Prehospital Medical-Legal Issues

1. PrehospitalMedical-Legal Issues Amy Gutman MD prehospitalmd@gmail.com

2. Outline • Responsibilities ~ Legal, Ethical, Moral • Overview of the Legal System • Specific Laws • Accountability & Malpractice • Specific Paramedic-Patient Issues • Operational Issues • Documentation

3. Responsibilities • 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”

4. Legal System • Law • Constitutional • Common • Legislative • Administrative • EMS most affected by legislative & administrative laws

5. Court 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

6. 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

7. EMS-Specific Laws • Scope of Practice • Direct vs Indirect Medical Direction • “Intervener” physician • Ability to Practice • Certification vs Licensure • Authorization to Practice

8. Other Laws • Motor Vehicle • Infectious Disease Exposure • Assault against Public Safety Officer • Obstruction of Duty • Good Samaritan Law

9. Domestic violence Child & Elder Abuse Criminal Acts GSW, Stabbing & Assault Animal Bites Communicable Diseases Out of hospital deaths Possession of Controlled Substances Mandatory Reporting

10. Accountability & Malpractice • Standard of Care • Negligence • Civil Litigation • Borrowed Servant Doctrine • Civil Rights • Off-Duty Liability

11. 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!

12. Negligence • “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

13. Civil Cases • Proof of guilt from “preponderance of evidence” • “Res Ipsa Loquitur” • Burden of proof shifts to the defendant • Simple vs. Gross Negligence

14. Defenses • Good Samaritan Law • Government Employees Immunity • CIA, FBI…not so much Fire Personnel (sorry) • Statue of Limitations • Contributory Negligence

15. Accountability & Malpractice • How do these affect the your Practice? • Borrowed Servant Doctrine • Patient Civil Rights • Liability when Off-Duty

16. Consent Refusals Restraint Abandonment Transfer of Care Advance Directives End of Life Decisions Out of Hospital Death Confidentiality Privacy Paramedic-Patient Issues

17. Consent • Patient has legal & mental capacity • Any suggestion of AMS negates capacity • Patient understands consequences • Types: • Informed • Expressed • Implied

18. Consent Issues • Minors • Who is an “Emancipated Minor” in Ohio? • Prisoners • Mental Retardation • Mental Health Disease

19. 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

20. 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!

21. 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

22. Restraints • Involve Law Enforcement early • Have a plan of action • Ensure safety of all • Reasonable force • Physical & chemical restraints • Document well

23. Patient Abandonment • Unilateral termination of patient-provider relationship when still required & / or desired by one party • Exceptions • MCI • Risks to well-being

24. Transfer of Patient Care • Transfer of Care to other Providers • Transfer of Care at the ED

25. 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

26. 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

27. 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

28. 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

29. 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

30. 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

31. 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 Operational Issues

32. Equipment Failure • Product Liability • i.e. ventilator design flaw • Failure on part of owner/operator • No backup battery for defibrillator

33. Crime Scenes • Request law enforcement & await their arrival • Minimize personnel & their scene contact • Document alterations to scene created by EMS • Document pertinent observations

34. 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

35. Vehicle Operation • The greatest source of EMS-related law-suits • The greatest percentages of wins for the plaintiff and/ or EMS “settlements”

36. 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

37. 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

38. 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

39. Instructor Liability • Discrimination • Sexual harassment • Student injury • Failure to properly train graduate or supervise student • Best defense: • Follow curriculum • Document attendance • Document competency

40. Hospital Selection • Paramedic & Medical Control decision • Closest vs “Most Appropriate” Facility • Written policies or guidelines

41. Dispatch • Untimely dispatch • Untimely response • Failure to provide correct address • Dispatch of inadequate level of care • Failure to provide pre-arrival instructions • Inadequate recordkeeping

42. 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?

43. 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”

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

45. Documentation • Confidentiality • Security • Sharing • QA, research, M & M • Protected Classes • Quality & Effectiveness

46. 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”

47. 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)

48. Protected Classes • Some specific disease information is considered confidential in a PCR • Tuberculosis • HIV/ AIDS/ STDs • “Mandatory Reporting” is an issue for hospitals

49. 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

50. 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!