As much as I want to tell you that I believe the EMS crew acted reasonably in following Dr. Gallagher’s order, I simply cannot.

While the first non-negotiable rule in EMS is primum non nocere, first do no harm, the second and equally non-negotiable rule in EMS is erratur ex parte patientis, err on the side of the patient. The first inkling Popp had that something was not right about leaving the patient – breathing and with pulses – at home to die, should have been enough for him to follow local policy and transport the patient to the hospital. If he was concerned about potential consequences for disobeying Dr. Gallagher – in this very specific instance – there is another, lesser-known Latin phrase: facilius est, quam ut veniam permission – it is easier to get forgiveness than permission. Had Popp transported the patient, he would have had policy, protocol and procedure to protect him from consequences.

Furthermore, Popp’s instinct should also have been a clear indication that a reasonable provider with the same level of training and experience in the same locale and under similar circumstances would have transported the patient, if not to be saved – which was not going to happen – to, at least, afford the family an opportunity to say goodbye and maybe even make a determination about organ donation that could have saved or improved many other lives. In that regard, I don’t think EMS providers, starting with Popp, acted reasonably in following Dr. Gallagher’s order.

Is discipline appropriate?

The short answer: no.

The longer answer considers the totality of the circumstances.

Factors in aggravation:

  • EMS violated local policy requiring transport to the hospital
  • The patient’s family was deprived the opportunity to say goodbye and consider organ donation
  • Denying transportation was likely not reasonable
  • The patient seemed to suffer

Factors in mitigation:

  • The patient was not going to survive
  • Dr. Gallagher was correct in his assessment (according to the investigation by the medical board)
  • Popp and the other EMS providers, acting in good faith, followed a lawful order by their medical director

Whenever the subject of discipline comes up – as an EMS defense lawyer – my first thought is to consider what purpose discipline would serve. Discipline should serve to remediate and educate such that the behavior does not repeat, and care necessarily improves. I believe in this context that discipline intended to serve a punitive purpose is a wasted opportunity to improve patient care and a lost teachable moment. I learned long ago that fear is not a motivator for otherwise good providers, which this crew appeared to be. Discipline for the sake of discipline or employed simply to send a message is draconian; it is a relic of the past and of no value to a forward-thinking, forward-looking EMS system.

While arguably technically unreasonable, nothing about Popp’s conduct or that of any other EMS provider on the scene seems malicious and I don’t see anything in the story that suggests anyone on the scene acted in bad faith. What I see is an unwinnable situation in which these providers did the best they could all things considered.

I cannot imagine a universe in which every single person involved in this call did not learn multiple valuable lessons that will live on for the duration of their respective careers. So, no, I don’t believe any of them deserve to suffer discipline.

Having never met any of them and only knowing the details of the story that were presented in the media, I am confident that they have suffered enough about a call that will haunt them forever. To me, that should be punishment enough – if they have learned from it; if their care has improved because of it.

To the family of the patient, I offer my most sincere condolences for both the loss of their loved one and the missed opportunity to say goodbye. I hope they will someday know peace.

To the providers, I offer only hope for the strength to weather this storm and continue to care for those who cannot care for themselves, the courage to always and in good faith err on the side of the patient, and the wisdom to handle every call better than the one before.

Read more about this incident

Read more about this incident

State board cites 7 Kan. responders for failing to transport patient to hospital

Though injury was deemed "incompatible with survival," bodycam footage and records show patient was alive for hours before transport to hospice

 

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