Bledsoe v1 ch07_lecture

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Copyright © 2017, 2013, 2009 Pearson Education, Inc. All Rights Reserved. Bryan E. Bledsoe Richard A. Cherry Robert S. Porter Paramedic Care: Principles & Practice Volume 1, 5e Chapter 7 MedicalLegal Aspects of Out-of-Hospital Care

Transcript of Bledsoe v1 ch07_lecture

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Bryan E. BledsoeRichard A. Cherry Robert S. Porter

Paramedic Care: Principles & PracticeVolume 1, 5e

Chapter 7Medical–Legal Aspects

of Out-of-Hospital

Care

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Bryan E. BledsoeRichard A. Cherry Robert S. Porter

Standard

• Preparatory (Medical–Legal and Ethics)

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Competency

• Integrates comprehensive knowledge of EMS

systems, the safety and well-being of the

paramedic, and medical–legal and ethical issues,

which is intended to improve the health of EMS

personnel, patients, and the community.

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Introduction

• Paramedics must:

– Be familiar with legal issues they encounter in field

– Be prepared to make medical decisions and

appropriate legal decisions

• Laws vary state to state; protocols vary county to

county.

• Specific legal question: rely on advice of attorney.

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Legal Duties and Ethical Responsibilities

• As paramedic, you have legal duties to patient,

crew, medical director, public.

• Based on accepted standards; set by statutes and

regulations

• Best protection from liability:

– Perform systematic patient assessment.

– Provide appropriate medical care.

– Accurate and complete documentation.

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Figure 7-1 Each EMS response has the potential of involving paramedics in the legal system.

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Legal Duties and Ethical Responsibilities

• Ethical Responsibilities

– Respond promptly to both physical and emotional

needs of every patient.

– Treat all patients and their families with courtesy and

respect.

– Maintain skills and medical knowledge.

– Participate in continuing education programs,

seminars, refresher training.

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Legal Duties and Ethical Responsibilities

• Ethical Responsibilities

– Critically review your performance; constantly seek

improvement.

– Report honestly and with respect for patient

confidentiality.

– Work cooperatively with and respect other emergency

professionals.

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Legal Duties and Ethical Responsibilities

• Ethical standards are not laws.

– Principles that identify desirable conduct by members

of particular group

• Morality: principle of right and wrong as governed

by individual conscience.

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Legal Duties and Ethical Responsibilities

• The Legal System

– Constitutional law: based on Constitution of United

States; protects people against governmental abuse.

– Common law ("case" or "judge-made"): society's

acceptance of customs and norms over time; changes

and grows over years.

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Legal Duties and Ethical Responsibilities

• The Legal System

– Statutory law (legislative): does not come from court

decisions; created by lawmaking or legislative bodies.

– Regulatory law (administrative): enacted by

administrative or governmental agency at either federal

or state level.

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Legal Duties and Ethical Responsibilities

• The Legal System

– Criminal law: crime and punishment.

– Civil law: noncriminal issues (personal injury, contract

disputes, matrimonial issues).

Plaintiff: person initiating litigation.

Defendant: person against whom complaint is made.

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Legal Duties and Ethical Responsibilities

• The Legal System

– Tort law: civil wrongs committed by one individual

against another.

– Trial courts: judge or jury determines outcome of

individual cases.

– Appellate courts: hear appeals of decisions by trial or

appeals courts.

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Legal Duties and Ethical Responsibilities

• Anatomy of a Civil Lawsuit

– Incident

– Investigation

– Filing of complaint

– Answering of complaint

– Discovery

Examination before trial (deposition)

Interrogatory

Requests for document production

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Legal Duties and Ethical Responsibilities

• Anatomy of a Civil Lawsuit

– Trial

– Decision

– Appeal

– Settlement

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Legal Duties and Ethical Responsibilities

• Laws Affecting EMS and the Paramedic

– Scope of Practice

Range of duties and skills paramedics allowed and expected to

perform

Set by state law or regulation and/or by local medical direction

Policy to guide paramedics in dealing with intervener

physicians

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Legal Duties and Ethical Responsibilities

• Laws Affecting EMS and the Paramedic

– Certification: recognition granted to individual who has

met qualifications to participate in certain activity.

– Licensure: used to regulate occupations.

– Understand EMS laws and regulations in your state.

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Legal Duties and Ethical Responsibilities

• Laws Affecting EMS and the Paramedic

– Special motor vehicle laws govern operation of

emergency vehicles and equipment; vary state to state.

– Each state has different laws to protect public.

Report spousal abuse, child abuse and neglect, abuse of

elderly, sexual assault, gunshot and stab wounds, animal bite,

communicable diseases.

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Legal Duties and Ethical Responsibilities

• Laws Affecting EMS and the Paramedic

– Laws to protect paramedics:

Immunity: exemption from legal liability.

Good Samaritan laws: immunity for people who assist at

medical emergency.

Ryan White Comprehensive AIDS Resources Emergency Act

(Ryan White CARE Act): exposure to bloodborne or airborne

pathogens.

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Legal Accountability of the Paramedic

• Required to provide level of care to patients

consistent with education and training; equal to

other paramedics with equivalent training.

• Expected to perform duties in reasonable and

prudent manner.

– Intentional tort: civil wrong committed by one person

against another based on willful act.

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Legal Accountability of the Paramedic

• Negligence and Medical Liability

– Negligence: deviation from accepted standards of care

recognized by law for protection of others against

unreasonable risk of harm.

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Table 7-1 EMS Liability Claims

Summary of 275 EMS Liability Claims from a Large National EMS Insurer for a Two-Year Period

Cause Percentage

Patient handling 45%

Emergency vehicle movement or collision 31%

Medical management 11%

EMS response or transport 8%

Lack or failure of equipment 4%

Other Causes 9%

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Legal Accountability of the Paramedic

• Negligence and Medical Liability

– Duty to act: formal contractual or informal legal

obligation to provide care.

Duty to respond to scene and render care to ill or injured

patients

Duty to obey federal, state, local laws and regulations

Duty to operate emergency vehicle reasonably and prudently

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Legal Accountability of the Paramedic

• Negligence and Medical Liability

– Duty to act: formal contractual or informal legal

obligation to provide care.

Duty to provide care and transportation to expected standard

of care

Duty to provide care and transportation consistent with scope

of practice and local medical protocols

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Legal Accountability of the Paramedic

• Negligence and Medical Liability

– Duty to act: formal contractual or informal legal

obligation to provide care.

Duty to continue care and transportation through to appropriate

conclusions

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Legal Accountability of the Paramedic

• Negligence and Medical Liability

– Breach of duty:

Malfeasance: performance of wrongful or unlawful act by

paramedic.

Misfeasance: performance of legal act in manner harmful or

injurious.

Nonfeasance: failure to perform required act or duty.

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Legal Accountability of the Paramedic

• Negligence and Medical Liability

– Res ipsa loquitur:

Complainant must prove damages would not have occurred in

absence of somebody's negligence.

Instruments causing damages were under defendant's control

at all times.

Patient did nothing to contribute to his own injury.

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Legal Accountability of the Paramedic

• Negligence and Medical Liability

– Negligence per se (automatic): paramedic violates

statute and injury to plaintiff results.

– Actual damages: plaintiff must prove he was actually

harmed in way that can be compensated by award of

damages.

Plaintiff may seek punitive (punishing) damages.

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Legal Accountability of the Paramedic

• Negligence and Medical Liability

– Proximate cause: action or inaction of paramedic

immediately caused or worsened damage suffered by

plaintiff.

Plaintiff needs to prove damage to patient was reasonably

foreseeable.

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Legal Accountability of the Paramedic

• Negligence and Medical Liability

– Defenses to negligence:

Good Samaritan laws

Governmental immunity

Statute of limitations

Contributory or comparative negligence

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Legal Accountability of the Paramedic

• Negligence and Medical Liability

– Appropriate education, training, continuing education

– Appropriate medical direction

– Accurate, thorough documentation

– Professional attitude and demeanor

– Act in good faith

– Use common sense

– Covered by medical liability insurance

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Legal Accountability of the Paramedic

• Special Liability Concerns

– Paramedic's medical director: may be liable to patient

for negligent supervision of paramedic.

– Borrowed servant doctrine: if supervising other

emergency care providers, you may be liable for any

negligent act they commit.

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Legal Accountability of the Paramedic

• Special Liability Concerns

– Civil rights: patient may sue for violating his civil rights

if you fail to render care for discriminatory reason.

– Off-duty paramedic: liability may arise in situation in

which off-duty paramedic renders assistance at scene.

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Legal Accountability of the Paramedic

• Special Liability Concerns

– Airway issues: failure to secure airway or failure to

recognize airway improperly placed can result in

devastating or fatal injuries for patient.

– Restraint issues: patient who must be physically or

chemically restrained due to patient's behavior.

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Legal Accountability of the Paramedic

• Special Liability Concerns

– Restraint issues:

Excited delirium syndrome (ExDS)

Restraint or positional asphyxia.

– Understand and practice safe restraint techniques.

– Medical restraint is high-risk issue.

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Paramedic-Patient Relationships

• Confidentiality

– Medical or personal information (medical history,

assessment findings, treatment) will not be released to

third party without express permission of patient or

legal guardian.

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Paramedic-Patient Relationships

• Confidentiality

– Patient consents to release of his records.

– Other medical care providers have need to know.

– EMS is required by law to release a patient's medical

records.

– Third-party billing requirements

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Paramedic-Patient Relationships

• Health Insurance Portability and Accountability Act

(HIPAA)

– Changed methods EMS providers use to file for

insurance and Medicare payments.

– Added layers of privacy protection for patients.

– All EMS employees trained in HIPAA compliance.

– Patients rights regarding health records.

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Paramedic-Patient Relationships

• Defamation

– Person makes intentional false communication that

injures another person's reputation or good name.

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Paramedic-Patient Relationships

• Libel

– Act of injuring person's character, name, or reputation

by false statements in writing or mass media with

malicious intent or reckless disregard for falsity of

statements.

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Paramedic-Patient Relationships

• Slander

– Act of injuring person's character, name, or reputation

by false or malicious statements spoken with malicious

intent or reckless disregard for falsity of statements.

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Paramedic-Patient Relationships

• Invasion of Privacy

– Release of confidential information, without legal

justification, regarding patient's private life; exposes

patient to ridicule, notoriety, embarrassment.

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Paramedic-Patient Relationships

• Consent

– Consent: granting of permission to treat.

– By law, you must get patient's consent before you can

provide medical care or transport.

– Patient must be competent to give or withhold consent.

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Paramedic-Patient Relationships

• Consent

– Informed consent: based on full disclosure of

information.

Nature of illness or injury; recommended treatments

Risks, dangers, benefits of treatments

Alternative treatment possibilities; risks, dangers, benefits of

accepting each one

Dangers of refusing treatment and/or transport

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Paramedic-Patient Relationships

• Consent

– Expressed consent: most common; person directly

grants permission to treat—verbally, nonverbally, in

writing.

– Implied consent: patient requires emergency

intervention but is mentally, physically, or emotionally

unable to grant consent.

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Paramedic-Patient Relationships

• Consent

– Involuntary consent: court orders patients to undergo

treatment, even though they may not want it.

– Competent adult in police custody does not lose the

right to make medical decisions for himself.

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Paramedic-Patient Relationships

• Consent

– Minor: consent obtained from parent, legal guardian,

court-appointed custodian.

– Emancipated minor: considered adult.

– Competent adult may withdraw consent for any

treatment at any time; refusal must be informed.

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Figure 7-3 Example of a "release-from-liability" form.

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Paramedic-Patient Relationships

• Refusal of Service

– Be sure patient legally permitted to refuse care; must

be competent adult.

– Make multiple and sincere attempts to convince patient

to accept care.

– Enlist help of others (family or friends) to convince

patient to accept care.

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Paramedic-Patient Relationships

• Refusal of Service

– Make certain patient fully informed about implications

of decision and potential risks of refusing care.

– Consult with on-line medical direction.

– Have patient and disinterested witness sign release-

from-liability form.

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Paramedic-Patient Relationships

• Refusal of Service

– Advise patient he may call you again for help, if

necessary.

– Attempt to get patient's family or friends to stay with

patient.

– Document entire situation thoroughly on patient care

report.

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Paramedic-Patient Relationships

• Problem Patients

– Violent

– Victim of drug overdose

– Intoxicated adult or minor

– Ill or injured minor with no adult available to provide

consent for medical treatment

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Paramedic-Patient Relationships

• Problem Patients

– Attempt to develop trust and rapport.

– Refusal form should be completed and witnessed by

police officer.

– If situation dangerous, police officers or family should

consider legal measures.

– Conversation with patient and refusal witnessed by

disinterested third party.

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Paramedic-Patient Relationships

• Boundaries Issues

– Professional boundaries: ethical and societal limits to

interactions between paramedics or health care

personnel and patients they serve.

Crossing professional boundaries can result in breaching

responsibilities.

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Paramedic-Patient Relationships

• Boundaries Issues

– Danger zones:

Being tired: fatigue can lead to problems (medication errors,

poor decision making, vehicle crashes).

Being seduced: led away from one's principles, ethics, faith,

allegiance.

Being unprepared

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Paramedic-Patient Relationships

• Legal Complications Related to Consent

– Abandonment: termination of paramedic-patient

relationship without providing for continuation of care

while still needed and desired by patient.

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Paramedic-Patient Relationships

• Legal Complications Related to Consent

– Assault: unlawfully placing person in apprehension of

immediate bodily harm without his consent.

– Battery: unlawful touching of another individual without

his consent.

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Paramedic-Patient Relationships

• Legal Complications Related to Consent

– False imprisonment: intentional and unjustifiable

detention of person without his consent or other legal

authority; may result in civil or criminal liability.

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Paramedic-Patient Relationships

• Reasonable Force

– Minimum amount of force necessary to ensure patient

does not cause injury to himself, you, or others.

Use of excessive force can result in liability for paramedic.

Force used as punishment considered assault and battery.

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Paramedic-Patient Relationships

• Reasonable Force

– Use of restraints may be indicated for combative

patient.

– Restraints conform to local protocols.

– Restraining devices: straps, jackets, restraining

blankets.

– Use least amount of force to safely control patient while

causing him least amount of discomfort.

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Figure 7-5 Patient restraint is a high-risk endeavor. The safety of personnel and the patient

should be the highest priority.

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Paramedic-Patient Relationships

• Patient Transportation

– Maintain same level of care as was initiated at scene.

– Emergency vehicle operations: be familiar with state

and local laws.

– Patient choice of destination and insurance company

protocols

– Facility selection based on patient request, patient

need, facility capability

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Resuscitation Issues

• You are under obligation to begin resuscitative

efforts when patient unresponsive, pulseless,

apneic.

• Resuscitation not indicated:

– Do Not Resuscitate (DNR) order

– Obviously dead; obvious tissue decomposition;

extreme lividity

– Scene too hazardous to enter.

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Resuscitation Issues

• Advance Directives

– Document to ensure certain treatment choices honored

when patient is unconscious or otherwise unable to

express choice of treatments.

Living wills, durable powers of attorney for health care, Do Not

Resuscitate orders, organ donor cards

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Resuscitation Issues

• Advance Directives

– Living will: legal document that allows person to specify

the kinds of medical treatment he wishes to receive

should need arise.

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Resuscitation Issues

• Advance Directives

– Do Not Resuscitate (DNR) order: legal document that

indicates to medical personnel which, if any, life-

sustaining measures should be taken when patient's

heart and respiratory functions have ceased.

Valid DNR orders should be honored as your protocols allow.

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Resuscitation Issues

• Advance Directives

– Physician Orders for Life-Sustaining Treatment

(POLST)

Designed for terminally ill patients.

Terminally ill patient and physician consult on patient's wishes

and incorporate wishes into specific orders.

Not all states have adopted POLST.

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Resuscitation Issues

• Advance Directives

– Potential Organ Donation

Organs and tissues in very high demand and short supply

EMS systems vital link in organ procurement and transplant

process

Consult on-line medical direction when you have identified

potential donor.

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Resuscitation Issues

• Death in the Field

– Must be appropriately dealt with and thoroughly

documented.

– Follow state and local protocols.

– Contact on-line medical direction for guidance.

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Crime and Accident Scenes

• If you believe a crime committed on scene,

immediately contact law enforcement if not

already involved.

• Protect yourself and safety of other EMS

personnel; primary consideration.

• Once crime scene deemed safe, initiate patient

contact and medical care.

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Crime and Accident Scenes

• Do not move or touch anything at crime scene

unless necessary for patient care.

• Do your best to protect potential evidence.

• If you need to remove items from scene, be sure

to document your actions and notify investigating

officers.

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Crime and Accident Scenes

• Treat scene of accident in same way.

• Ensure your own safety and safety of crew.

• Treat patients as medically indicated.

• Use resources available to you.

• Be prepared to summon additional personnel and

equipment.

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Duty to Report

• When abuse or neglect suspected, you must

balance need to protect patient confidentiality

against need to notify proper authorities.

• Act with patient's best interest in mind.

• Many states have rules that require EMS

personnel to report suspected abuse to proper

authorities.

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Duty to Report

• Do not confront abuser.

• Not necessary for you to prove abuse or neglect

occurred before reporting.

• Failure to report abuse or neglect bigger liability

than reporting.

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Documentation

• Well-documented Patient Care Report

– Completed promptly after patient contact

– It is thorough.

– It is objective.

– It is accurate.

– It maintains patient confidentiality.

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Documentation

• Complete well-written patient care report is your

best protection in malpractice action.

• If patient care report incomplete or inaccurate, a

written amendment should be attached.

• Medical records maintained for period of time

prescribed by state law.

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Figure 7-9 Template-driven electronic patient records are becoming more common in modern

EMS.

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Employment Laws

• Employment laws:

– Address employee-employer relationships.

– Volunteer agencies fall under jurisdiction of many of

these laws.

– Can be complex.

– Consult attorney should problem arise.

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Employment Laws

• Americans with Disabilities Act: prohibits

discriminating against qualified individuals with

disabilities.

• Title VII: federal law prohibits workplace

harassment and discrimination.

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Employment Laws

• Amendments to Title VII

– Equal Employment Opportunity Act of 1972

– Age Discrimination and Employment Act of 1967

(ADEA)

– Age Discrimination Act of 1975

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Employment Laws

• Family and Medical Leave Act of 1993 (FMLA)

• Fair Labor Standards Act of 1938 (FLSA):

minimum wage, overtime pay, record keeping,

child labor standards.

• Occupational Safety and Health Act (OSHA):

ensure employers provide healthy and safe

environment.

Copyright © 2017, 2013, 2009 Pearson Education, Inc. All Rights Reserved.

Bryan E. BledsoeRichard A. Cherry Robert S. Porter

Employment Laws

• The Ryan White CARE Act: fund programs to

improve availability of health care for victims of

AIDS and their families.

Copyright © 2017, 2013, 2009 Pearson Education, Inc. All Rights Reserved.

Bryan E. BledsoeRichard A. Cherry Robert S. Porter

Summary

• Paramedic's job: interaction with law enforcement

authorities; involvement in situations that give rise

to litigation.

• Learn and follow all state laws and local protocols.

• Receive good training.

• Keep current: continuing education programs and

conferences, industry journals, recertification or

relicensure.

Copyright © 2017, 2013, 2009 Pearson Education, Inc. All Rights Reserved.

Bryan E. BledsoeRichard A. Cherry Robert S. Porter

Summary

• Always obtain informed consent before initiating

treatment and/or transport.

• Practice skills and procedures that reasonable

and prudent paramedic would, given same or

similar circumstances.

Copyright © 2017, 2013, 2009 Pearson Education, Inc. All Rights Reserved.

Bryan E. BledsoeRichard A. Cherry Robert S. Porter

Summary

• Practice procedures you are trained to perform

and are directly authorized to perform by medical-

control physician or approved local standing

orders.

• Prepare accurate, legible, complete medical

records that thoroughly document EMS incident.

Copyright © 2017, 2013, 2009 Pearson Education, Inc. All Rights Reserved.

Bryan E. BledsoeRichard A. Cherry Robert S. Porter

Summary

• Discuss patient information with only those who

need to know.

• Purchase and maintain malpractice insurance;

employer does same.

• Be nice to patients and their families.

• Act in good faith; use common sense.

• High-quality patient care and documentation are

best protection from liability.