RE: Pt. Scenario

Thanks for the reply - I do think we agree most of the way. I think in most legal proceedings, you *will* get the chance to tell a story...but it may be, as you correctly note, at your own risk. In both the examples you used, you're quite right that an opinion won't carry much weight and you may even be thought foolish or reckless for offering it unless you are a recognized expert in the field. Generally, the purpose of any legal proceeding is to find the truth or as close to it as the facts will allow and opinions are typically only useful for helping the judge or jury understand or interpret the facts that are presented. Opinions are only as impressive as the credentials and demeanor of the person presenting them.

But I would like to share one example from my own experience of how this can work in a little bit different way. Some years ago I was working in a very rural area and our closest Level II Trauma center was 120 miles away by <mostly> 2-lane highway and the closest Level I center was 225 miles away. As a practical matter, no rotor-wing transport was available. Our local hospital was a small, but fairly capable, community hospital and between us and the Level II center was a mountain pass about 60 miles away. Our local medical control established a policy that trauma patients from any scene beyond 60 miles from town (i.e. the other side of the pass) would go directly to the Level II trauma center and those within that radius would come back to town for stabilization and subsequent transport by fixed-wing aircraft. There was no policy governing safe vehicle operations other than the generic "accidents are expensive" sort of general directive to drive safely. On one call I was 68 miles out and the information I had on the scene from a public safety officer was that the road was very icy and perhaps impassable between the scene and the Level II trauma center so I "violated" policy and came back to town with the patient.

An issue was subsequently raised about this transport and specifically with my decision to turn back rather than go forward as the policy required. The plaintiff's attorney obtained testimony from other people who weren't on the scene that the road that night was indeed passable although a number of cars had ended up in the ditch. All I had to show was that I had acted in good faith on the information available to me at the time and yes, I was permitted to paint the scene so the plaintiff's attorney could understand what we were up against that night. I was permitted to testify that a decision to go forward would have meant using tire chains and thereby limiting our speed to 25 mph or less for most of what would then be a 2+ hour trip. I was also permitted to testify as to the patient's suspected injuries and the facilities I believed would be available to us at the local hospital including the specific abilities of the staff that I knew was available or would be upon our arrival. I was permitted to testify about the profile of our vehicle and the direction and speed of the prevailing winds and temperatures. I was even permitted to testify as to the experience and driving ability of my partner that night. In the end, I was removed from the case as a defendant in spite of the testimony that suggested the road was, in fact, in sufficiently good shape to allow safe passage because I was able to offer a sufficiently compelling demonstration of my thought processes during the event and was able to present the information upon which I had relied to make my decision. Much of that information was opinion rather than fact (e.g. I couldn't prove or demonstrate that given the frictional coefficient of black ice versus our particular brand of tires at the reported temperature would allow a 40-knot crosswind to push our Type II van off the road regardless of forward speed but I believed the possibility existed and that assertion went unchallenged).

So if there is any disagreement between us (and there may not be), it is this: By an absolute standard, I should have pressed on that night regardless of the safety of the road ahead because the policy was clearly stated and allowed for no exceptions. My judgement, which I feel was upheld by my dismissal from the case, was that to follow the policy in those particular circumstances would have violated my duty to protect the patient from possible further harm and therefore that duty had to supercede the policy. I've often wondered what the outcome would have been if I had pressed on and the road had, in fact, been impassable or an accident had resulted from my attempt to comply with the policy.

Don't get me wrong - I'm not flippant about policies and protocols and I haven't typically been labeled as a renegade. But when policies or procedures are written in such a way as to make professional judgement irrelevant and are implemented without apparent respect for potential unforeseen complications, there is a danger in treating the protocol rather than the patient. I'm willing to assume a risk to do what I think is best for the patient even if I can't reconcile it with the policy. I try to be proactive and address policy concerns before they present as a specific problem, but if something new and unexpected comes up, I'll fall back on my primary duty to be an advocate for the patient.

Perhaps my main point in this post is that from the outside we tend to think of the legal system as a structure of absolutes based entirely on facts and truths. But if you sit through a typical civil trial, you'll see that opinions and attitudes sometimes play a larger a role than "the facts". The largest civil judgement ever entered in Arizona ($28+ million) resulted largely from the plaintiffs' attorney's successful but untrue characterization of the defendant physician as uncaring and unconcerned when literally thousands of his colleagues and parents of his patients knew otherwise. In that decision, which was the most egregiously wrong outcome I know of and the one that did the most to shake my faith in our civil justice system, the facts simply didn't matter to the jury and it was all about opinions, judgements and emotions.

As a practical matter, in you're involved in litigation, you will be offered a chance to share all sorts of information. Facts, opinions, anecdotes, statistics all have their place and it's up to the judge and jury to sort them out. To be honest, don't expect a plaintiff's attorney to stop a rambling freeform dissertation on everything that is wrong with the system because it's probably helping build their case; in fact, they will probably encourage it. It is reasonable, however, to expect your own counsel to try and discourage you from being so informative. Particularly in a discovery deposition, you may well have a chance to state that a given trauma center doesn't meet your specifications but then you'll have to put your credibility on the line by explaining your thinking. And if it turns out that the assessment is based on third-hand, inaccurate or irrelevant information, it will be considered the product of an arrogant ignorant fool. Penalty paid....case closed.

My personal goal in any legal situation is to leave both sides feeling something like "Hey, this is the guy I want to take care of me when I'm ill or injured". But I also keep in mind that it is still the plaintiff's attorney's job to try and extract a judgement from me or my employer and it's my job not to give them any reason to continue to try. So my primary risk reduction strategy is to place the patient squarely at the center of the dilemma and then make a judgement on what makes sense and is in their best interest. The vast majority of the time that means operating entirely within the established policies and procedures but also means that I may on a rare occasion circumvent or violate a policy that would have unintended or unforeseen negative consequences for my patient in that particular set of circumstances. But I also hold myself fully accountable for the outcome and know that the legal system or the system of medical direction under which I work may hold me accountable as well. But I respect that accountability rather than fear it and I also work hard to amend the policy to prevent future similar problems.

It sounds like our colleagues in Kansas have some challenges ahead of them but to bring this discussion back to it's starting point, they need to define local standards that make sense for them and I'm not willing to make a judgement from this distance as to how those standards should address triage or transport protocols so I didn't offer an opinion as to the appropriateness of the destination and mode of transport in the scenario that was described. But I would encourage anyone developing or revising such protocols to at least consider how exceptions may occur and how they will be handled.