Saturday, December 12, 2009

Complacency Kills…Patients and Careers

I did my paramedic internship at Los Angeles City, Rescue 66, in the spring of 1989. You might think I am crazy, but I recall that as being one of the best times of my life. My preceptors, Mike Samudio and Kelly McKee were clinically tough, but very fair. They did what they had to do to make sure that I could do what I had to do when I had to do it.

What I remember, and appreciate, the most is that they took the time and spent the energy to make sure that I always considered and appreciated the role of a paramedic from the patient’s perspective. With them, even the twentieth patient in as many hours received the attention, respect, and care as the first. The sweet old lady with chest pain, the juiced-up gang-banger with a gunshot wound, and the homeless drunk with a bellyache since 1964 were all treated with the same attention to proper care (as patients) and proper treatment (as human beings).

As it is with many interns, about half way though my internship I became too comfortable with my preceptors and my skills. I recall one particular incident like it was yesterday. It was the middle of the night; I was tired and cranky and faced with (another) young woman who was emotionally upset over something her boyfriend had done. She was in no distress and the very thorough assessment – including an EKG – revealed nothing more than big trouble for boyfriend when he returned. Nevertheless, with the Captain, Engine Company, family members, and preceptors watching, I presented her with disposition options: First, I told her, we could take her to the hospital if she desired. Or, I continued, she could stay home with her family and see her private doctor in the morning. Had I stopped at those two options, there would be nothing about which to write. Of course, I did not. Her third choice, I presented smugly, was “…or we could take you to Disneyland. That always makes me feel better…”

I could see the words as they left my mouth and hit the air. They would not be retrieved. The damage was done. The simultaneous and confounded looks of disappointment on my preceptor’s faces said it all. I am reasonably sure that, if I had a tail, it would have instantly lowered and tucked itself between my legs.

When the dust settled, and there was a lot of dust, Kelly McKee pulled me aside and calmly gave me some of the best advice I have ever received: “Dave,” he said, “your not going to like everyone you come in contact with. Sometimes you’re going to be tired and sometimes you may not want to be there. But, as long as you are, remember this: Complacency Kills. The minute you begin to treat people differently or cut corners, someone is going to die…and it could be you.”

I have never forgotten that lesson. I have passed that wisdom on to every intern I ever precepted and tried to apply it in my daily life. Now, I pass it on to you.

I shared my story, albeit rife with sentimentality, to provide a bridge from conceptuality to tangibility; to encourage some reflection on your own career as we analyze a case where complacency did kill.

Wright v City of Los Angeles
On May 19, 1979, witnesses saw a fat man picking up Jerry Wright and hitting him up against the side of a car as Wright screamed, “Help, police, I'm being robbed.” Wright tried to get into the car, but the other man pulled him away and continued to beat him. Moments later, a man came out of an apartment across the street and hit the fat man, who fell under the car. The man then helped Wright into the car. When he started it up, it rolled backwards, and then stopped; Wright just sat there.

Moments later, two police officers arrived; one had his gun drawn and pointed at Wright and ordered him to come out of the car, but he did not comply. He remained slouched and leaning against the back of the driver's seat. Another witness urged the police not to shoot, saying that Wright could not get out of the car because he was beaten up or hurt, and that the man on the ground had done it. The officers opened the passenger door and pulled him out, half into the gutter. One of the officers poked him with a baton, but he did not move. The other officer pushed him over onto his stomach, put his hands behind him and handcuffed him. He was lying on a grass parkway, with his head leaning over the sidewalk; one of the officers kicked him between his neck and shoulders and moved his head back onto the grass.

Witnesses heard Wright loudly complaining that his head hurt, that he hurt all over and needed an ambulance. The police called for paramedics. Soon after, an ambulance with two paramedics arrived to find numerous police vehicles and officers, and the fat man lying in the street. A police officer directed one paramedic to Wright; the other attended the fat man. The paramedic did not recall being told Wright had been complaining of pain or that he hurt all over and had asked for an ambulance. He knew that there had been a fight and assumed that was why the paramedics had been called, he never asked the police why they had been called.

The paramedic approached Wright and asked him what was wrong or what had happened; Wright did not respond. He asked Wright if he was hurt and Wright said he was not hurt; he did not complain that he hurt all over. The paramedic did not ask Jerry a series of orientation questions. While the paramedic was talking to Wright, he was examining him visually to determine why they had been called to the scene. He then did what he called “…the 60-second examination…” a brief visual examination of the body to determine if there is a life-threatening situation. It was the only examination he did; he did not check a pulse or blood pressure. He did not recall if he touched Wright’s skin, although he could have done so while examining his body for visible injuries. After the 60-second examination, he told a police officer if Wright was to be booked he should probably see a doctor first; the paramedics then left.

Wright died at the scene a short time later from Sickle Cell Crisis. The paramedic was found liable and the plaintiffs were awarded millions.

Wright v. City of Los Angeles has become a landmark case for EMS providers everywhere the duty to act is at issue. Recall from my column “Are You Just Down the Street From a Lawsuit,” the Zepeda case established that staging away from certain non-secured situations did not violate the provider’s duty to act, particularly because the paramedics never initiated patient contact before the police arrived. In Wright, however, the scene was secure and the paramedic initiated patient care by approaching, asking questions, and making a substantive disposition.

When it comes to a provider’s duty to act, most every jurisdiction follows the same essential rules: The provider has a duty to act as would a reasonable provider with the same level of training and skill, in the same locality, and under the same or similar circumstances. Acting reasonably is not rocket science, yet so many providers continue to stumble around the standard, guided by what they think they know rather than what they actually know.

One of the first questions for the jury was: did the paramedic have a duty to act? Of course he did. He was summoned to the scene of an emergency to perform the duties for which he was hired; to empirically determine the patient’s condition through the use of available diagnostic tools and assessment skills. Likewise, he had a duty not to rely solely on the statements or non-statements of others, including the patient himself.

In this instance, a “reasonable” paramedic would have asked more about the circumstances which led to the response. A “reasonable” paramedic would have been motivated by the story of a fight to do a physical assessment including vital signs. A “reasonable” paramedic would have wanted to know about medical history because that is what reasonable paramedics do; like lawyers, they gather as much information as possible to get to the truth, or to at least reach an informed conclusion. A “reasonable” paramedic knows that what you see is not always what you get.

The next question for the jury was: did the paramedic breach the duty? Where one owes a duty and fails to perform, he is in breach. This was not a stretch for the jury and it will not be a stretch for you either. Chances are, unless you are absolutely clueless, you already know as you walk away from a call whether you did everything you should have – according to local training, protocols, procedures, and standards of care, not according to your psychic abilities and unquestionable experience. If you didn’t, then the possibility that you missed something, as infinitesimal as it may seem, will follow you wherever you go… at least until the statute of limitations runs out.

The last questions for the jury included: were there damages and did the paramedic’s breach of his duty cause them?

Determination of cause essentially boils down to two words: “But for…” But for the paramedic failing to do the full and complete assessment which was his duty, would Mr. Wright have died as, how, and when he did? The truth is there is no way of knowing.

On the other hand, we do know that if the paramedic had done a full and complete assessment and learned of the sickle cell disease and transported the patient to the hospital, rather than passively suggesting to the police that a doctor look at him if he is to be booked, Mr. Wright would have received advanced medical attention and his odds of survival would have improved exponentially over what he received face down in the grass.

All too often paramedics develop preconceived notions and even generate conclusions before they arrive on the scene. Sometimes that works. If you know you are going to the scene of a vehicle roll-over, it is safe to assume that a trauma center is a probable destination. Or if you are called to the scene of an overdose, person not breathing, you may reasonably forecast the use of Narcan®. Experience tells you certain things.

However, a drunk is not always a drunk. Each patient and every situation is unique, even those you have seen a thousand times. And you will never know until you have done a comprehensive and thorough assessment. Would you do a 12 lead EKG on a 34 year-old female with abdominal pain? I recall an afternoon when my partner and I did, mostly because we could. Wouldn’t you know it? She was having an MI.

As long as I live I will never understand how some providers continue to find a disadvantage to doing a full and complete assessment; how, as a matter of course, they rationalize circumstances where it’s just to burdensome to check vital signs and ask all of the necessary and appropriate questions. Perhaps it was my training, or maybe it’s just me. But it will never make sense.

Next time you find yourself on scene with “nothing,” I suggest you prove it. Because, when you will need me.

Wright v. City of Los Angeles: 219 Cal.App.3d 318, 268 Cal.Rptr. 309 Cal.App. 2 Dist.,1990.
Zepeda v. City of Los Angeles: 223 Cal.App.3d 232, 272 Cal.Rptr. 635 Cal.App. 2 Dist.,1990.
Torts-Cases and Materials: Prosser, Wade and Schwartz, 10th (2000)

Friday, December 11, 2009

Sometimes When You Lose, You Win

When I was a Paramedic, some of the most difficult days involved witnessing the senseless violence and death that have become commonplace in society. I remember a man who was shot in the stomach for the rims on his car. I remember holding the lifeless body of a four-year-old who had choked to death while eating a hamburger alone in his bedroom. I remember the 18-month-old who was raped by her babysitter's boyfriend. I remember the way I felt inside when there was nothing more I could do, though I had done everything possible.

As a
Criminal Defense Lawyer, the most difficult days are not too different and I had one of them last week.

My client, a 31-year-old black man with two strikes on his record and just days away from cleanly completing three years of parole, was arrested and charged with furnishing marijuana to a minor.

It seems my client was one among a group of individuals standing together in an alley behind a home. One of the individuals in the group produced and began smoking
marijuana from a pipe. In the ultimate demonstration of bad timing, a police car turned into the alley and witnessed the individual smoking. Naturally, the officer commenced an investigation and called for backup.

When the officer questioned my client, he was immediate, honest, and up-front. "Do you have 'anything' on you?" the officer asked. "Yes," my client answered, "I have a little bit of weed and my California Medical Marijuana Card." He produced both for the officer and further explained his status as a parolee as required by law. In keeping with department policy, the officer cuffed my client and sat him in the patrol car.

However, when my client told the officer about the medical marijuana card, the other three individuals - mere acquaintances of my client - seized the opportunity to save their collective skins. The officer quickly identified the [the only] individual who had been seen smoking as being 16-years-old. "Where did you get the weed?" The officer asked of the boy, now fearful of what his father would do to him when he got home. Knowing that he had pulled it from his own pocket, he nervously told the officer, "he (my client) gave it to me because he has one of them cards that makes it legal." The other two chimed in with their sudden agreement, "...yeah, that dude has a's legal." And that was all the officer needed.

The boy was sent home with his parents and the other two were released at the scene. My client was booked, processed, and charged with a felony. The police report and the witness statement had more holes than a block of Swiss cheese, but one thing was consistent: the witness statements all matched and were in diametric opposition to my client's story.

At the arraignment, the District Attorney made no plea offer. "This is a third strike," he told me, "we want 25 to life." While I was dumbfounded by the coldness, I was not surprised. A conviction of third striker is just what an up-and-comer needs to boost his résumé. It didn't matter. My client was factually innocent of the charges against him. I was ready to fight. Nevertheless, in the interest of full due diligence, I did ask the Judge if the Court was willing to extend an offer. And much to my surprise, the Court offered to strike the strikes and give my client the statutory minimum of three years at half time; with good time credits he would likely be out in about a year.

Graciously, the Judge gave us a week to consider the offer. My client went back to jail and I went to work. I had five work days and a weekend to carefully evaluate and determine the strength of their evidence, the strength of our evidence, and to find any other evidence that could help...or hurt.

By the end of the week my private investigator had interviewed everyone involved and even found a missing witness who had left the scene just moments before the police arrived (no, there was no connection). Although the minor told my investigator that someone other than my client handed him the marijuana, he would not fess up to the fact that my client did not even provide it.

By the end of the week I had employed - at my own expense - another Criminal Defense Attorney and a legal researcher to work with me to uncover and consider every possibility. We all worked overtime.

Was the boy an accomplice? Not within the statutory meaning. Was the boy's statement that my client did not physically hand the marijuana to him relevant? Not the way "furnishing" is defined and applied in the case law. Was the fact that my client did not know they boy, much less that he was under 18 helpful. Nope. Strict liability. What about the holes in their story... that they didn't know my client, but that he gave them free weed? What about the other stuff they said (but I cannot discuss here)? The only way to challenge it would be my client testifying at trial, where the DA would be able to ask my client about his previous felony convictions - even though they were not drug related. The jury is going to believe a two-striker over the testimony of three or four others with minimal or no records at all? Not likely. And not worth risking the rest of this man's life.

By Friday, I was exhausted as were my options. A private investigator, a legal researcher, and two attorneys had spent countless hours looking for a way to exonerate my client. To no avail.

As I drove to the jail to deliver the inevitable advice, I racked what was left of my brain. Nothing. When I got there, I looked him in the eye and broke the bad news. "We can take this all the way...and we might even win, but if we don't you are going to spend most of the rest of your life in prison... all the while knowing you could have been out in a year. I understand the principle, but sometimes when you lose, you really win." Had he wanted to go all the way, I would have taken him there and the fight would have been tough. But the risk was just too high. I advised him to accept the Judge's offer.

Driving away from the jail, I felt a burn in my gut. I just advised an innocent man to accept a year of prison. As I drove, in a last ditch effort and with really nothing to lose, I called the DA. The call was friendly and nice, but the bottom line was simply stated: "...this office never extended any offer. We want your guy for twenty-five to life on the third strike. You want me to make a better offer than the one we never made to begin with? I admire your fortitude and your client is lucky, but it's not going to happen."

As I drove back to my office, with the setting sun piercing through the clouds, I replayed everything in my head: Two-striker. Marijuana card. Group of strangers. Marijuana smoke. And I was reminded of a sound bit of advice that Warren Oates offered Roy Scheider in the movie Blue Thunder: "When you're walking on eggshells, don't hop."
When you find yourself in trouble with the law, I will fight for you with every ounce of strength I have...but I will always tell you how it really is.

Tuesday, December 1, 2009

Knowing a Little Science Never Hurts

What does
say about
DUI Breath Testing Instruments?

The more you know about what "they" know, the better able you will be to understand and protect your rights when the time comes.
The National Highway Transportation Safety Administration (NHTSA) annually publishes a list of breath testing instruments rigorously examined for accuracy and approved by NHTSA for their ability to accurately determine breath alcohol concentration, and thus blood alcohol concentration. The department of health or other appropriate agency in each state reviews the NHTSA list and test results, and issues a list of devices approved for use by law enforcement agencies in that particular state. The following is an excerpt from NHTSA.

Captured Samples
Exhaled air can be categorized into essentially three types of samples: tidal breath air, reserve breath air, and alveolar breath air. Tidal breath air is air exhaled in the course of normal breathing. It is the most shallow of the three types. Reserve breath air is exhaled when the body is exerted. It is produced through deeper breathing than tidal breath air, but great volumes of air are both inhaled and exhaled with little residence in the lung. Alveolar breath air is deep lung air. Since breath testing instruments are intended to measure indirectly the concentration of alcohol in the blood, it is essential for accuracy that the breath sample captured by the instrument for analysis be representative of the air in the alveoli of the lung, because it is in the alveoli that the 2100:1 equilibrium ratio between alcohol in the breath and alcohol in the blood occurs.

Infrared Instruments
Infrared breath measuring instruments operate on the principle that each chemical compound has unique infrared energy absorption characteristics. Ethyl alcohol absorbs energy in the 3.42 micron region of the infrared spectrum. The amount of alcohol contained in a sample can be calculated by observing energy loss when a known energy is applied to the sample. In the infrared devices, infrared energy is projected through a breath sample. A photo-detector identifies a decrease in wave amplitude caused by the absorption of energy by the alcohol. The amount of energy absorbed is equal to the breath alcohol concentration. The greater the alcohol concentration, the lower the wave amplitude. A computer on the instrument determines the breath alcohol content based upon the amount of energy loss, and then applies the 2100:1 conversion ratio to provide a digital readout of the suspect's blood alcohol content.

Because infrared instruments are based upon infrared absorption spectra, which are chemically unique, they cannot be influenced by compound such as acetone, which may have some chemical characteristics in common with ethyl alcohol. In fact, some infrared instruments also provide data on the concentrations of other compounds contained in the breath sample as well as that of alcohol.

Wet Chemical Instruments
When infrared instruments are not used, law enforcement generally uses wet chemical instruments, which operate on the basis of color changes produced through the chemical reaction of ethyl alcohol with chromate salts. These devices obtain a measured volume of alveolar breath and pass that sample through a known volume and concentration of a solution of chromate salt and acid. Chromate salt is yellow. As it reacts with the alcohol in the breath sample, it is chemically altered, resulting in a lighter color. The higher the alcohol concentration, the greater the color change.

A wet chemical instrument measures the difference between the light transmittance of a standard chromate\acid solution and the light transmittance of a sample solution. The difference in transmittance measured is directly proportional to the amount of alcohol in the breath sample.
Preliminary Breath Testing Instruments

PBT instruments are portable instruments for the purpose of BAC screening as part of the pre-arrest field testing. The suspect driver blows for several seconds through a plastic or glass tube, and the PBT provides an instantaneous determination of blood alcohol content.

In most jurisdictions, the legal basis for the use of these instruments is contained in the implied consent laws. While results of a PBT generally are not admissible as evidence of DWI, they do provide officers with additional objective information to establish probable cause for arrest and further chemical testing. They also help to detect persons who may be suffering from an illness or injury such as diabetes or head injury and are in need of chemical treatment, but would otherwise be mistaken for an intoxicated person. There are essentially three types of PBTs: electro-chemical, semi-conductor, and disposable chemical.

In electro-chemical PBTs, alcohol in the breath is absorbed into a fuel cell where it is oxidized, producing electrical current. The higher the alcohol content of the breath, the greater the current output of the fuel cell. By measuring the current produced, the instrument determines the breath alcohol content, and the BAC conversion is displayed with the aid of a computer chip. In semi-conductor PBTs, alcohol increases the electrical output of the semi-conductor. By measuring the voltage output, the breath alcohol content can be determined and the BAC conversion is displayed.

Disposable chemical PBTs are glass or plastic tubes containing a measured amount of the chemical, which is reactive with alcohol. As the suspect exhales through the tube, alcohol contained in the breath reacts with the chemical contained within. The greater the breath alcohol content, the greater the chemical reaction observed.

Non-Invasive or Passive Alcohol Sensors
Passive alcohol sensors (PAS) are instruments that detect the presence of alcohol in normally expelled breath. They require no cooperation from the driver. During the roadside interview of the driver and examination of documents, the officer places the PAS within six inches of the driver's mouth. It contains a small fan which samples the ambient air for examination. An electro-chemical mechanism analyzes the air for the presence of alcohol. Some instruments are concealed within a flashlight and can be used as a passive or active detector. NHTSA studies indicate these devices are effective during sobriety checkpoints when the decision whether or not to continue breath testing must be made quickly.

When the Police Have Questions...

It is natural to want to defend yourself, and this is where most people get into trouble.

Exercising your rights and looking out for your own best interest does not make you a bad person. And it does not mean you are or feel guilty about anything. Nevertheless, law enforcement is trained to make you feel like a bad person when you do seek counsel, but don't be swayed. If you know or even suspect that you a subject in a criminal investigation, it is critical that you consult legal counsel immediately. Do not talk to law enforcement officials, potential witnesses or anyone else without first speaking with an attorney - and DON'T let anyone make you believe that you MUST talk without counsel present.
When you are approached by anyone with questions about a crime or when you come home to find a detective's business card on your door with a note that says, "...please call..." remember, what you do and say right now can have a dramatic effect on the rest of your life... even if you are not involved. Catastrophic consequences are not uncommon for people who were lured into saying the wrong thing to the wrong person.
Do not speak to or trust anyone other than your defense attorney.
It's no secret that the goal of law enforcement is to build cases that can lead to a criminal conviction. Prosecutors and investigators are willing to take their time and expend tremendous resources to build a case against you. No matter what they say, their job is not to protect your rights. It is to get a conviction.
Finally, until you have been arrested, you have no Miranda Rights against self-incrimination, that is to say: Anything that you say can and will be used against you. When you voluntarily talk to law enforcement - or anyone - you can not complain that nobody read you your rights. You do not even have the right to know the charges you are facing.
If you or a loved one is involved in a criminal investigation, please don't wait. The Law Office of David J. Givot can be there to protect your rights AND still allow you to do the right thing.