When Medical Responsibility Attaches to the Transport Team

Acceptance of a call for response places the transport service under a duty to the patient, but when do the team members become individually responsible to the patient in a medical sense?

One of the first important concepts is that many people can have medical responsibility for a single patient at one time.

Dispatch

Once a team is dispatched to a particular response, the first medical respon­sibility attaches, that is to not unreasonably abandon the patient. To the extent that completion of the response remains within the control of the transport team members, they have a duty to continue with a response. If control is lost because of weather, safety, mechanical issues, dispatch orders, or pilot decisions, the transport team members are not responsible for more than they can actually do. It may be reasonable to notify dispatch, but there is no requirement that team members place themselves at unreasonable risk, disobey orders, or violate flight rules to complete a response.

Diversion en Route

The implications of transport mission diversion are significant. The limited resources of transport teams in many areas make triage, mission prioritiza­tion, and potential diversion a frequent matter. The legal issues, however, may be more complex, and the exposure to a lawsuit is definitely increased if mission diversion occurs. Mission diversions must be firmly supported by written policies and procedures that clearly establish the service's position on whether mission diversion may ever occur, what priorities will be applied, who will make priority decisions, notification procedures for transport teams and hospitals, use of mutual aid, and documentation processes.

By and large, general liability law does not create a duty for a transport operation to provide service to any given patient or hospital.

Except for hospital-owned and operated EMS units that are not oper­ating under a community-wide protocol, ambulances are not subject to EMTALA. Mission diversion may have EMTALA ramifications for hospitals attempting an appropriate transfer. If a transport team intended for such a transfer is diverted, the transferring physician may have to seek alternative transportation to prevent a delay in the transfer.

Transport services should standardize all procedures to provide appro­priate response and service to all patients regardless of which area of the hospital the patient occupies or the formal designation of patient status. Although some payment status issues may depend on these details, appro­priate care standards do not. From a medical malpractice liability perspec­tive, levels of patient care that depend on reimbursement status, rather than patient safety, are extremely difficult to defend in court.

The second source for a legal duty to respond to the patient is accep­tance of the obligation to respond. Mission diversion after accepting a patient may be viewed as “abandonment” similar to other forms of medical abandonment. In this circumstance, once accepted, a rescuer has a duty to respond if the patient relies on the acceptance and, therefore, gives up the chance to find an alternative rescuer. Typically, this would translate into whether the on-scene/referral team had sufficient time to make alternative arrangements for the safety of the patient (paramedic response, basic or nonmedical transport). The issue will then boil down to whether the mission diversion was reasonable, whether it was consistent with system policy, and whether adequate notice was provided to the transferring physician or on­scene rescue personnel.

One form of mission diversion is “stacking.” In this circumstance, mul­tiple calls are accepted for a transport team and “stacked” in order of priority or order of calls received. In these circumstances, a clear obligation exists to tell callers that a backlog of calls exists and the anticipated time of arrival. Most effective services have a policy for periodically reporting priority and response schedules. If a priority change occurs, any resulting delay should be reported expeditiously to all hospitals that will be affected.

The initial indications and subsequent notifications should be carefully documented regarding what the hospital or physician knew—and when. This information will be invaluable if review or investigation into care or delays is undertaken. The same process of documentation and notification would be expected in cases of weather delays or grounding.

The more problematic form of mission diversion occurs when an emer­gency response has been acknowledged and a subsequent request is deemed more urgent. This is clearly a case in which the reasonableness of the change in mission and practicality of alternative resources for the first patient may be questioned. Clearly, weather or other safety hazards may justify delay or even cancellation of critical rescue responses, but discretionary priority diversions can place credibility of the service at risk and expose the service to potential malpractice claims for abandonment. Unlike most malprac­tice cases, the primary source of the claim against the provider may be the physician who was left to care for a patient and felt abandoned along with the patient.

It is impossible to state that mission diversion of this type cannot legally occur under any circumstances. It seems prudent, however, to limit the types of cases and relative acuity deemed sufficient to allow mission diversion. This should be accomplished with carefully drawn policies, protocols, standards, and notification procedures that have been thoroughly reviewed by legal counsel and the service's medical malpractice insurance company.

On-Scene Responses

Once the transport team arrives to a patient location, it shares medical responsibility with the other providers. The medical obligation as the most highly trained medical personnel on scene usually extends to direct medical care for the patient within a reasonably prompt time, allowing for assessing the scene, protecting the scene, and donning protective gear. That obliga­tion extends to entering a hazardous environment to access the patient, but only if the team members are trained and equipped for that environment. If the transport team lacks appropriate protective gear or members are not trained for the type of environment involved, they are not required to place themselves at unreasonable risk to support the rescue. It may be appropriate to leave the extrication and patient care to the rescue crew until the patient can be brought to safety and accessed by the transport team.

This raises the question of when the duty to the patient exactly starts. If an EMS team did not initiate patient care, it may be considered to have no duty to the patient. In Zepeda v City of Los Angeles (223 CalApp3d 232 [1990]), the patient died after city paramedics who were summoned to the scene of a shooting allegedly refused to provide medical aid until the police arrived. The appellate court held that because the paramedics had not initi­ated care, they did not have a duty to the patient. Two other cases found that once the paramedic made contact with the patient, even if it was a “one- minute look over,” a duty had been established (Wright v City of Los Angeles [219 CalApp3d 318 {1990}], Hackman v American Medical Response [2004 WL 823206 {Cal App 4th Dis}).

In the Hospital

One of the most complex interactions of medical responsibility is when the transport team is at a transferring hospital and is preparing the patient for transport. Hospital staff may step back and allow the transport team com­plete control of the patient with an understanding that the transport team has “assumed care.” Often, transport policies specifically state that the patient is deemed to be under the care of the service owner and the medical director of the transport service.

There are definite reasons that a medical transport team that specializes in the care of pediatric patients should lead the process of preparing their fragile patient for transport. However, leading the effort does not translate into “command” or sole medical responsibility for the patient. The transfer­ring physician and other qualified medical personnel remain responsible for the patient until the patient physically leaves the hospital.

While the patient is still in the hospital, the physician cannot hand off the patient to the transport team and proceed as if the patient has left the hospital and his or her care. The issues include privileges (and, thus, hospital regulations) and EMTALA. If there are physicians or midlevel providers on the transport team, they are not usually privileged to function within the referring hospital. As such, they technically have no rights of practice within the facility, except as adjuncts to the attending physician. Even this concept stretches the bounds of most medical staff bylaws. The idea that care has been surrendered to the receiving facility or transport service on arrival of the transport team is erroneous. It is reasonable, however, for the transfer­ring hospital to allow specialty or specifically trained providers to provide care under its authority and supervision. The transferring physician must retain involvement and ultimate responsibility and sign the transfer cer­tificate at the time of actual transfer. At any time the transferring physician deems it in the best interests of the patient to intervene or cancel the transfer, it is that physician’s right and duty to do so. At the same time, however, the transport team has a medical responsibility to the patient as well—it is con­current, and it must be coordinated.

When there is unresolved disagreement between the transferring physi­cian and the transport team in a plan of care for the patient, the team should suggest a telephone conference with medical director of their service or the medical control physician. If the transferring physician still disagrees with the plan of the transport team, the team must defer to the transferring physi­cian while the patient is still in the hospital. Refusal by the team to complete the transport could put them at medicolegal risk. All decisions or disagree­ments should be documented by all care givers.

Delivery at the Receiving Facility

The issue of privileges may also have a role in the delivery of a patient to a hospital, especially when transport teams are delayed from removing the patient from their gurney. When a hospital-owned and -operated service delivers patients to its home hospital, the issue may be one of scope of prac­tice or credentialed privileges within the hospital environment compared with the transport environment.

In a busy department, a new patient may be left in the hands of the transport team until it is optimal for the ED or inpatient staff to assume care of the patient. This obviously leaves the transport team with a patient for an extended time, when their services might be needed elsewhere. It also leaves the patient in transport “packaging” when other equipment and personnel should be available to provide the patient with optimal and definitive care.

Although the transport team might want to transfer the patient to a hospital bed and proceed with other duties, the medical responsibility to the patient requires that the transport team not abandon the patient. This, in turn, means that a detailed report and orderly turnover of responsibility be accomplished before leaving the patient at the destination. The transport team retains medical responsibility until proper hand off has occurred, even though the receiving facility shares responsibility.

Much like the idea that the sending facility can hand off responsibility when the transport team arrives, receiving facilities often assume that they do not acquire responsibility until they accept the patient from the transport team. Both concepts are erroneous in their literal application. The sending facility and staff surrender primary medical responsibility when the patient leaves their direction and control, which can mean when the patient leaves the physical premises or when the patient leaves the zone of their online medical control and enters the medical control of another off-hospital sys­tem. The receiving facility and staff begin to acquire medical responsibility for a patient when the patient arrives on their premises and staff becomes aware of the patient's presence, even if the patient is being attended to by the transport team.

When Civil Legal Liability Attaches

A question that frequently follows a description of this concurrent and over­lapping medical responsibility is: “So when does legal liability attach—or detach?” The answer to that question is that legal liability flows from medical responsibility—medical duty. As described, liability is a function of duty and violation of that duty in a manner that violates the standard of care and pro­duces harm.

In any case in which a patient is harmed as a result of medical negli­gence (malpractice), any health care provider who had medical responsibility or duty to the patient has the potential for legal liability to the patient. Actual liability, however, depends on which health care provider violated his or her duty to the patient in a negligent manner and produced harm. It is possible that more than one provider meets the criteria or that no provider was liable. As with shared medical responsibility, often there is shared legal liability.

Shared legal liability has 2 factors that influence the financial impact in most states: proportion of fault and joint or several damages. In most states, a provider can be held liable only if the proportion of fault is 50% or more on the part of the provider. If more than one provider is found to be at fault by the jury, the verdict typically assigns the relative portion of fault so that the responsibility is apportioned among the negligent parties.

If there is sufficient coverage for all negligent parties, each pays his or her own proportion of the verdict. This is several liability, as the sum total verdict is recovered from the several negligent parties and each pays his or her own share. Under joint liability, the injured patient can collect 100% of the verdict from any one or more of the negligent parties. Joint liability typi­cally becomes an issue if one or more of the negligent parties has insufficient insurance or settles before trial and another has a greater financial coverage. In effect, a health care provider who was only minimally negligent could be required to pay the entire judgment for those who were much more at fault. Some states have completely eliminated joint liability in favor of several liability, and others have required that a party must be at least “X%” at fault to be held jointly liable.

Two other mechanisms exist to balance legal liability with the medical responsibility. The first is contribution. In this case, health care providers cross-sue one another in the case to ensure that each provider pays his or her fair share to the others if a disproportionate recovery is taken against one party. Problems with this approach are that it can potentially set in opposition one health care provider against the others in a suit and poten­tially increases the risks of a perhaps unjustified finding of negligence.

The other mechanism is indemnity, which is based on the concept of active and passive negligence. A hospital, for example, might be negligent by failing to have proper policies and procedures that allowed negligent performance by a physician. The hospital would have passive liability and would ask that the physician indemnify or repay it for any liability caused by the physician’s actions. The problem with this approach is that it sets one health care provider against another, with the same potential risks.

One may see actions for contribution or indemnity when several insur­ance companies are involved in a high-value case or when active hostility exists between providers.