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Frequently, I am called by attorneys asking me to review cases involving lawsuits they are handling. After hearing some preliminary information over the telephone, I will decide whether to review the cases. Sometimes I turn them down, and sometimes I agree to review the cases and offer opinions or provide consultation to attorneys during the course of the lawsuits.
When you agree to work for an attorney on a lawsuit, you are commonly referred to as an “expert witness.” By definition, an expert witness is a person having special knowledge, skill or experience in the subject about which he or she is to testify. On most lawsuits, typically an expert witness is working for the plaintiff and another is working for the defendant.
Most lawsuits involve some action, but mostly inaction or a decision that a paramedic or a crew made on a scene. In many of the cases that I have seen, someone died. It may be the fault of the paramedic or EMT, or it may not be. But when someone dies and there is suspicion that improper actions were taken, in some cases, surviving family members will file a lawsuit against the crew, the department and anybody they think may be responsible for their loved one’s death.
When I agree to review a case, one document that I always ask for is the patient care report. This single document is a window and a written history of what occurred during the course of the call. Unfortunately, in many of the cases I have reviewed, the patient care reports were less than complete. This is disconcerting for two reasons. First, the lawsuit does not occur the week after the call. It may be several years before the lawsuit is filed and then even more time passes before the case goes to trial. When the crew being sued goes to review the patient care report from the incident and finds information missing and boxes unchecked, it is difficult to remember exactly what happened on the scene – especially years later. Second, the old EMS proverb, “If it isn’t written down, it wasn’t done,” holds true. Another way of saying it is that if you didn’t write it down, you did not do it or it did not get done. It does not hold much credibility if you say you did a certain procedure, but neglected to write it down.
In one case, a paramedic asked a college student in her dormitory to sign a refusal of care and transport statement after being called there for a shortness-of-breath call. Later, the student was found dead as result of a cardiac complication of which she was unaware. The family sued, contending the medic was grossly negligent and should have transported the student to the hospital.
The paramedic hung his defense on the fact that the student had signed a “refusal” and did not want to go to the hospital. An examination of the patient care report indicated the paramedic failed to obtain a history of the patient, record vital signs and conduct a physical examination. Although the paramedic claimed he did so, he failed to write it down. A further search into all his calls for that particular day showed an over 70% no-transport rate, with some of those calls involving other patients who should have been transported for further treatment and evaluation at a hospital.
Documentation of all calls is vital. If you are sued, your patient care report will come under close analysis by an expert witness. Not only should everything be documented, but other items such as misspelled words, poor handwriting and the use of acronyms that no one else understands all add to the reflection of you as a paramedic or EMT. Proper documentation may be all that protects you in a litigation matter.
If you are sued, you or your employer will be served papers by an official of the court. During the course of the lawsuit, it is likely that you will be called to testify in a deposition. A deposition is a discovery mechanism that attorneys use to learn more about you, your background and training, and matters surrounding the call in preparation for a trial.
Whether you are testifying in a deposition or a trial, there should be certain actions that you should take in preparation and during the testimony itself. If you are contacted by attorneys or insurance company officials not representing you or your department, don’t speak to them. Generally, attorneys or insurance companies not representing you or your department will not contact you, but there have been reported cases of such incidents occurring.
Follow the advice of your attorney, who knows the law and how the law will affect your case. In many states, a paramedic or EMT is liable only if gross negligence, not just negligence, is proven. Additionally, there must be “proximate causation.” Proximate cause is an event sufficiently related to a legally recognizable injury to be held that it caused the injury or death. Two elements are needed to determine proximate cause: the activity must produce a foreseeable risk and the injury must be caused directly by the defendant’s negligence.
When testifying in a deposition or trial, always wear a business suit or your uniform to demonstrate your professionalism. Your suit or uniform should be clean and neatly pressed. Prepare yourself by reviewing all pertinent documentation, including your patient care report, any supplemental reports written by you or others on the scene, and any other documents such as computer-aided dispatching records, quality improvement reviews, standard operating procedures, medical protocols or medical control documents. It is acceptable to take all these documents with you to the deposition or trial to review them during your testimony, if necessary.
Speak with confidence and in a voice that is clearly audible. Listen to the question you are being asked and wait until the attorney is finished asking it. Do not try to anticipate the question or interrupt the attorney with your answer. Only answer the question and do not add information that was not asked. You may look directly at the attorney when answering the question, but you may also look at the jury to emphasize your point. Remember, you are trying to convince the jury, not the attorney. If you do not understand a question, ask the attorney to repeat it or say that you do not understand the question. Always show respect and professionalism to the attorney who is representing the other side, even if that person is aggravating you. Finally, never lie – you swore to tell the truth and there are penalties for lying under oath.
Being sued is not a pleasant experience. But by following proper national standards of care or your medical protocols, and with proper documentation, can you lessen your chances of being sued – and they will help you be prepared for your testimony if litigation does happen.
Gary Ludwig, MS, EMT-P, a Firehouse® contributing editor, is the chief of Special Operations for Jefferson County, MO. He retired in 2001 as the chief paramedic for the St. Louis Fire Department after serving the City of St. Louis for 25 years. He is also vice chairman of the EMS Section of the International Association of Fire Chiefs (IAFC). He is a frequent speaker at EMS and fire conferences nationally and internationally, and is on the faculty of three colleges. Ludwig has a master’s degree in management and business and a bachelor’s degree in business administration, and is a licensed paramedic. He also operates The Ludwig Group, a professional consulting firm. He can be reached at 636-789-5660 or via www.garyludwig.com.