By Doug Wolfberg
Your EMS agency is dispatched to a call at the request of law enforcement. You arrive to find three police cars, their lights flashing.
You encounter chaos as soon as you exit your vehicle. You hear multiple police officers yelling commands at someone. Before you can even grab your gear, an officer approaches and tells you that after they attempted to speak with a 鈥渟uspicious individual,鈥� things quickly turned confrontational. 鈥淲e took him down and cuffed him,鈥� the officer tells you, and adds, 鈥渉e may be on drugs.鈥�
You approach and see law enforcement surrounding the individual, with officers at the person鈥檚 head, feet and sides. A male, about 25 years of age, is lying face down on the sidewalk. He鈥檚 in handcuffs with his arms behind his back. He appears to be struggling. He attempts to turn himself onto his side, but his effort is cut short after officers forcefully return him to the prone position and put a knee on his back. The officers are not making room for you to access the individual upon your arrival.
What next?
EMS interactions with law enforcement are usually positive and benefit responders, patients and the public. But sometimes, they go south. In a scene like this, there鈥檚 a risk that EMS clinicians might delay and defer. Delaying by failing to promptly access and assess a potential patient, and deferring by following law enforcement鈥檚 lead instead of their own clinical judgment about when and how they deliver patient care. Delaying and deferring can lead to bad (but often preventable) consequences, such as poor patient outcomes and the prospect of both civil and criminal liability, as recent cases have starkly shown.
We don鈥檛 always know which calls will spiral into headline-grabbing cases. But we do know with virtual certainty that when you encounter nearly any scene in a public setting, almost every word you utter and action you take 鈥� or don鈥檛 鈥� will be recorded on one or more electronic devices.
Welcome to the era of 鈥減erformative patient care鈥� in EMS
EMS clinicians can no longer simply get by with being competent caregivers. In this day and age, every EMS clinician must be seen and heard being a patient-centered advocate. Not only must you actually provide quality care, but you must look and sound like an empathetic human being in the process. This means practicing what I call performative patient care 鈥� audibly and visibly demonstrating patient advocacy while, at the same time, being clinically competent.
Cases of in-custody deaths will, properly, be subjected to intense scrutiny. Family members, attorneys, prosecutors, news media, politicians and others with very public megaphones will scrutinize every detail of the incident and closely examine not only law enforcement actions, but EMS conduct as well.
Video is everywhere. Police body worn cameras (BWCs). Bystander cell phone cameras. Overhead traffic or crime prevention cameras. Cameras in private residences or businesses. News media.
Incidentally, it is perfectly legal for people to record EMS almost everywhere we operate. Owners or occupants of private places can have cameras in their home or business. The public can record EMS when operating in public spaces. Because public incidents are not private communications, state wiretap laws or other statutes requiring consent for recording generally do not apply. While, of course, someone with a camera 肠补苍鈥檛 follow you into the back of the ambulance to continue recording while you鈥檙e treating a patient in that private space, you are nevertheless fair game for recording almost anytime you鈥檙e visible in public.
EMS clinicians should remember to consciously and deliberately practice performative patient care anytime you see cameras, but also even when you 肠补苍鈥檛. In other words, act as if cameras are always present, because they probably are. Our example centers on an EMS/law enforcement interaction, but you should develop the muscle memory of practicing performative patient care in all situations.
| More: 鈥楧on鈥檛 smile for the camera.鈥� The dos and don鈥檛s of operating in an era where everyone has a camera on you
What does performative patient care look and sound like?
Performative patient care means that EMS clinicians need to be seen doing basic things like:
- Promptly accessing the patient
- Visibly bringing critical equipment to the patient鈥檚 side upon initial encounter
- Performing an appropriate patient assessment
- Moving swiftly and deliberately in providing necessary treatment
- Avoiding inappropriate body language or gestures that show disregard, antipathy, bias or hostility
And it means that EMS clinicians need to be heard doing certain things, like:
- Communicating respectfully with the patient
- Speaking with empathy for the sick or injured human being in front of you
- Problem-solving with other EMS clinicians on scene to ensure quality care
- Avoiding words or statements that show bias or hostility
- If necessary, respectfully challenging the actions of those who may be delaying, impeding or compromising EMS care or the wellbeing of a patient
Performative patient care means making contact with the individual as soon as it is safe to do so, and visibly performing an appropriate patient assessment. It means talking with the patient if communicative. It means expressing empathy and always speaking with respect. It includes overt efforts of the EMS clinicians to interact as a team, discussing their findings and the patient鈥檚 needs and formulating a treatment plan. Then it includes visibly and promptly carrying out that plan.
Unfortunately, scenarios don鈥檛 always unfold this neatly. Bystanders might interfere, or police officers on scene might deny prompt access to the patient. They might insist on keeping the patient in a dangerous position, or apply excessive and dangerous force for the circumstances. Certainly, nobody expects EMS clinicians to overpower or physically remove police officers who may be harming a patient or preventing you from doing your job. But, practicing performative patient care means that the EMS clinicians should be seen and heard advocating for the patient.
鈥淭he first thing we鈥檙e going to do is reposition him so he鈥檚 not lying face down.鈥�
鈥�Officer, we understand this person is in your custody, but we need to be able to determine if he鈥檚 sick or injured and you are preventing us from doing that. We respect your authority here but please allow us to medically assess this person.鈥�
鈥淥fficer, putting your knee on this person鈥檚 back is limiting his breathing, please stop so we can reposition him.鈥�
In situations where law enforcement officers try to direct patient care, practicing performative patient care might include outright challenges to inappropriate medical requests by the police or other third parties. For example, if police ask you to 鈥済ive this guy a sedative,鈥� or say something like 鈥渒eep him face down,鈥� then respond as a patient advocate, not by being deferential.
鈥淔irst we need to assess his condition and see what he needs. If he needs medication, we鈥檒l give it, if he doesn鈥檛, then we 肠补苍鈥檛.鈥�
鈥淣o officer, it鈥檚 medically dangerous to keep him face down. We are repositioning him.鈥�
While in most cases, law enforcement acts appropriately, if their actions continue to impede care, then continue being calmly persistent. There simply may come a point where there鈥檚 not much else you can do. However, it鈥檚 what happens afterward when the benefits of performative patient care truly come into focus.
Prosecutors are people too
If someone dies in police custody, or other under questionable circumstances, the case will undoubtedly end up on the desk of a prosecutor. The prosecutor will look at all available evidence and decide whether criminal charges are warranted and, if so, against whom. This evidence will certainly include 911 recordings, radio communications, police reports, witness statements, medical records, autopsy reports and, of course, all available audio and video recordings from the incident.
Here鈥檚 where performative patient care really comes into play. EMS clinicians have expressed concern over providers being charged with crimes in this new era, and many feel helpless over the prospect of it happening to them. But what makes performative patient care so powerful is that each and every EMS clinician always has the individual power to control how they act. You control how you will look and sound on those recordings. You control how you鈥檒l be perceived by witnesses. When the prosecutor views and hears the recordings, or speaks with the witnesses, let them reveal calm, competent, empathetic and patient-centered EMS clinicians doing their best as caregivers and advocates.
Prosecutors are humans. If they see and hear EMS clinicians acting with purpose, competency and compassion, they鈥檙e more likely to conclude they shouldn鈥檛 bring a criminal case against the caregivers. On the other hand, if a prosecutor sees and hears EMS providers disregarding the patient, blindly following treatment directions of police, being physically aggressive to the patient, showing bias, making jokes, failing to assess or treat, or giving inappropriate interventions that aren鈥檛 clinically indicated, don鈥檛 be shocked when a prosecutor decides to file criminal charges.
It鈥檚 tough to prosecute a good clinician. It鈥檚 not hard to prosecute a jerk. Don鈥檛 delay and defer. Be seen and heard advocating for your patient. Practice performative patient care, and not only will you reduce your liability in the process 鈥� your patient care will be better.
ABOUT THE AUTHOR
Doug Wolfberg is widely recognized as one of the country鈥檚 preeminent EMS leaders. He is an EMS attorney and founding partner of Page, Wolfberg & Wirth, a national EMS law firm. Doug was previously an EMS clinician as well as an EMS official at the county, regional, statewide and federal levels.
