3 ways a toxic EMS culture creates liability
Aside from the human costs of a toxic organizational culture, the legal costs can add up just as quickly
By Doug Wolfberg
A good organizational culture in an EMS agency, aside from the obvious benefits of happy and fulfilled personnel, also has legal benefits. A toxic culture (and not the ones growing in an abandoned yogurt container) in an EMS agency can directly contribute to your organization’s legal liability. Here are three notable ways that can happen.
1. A culture of complacency breeds liability.
Much of what is done in EMS is done because it has always been done. This means our culture often prevents us from taking a fresh, critical look at all of our clinical and operational practices.
Red lights and sirens are a good (and dangerous) example. We use RLS consistently and on a daily basis, when available data tells us they don’t help patients and contribute to emergency vehicle crashes that kill and injure providers and the public alike. The use of long spine boards has come under scrutiny in recent years, with many questioning whether or not the data truly support their effectiveness.
Underpinning all of these issues is a culture of complacency. In organizations that like to stick with the status quo, change is not always welcome. Yet as research, data and evidence-based medicine point us in the right direction, too many agencies are slow to embrace emerging best practices.
One of the linchpins of legal liability is whether a provider, or an agency itself, acted within the standard of care. The standard of care is basically what is reasonable under the circumstances. If an EMS agency clings to practices that are not shown to be safe, effective or beneficial, it invites liability by doing so.
Remember that the standard of care is ultimately established by expert testimony in a court case. A well-informed expert witness can take apart a complacent EMS agency whose practices don’t keep pace with the data. For this reason, we must always be vigilant against the culture of complacency.
2. A culture of bad behaviors can bring the lawyers knocking.
While EMS as a profession has made strides in reducing the prevalence of sexual harassment and gender-based discrimination, there is work that still needs to be done. If an EMS agency’s culture still allows or even implicitly tolerates, through silence or inaction, this type of behavior, not only will its people vote with their feet and go work elsewhere, but it will sooner or later find out what it’s like to be on the wrong end of a subpoena.
In this day and age, there is no excuse to see sexually explicit or suggestive pictures or jokes on a station house bulletin board. And in the age of social media, the bulletin board is much bigger and much more public. When our people, even in their off-duty hours, use social media to harass or intimidate their coworkers with sexually inappropriate posts, pictures, jokes or content, the EMS agency’s culture may be the culprit.
It is important to add that courts can find an employer liable for off-duty conduct of this type when it has workplace ramifications, which is often the case. It is also possible that an EMS agency can incur liability even when electronic harassment is done via an employee’s own phone, computer or personal electronic device.
3. A culture of non-compliance can be costly.
Much of our professional time as EMS lawyers is spent defending ambulance services in Medicare audits, false claim act lawsuits and investigations related to their billing and reimbursement practices. While there are of course many technical requirements that pertain to billing, and mistakes can happen within even the best EMS agencies, many of these kinds of cases can directly trace their roots to an organizational culture of non-compliance.
In most EMS agencies that I have ever been a part of, billing and operations are seen as two distinct parts of the organization, and almost never the twain shall meet. Providers furnish patient care, complete their PCRs and they are sent to the billing office.
One of the things I hear most often from billers is "I wish the crews could come spend one day in the billing office and see what we have to deal with." An oft-cited example of this frustration comes from something as simple as capturing a patient’s signature.
For Medicare and many other payers, the signature of the patient is necessary to be able to submit a claim. If there is a physical or mental reason the patient cannot sign, that reason must be documented, and then the signature of an authorized signer must be obtained on behalf of the patient.
Imagine the frustration a biller feels when the operational side of the house submits a PCR that clearly documents a patient who was alert, oriented and fully capable of signing, but where the crew never bothered to obtain the patient’s signature. The time of service is the single best opportunity to obtain that signature, but now that PCR must be held for weeks, maybe even months, while the billing office has to track down the necessary signature.
If your agency’s culture allows your crews to simply neglect this important aspect of their documentation because "it’s the billing office’s problem," then a culture of non-compliance may be ruling the roost. In reality, this is the organization’s issue because the organization experiences a delay in receiving the revenue to which it is entitled, and the providers’ paychecks depend upon that revenue.
Signatures are but one example. If your culture allows crew members to turn in PCRs that are incomplete, contradictory, illegible or inaccurate, the same toxic cultural forces may be at play. All the components of the organization, including operations, billing, and management, must all be united to serve a common and higher purpose. When a culture undermines that spirit of unity and cooperation in favor of "this is my problem, that’s your problem" then the organization suffers.
These are merely three examples of how an EMS agency’s culture can create liability. Aside from the human costs of a toxic culture, the legal costs can add up just as quickly.