As I am both a lawyer and a paramedic, a lot of people (paramedics mostly) have been asking me about my thoughts as I follow the case of the two former Hamilton paramedics charged with “Failure to Provide the Necessities of Life” in relation to the death of Yosif Al-Haswani on the evening of December 2, 2017. All the testimony is finished in the Trial. To be clear, I have not been attending Court, but I have been following the media reports of the trial in some detail and my comments are based on those reports. The case has huge legal repercussions for paramedics and other medical professionals who make mistakes when doing their jobs.
When the events of December 2, 2017, first came to light, many paramedics, including myself, expressed concern that there must be some other side to the story. There is a clear protocol in place for paramedics to follow when caring for a patient with penetrating trauma. Yosif Al-Haswani had been shot, with what doesn’t matter if the result was penetrating trauma, and so something strange must have gone on. Something, or someone, must have convinced the two paramedics, Christopher Marchant and Steven Snively, that something else was wrong. Something must have confused them. Paramedics do not, generally, make significant departures from the patient care standards, and when they do it is often in a situation of chaos and confusion at the scene that makes following those standards difficult or impossible.
The Story That Came Out in the Evidence at Trial
The evidence of Marchant and Snively does make it clear that they made mistakes and departed from the expected standard of care. They also did a terrible job of “charting” their treatment on the patient care records.
From the media reports, here is what happened on December 2, 2017, according to the testimony that was reported at trial, but from a paramedic’s perspective.
- Just before 9:00 p.m., Al-Haswani saw two people accosting an older man on the street. Al-Haswani had a confrontation with those two people. One of them shot Al-Haswani in the abdomen with what was reported, at the time, to be a BB gun. Al-Haswani’s brother ran into a convenience store to get someone to call 9-1-1 because Al-Haswani had been shot.
- The police arrived and asked for an ambulance. The officer reported that Al-Haswani had a superficial wound to his abdomen from a BB Gun. The call-taker at the dispatch center recorded in the call log that there was no immediate threat to life. However, as the dispatch center was severely understaffed that night, the call-taker put “unknown” into the system in the fields regarding the patient’s level of consciousness. With an unknown level of consciousness, the call was dispatched as the highest priority – Priority 4.
- ·When being dispatched, Marchant questioned why they were being sent Priority 4 for a superficial wound from a BB gun. The dispatcher took offence to the paramedic questioning dispatch directions, especially when they were short-staffed. She filed a report against the paramedic and then called him the next day to chastise him.
- As a result of being short-staffed, the ambulance dispatch mistakenly did not send a supervisor to a gunshot call. However, due to the unknown level of consciousness, the ambulance dispatch asked the fire department to respond.
- On arrival, the police, at least one firefighter and bystanders told paramedics that Al-Haswani had been shot with a pellet gun. He had a very small wound in his abdomen near his belly button. But there was no external bleeding. Snively had seen pellet gun wounds before and had not seen them penetrate the skin.
- The Paramedics found Al-Haswani conscious, but confused, lying on the ground. There was no “air of emergency” as the bystanders did not seem particularly concerned. A police officer, and then the paramedics sent the fire department away because, under both the paramedic and fire department’s protocols, there was nothing for the fire department to do.
- Advanced Care Paramedic, Snively, went to Al-Haswani, but did not take any equipment with him. He assessed him, including assessing the patient’s wound in his abdomen. Bystanders, including Al-Haswani’s father, saw him doing this assessment. However, that assessment was not documented on the ACR. Snively assessed Al-Haswani’s vitals as being normal and transferred the responsibility for attending to the patient to the Primary Care Paramedic, Marchant.
- Primary Care Paramedic Marchant, who was the attending paramedic, cut off Al-Haswani’s sweater but did not document on his Call Report that he had ever examined, or “palpated” Al-Haswani’s abdomen because the wound was so small and, apparently, caused by BB Gun. He did document on the Ambulance Call Report that Al-Haswani has “no complaint of abdo pain.” Based on the seemingly minor nature of the injury, and the story that a BB Gun had been used, Marchant “ruled out” penetrating trauma as being the cause of Al-Haswani’s condition.
- On the street, Al-Haswani would not answer the paramedics’ questions but instead spoke to his father in Arabic. Al-Haswani’s father then spoke to the paramedics. The paramedics took this as a sign that Al-Haswani was being difficult, but his breathing was under control. The paramedics asked if Al-Haswani was under the influence of alcohol and drugs and his friends adamantly said no.
- When a bystander told a paramedic that Al-Haswani wouldn’t use drugs because he is a medical student, the paramedic replied, “If he’s a medical student, he wouldn’t be here.” A police officer said loudly, “He’s been shot with a BB gun, and he’s acting like it’s an AK-47.” Al-Haswani’s father said that the paramedics acted like “there is no danger in the matter.” He also remembers one of the paramedics telling him to “tell your son to stop acting.” Another bystander testified that when the paramedics arrived, they “weren’t’ taking anything seriously.”
- A firefighter reported that one of the paramedics said, “he’s acting, he’s pretending” to which Al-Haswani replied, “then why does it hurt so much.” The firefighter also remembers a paramedic saying “Don’t worry. You’re going to live. It’s nothing serious. It’s just a mosquito bite.”
- When they tried to pick up Al-Haswani by picking him up by the legs and arms, he wriggled making him impossible to lift. Eventually, a bystander convinced Al-Haswani to let the paramedics place him on the stretcher. Al-Haswani’s father said the paramedics put his son on the stretcher in a “shameful” and “humiliating” way: he was “hanging before walking” and the paramedics “threw” Al-Haswani onto the stretcher. They did not use a “scoop stretcher” or spine board to move Al-Haswani onto the main ambulance stretcher. Using one of those devices would have been the correct way to move a trauma patient.
- In the back of the ambulance, Al-Haswani had trouble breathing. He became confused, and “combative” and had to be restrained. The police assisted with restraining him. Some unfortunate comments were made to Al-Haswani attempting to direct him to improve his behaviour. He did not.
- In the back of the ambulance, the paramedics gave Al-Haswani oxygen, took his vitals and noted his heart rate was 143-145 beats per minute. They did a complete 12-lead to see if he was having a cardiac event and took his blood sugar to see if that would explain his altered mental status, but the reading was 5.4 (normal).
- The paramedics spent 23 minutes on the scene moving and assessing Al-Haswani. Dr. Verbeek, the medical director for the Sunnybrook Base Hospital Program for paramedics testified that the time frame is not an unusual or particularly long time to spend on a scene, particularly where confusion makes it difficult to understand what happened to the patient and there were difficulties moving the patient to the ambulance.
- Marchant did not believe that Al-Haswani had penetrating trauma, and so he looked for other causes, deciding that he had a psychiatric, not a trauma patient. As a result of that conclusion, several first responders, including the paramedics, made disparaging comments about Al-Haswani in the belief he suffered from mental health concerns.
- The paramedics left on Code 3 (urgent, but not life-threatening) and did not use the lights or sirens. They selected St. Joseph’s Hospital rather than the trauma center at Hamilton General Hospital. They assessed the patient as being CTAS-2 with mental health concerns. St. Joseph’s’ hospital is the preferred hospital for mental health concerns. CTAS-2 means a doctor should see him within 15 minutes.
- It took less than eight minutes to get to St. Joseph’s Hospital. About two minutes from the Hospital, Al-Haswani became completely unresponsive (unconscious) and his vitals indicated he was “pre-arrest” and blood started squirting from the womb on the abdomen. The paramedics upgraded to Code 4 (life-threatening), used the lights and sirens and continued to rush to St. Joseph’s. Marchant told the hospital the patient had a “small penetrating wound” from a BB-Gun to the abdomen and was “CTAS-2”. Al-Haswani was actually CTAS-1 so he saw a doctor immediately on arrival. The paramedics did not decide to change their destination to the trauma center but kept going to St. Joseph’s. When he opened the back doors at the hospital, Snively noted that the patient’s heart rate was 45 beats per minute. He said they rushed him inside.
- Al-Haswani was in cardiac arrest by the time he was in the resuscitation room. The Emergency department is not a trauma center and does not have a “Trauma Team” specializing in treating serious trauma patients. Whether that would have made a difference is not clear as Al-Haswani already almost had half of his blood volume in his abdominal cavity from a wound caused by a .22 pistol fired at close range. Dr. Verbeek said the chance that a trauma team could have saved Al-Haswani was very low, but “it was not zero.”
- Al-Haswani’s father confronted Marchant in the Emergency Department after learning of his son’s death. He said, “Do you believe him now?” Indicating that the paramedics had ignored his son’s complaints on the scene. A surveillance camera also caught Marchant and Snively having an animated discussion at the hospital after the call.
- Marchant did not file his Ambulance Call Report until the next day. The standards for writing those reports required it to have been done before he left the hospital. Both paramedics decided the next day that they should do incident reports regarding the call.
The Views of the Doctors on the Paramedics’ Actions
Dr. Verbeek testified that paramedics are not expected to make a diagnosis, nor should they rely on what weapon was used to decide on their next steps. He said there are clear protocols in place and when a patient falls within a protocol, the paramedics must treat the patient in accordance with that protocol. There is a protocol for penetrating trauma that says the patient is to be taken as quickly as possible to the trauma center. Paramedics are not to second guess that. They are to assume that things could be worse than they seem, not better. In this case, once there was penetrating trauma of any type, no matter how caused, the paramedics should have assumed the patient was dying from that injury.
Dr. Crosskerry testified that up until about three years ago, paramedics were not trained to look for “disconfirming evidence” of what they think is wrong. That means they were not trained to try to disprove their working theory of what was wrong with the patient. Dr. Crosskerry also said that it is common for healthcare providers to base their treatment on their preliminary conclusions, particularly where, as in this case, the paramedics were told by several people that the patient had been shot with a BB Gun. In such cases, where the patient’s condition seems clear, healthcare providers can be confused by, or ignore, signs and symptoms that are inconsistent with their understanding of the patient’s condition. There are many examples of healthcare providers providing the wrong treatment, or not treating at all, because of initial conclusions about what was “going on” with the patient. Essentially, Dr. Crosskerry said that the paramedics acted the way many, if not most, healthcare providers act. There is a need for more training to avoid mistakes when healthcare providers do not constantly reevaluate their thoughts about a patient and the patient’s condition. In many places, that training is already underway, due to unrelated studies about how health care providers make mistakes.
What Other Paramedics Think
As the story of what happened on December 2, 2017, came to light, the views of many paramedics changed. It initially started with “There must be another side to the story.” Then it moved to “Not taking a patient with penetrating trauma to a trauma center is clearly an inexcusable departure from protocols.” Then it became “Why were they looking for a heart attack in a patient who had been shot?” or “When the patient’s patients’ condition deteriorated why didn’t they realize their conclusions were wrong and go to the trauma center?” Many paramedics, the ones who self-evaluate their work often, moved on “Could I have made that same mistake when the information given at the scene was so wrong?”
Clearly, the paramedics misinterpreted or ignored a lot of signs that Al-Haswani was in serious distress. They picked the wrong hospital. They didn’t realize that a wound that didn’t look like penetrating trauma actually was and when the patient started to deteriorate, they didn’t re-evaluate their conclusions about the injury until moments before Al-Haswani’s death. But, even then, under the Field Trauma Triage Standard for Paramedics, they should have rerouted and gone to the trauma center.
In light of the seriousness of Al-Haswani’s injuries, is doubtful, but not impossible, that going to the trauma center would have saved his life.
The Criminal Law That Applies to this Case
However, in this case, the question is not whether the paramedics made an error. The question is whether that error is deserving of criminal sanction.
The paramedics are charged with failing to provide the necessities of life contrary to s. 215 of the Criminal Code. For a person to be guilty of that offence, the Crown must prove:
- The accused person had a duty to provide the necessaries of life to a person who is unable to withdraw from the “charge” of the accused person because of detention, age, illness, mental disorder, or other cause;
- The victim was in circumstances where he or she needed the necessaries;
- The accused failed to meet that duty by acting (or not acting) in a way that constitutes a marked departure from what a reasonably prudent person would do in the same circumstances.
The paramedics had a legal duty to provide assistance to Al-Haswani. That was their job. There was nothing preventing them from doing it. Further, Al-Haswani was in no condition to get himself to the trauma centre, or even to insist that the paramedics take him there. He needed someone to take him there and that is what the paramedics and ambulance were there to do: to assess him and get him where he needed to go.
Al-Haswani needed medical treatment. “Necessaries” has been held as “necessaries as tended to preserve life”. The courts have held that medical attention necessary to sustain life meets the definition.
It is in the third criterion where the legal case gets difficult. The actions of the accused must be a marked departure from what a reasonably prudent person would do. The duty is not one of perfection – the paramedics do not need to attain perfection in their treatment. Additionally, mere negligence is not enough to establish criminal liability either. Their error has to be more than what would just attract damages in a civil case. The care provided must fall beyond an absolute minimum standard of care, being the provision of the bare necessities in the circumstances. That other healthcare providers have made similar types of mistakes leads to the question of whether taking the patient to the wrong hospital falls below an absolute minimum standard of care.
This then raises the question of whether making a mistake is enough to make someone guilty of this offence under the Criminal Code. Whether someone should be imprisoned for making a mistake is a very different question from whether someone should have to pay compensation for making a mistake. Once a marked departure from the standard of care is established, the next question is whether the accused was capable of recognizing that he or she had fallen short of that standard. It is not appropriate to punish the “morally innocent” under this section. The fact that the paramedics were actively trying to find out what was wrong with Al-Haswani by doing a 12-lead ECG to check for a heart condition, taking a blood sugar to look for a blood sugar imbalance, and looking for psychological factors shows they were not willfully trying to avoid providing the correct treatment, but rather they were trying to figure out what the correct treatment was. The paramedics were working in the uncontrolled environment that is characteristic of pre-hospital medicine and that is very different from making decisions in the relatively controlled environment of a hospital with many other healthcare professionals around to help and provide advice.
After being told repeatedly that the “mechanism of injury” was inconsistent with penetrating trauma, and having done an assessment of Al-Haswani’s abdomen that confirmed what they had been told, should the paramedics have kept the possibility of a major traumatic injury within their considerations? And if they had done so, should they have prioritized the trauma center over the hospital that had psychiatric services, which was consistent with what they saw as being wrong with their patient? When Al-Haswani’s condition deteriorated quickly, should they have changed direction and gone to the trauma center instead? Were the decisions the paramedics made markedly different from the decisions that other paramedics or other health care providers would have made in the situation?
These are the questions that Justice Harrison Arrell will have to decide based on the evidence he heard and observed from the witnesses to the events of December 2, 2017. The evaluation of the versions of events for a short, but chaotic, series of events will play a big part in the case.
This Case Could Have a Huge Impact on Canadian Health Care
Since this is a criminal matter, the Crown must prove all of the parts of the offence beyond a reasonable doubt. That health care providers occasionally make mistakes, even while trying to avoid them, may raise more than a reasonable doubt as to whether these paramedics are deserving of a criminal sanction. But, healthcare workers all across Canada are watching to see whether, unlike in other professions, their mistakes will lead to criminal sanctions. Such a decision could certainly lead to profound changes in health care across Canada.
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