Caught on video: Are they liable for their ‘patient’s’ death?

If Jussie Smollett and Nicholas Sandmann have taught us anything, it’s to put away the torches and pitchforks until we have considered all of the facts and circumstances; not just react to the perception or the commentary or an inflammatory video presented without context.

The videos of the Orangeburg County, South Carolina, EMS crew managing a non-verbal individual at the side of the road, is – to say the least – not flattering. Four hours after the EMS crew released Paul Tarashuk, he was hit and killed by a car.

This case study warrants significant thought and consideration before any morality mob takes to the street casting judgment on these providers and suggesting that they are somehow responsible for the man’s death; that they should be fired; that their lives should be ruined.

Let’s walk through the facts.

As disinterested third-party observers of the bodycam video, what do we see?

1. An individual is walking along a busy highway.
2. He is wearing athletic shorts – and nothing else. While this may be unusual, it is not an abhorrent departure from societal norms or mores. Yes, unusual, but not unnerving.
3. He is flanked by law enforcement and EMS. Nobody seems too alarmed.
4. As disinterested third-party observers, this is all we can see from the video. This video offers no other information; that will come later.

He was initially discovered by law enforcement, completely nude and standing on the cab of a truck. When EMS encountered him, he was wearing shorts. In the video, the individual cooperates to the point where he follows directions toward the ambulance, enters the ambulance under his own power, sits where he is told and appears to listen, despite not responding.

At what point does someone become an EMS patient?

Question: If we stop the video right here, is he a patient?

Maybe ... and maybe not. We need more information.

The crew members attempt to gather information from the man and he does not answer any of their questions, although he smiles at their jokes. It soon becomes obvious that he is not going to answer anyone’s questions. This is clear on the video.

The EMS crew then repeatedly asks him a series of questions (amidst a multitude of sarcastic quips) to which they should have quickly figured he was not going to respond. Beyond that, they do not take the time to assess their patient. They do not provide him any commands to follow or do any kind of physical exam. They did not try to have him perform small tasks like “squeeze my hand,” “touch your nose,” “hold up three fingers,” or anything to deduce whether he is somehow altered or just silent.

It’s important to assess whether there are any physical issues that are inhibiting his abilities or if he is simply being obstinate. Is he acting out or exhibiting? Is there an existing mental health disorder or drug reaction? Instead, and without any apparent focused direction, the responding crew repeats questions that go unanswered to the point where they become exasperated and unprofessional.

The roles of the three EMS providers should be noted for context. The woman sitting on the bench seat next to the individual is the paramedic. It’s her scene. She is the highest medical authority and she is in charge. The woman standing at the foot of the gurney is the EMT-basic. And, the woman standing at the head of the gurney is what they call an attendant; not yet certified by the state to provide hands-on care; like an apprentice.

We see the attendant hand an open box to the EMT who appears to take an ammonia inhalant, crack it and hand it to the paramedic, who shoves it in the individual’s right nostril.

First, and let there be zero ambiguity about this point – shoving an ammonia inhalant up his nose served no purpose whatsoever and there is never a time when that is OK. Who even carries those anymore? More importantly, the fact that he did not make any effort to remove it suggests that there is or could be some disconnect. In my opinion, he – in that moment, if not already – is now a patient and deserving of a full, thorough, systematic assessment, and treatment and transport.

Like with any other non-verbal patient, the paramedic should have performed as much of an assessment as was possible and transported. And no, this is not kidnapping. In this context, silence is consent.

Second, hospital vs. jail is NOT a choice for any EMS provider to offer. The patient had not committed any crime – as far as they knew – and, if he had, whether he goes to jail is none of the EMS providers’ business. EMS providers are there to provide EMS. Our focus is on being the patient’s advocate from a clinical perspective.

Third, let’s assume the patient was never going to talk. His silence is an answer and the totality of the circumstances pointed a reasonable provider to a reasonable response: treat and transport.

Here is a guy in an unusual situation, behaving in an unusual manner in response to unusual stimuli, in a time when drug use and previously unseen reactions are almost commonplace – the unexpected is to be expected.

At the very least, this is a psych patient for whom transport was wholly appropriate.

Based on the video and the information available, the list of errors committed by this crew is long. And while their conduct appears unprofessional and inexcusable, it may be understandable and is most definitely a teachable moment.

Operational culture and mental health response

Now, indulge me in considering this situation as objectively as possible.

For starters, this event casts a very, very bright light on the reality that there is a woeful lack of mental health training for frontline providers; police, fire, EMTs and paramedics. How to recognize mental health issues, how to manage them, how to distinguish between willing conduct and disease process are all extremely important and basically ignored in training and practice. There is no segment of society that comes in more frequent contact with the unknown than EMS and it is unacceptable that so little training is offered or required on this subject. This was a mental health situation – or at least one for which additional medical consideration was warranted.

Next, imagine the differing cultures in EMS as a tree with an infinite number of branches; every area – even areas within areas – have operational cultures that have developed and evolved for generations and are, to a degree, unique to themselves; the way they function, the attitudes, the language, the tone, commitment to excellence or lack thereof, and the self-aggrandizing pride – everyone thinks they are the best and that their way is the right way.

I have seen EMS operations all across the country and I can tell you that, while each is distinct from the next, they all share commonalities and no system, nor any provider is in a morally superior position to cast stones toward these three women or their organization. Everyone reading this story has had a call that was handled improperly. We all have those calls that we wished we had handled differently. We have all made decisions based on something other than what was best for the patient. Intellectual honesty is key here.

If the behavior on this call is demonstrative of a larger cultural issue, there is a major opportunity for improvement.

EMS providers have a responsibility to speak up

Another important lesson to be drawn from this incident is that EMS is a team sport. As a team, each member is, to a degree, responsible for the conduct of the others. On this call, there were three EMS providers. Level of training notwithstanding, each is independently a patient advocate first; responsible for seeking the best possible treatment of everyone with whom they come in contact.

You don’t need to be a paramedic to know fellow humans should be respected. Each of these providers had an absolute duty to speak up when (or even before) this person was mocked and chastised rather than assessed and treated. Even the least trained among them could have reasonably said, “Hey, shouldn’t we transport this guy?”

Clearly, human factors played a role in this event. More importantly, it’s critical to realize that human factors play a role in every call that we respond to.

The legal implications of patient abandonment

Where do I stand on the black and white of the law?

• Did the EMS crew functionally abandon the patient? Yes. It appears they did.

  In the simplest of terms, patient abandonment is the premature termination of the provider/patient relationship. Patients are almost always allowed to refuse care after the assessment has begun (read: after the patient/provider relationship has been established). It happens and every jurisdiction has policies, protocols and procedures in place to handle such situations. No problem.

  In this case, there were policies, protocols and procedures in place for dealing with patients who are not cooperative. It does not appear they were followed here. There were policies, protocols and procedures for releasing patients in the field – also apparently not followed. On its face, this looks like a textbook case of patient abandonment.
  

• Do these providers share some responsibility for this man’s ultimate death that night? Maybe.

  Life is an endless series of predictable and unpredictable causes and effects. It is easy to say that had they simply transported him to the appropriate hospital, he would not have walked onto an interstate and died that night. However, is that absolutely true?

  We do not know. He could have been released from the hospital and walked the same highway to his death. He could have eloped from the hospital to the same end. We just don’t know, and it is unfair and intellectually dishonest to suggest we do. To call these providers responsible (solely or otherwise) is somewhat prejudicial and only supportable by hypothetical facts that remain impossible to conclude or confirm.
  

• Were they directly at fault for his death? No.

  For the reasons stated above and those to be argued below, to claim that these EMS providers are directly at fault for this person’s death requires an impossible leap and any such talk serves no meaningful purpose. The media reporting it as such need to step back, they are not helping anyone.
  

• Were they negligent? No.

  The negligence analysis against these providers ends at causation. Before they can be found negligent, it would have to be proven that they were both the actual and proximate cause of this tragedy. Let’s dig into this more thoroughly.

  First, it would have to be shown that, but for their breach, this death would not have occurred how and when it did. There is simply not enough evidence to draw that conclusion.

  Second, and more importantly, it would have to be proven that this outcome was foreseeable. If nothing else, although inappropriately, the EMS crew did, in fact, leave the patient in the care of law enforcement and it is not reasonably foreseeable that law enforcement would have driven him 18 miles away and dropped him at a closed gas station, much less that the person would subsequently step into traffic on an interstate.

  It sickens me that local media is so quick to draw that impossible conclusion and stoke a fire that provides only heat and no warmth (that is a great metaphor, you know it is).

  Did they have an absolute duty to care for and (in my opinion) transport this patient? Yes. Did they breach that duty by failing to do so? In my opinion, yes. But duty and breach alone are not enough to satisfy the elements of negligence. The interceding factors between his release and his death are just too attenuated to support negligence on the part of these providers.
  

• Should they be fired? No.

  I have been writing for EMS1.com for over a decade. I am a staunch patient care advocate with little tolerance for bad medicine and terrible care. However, EMS is a human endeavor and the inherent flaws of humanity must be considered along with every other factor.

  The paramedic in this case is just a short distance from retirement after a long and well-respected career. She was stripped of her paramedic license and reduced to the level of EMT for the short duration of her career. The EMT on this call was just eight weeks on the job and I am sure will carry the lessons of this call with her forever. My guess is that she will be as passionate a patient advocate as anyone has ever seen. Firing her will not change the outcome or add value to the lesson she has learned. I would bet that she is more likely than almost any other provider in the field to take extra care and pay special attention to every patient with whom she comes in contact going forward. Likewise, the attendant will live this lesson every minute she spends as an EMS provider.

I have watched the news reports and read the threads in response to social media posts and I say to all of you calling for swift and ineffective, overly punitive – even draconian – knee-jerk reactions without consideration for all of the facts and circumstances, shame on you. This call was not handled well by anyone involved, but I have been in and around EMS long enough to know that we, at one time or another, have all fallen short of the EMS righteousness necessary to cast stones.

This is a horrible situation and, as I have said, there is no excuse for the behavior that led us here. Nevertheless, so as not to fall down the same kind of rabbit hole that is destroying this nation, I urge everyone to take a deep breath and a step back, and look at this case study as a turning point in EMS.

• What can we learn?
• What changes can be made so this doesn’t happen again?
• How can this tragedy be used to make EMS better?
• Do we believe in second chances; in redemption?

Let’s first answer these questions. Then and only then can this case have any meaning.