First of all, we are not talking about judging, we are talking about providing expert testimony. The judge or jury does the judging, the expert witness provides the expert testimony.
That expert testimony requires the expert to make a decision, and subsequent argument, about whether the actions of the defendant are reasonable based on the standard of care and the science available (which are not necessarily the same thing as standard of care lags behind new science). There's a difference between "judging" in the sense of running a trial, "judging" in the sense of guilty/not guilty, and "judging" an action as reasonable/unreasonable based on the standards of the field. If the judge and jury were able to do that, there would be no need for an expert witness. I guarantee that one of the questions that the expert witnesses (plural since I'm willing to bet that both the defense and plaintiff will bring their own) will be asked, "In your opinion, was the care rendered acceptable?"
Secondly, if I follow the protocols as a "cookbook" and the patient dies and I'm accused of negligence, then you're damned right I'd want another EMS provider who also follows the protocols as a "cookbook" to testify that what I did is exactly what he would have done, too.
"Superior orders" is not a defense I would like to use in a court of law if the orders are manifestly wrong. That defense won't stand if the plaintiff can show that the EMS providers should have known better. All that would be shown was that there are two EMS providers who don't know how to do their job properly.
Also, if EMS providers are supposed to follow protocols to a T, why even provide 1000 hours of training? If the end all/be all is symptom relief based care based on a cookbook, than very little actual training is needed. There's definitely no need for foundation sciences (A/P, pharm, etc) in that case, since there's no reason to use it. Under this concept, I can train an EMT in a week, part time.
Sorry, I don't understand the question ("Alternatively, if one can reason that, while obvious to a physician, may not be obvious to a paramedic, why would he or she be unable to articulate that in a court of law?") There seems to be at least one word missing in there somewhere, I'm not sure if the "he or she" is referring to the physician or the paramedic, and I'm not sure what the "that" in "articulate that" is referring to. But in any event, again, you're providing a specific example that doesn't really disprove anything.
If the physician can understand that the educational background underlying a paramedic's practice of prehospital emergency medicine is not the same as the physician's educational background in emergency medicine, why can't the physician apply that understanding when providing expert testimony.
The fact of the matter is what we're talking about here, in this post and the chain of posts in this thread that lead to where we are now, is negligence. I've already provided the definition of negligence, and may I remind you that it says the care provided by the accused is to be compared with the standard of care that would be rendered by another reasonably prudent person in the same profession. Is a doctor in the profession of prehospital EMS? No. It's that simple.
Who determines what the standard of care under that set of protocols is?
Maybe in your classroom but not in mine, and I just completed an EMT-B course for the second time (after letting my original certification lapse). We most definitely were taught that backboarding can do more harm than good if it isn't needed, and we were taught when to recognized when it is and isn't needed. We were taught that for the purposes of the exams, every patient gets oxygen because every patient scenario in the exams have been designed to require oxygen. We were also taught that in the real world, not every patient requires oxygen. We were taught to never withhold it if the patient actually asks for it, but otherwise, administer only if it seems needed, with "seems needed" being based on SpO2, appearance, assessment, complaint, work of breathing, etc.
First off, again, who determines the standard of care? If the standards that licensing/certification exams (since, in many areas, the NREMT exam is the de facto licensure exam for that state), does high concentration supplemental oxygen administration being a critical failure for NREMT practicals (which includes behavioral, which based on the sample scenario
(PDF page 21) wouldn't have any oxygen indicated. Most of the rest aren't really indications for more than a NC in the absence of a pulse ox) mean anything? After all, those are the standards you're being tested on. What about AHA recommendations? Those play a part in determining the standard of care, and the sample cardiac scenario provided definitely doesn't indicate oxygen therapy under the 2010 guidelines.
Why would you administer a medication only because the patient requested it? Isn't the EMS provider the professional providing care? What other drugs are going to be administered only on patient request absent any indication for use? "Gee, Mr. Paramedic. I'm in no pain, but I'd sure like a bolus of morphine."
So you were taught that backboards weren't necessary for all patients. Was it NEXUS or Canadian C-Spine rule? What if your system doesn't support the use of it? So you were taught one standard and are now being held to a different standard based on protocol, which is right? What if the expert witness EMS provider works in another system that does the opposite (either does or does not allow for selective spinal immobilization)? Who's setting the standard of care in that case?
So your class taught the material correctly from a medical standpoint, but how many other classes in your area teach the mentality of everyone gets oxygen and a backboard? One problem with the standard of care being the sole judge is that there's a certain amount of 'majority rule' involved. The majority, however, is not always right.
