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A growing ambulance industry is learning that malpractice suits are not just for doctors anymore. Lawyers representing ambulance companies say that over the last decade an increasing number of people have started suing their clients, largely because the public’s demand and expectations for quality health care have grown, and medical standards are higher. “Thirty years ago, the ambulance industry was essentially run by a hospital, or it was run by the mortician and the ambulance was the hearse,” says Kansas City, Mo., attorney Fred Starrett, who has represented ambulance companies for the last 10 years. “The expectation now, with the training and the equipment, is that if you call an ambulance they will be able to save you,” says Starrett of Kansas City’s Lathrop & Gage. “And there are some things you can’t do. Some folks just can’t be saved.” THE CAP PROBLEM Starrett says while he has noticed only moderate increases in ambulance malpractice suits, he expects the problem will get worse as the novice industry struggles to keep up with tougher standards. Adding to the problem is the lack of a nationwide cap limiting the amount juries can award in medical malpractice suits, argues Tyron Picard, executive vice president for legal and government affairs for Acadian Ambulance, which services both Mississippi and Louisiana. Picard says Acadian gets hit with about three malpractice suits a year in Louisiana; none in Mississippi. Neither state has a malpractice cap, which he argues exposes emergency crews to costly lawsuits on a daily basis. “They know that the exposure is there,” Picard says. “Just one claim could wipe you out.” Earlier this month the small town of West Warwick, R.I., avoided a $3 million malpractice claim when a jury ruled that four town emergency medical technicians (EMTs) did not commit medical malpractice in their attempt to rescue a boy in 1999. The case involved an 8-year-old boy who suffered a seizure and choked on his own vomit while being transported by rescue truck to a hospital, where he was pronounced dead on arrival. The boy’s parents alleged that the West Warrick EMTs failed to hook up a suctioning device in the ambulance quickly enough to prevent the boy from choking. They sought $3 million in punitive and compensatory damages from the EMTs, town officials and the town. Contois v. Town of West Warwick, No. 01-1194 (Providence Co., R.I., Super. Ct.). On Oct. 8, a Providence Superior Court jury issued a defense verdict. Key defense arguments were that the emergency personnel did everything they could to save the boy, that there was no delay in hooking up a suctioning device as alleged by the plaintiffs and that even if there was a delay it would not qualify as “gross negligence” as required by law. The defendants’ lawyer, Marc DeSisto of DeSisto Law in Providence, R.I., would not comment on the case because a motion has been filed for a new trial. The plaintiffs’ lawyer, Michael Coleman of Sinapi, Formisano & Coleman in Cranston, R.I., could not be reached for comment. Boston malpractice attorney Marc Breakstone of Breakstone, White-Lief & Gluck helped a Massachusetts family get a $10.2 million settlement after suing an ambulance company for allegedly failing properly to treat their 10-month-old, who had developed seizures associated with a high fever. The child, now 6, suffered severe brain damage and is wheelchair-bound and fed by a tube. “I aggressively pursued it,” Breakstone says. “It’s probably one of the biggest [ambulance] negligence cases.” According to Breakstone, the ambulance allegedly got lost on its way to his client’s home, resulting in a 13-minute delay. Also, a paramedic allegedly forgot a key to a medical cabinet, so the child could not get medication on time. A second ambulance assisted, but by the time the child arrived at the hospital, she had been oxygen-deprived for 40 minutes. Breakstone would not reveal the name of the company or his clients due to a confidentiality agreement. The settlement was reached in April 2001. The case happened in Massachusetts, which has no medical malpractice cap for private medical providers. When asked whether there should be one, Breakstone adamantly opposed the idea. “To artificially limit recovery for pain and suffering, emotional distress, loss of enjoyment of life is profoundly unfair, and defeats the very purpose of our civil justice system,” Breakstone says. TWO DEFENSE STRATEGIES Defense lawyers who handle ambulance malpractice cases say there are two key defense strategies in fighting these claims. First, show that there was no departure from the standard of care and that the paramedics did everything that they were supposed to do for the patient. Second, if a complaint was made that a paramedic didn’t do enough to save a person, a defense lawyer would try to show that the paramedic’s actions didn’t matter because the patient’s injuries were so severe that nothing would have saved them. “You try and show the jury that it wasn’t going to make a difference, that it’s the type of injury a person doesn’t survive and getting there 20 minutes earlier wouldn’t have made any difference,” says Starrett, who has handled two dozen ambulance malpractice cases during the last decade. Starrett says a disadvantage that paramedics often face is that they have to work in front of a victim’s family members who ride along in the ambulance, unlike doctors who work in more secluded operating rooms. This puts paramedics in vulnerable positions, he says. “You’ll have fact conflicts based on what family says versus professionals,” Starrett says. “Unfortunately for the industry, all it takes is someone to say, rightly or wrongly, that something wasn’t done properly.” That’s why Starrett strongly urges ambulance companies to be diligent in keeping accurate records. He says the major pitfall ambulance companies face when hit with a malpractice suit is inadequate documentation. He says that, unfortunately, when paramedics are working in life-and-death situations, documentation isn’t a top priority. Malpractice attorney Breakstone can attest to that. He says record-keeping was an important issue in his $10.2 million ambulance malpractice case in Massachusetts, but he would not elaborate. “I would advise any attorney who is investigating a catastrophic ambulance case to look very carefully at the documentation of care for foul play,” Breakstone says. Breakstone says that in his experience with ambulance and medical malpractice, where there has been error there has often been an attempt to cover up the error. He says once irregularities in record-keeping can be demonstrated, then that becomes the focus of the case. According to Breakstone, the starting point in pursuing an ambulance malpractice case is retaining the best qualified medical experts to rebut the defense’s claim that the paramedics did everything right and that had appropriate care been given the person could have been saved. Furthermore, Breakstone believes the best strategy is to focus the case on the conduct of the EMTs rather than let the case become a question of dueling experts on causation. In other words, get the jury to focus on whether or not the conduct of the ambulance personnel was proper, instead of whether that conduct changed the outcome. “In every case you have to show negligence … you’ve got to show that a careless practice caused harm to the patient,” Breakstone says. “In every medical negligence case, causation is a battleground. Our challenge is to make the fault part of the case so strong that a jury is going to make short work of the causation question.” Lawyers on both sides of these ambulance cases note that paramedics and doctors are sued under similar malpractice and negligence laws. There are not separate laws for the two groups. Farrett notes, however, that paramedics can be sued only for procedures they are licensed and trained to perform. The same applies to doctors. “It’s not fair to hold the paramedic to the same standards as an emergency room doctor,” Starrett says. “The circumstances are not the same. And they are not handled the same.” NOT EVERYBODY WINS Farrett says in the two dozen malpractice cases he has handled, his clients have never paid more than $100,000 in settlement costs. And in most cases they paid nothing, he says. Farrett’s most recent ambulance case involved former Kansas City Chiefs football star Derrick Thomas, who died from injuries he sustained in a car accident in January 2000. Thomas’ family sued the ambulance company, Emergency Provers Inc., for allegedly failing to stabilize him properly. In March 2002, the company reached a $100,000 settlement with Thomas’ family. Estate of Derrick Thomas v. General Motors Corp., No. 00-CV-224362 (Jackson Co., Mo., Cir. Ct.). “Most of the cases against ambulance companies have not had any merit,” Farrett says. In such lawsuits, he adds, attorneys are usually able to convince juries that the paramedics did nothing wrong or that the ambulance crew’s actions didn’t make a difference because the patient was in such bad shape that there was little or no chance for survival. Such was the case involving a 5-year-old boy who was attacked by a neighbor’s Rotweiller in Wyandotte County, Kan. Farrett says the child’s scalp had been torn off. The boy’s family sued the ambulance company for $10 million, alleging paramedics didn’t work hard enough to revive him in the ambulance. But the jury reached a defense verdict. Bowen v. Medevac, No. 93C4039 (Wyandotte Co., Kan., Dist. Ct.). Farrett says there’s a tough lesson to be learned in all ambulance cases. “You can do everything right, and you can still get sued.”

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