PrehospitalPrehospitalMedical-Legal IssuesMedical-Legal Issues

Amy Gutman MDprehospitalmd@gmail.com

OutlineOutline Responsibilities ~ Legal, Ethical, Moral

Overview of the Legal System

Specific Laws Accountability & Malpractice Specific Paramedic-Patient Issues Operational Issues

Documentation

ResponsibilitiesResponsibilities

Legal Responsibilities Established by the law-making bodies of government i.e. DUI, Homicide

Ethical Standards Principles of conduct identified by members of a group or profession i.e. “First do no harm”

Individual Morality Individual’s assessment of right & wrong i.e. “right-to-life”

Legal SystemLegal System Law

Constitutional Common Legislative Administrative

EMS most affected by legislative & administrative laws

Court SystemsCourt Systems Federal

Most powerful and widest-reaching i.e. “Constitutional Law”

State Can be overridden by Federal law i.e. “same-sex” marriage over-turned by US courts

Criminal Illegal acts; can be state or federal i.e. breaking & entering

Civil i.e. divorce law

Terminology Plaintiff

Person bringing lawsuit

Defendant Person answering charges/ lawsuit

Discovery Deposition Interrogation Documentation

Appeal Bringing case to higher court when court’s decision is questioned

EMS-Specific LawsEMS-Specific Laws Scope of Practice

Direct vs Indirect Medical Direction “Intervener” physician

Ability to Practice Certification vs Licensure Authorization to Practice

Other Laws Motor Vehicle

Infectious Disease Exposure

Assault against Public Safety Officer

Obstruction of Duty

Good Samaritan Law

Mandatory Reporting

Domestic violence

Child & Elder Abuse

Criminal Acts

GSW, Stabbing & Assault

Animal Bites

Communicable Diseases

Out of hospital deaths

Possession of Controlled Substances

Accountability & Malpractice Standard of Care

Negligence

Civil Litigation

Borrowed Servant Doctrine

Civil Rights

Off-Duty Liability

Standard of Care

“Expected care, skill, & judgment under similar circumstances by a similarly trained, reasonable paramedic.”

Established nationally, regionally, locally

Documentation demonstrating standard of care will save your butt!

NegligenceNegligence “Deviation from accepted or expected

standards of care expected to protect from unreasonable risk of harm.”

To prove: Did not act when there was a Duty to Act Breach of duty Damage or harm resulted from health care provider’s actions Proximate cause

Civil Cases Proof of guilt from “preponderance of evidence”

“Res Ipsa Loquitur” Burden of proof shifts to the defendant

Simple vs. Gross Negligence

Defenses Good Samaritan Law

Government Employees Immunity CIA, FBI…not so much Fire Personnel (sorry)

Statue of Limitations

Contributory Negligence

Accountability & Malpractice How do these affect the your Practice?

Borrowed Servant Doctrine

Patient Civil Rights

Liability when Off-Duty

Paramedic-Patient Issues Consent Refusals Restraint Abandonment Transfer of Care

Advance Directives End of Life Decisions Out of Hospital Death Confidentiality Privacy

Consent Patient has legal & mental capacity

Any suggestion of AMS negates capacity

Patient understands consequences

Types: Informed Expressed Implied

Consent Issues Minors

Who is an “Emancipated Minor” in Ohio?

Prisoners

Mental Retardation

Mental Health Disease

Refusals Consent for transport vs treatment

Withdrawl of Consent

Refusal of Service must ALWAYS document with witness:

Legal & mental capacity Is informed of risks & benefits Offer alternatives

Who Cannot Refuse Care? Unable to understand nature & consequences of

injury or illness

Unable to make rational decisions regarding medical care due to physical or mental conditions

Danger to self &/ or others

Do not assume incompetence unless obvious Politicians aside…and then it is generally obvious!

Restraints Prepare to spend a whole lot of time documenting

Always have a law enforcement report as a “witness” to your report

Does not provide authorization to harm! Risk being charged with: Assault Battery False Imprisonment

Patients under arrest can refuse treatment & transport unless condition exists preventing them from making a rational decision

Restraints Involve Law Enforcement early

Have a plan of action

Ensure safety of all

Reasonable force

Physical & chemical restraints

Document well

Patient Abandonment Unilateral termination of patient-provider

relationship when still required & / or desired by one party

Exceptions MCI Risks to well-being

Transfer of Patient Care Transfer of Care to other Providers

Transfer of Care at the ED

Advanced Directives & End of Life Decisions Advanced Directive

Out of Hospital DNR

Living Will

Durable Power of Attorney for Health Care

Patient Self-Determination Act

Important Points About End of Life Decisions Not a surrender of rights to receive medical care

Comfort measures appropriate

Provide Family support and guidance

When in doubt, resuscitate & contact medical control

Termination of efforts allowed

Out of Hospital Death Initiation of care?

Some states & regions require: Law enforcement response Justice of the peace, medical examiner or coroner

pronouncement

Requires medical control

Survivors/ family may become patients

Patient Confidentiality & Privacy “Medical information about a patient will not

be shared with a third party without consent, statute, or court order”

Not all information is protected

In most States, QA/QI is not discoverable

Patient Confidentiality & Privacy Colleague & Station Chat

Cannot identify the patient & must maintain confidentiality of specific medical information

Scene or Patient Photographs ? Cell phones ? Media

EMS Radio Dispatch & Discussions

Defamation “Communication of false information knowing the

information to be false or with reckless disregard of whether it is true or false”

Slander

Libel

Protected Classes/Diseases

Operational Issues Equipment failure Interaction with Law

Enforcement Crime Scenes Preservation of Evidence

Vehicle Operation Medical Control

Instructor Liability Hospital Selection Dispatch Interfacility Transfers OSHA Risk Management

Equipment Failure Product Liability

i.e. ventilator design flaw

Failure on part of owner/operator No backup battery for defibrillator

Crime Scenes Request law enforcement & await their arrival

Minimize personnel & their scene contact

Document alterations to scene created by EMS

Document pertinent observations

Evidence Preservation Avoid cutting through penetrations in the clothing

Save everything found on victim

Do no discourage sexual assault patient from washing

Can be considered “coercion”

Chain of evidence procedures i.e. document turnover of possessions

Vehicle Operation The greatest source of EMS-related law-

suits

The greatest percentages of wins for the plaintiff and/ or EMS “settlements”

Vehicle Operation – Case Study While responding to a MVC at 0300, a driver fails

to yield the right of way at an intersection

The driver’s traffic signal is green. You attempt to stop but are unable to causing injury to the driver

Witnesses state your emergency lights were on but do not recall hearing your siren

Issues For The Driver’s Attorney Were emergency lights really operational?

Are daily inspections performed?

Why was the siren not working?

Were poorly maintained brakes responsible for your inability to stop?

What type of maintenance is performed on your ambulance?

Did you exercise due regard for the safety of others? Historical investigation as well

Medical Control Issues

Failure to follow medical control

Following harmful medical control direction Includes Medical Control directing EMS to inappropriate hospital Includes Following direction of unauthorized person

Implementing therapies without prior authorization

The paramedic exceeds the scope of his training or medical authorization

Instructor Liability Discrimination

Sexual harassment

Student injury

Failure to properly train graduate or supervise student

Best defense: Follow curriculum Document attendance Document competency

Hospital Selection Paramedic & Medical Control decision

Closest vs “Most Appropriate” Facility

Written policies or guidelines

Dispatch Untimely dispatch

Untimely response Failure to provide correct address

Dispatch of inadequate level of care

Failure to provide pre-arrival instructions

Inadequate recordkeeping

Interfacility Transfer Appropriate equipment & training?

Travel with specialized providers?

Printed patient report?

Is patient “stable”? Potential complications with decompensation?

Are there any specific physician orders?

Has the patient been accepted? Documented and confirmed transferring & accepting physicians?

OSHA & Risk Management If you live & work in an OSHA-regulated State…

“Each employee shall comply with occupational safety and health standards and all rules, regulations, & orders issued pursuant to this Act which are applicable to his own actions and conduct”

Documentation

“The shitstorm that can bury you, or the lifeline that will save you”

Documentation Confidentiality

Security

Sharing QA, research, M & M

Protected Classes

Quality & Effectiveness

Confidentiality

Written report intended only for those with need to know

Personal identifiers generally removed for QA/QI

Radio reports should never contain personal identifiers Including terms like “frequent flyer”

Securing & Sharing Information

Where are patient reports stored?

Who receives the report at the ED?

Requests for copies must be routed through an accepted policy or an attorney

Does requestor have a need to know? No, No, No!: Media Yes: Patient, Family on behalf of patient, Lawyers,

Insurance/ billing companies (sometimes)

Protected Classes

Some specific disease information is considered confidential in a PCR

Tuberculosis HIV/ AIDS/ STDs

“Mandatory Reporting” is an issue for hospitals

Quality Documentation Complete immediately after the patient contact

Be thorough, accurate, honest, objective & factual

Caution with abbreviations

Maintain confidentiality

Do not alter once written down May always add an addendum

Important Points Does your chart tell an accurate story relating the events

that happened in a clear, concise format?

Will the report help you recall this incident if necessary 3 years from now?

Are you willing to sit in court with only this document?

Your PCR can be “called” into court without you!

Summary There are many legal issues

surrounding EMS & fire services

Health care providers should keep up-to-date with local legal requirements

Ignorance of the law is neither an excuse or acceptable!

References Cohn, B. M. Azzara, A. J. Legal Aspects of Emergency

Medical Services. W. B. Saunders Company. 1998

Temple College Division of EMS website

Page, Wolfberg & White Attorney’s webpage Lawyers who only handle EMS cases All lawyers are also paramedics Great free stuff on site

Questions?prehospitalmd@gmail.com