$172M Verdict Against NYC EMS

After a three week trial the family of a brain damaged girl has won a $172M verdict in a New York courtroom.

The family of Tiffany White, who was twelve at the time of the incident in 1998, had sued Accuhealth Inc and the New York EMS. A nurse for Accuhealth, which is now bankrupt, was at the house administering a cortisone shot for an eye condition when the girl had an adverse reaction that ended up with her heart stopping. When paramedics came to the house they were not equipped with proper recitation gear and called a second squad. The girls mother begged the responders to take her daughter to Montefiore Hospital two miles away. The team waited for the second team and the court determined the wait caused brain damage.

The case shows the result of adverse events that result from emergency decisions that are difficult to defend. Ensure your ambulance service is properly insured and prepared the aggressively manage and defend any claims. Contact an expert broker to discuss your options.

Paramedic Brings Whistleblower Claim

Valerie Sakr was a paramedic for Pennsylvania based Keystone Quality Transport before it merger with EMStar Medical Transport. She had wanted superiors that she smelled alcohol on a coworker, she alleges that the pair was pushed out on the road without investigation. When her cowoker almost caused an accident she reported him again, causing him to be recalled and his blood alcohol tested. He registered a .07, whereas .08 is the legal limit in PA.

Sakr called the Philadelphia Department of Health several days later and reported the incident, which lead to an investigation. It is alleged that after this incident she was encouraged to resign and was given unfavorable shifts as well as had vacations denied as retaliation. She was later terminated at the time of the merger.

The EMS service is now facing a whistle-blower lawsuit in the Philadelphia Common Pleas Court. These types of actions are increasing in frequency and cost, contact us today to discuss employment practices liability insurance.

Morrow County Ohio EMS Data Breach

A Marion Star expose claims that Morrow County EMS exposed private patient data from 2008-2011 and did not notify patients once the breach was discovered. HIPAA and HITECH acts have rigid disclosure guidelines and penalties for non-compliance. Even the smallest disclosures can have massive consequences. For example, an Idaho Hospice was fined $50,000 for losing an unencrypted laptop with 441 patient records on it. Not reporting quickly has been a particular target of regulators.

As a reminder, notification of privacy breaches must be made “without unreasonable delay” but no later than 60 calendar days after discovering the incident to:

  • The individuals whose personal health information was disclosed. They must be provided details on what efforts are being taken to investigate and steps taken to mitigate future breaches. You must include this information on your website if you have outdated contact info for ten or more individuals.
  • To the department of Health and Human Services immediately if over 500 individuals are affected, you must report to them HHS annually all disclosures no matter what size.
  • Prominent media outlets must be notified if the breach involves 500 or more individuals who are residents of one state or jurisdiction.

Many insurers are including small limits within liability policies to cover the cost of responding, contact an ambulance insurance broker today.

Ohio to Track VINs to Combat Fraud

The State of Ohio has announced it will begin tracking ambulette VIN numbers to cut down on fraud. The move is expected to be one in a series of regulations put in place to crack down on medical transport fraud. The legislation comes after public backlash to reports such as Rapid Medical Transport of Columbus billing the state significantly higher than any other operator. Rapid billed Ohio Medicaid $316,775 for wheelchair transport in 2013, that’s an average of 268 miles or 29 trips every day in a single vehicle. The application to renew his license with the Ohio Department of Public Safety showed seventy three trips in 2013, while he billed 10,425 to Medicaid.

With a few bad operators the spotlight and it’s associated costs are pointed at everyone. Although many companies do not purchase, Directors and Officers insurance should be considered to defray the potentially catastrophic legal fees associated with a regulatory investigation. Directors and Officers insurance also protects the owners against lawsuits from creditors and outside investors.

However, increased oversight should help push out the fly by night EMS companies that have stuck their liability insurers with avoidable claims. Bad operators have pushed up premiums for everyone in the market, better risks in the market lead to lower premiums for all involved. If the new regulations in Ohio reduce waste and fraud other states are expected to follow.

Contact an expert EMS insurance broker to discuss better managing risk in an evolving environment.

Managing Contingent Liability

Emergency Medical Services, like most providers, often ignore contingent liability until it’s too late. With the continued building of complexity into our health care system it’s not uncommon for a patient to be seen by a dozen or more provides in their chain of care. When something goes wrong all parties tend to get sued. Managing contingent liability is about limiting this exposure.

The first step to managing contingent liability is through contractual language, the second is in verifying proof of insurance coverage. When EMS services sign contracts with nursing homes, hospitals and municipalities they are often presented with wording that benefits the other party, by simply asking that they receive the same terms in return will provide most coverage needed. Ambulance services should also have lawyers review these contracts and make wording suggestions.

The two most common terms in contracts are “indemnification” and “hold harmless”. Indemnification means that the other party will reimburse you for any expenses you incur on their behalf. Hold harmless says that neither party will sue each other, often with an exception for gross negligence. Putting these two together means your patient transport organization will be reimbursed for legal expenses caused by your contract partners and that those parties will not come after you directly. This aligns both parties interests.

Requesting and monitoring proof of insurance is also a key part of this process. Many organizations, nursing homes in particular, either do not carry insurance or buy from unrated carriers. By putting in place controls (internally or using a third party service like CertTrack) will ensure that you do not become the deepest pocket. EMS services should require at least $1M in malpractice coverage from an AM Best A- or better rated carrier. Also, reminder that insurance renews once a year and many contracts run until cancelled. Proof of coverage should be requested at each yearly renewal.

Contact AmbulanceMalpractice.com today to discuss ways to limit your contingent liability and lower overall costs. One claim, even if no settlement is paid, can have catastrophic consequences on your renewal premium.

Ruling in Auto vs Malpractice Coverage Overturned

A Midland Texas U.S. District Court ruling concerning an Ambulance liability suit has been overturned on appeal.

In the summer of 2006 Preferred Ambulance, based in Mission TX, was transporting Darline Rigsby from a dialysis center to her home. When placing her into the ambulance the gurney tipped over causing a fractured shoulder and additional complications for the patient. When Rigsby died several days later from a heart attack her daughter sued Preferred.

A $200,000 settlement was made with Preferred’s auto insurer (Scottsdale) and malpractice insurer (Western World) each contributing half. The two insurance companies then sued each other to recover their payments.

The original ruling was in favor of Scottsdale, the auto insurer, and asserted the injury was medical malpractice. However, the Court of Appeals for the Fifth District determined that the appropriate cover was under auto liability. Their ruling is here.

The appeals court based their ruling on the fact that the EMT had his hand on the ambulance door when the stretcher tipped, making the event an auto liability claim. The case shows the importance of coordinating coverage. Many events could span multiple insurance companies, placing coverage with the same carrier or clearly delineating policy wording can save insurance buyers years of frustration and litigation expenses.

As experts on insuring medical transport providers, contact us today to discuss better protecting your organization.

Ambulance Driver Charged with DUI After Crash

Many ambulance operators scoff at the questions asked by underwriters. Over the years it seems no questions rile the emotions more than those surrounding background checks and employment procedures. A case in Chicago highlights why it is so important to perform comprehensive background checks and document the process thoroughly.

John P. Lara, a 31 year old ambulance driver, ran a red light on the north side of Chicago on Monday December 9th at 10:45 am with his lights and sirens operating. He crashed into a pickup truck and when the police arrived he blew a .271 blood alcohol level – more than three times the legal limit.

This is not his first run in with the law. In 2007 he was pulled over on suspicion of drunk driving, his Illinois drivers license was suspended for three months when he refused a breathalyzer. He was stopped at least four times during this three month period for driving without a license.

Lara also was charged with felony forgery in 2002, which he plead guilty to misdemeanor theft over. In 2004 he was arrested for interfering with a police officer and in 2005 he was arrested for felony unlawful use of a firearm. In both the 2004 and 2005 cases he was also charged with impersonating a police officer.

Contact us today to discuss better protecting your organization from rogue employees. If a organization signs an application stating they have performed background checks and during an insurance company investigation it is determined not to be the case, the claim will likely  be denied.

Connecticut Medicare Billing Investigation

Nelson Ambulance, a non-emergency patient transport service in Connecticut, is reported to be the latest health care provider to face a federal investigation for Medicare fraud. The investigation is said to center around improper Medicare billings for transporting ambulatory patients.

Hearst reporters obtained a memo that advised “we are not able to bill some of our medicare and Medicaid patients due to poor documentation… Medicare WILL NOT pay for ambulatory patients or DOCTORS appointments” and instructed “As this effect a good portion of our ambulance patients we ask the following. Please document that ALL patients were moved by sheet lift to our stretcher, even if the patient was ambulatory writing such will make medicare denie (sic) the claim. Also for doctors appointments please document it as a Procedure, not a follow up or Doctor appointment. This will secure billing rights for these calls”.

Defense coverage for ambulance providers and their officers, who can be personally liable, is available under correctly structured insurance policies. “Directors and Officers” insurance can contain a regulatory limit when placed by an experienced broker. Because of the growing risk most insurance companies no longer automatically provide the needed terms. Filing an insurance claim also has the added benefit of providing an experienced claim manager to oversee the process so those involved can focus on continuing to operate their business.

As implementation of the Affordable Care Act continues the strain of new expenditures is stressing Medicare and Medicaid. The administration has been very proactive is pursuing health care providers and aggressively prosecuting any possible over billing.

Implementing a strong risk management culture to deter investigations and provide a defense against allegations is needed in this environment. However, even the most honest, open and well run organizations are not going to be exempt from the costs of defending themselves.

Contact AmbulanceMalpractice.com today to discuss the current state of the insurance marketplace and possible enhancements to your insurance program.

No Immunity for Maryland Ambulance Service

The Maryland Court of Appeals (State Supreme Court) has ruled against for-profit ambulance providers claim of immunity.  The ruling is available here.

In November 2007 a paramedic employed by Transcare was riding along on a medical transport flight operated by PHI Air Medical for orientation purposes. The patient being transported, Bryson Murray, was a minor and needed to be transfered to the pediatric intensive care unit at the Medical Center of the University of Maryland Medical System.

During the flight Murray’s stats began to drop, the staff could not locate the equipment needed to reintubate and the helicopter was forced to land to retrieve the needed mask from a storage compartment. The family claims the plaintiff suffered brain damage from lack of oxygen during the delay.

The court ruled that although the individual employee may have immunity under Maryland law the vicarious liability of it’s employer, Transcare, was not subject to Good Samaritan statutes. The key point was whether the transport was being operated by a “rescue company”.

TransCare is a commercial ambulance company. According to the testimony of one of its employees, its business generally involves transporting patients from nursing homes to hospitals, from home to a dialysis center, or “wherever the patient needs to go, they take them.”43 It became involved in the transport of Bryson Murray in this case as a result of its contract with UMMS to provide ground transportation services between area hospitals for UMMS patients.

Commercial ambulance companies in Maryland are licensed and regulated by the Maryland Institute for Emergency Medical Services Systems (“MIEMSS”). Maryland Code, Education Article (“ED”), §13-515. There is no mention in the statute of a licensing requirement for “rescue companies” or “rescue squads.” Rather, specifically excepted from this regulation are ambulance services provided by, or operated under, the jurisdiction of State or local government or volunteer fire or rescue companies. ED §13-515(a)(3)(ii); COMAR 30.09.03.04.44 In parsing the jurisdiction of MIEMSS over commercial ambulance services under this regulatory regime, the Attorney General noted that “nearly all commercial ambulance transports are considered non-emergency.” 80 Opinions of the Attorney General 118, 120 (1995).

It is also notable that the statute governing commercial ambulance companies requires that each company maintain commercial general liability insurance coverage in the amount of at least $1 million – in addition to motor vehicle insurance and other insurance – to provide payment for bodily injuries, death, and property damage “resulting from any cause for which the commercial ambulance service is liable.” ED §13-515(d)(2); see also COMAR 30.09.04.06B. It is not clear why a commercial ambulance company would be required to maintain such coverage if it automatically enjoyed general immunity “from civil liability for any act or omission in the course of performing [its] duties.” TransCare asserts that, as an ambulance company that may provide emergency medical services, it necessarily qualifies as a “rescue company” and that it is therefore entitled to the broad, governmental-type immunity provided by the Fire and Rescue Act for “any act or omission in the course of performing their duties.” Under this view, TransCare and its employees would apparently enjoy this broad immunity from liability for ordinary negligence in their normal commercial activities, with a limited exception related to motor vehicles. Indeed, the breadth of its immunity would exceed that of State or local agencies, for which the Legislature has enacted limited waivers of sovereign immunity for ordinary negligence that are not restricted to automobile accidents. We are loath to infer, in the absence of a clearer statement of legislative intent, that the General Assembly meant to bestow such a benefit on a commercial enterprise generally.

This is not to say that a commercial ambulance company may not qualify as a “rescue company” in particular circumstances. Unlike the Good Samaritan Act, the Fire and Rescue Act is not limited to “volunteer” entities. For example, one might imagine a situation in which a local government has privatized emergency services or has otherwise enlisted commercial entities as first responders.

In this case, the Circuit Court held that TransCare qualified as a “rescue company” without any evidence that the company provides such emergency services in Maryland or that it was functioning as a first responder in the particular circumstances of this case.
Indeed, the evidence available to the Circuit Court indicated that TransCare’s employee was present for training purposes related to its contract to provide inter-facility transports for UMMS patients. Accordingly, it was an error to grant TransCare’s motion for summary judgment on the basis of the Fire and Rescue Act.

While we agree with the Court of Special Appeals that the Circuit Court’s decision should be reversed, unlike the intermediate appellate court,46 we do not rule out the possibility that a commercial ambulance company could establish that it performs the function of a “rescue company.” Thus, if a commercial ambulance company like TransCare could demonstrate, on the basis of undisputed facts, that it functioned as a rescue company in particular circumstances, it would be entitled to summary judgment under the Act. Of course, we express no opinion on whether TransCare will be able to do so.

For the reasons stated above, a commercial ambulance company such as TransCare does not qualify for immunity under the Good Samaritan Act, regardless of whether the company’s employee may qualify for immunity under the statute. Moreover, in the circumstances of this case, TransCare has not demonstrated it functioned as a “rescue company” that has the broad immunity from liability provided by the Fire and Rescue Act.

Accordingly, TransCare was not entitled to summary judgment on the basis of statutory immunity.

Contact AmbulanceMalpractice.com today to discuss better protecting your organization against the potential liability of changes in legal interpretations and unexpected rulings.

$2.1M Sexual Abuse Verdict Against Ambulance Service Upheld

An Oregon was transported by an ambulance operated by American Medical Response to Legacy Emanuel Hospital in Portland. When she arrived the patient reported to ER nurses that she had been touched sexually by the paramedic three times during the 15 minute trip.

After an investigation it was discovered the allegations were not an isolated incident.

The court awarded the woman $500,000 in non-economic damages, which were tripled when it was determined she was a vulnerable person. The courts also added on $600,000 in attorneys fees raising the total verdict to $2.1M. AMR appealed that the damage was excessive but lost. The appellate court ruling can be found here.

Contact AmbulanceMalpractice.com today to discuss better protecting your emergency response organization from the costs of litigation.