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In regards to the EMS intubation issues discussed on the list.

Mike MacKinnon mmackinnon at cox.net
Mon Apr 10 23:16:10 BST 2006

 Here is a recent article from JEMS.Com about an incident that occured.

EMS and the Law
With W. Ann Maggiore
| Print Article | EMail Article to a friend |

A Lesson in ‘Negligence’

An RSI case involving MD assistance, documentation & protocol deviation

A recently published decision from the Northern District of Illinois federal
district court has some important lessons to teach EMS personnel about
documentation in the context of a rapid sequence induction (RSI). The
opinion denied the EMS agency’s Motion for Summary Judgment, a motion
usually filed by defendants in an attempt to achieve dismissal of a case
prior to trial. For this type of motion, if the defendant can show that the
facts of the case are not in dispute, they may be able to get the case
dismissed as a matter of law.

In this case, the plaintiff’s estate sued the paramedics, the EMS agency, an
urgent care physician and the hospital emergency department (ED) after an
anaphylactic reaction resulted in the patient’s demise due to anoxic brain

Case background
Shirley Johnson experienced an anaphylactic reaction after eating Chinese
food. She had a known sensitivity to peanuts. Her husband, Richard, took her
to an urgent care center, where he informed Dr. Drubka, the physician on
duty, that she was having trouble breathing. Dr. Drubka found Mrs. Johnson
in severe respiratory distress. The center called 9-1-1 immediately, and
paramedics arrived about four minutes later to find the patient still in the
passenger’s side of her car. They assisted in removing her from her vehicle
and placed her into the ambulance. Dr. Drubka informed the paramedics that
she needed to be intubated immediately and offered his assistance. They
rejected his offer and initiated transport.

Johnson remained in the ambulance for 30 minutes. A patient care report that
the paramedics generated at the conclusion of the call raised a number of
issues, including the reason for two failed attempts to initiate an IV, the
failure to place an oral airway, the amount of time that elapsed prior to
intubation attempts and whether the final intubation attempt was successful.
The parties also disputed whether the paramedics administered epinephrine to
Johnson; despite the fact that both paramedics testified that they had done
so, there was no documentation in their report of the drug being given.

The paramedics’ report indicated that they administered three separate
dosages of Versed (a drug used for conscious sedation) because the patient’s
jaw was clenched and they wanted to attempt intubation. The applicable
protocols allowed administration of etomidate (a paralytic) if the patient
was not sufficiently sedated to intubate within 60 seconds, but there was no
evidence that the paramedics administered the drug. The paramedics testified
that the reason for the unsuccessful intubation attempts was the patient’s
clenched jaw, although the plaintiffs argued that the providers simply
failed to comply with protocols. Finally, plaintiffs alleged that the third
intubation attempt, which the paramedics testified was successful, was
actually an esophageal intubation.

The ambulance arrived at the hospital about three minutes after the final
intubation attempt. The paramedics testified that they had applied a
capnography device and confirmed tube placement, and had also listened to
the stomach and the lungs to reconfirm. Plaintiffs denied that the
paramedics took these actions, pointing again to the patient report that
made no mention of confirmation of endotracheal tube placement. The ED
physician, Dr. Urgo, rechecked the tube and found that it was in the
esophagus. He testified that the patient was pulseless and apneic on arrival
 and that she was also cyanotic and had an extremely distended abdomen. He
testified that it took him four attempts over 20–25 minutes before he was
able to accomplish intubation.

The paramedics testified that the tube must have become displaced as Johnson
was removed from the ambulance because her head was jostled as they moved
the gurney. Plaintiffs argued that it took only about 60 seconds to move the
patient into the ED, and that there was not enough time to account for her
cyanosis and the abdominal distention.

Plaintiffs alleged that the paramedics’ conduct was “willful and wanton.”
Under Illinois law, “willful and wanton” conduct is required before
liability can be found against EMS providers. “Willful and wanton” conduct
has been described as a hybrid between negligence and intentional behavior,
and indicative of a reckless disregard for the safety of others. The line
between negligence and “willful and wanton” conduct is, at best, a thin one.

A “battle of the experts” ensued in the briefing, with both sides filing
affidavits of expert witnesses supporting their position. Frank Nagorka, an
Illinois attorney and practicing paramedic, testified by affidavit that the
paramedics fell below the standard of care when they failed to follow Dr.
Drubka’s orders regarding intubation and refused his offer of assistance
with securing the airway. Nagorka also said that they should have taken the
patient into the urgent care center to stabilize her and obtain a secure
airway prior to transport, and that EMS failed to follow their own RSI
protocols. However, the EMS agency presented an affidavit from an Illinois
physician who said the paramedics’ actions were appropriate within the scope
of their training, and that their acts were not “willful and wanton.”

The court, after a lengthy discussion of the “willful and wanton” standard,
noted that deviations from protocols have been found sufficient to clear
that hurdle, although that may not happen under the facts of every case. The
court denied the motion, and the case proceeded into litigation.

This case is instructive in several areas. The physician on scene may have
been able to provide additional assistance in securing the airway, and the
paramedics may have allowed him to assist for the benefit of the patient.
The paramedics’ documentation was deficient, and their defense was greatly
hampered by the conflicts between their testimony and the report they
generated immediately after the call. Finally, the issue of whether protocol
violations rise to the level of “willful and wanton” behavior is one that
courts will revisit in EMS litigation in states that provide immunity for
all negligence with the exception of “willful and wanton” actions.
Mike M

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