“If you have the law, hammer the law. If you have the facts, hammer the facts. If you have neither the law, nor the facts, hammer the table.” Jerome Michael, Law Professor, Columbia University
Since the inception of organized EMS, evaluating and treating our patients’ airway issues has been a priority. As instructors we consistently teach our students the mantra of airway, breathing and circulation. As a field provider since 1975 I remember being schooled in such game-changing devices as S-Tubes, Chokesavers, Esophageal Airways, Esophageal Gastric Tube Airways, etc. These devices have come and gone, but the intent of many of these devices—avoiding the pitfalls associated with prehospital endotracheal intubation or surgical airways—still concern us.
While many agree that ETI is the “gold standard” when discussing airway control, very real concerns about its actual benefit in EMS persist to this day. Those concerns include the training required to attain mastery level; the requirements tomaintain that level; recognition of failed ETI attempts and misplaced tubes; and, ultimately, the question of whether there is a benefit to EMS patients even when the technique is performed flawlessly.1 Clearly these concerns are magnified when discussing a needle cricothyroidotomy or other surgical airways techniques.
While many other authors have discussed the above complications and pitfalls of endotracheal intubation, the purpose of this article is to describe EMS litigation cases where those complications and pitfalls were the focal point of that litigation.
Estate of Elderly Asthmatic Patient v. Very Large City EMS (VLC) 2003
A paramedic ambulance in a very large city is dispatched for a patient experiencing “difficulty breathing.” Upon arrival the crew finds a 75-year-old black female who has been complaining of shortness of breath for more than 12 hours. She has a 40 year history of reactive airway disease and is an avid cigarette smoker. She is on multiple medications for the RAD and also HTN. The patient lives on the sixth floor and the building’s elevator is out of service.
As per the PCR, she takes an Albuterol (Proventil) rescue inhaler and Montelukast (Singulaire) for the RAD, and an ACE inhibitor, as well as Furosemide (Lasix) and potassium supplements, for the HTN. As the crew places her on high-flow oxygen, her vital signs and a physical are obtained. Her BP is “120/60, HR 120, pupils are equal and responding to light. Her lung sounds demonstrate profound wheezes that do not clear with coughing. The lady is also exhibiting cyanosis in the lips and mucous membranes in the mouth.” Under standing orders, the paramedics administer Albuterol Sulfate 0.083% (one unit dose of 3 ml) by nebulizer at a flow rate that delivers the solution over 5 to 15 minutes.
After this intervention the patient is no better. The crew repeats the nebulizer treatment and documents “there still is no change in the patient status, except that her breathing is a bit shallower and her HR is now 120/bpm.”
Once again, the crew elects to try a third dose of Albuterol. They have now been on the scene for 45 minutes. The location is 10 blocks from the receiving hospital. Once the third dose of Albuterol has been inhaled, they administer Ipratropium Bromide 0.02% (one unit dose of 2.5 ml) by nebulizer.
All of this is within the VLC paramedics’ standing orders. However, the crew missed the following note in black, bold letters in the protocols: Under no circumstances should you delay transport to administer additional nebulizer treatments.
By this point, the lady is not responding positively to the paramedic therapy and is, in fact, getting worse. The medics decide to put the patient on a stair chair and begin to carry her down the six flights of stairs. After nine minutes they reach the first floor and realize the patient is no longer breathing but has a pulse at 110/min.
The medics take her out of the chair, put her on the floor and begin ventilating her with a BVM and supplemental oxygen. The decision is made to perform endotracheal intubation. A 7.5 mm ET tube is placed and the paramedic performing the intubation states that he saw “it got through the cords.” (Note: no lung sounds were auscultated as per the paramedic documentation, nor was it documented in the narrative of the PCR. The check off box that said “auscultated lung sounds” was not checked at all.)
The patient is transported with no end tidal CO2 detection or waveform capnography. This is due to the fact that the committee that oversaw ALS at the time had yet to mandate the presence of these devices on their ambulances.
Upon arrival at the hospital the patient is found to be in cardiac arrest and she is quickly transferred to the ED resuscitation bay. CPR is started and breath sounds are reassessed. The tube is found in the esophagus. It is left there and a new tube is placed correctly. The lady regains her pulse and is transferred to the ICU on a ventilator. Five days later she is found to be brain dead and expires. The family sues after receiving a ME report stating the cause of death was primarily due to “cerebral anoxia due to misplaced endotracheal tube by EMS paramedics.”
The EMS expert hired by the plaintiff concluded the paramedics involved departed from the standard of care by:
Not recognizing that the patient was in “status asthmaticus.”
Not appropriately treating the patient’s “status asthmaticus” condition.
Violating their own treatment protocols in delaying transport to administer medications that are not appropriate for “status asthmaticus.”
Mistakenly placing the endotracheal tube into the esophagus.
Not verifying tube placement (listening to lung sounds or belly sounds) after the intubation and, therefore, not realizing that the endotracheal tube was misplaced.
The expert also concluded the committee that oversaw ALS in the city was remiss in not mandating the presence on ALS units of colorimetric ETCO2 devices or waveform capnography, since it was clearly standard of care for intubated patients at that time.
There was no EMS expert hired by the defense.
The case was settled for a relatively large sum; the paramedics were retrained and continue to work in VLC.
Estate of Hermann v. Large Midwestern City EMS (LMCEMS) 2008
Paramedic and BLS units are dispatched to a nursing home for a 78-year-old with an “airway obstruction.” Upon arrival, they find a female in cardiac arrest due to a bolus of food obstructing her airway. BLS methods to clear the airway are unsuccessful. The paramedics clear the obstruction with direct laryngoscopy and Magill forceps, and chest compressions are started, an OPA is placed and the patient is ventilated with a BVM and supplemental oxygen. After two minutes a pulse is found. The patient has a pulse of 100 (sinus tachycardia on the monitor) and a BP of 120/70. Needless to say, an unusual circumstance.
By this time, the police and fire companies have arrived and the medics decide to perform an endotracheal intubation. They place a stylet in the tube and the senior medic performs the laryngoscopy and begins to insert the tube. While doing this he discusses the latest baseball scores with his partner and he is, as per both the police and fire depositions, “cracking wise.” They also state he “violently and repeatedly” shoved the tube into the patient’s airway. The tube is placed and lung sounds are heard, the absence of belly sounds is documented and transport starts.
During transport, air begins to migrate under the lady’s skin in her neck and face, inflating the area under the eyes. Upon arrival, the ED physician confirms the presence of subcutaneous emphysema. Moments later the patient becomes cyanotic, suffers a cardiac arrest and cannot be resuscitated.
On autopsy it is found that the woman has a 3 cm laceration of the trachea in the area of the anterior carina. The ME states that this likely came from the tip of the malleable stylet protruding beyond the end of the ET tube.
The patient’s family initiates a lawsuit and the attorney secures the services of an EMS expert.
The expert originally has many doubts about the case against the paramedics and almost decides to decline the case. The most notable of his concerns is he believes that tracheal perforation and associated airway damage is considered a complicationof endotracheal intubation, not in and of itself proof of breach of the standard of care. In addition, while the “optics” of the testimony of the police and fire department members about violently and repeatedly trying to place the tube and wisecracking during patient care are certainly questionable and concerning, appearances do not make the case for violation of the standard of care.
However, the expert decided to work on the case after reading the senior medic deposition. While under oath, the medic could not remember anythingabout the case, which occurred two years prior, and said he did not remember where he attended paramedic training. He was a paramedic for nine years prior to the deposition. The expert felt the paramedic was disingenuous in saying he remembered nothing about a successful resuscitation of 78-year-old with an obstructed airway. After all, how any of those do you see in a career?
In addition, the expert also felt paramedic training was a life-changing event and, as such, the paramedic “forgetting” where he spent between 10 months and two years of his life was deliberately misleading. If the medic was trying to mislead when answering the above questions, what else was there to hide?
After the EMS expert’s report and deposition, LMCEMS offered a large cash settlement to the family, which was accepted. While the paramedics in question were disciplined and still see patients, one would hope they’ve learned that poor documentation and obfuscating during a deposition simply compound your problems.
Estate of Smith, et al v. City in Western NY EMS (CIWNYEMS) 2007
A 52-year-old male eats lunch at a Chinese buffet restaurant. He has a history of allergies to crab and lobster. As he eats he complains to his wife about having “itchy skin,” but continues eating. He says he feels his “throat tightening and some shortness of breath.” They quickly exit the buffet but before he can get to the car he collapses in the parking lot.
The city fire department’s paramedic engine company arrives on the scene and the patient is breathing and has a pulse. Pulse is 128, respirations are 40 and BP is 92/70. They notice the patient has profound stridor and make one attempt at endotracheal intubation. (CIWNYEMS protocols allow two attempts at intubation in airway obstruction, including anaphylaxis before the next intervention, which allows for a needle cricothyroidotomy under standing orders, as well.)
The fire department attempt at ETI is not successful and they decide to ventilate via BVM until the ALS transport ambulance from CIWNYEMS arrives. The patient is ventilated quite well with the BVM.
The ambulance arrives and the paramedic team goes to work. One starts an IV of saline with a 16g angio and begins a 500 ml fluid challenge and the other medic makes the first of three unsuccessful attempts at ETI.
After 10 minutes the fluid is in and one of the medics is still trying to intubate the patient. The paramedic at the IV is also busy giving the patient multiple doses of epinephrine, dyphenhydramine and solumedrol, all under standing orders. During this time the patient’s EKG and vital signs remain relatively stable. After the third unsuccessful attempt at intubation, the paramedic at the airway decides to perform a needle cricothyroidotomy. He passes the 14g needle through the membrane, attaches the jet insufflator and begins ventilating the patient. The patient’s face and neck demonstrate air under the skin—subcutaneous emphysema. The patient then suffers a cardiorespiratory arrest and is transported to the hospital, where he expires due to the complications of the needle cricothyroidotomy.
The patient’s family initiates a lawsuit and the attorney hires an EMS expert who is, again, hesitant to take on the case, as subcutaneous emphysema is a recognized complication of the needle cricothyroidotomy. As far as the violation of the protocol reference to the ET attempts, the expert believes it is possible to violate protocol and still be within the standard of care. This was the expert’s opinion until he read the PCR. The PRC completely documented the call from arrival, through all interventions and transport. The expert decided to take the case when he read the call times. The CIWNYEMS ALS ambulance arrived on scene at 1402, the patient arrested (as above) at 1458. Transport to the hospital began at 1504 and the unit arrived at the hospital at 1506!
The hospital was two city blocks away and can actually be seen from the restaurant parking lot in Google Street View—ain’t technology grand? To be clear, this patient survived at the parking lot for 56 minutes while EMS “stayed and played.” This patient would have fared much better had he just called a cab.
Outcome: A large cash settlement for the plaintiff; to my knowledge, all EMS personnel are still credentialed and working.
These are pretty frightening outcomes for an arguably life-saving technique. My students always wonder why we’re such sticklers for detail. We are because endotracheal intubation is one of those skills that’s not performed often but carries high risk. We also know that, while the mistakes we make may seem innocuous and miniscule at the time, everything we do, or don’t do, has consequences and ramifications far beyond that one moment.
For as long as we continue to mismanage patients with a technique intended to help them, the people in charge of our curriculums and scope of practice will continue to look hard at ALS airway control. It is truly questionable if endotracheal intubation will be a viable tool for EMS providers in the future. What we can say is cases like these certainly don’t demonstrate the positive aspects of the technique.
Gausche M, Lewis RJ, Stratton SJ, et al. Effect of out-of-hospital pediatric endotracheal intubation on survival and neurologic outcome. A controlled clinical trial. JAMA, 2000; 283:783–90.
Paul A. Werfel, MS, NREMT-P, Director, Paramedic Program, Clinical Asst. Professor of Health Science, School of Health Technology & Management, Asst. Professor of Clinical Emergency Medicine, Dept. of Emergency Medicine, Health Science Center, Stony Brook University, NY.