Medical Legal Considerations Medical Legal Considerations in IFT, CCT, and SCTin IFT, CCT, and SCT

Mobile Intensive Care Paramedic Mobile Intensive Care Paramedic SeriesSeries

Focus StatementFocus Statement

• Focus Statement: This Module will Focus Statement: This Module will introduce the participant to EMTALA, introduce the participant to EMTALA, COBRA, medical direction, advance COBRA, medical direction, advance directives, and scope of practice issues directives, and scope of practice issues particular to the transport environment. particular to the transport environment.

• This lecture meets Section 2 of the This lecture meets Section 2 of the Idaho Idaho EMS Critical Care Curricula GuideEMS Critical Care Curricula Guide

Presentation InformationPresentation Information

• Last revised 04/23/08Last revised 04/23/08

• For more information contact the For more information contact the education department education department – 208-287-2972208-287-2972– rcole@adaweb.netrcole@adaweb.net

Striking a balance…Striking a balance…

Laws/Regulation Affecting Laws/Regulation Affecting Critical CareCritical Care

• Most are familiar from paramedic practiceMost are familiar from paramedic practice– Mandatory reporting requirementsMandatory reporting requirements– Negligence and medical liabilityNegligence and medical liability– ConfidentialityConfidentiality– Health Insurance Portability and Accountability Act Health Insurance Portability and Accountability Act

(HIPAA) law(HIPAA) law– Defamation of characterDefamation of character– Obtaining patient consentObtaining patient consent– Patient withdrawal of consent (refusal of care)Patient withdrawal of consent (refusal of care)– Advanced directivesAdvanced directives– Potential crime and/or accident scenesPotential crime and/or accident scenes

4 Basic Concerns To Most 4 Basic Concerns To Most Legal And Ethical DilemmasLegal And Ethical Dilemmas

• BeneficenceBeneficence is the principle of doing good is the principle of doing good for the patient.for the patient.

• NonmaleficenceNonmaleficence is the obligation not to is the obligation not to harm the patient.harm the patient.

• AutonomyAutonomy is a competent adult patient’s is a competent adult patient’s right to determine what happens to his or right to determine what happens to his or her own body.her own body.

• JusticeJustice refers to the obligation to treat all refers to the obligation to treat all patients fairly.patients fairly.

Scope of Practice?Scope of Practice?

• ““What makes you think you can do this?”What makes you think you can do this?”• Currently, no national standard defining Currently, no national standard defining

scope of Critical Care Scopescope of Critical Care Scope• Paramedic scope normally defined by Paramedic scope normally defined by

statestate• Modified by medical directorModified by medical director

– More variability in CCT/SCTMore variability in CCT/SCT

• Concerns when crossed with Nursing Concerns when crossed with Nursing Practice ActsPractice Acts

State LawState Law

• States define scope of critical care paramedic’s States define scope of critical care paramedic’s practicepractice– EMS regulationsEMS regulations– Medical Practice ActMedical Practice Act

• Governs the critical care paramedic’s practice of medicineGoverns the critical care paramedic’s practice of medicine• May also govern extent to which physician may delegate May also govern extent to which physician may delegate

additional authority to the critical care paramedicadditional authority to the critical care paramedic

– Standards regarding certification/licensureStandards regarding certification/licensure• Mechanism by which state regulates health care practiceMechanism by which state regulates health care practice• Critical care paramedic is responsible for understanding Critical care paramedic is responsible for understanding

limits of certification/licensurelimits of certification/licensure

Medical DirectorMedical Director

• Critical care paramedic only permitted to provide Critical care paramedic only permitted to provide care under auspices of physician medical care under auspices of physician medical directordirector– MethodsMethods

• Direct physician oversight via on line and off line medical Direct physician oversight via on line and off line medical controlcontrol

• Some systems put operational and clinical Some systems put operational and clinical direction under the “nurse”, but this does not direction under the “nurse”, but this does not change scope. change scope.

• Some systems do not differentiate. Some systems do not differentiate.

COBRA and EMTALACOBRA and EMTALA• COBRA passed in 1986 and updated periodically since. COBRA passed in 1986 and updated periodically since.

EMTALA is a sub-part of COBRAEMTALA is a sub-part of COBRA• Congress passed EMTALA to prevent hospitals from Congress passed EMTALA to prevent hospitals from

refusing to treat uninsured emergency patients or refusing to treat uninsured emergency patients or transferring them to another facility when they are transferring them to another facility when they are medically unstable -- a practice known as patient medically unstable -- a practice known as patient dumping. dumping. – This pertains to EMS because EMS was often used to provide This pertains to EMS because EMS was often used to provide

the transportation during the “dumping”.the transportation during the “dumping”.– EMTALA violations happen every day EMTALA violations happen every day

• Has grown into a complex, difficult to navigate, and Has grown into a complex, difficult to navigate, and sometimes poorly thought out regulations with big sometimes poorly thought out regulations with big penalties. penalties.

EMTALA: “Coming to the EMTALA: “Coming to the Emergency Department”Emergency Department”

• Key concept to EMTALA is when a patient Key concept to EMTALA is when a patient “Presents to the Emergency “Presents to the Emergency Department/Hospital”Department/Hospital”

• Pertains to EMS/SCT/CCTPertains to EMS/SCT/CCT– Parking Lot CallsParking Lot Calls– Helipads located on hospital propertyHelipads located on hospital property– Hospital Owned AmbulancesHospital Owned Ambulances– Medical Control Calls (discussed later)Medical Control Calls (discussed later)

• 250 yard rule250 yard rule• Includes Stand alone ERs and clinics as well. Includes Stand alone ERs and clinics as well.

EMTALA and Medical ControlEMTALA and Medical Control• Normally, a patient in a non-hospital ambulance does not constitute Normally, a patient in a non-hospital ambulance does not constitute

coming to the EDcoming to the ED– Exception for “hospital Based” ambulances, unless “integrated into the Exception for “hospital Based” ambulances, unless “integrated into the

EMS system”.EMS system”.• A 9A 9thth Circuit Court decision in 2001 extends EMTALA to ambulances Circuit Court decision in 2001 extends EMTALA to ambulances

that are not hospital owned, when the ambulance makes contact via that are not hospital owned, when the ambulance makes contact via phone or radio for the purposes of speaking with a physician. . phone or radio for the purposes of speaking with a physician. . – Counts as “presenting to the hospital”Counts as “presenting to the hospital”– Therefore involving a third party physician other than the transporting or Therefore involving a third party physician other than the transporting or

receiving facilities increases the legal complexity exponentially. receiving facilities increases the legal complexity exponentially. – Also calling a medical control for “CYA” regarding hospital destination Also calling a medical control for “CYA” regarding hospital destination

may have unintended consequences.may have unintended consequences.• This is OPINION only and is somewhat contradictory to other This is OPINION only and is somewhat contradictory to other

regulations. regulations. • RECOMMENDATION: Only use physicians at accepting facilities RECOMMENDATION: Only use physicians at accepting facilities

except in unusual circumstances. except in unusual circumstances.

EMTALA and “Appropriate EMTALA and “Appropriate Transfer”Transfer”

• An "appropriate transfer" (a transfer before stabilization which is An "appropriate transfer" (a transfer before stabilization which is legal under EMTALA) is one in which all of the following occur: legal under EMTALA) is one in which all of the following occur: – Risk Benefit Assessment:Risk Benefit Assessment:

• The patient has been treated at the transferring hospital, and stabilized as The patient has been treated at the transferring hospital, and stabilized as far as possible within the limits of its capabilities; far as possible within the limits of its capabilities;

• The patient needs treatment at the receiving facility, and the medical risks of The patient needs treatment at the receiving facility, and the medical risks of transferring him are outweighed by the medical benefits of the transfer; transferring him are outweighed by the medical benefits of the transfer;

• This is certified in writing by a physician (Signature required); This is certified in writing by a physician (Signature required); – Continuity of CareContinuity of Care

• The receiving hospital has been contacted and agrees to accept the transfer, The receiving hospital has been contacted and agrees to accept the transfer, and has the facilities to provide the necessary treatment to him; and has the facilities to provide the necessary treatment to him;

• The patient is accompanied by copies of his medical records from the The patient is accompanied by copies of his medical records from the transferring hospital; transferring hospital;

• The transfer is effected with the use of qualified personnel and transportation The transfer is effected with the use of qualified personnel and transportation equipment, as required by the circumstances, including the use of necessary equipment, as required by the circumstances, including the use of necessary and medically appropriate life support measures during the transfer. and medically appropriate life support measures during the transfer.

• Any tests or other paperwork that becomes available after transport is begun Any tests or other paperwork that becomes available after transport is begun must be forwarded to the receiving hospital. must be forwarded to the receiving hospital.

Principals of EMTALA Principals of EMTALA

• A patient may not be transferred to A patient may not be transferred to another facility if they are at risk to another facility if they are at risk to deteriorate from or during transfer deteriorate from or during transfer

– Unless the current hospital cannot meet the Unless the current hospital cannot meet the needs of the patient. needs of the patient.

Principals of EMTALAPrincipals of EMTALA

• The patient may not be The patient may not be transferred if they are transferred if they are unstable and remain at unstable and remain at risk of deterioration risk of deterioration unless the sending unless the sending physician certifies in physician certifies in writing that the benefits to writing that the benefits to be obtained at the be obtained at the receiving hospital justify receiving hospital justify the risks of transferthe risks of transfer..

EMTLA and Qualified PersonnelEMTLA and Qualified Personnel• EMTALA places the responsibility on the EMTALA places the responsibility on the transferringtransferring

hospital to ensure that the statute's requirements are hospital to ensure that the statute's requirements are met. met.

• The statute requires that the patient be accompanied by The statute requires that the patient be accompanied by "qualified personnel and transportation equipment" "qualified personnel and transportation equipment" [Section 1395dd(c)(2)(D)] [Section 1395dd(c)(2)(D)] – In some cases, this may be construed to mean that it must send In some cases, this may be construed to mean that it must send

its own personnel with the patient. its own personnel with the patient. – In other cases, simply meeting state licensing requirements is In other cases, simply meeting state licensing requirements is

sufficient. sufficient. – CCT training may meet the definition of qualification. CCT training may meet the definition of qualification. – Appropriate equipment is also key.Appropriate equipment is also key.

• This is where SCT/CCT comes in to play. This is where SCT/CCT comes in to play.

EMTALA and OB transfersEMTALA and OB transfers

• Most risky part of EMTALA covered Most risky part of EMTALA covered transferstransfers

• Requires a medical screening and Requires a medical screening and determination of “safe transfer”. determination of “safe transfer”.

What do I need for the What do I need for the Transfer? Transfer?

• Required paperwork includes:Required paperwork includes:– Statement that risks of transport do not outweigh anticipated benefitsStatement that risks of transport do not outweigh anticipated benefits

• Signed by physician or DesigneeSigned by physician or Designee• The regulations add a requirement that the written certification contain an The regulations add a requirement that the written certification contain an

express summary of the risks and benefits upon which it is based [42 CFR express summary of the risks and benefits upon which it is based [42 CFR 489.24(e)(1)(ii)(C)] 489.24(e)(1)(ii)(C)]

• The statute provides that, if a physician is not physically present in the The statute provides that, if a physician is not physically present in the emergency room, the written certification in support of transfer may be emergency room, the written certification in support of transfer may be signed by a "qualified medical person" in consultation with the physician, signed by a "qualified medical person" in consultation with the physician, provided that the physician agrees with the certification and subsequently provided that the physician agrees with the certification and subsequently countersigns it. [42 USC 1395dd(c)(1)(iii)]countersigns it. [42 USC 1395dd(c)(1)(iii)]

– Written request for transport by patient?Written request for transport by patient?• No duressNo duress• Signed patient consent for transferSigned patient consent for transfer

– Documented acceptance by receiving facilityDocumented acceptance by receiving facility– Patient medical Records and Diagnostic Images (X-Rays, CT, etc)Patient medical Records and Diagnostic Images (X-Rays, CT, etc)– Medical orders documented for transporting teamMedical orders documented for transporting team

EMTALA and “Diversion”EMTALA and “Diversion”

• DIVERSION is unstable ground. DIVERSION is unstable ground.

• Generally speaking, in IFT, a hospital Generally speaking, in IFT, a hospital which has accepted a patient must which has accepted a patient must continue to accept the patient even if it has continue to accept the patient even if it has since gone on diversion status. since gone on diversion status.

• Exception, physical hazard (such an on-Exception, physical hazard (such an on-site shooting or fire)site shooting or fire)

EMTALA and “parking”EMTALA and “parking”

• Patient parking occurs when Patient parking occurs when EMSEMS arrives arrives with a patient, but the hospital does not with a patient, but the hospital does not immediately accept care. immediately accept care. – “ …“ …Patient parking “may result in a violation Patient parking “may result in a violation

of the Emergency Medical Treatment and of the Emergency Medical Treatment and Labor Act (Labor Act (EMTALAEMTALA) and raises serious ) and raises serious concerns for patient care and the provision of concerns for patient care and the provision of emergency services in a community.”emergency services in a community.”

– » Center for Medicare and Medicaid Services, Letter of » Center for Medicare and Medicaid Services, Letter of July 2006July 2006

Advanced DirectivesAdvanced Directives

• POST trumps all. POST trumps all.

• Written Physician ordersWritten Physician orders

• Living Wills have more validity on IFT than Living Wills have more validity on IFT than pre-hospital, but still shaky. pre-hospital, but still shaky.

• Beware of unsigned “boxes”Beware of unsigned “boxes”

ADA IssuesADA Issues

• Occasionally we must deal with ADA Occasionally we must deal with ADA recognized disability. When ity is safe and recognized disability. When ity is safe and possible, we should (and are legally possible, we should (and are legally obligated to) make reasonable obligated to) make reasonable accommodations. Examples includeaccommodations. Examples include– Hearing impairedHearing impaired– Vision ImpairedVision Impaired– Developmentally ImpairedDevelopmentally Impaired– Many others….Many others….

The single most important question a paramedic The single most important question a paramedic has to answer when faced with an ethical, has to answer when faced with an ethical,

legal, or moral challenge is:legal, or moral challenge is:

WHAT IS IN THE PATIENT’S WHAT IS IN THE PATIENT’S BEST INTEREST?BEST INTEREST?

Go out there and do GREAT GREAT Things…..