Refusals
Staying Out Of The Eagles Claws
Johnny V .
Tempe Fire
WELCOME
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Thank-You For Having Me Here…..Again. Your Medical Direction Is
To Be Commended For Finding The Funding
Before We Begin Some Background-Why DO This?
Started In E.M.S. In 1980 With P.F.D.
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1990- Became The S.M.E. for P.F.D. And City Attorney Liaison
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Retired In 2000- Full Time Police Officer
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2006 Returned To Tempe Fire- Started The M.S.U.- Currently
Assistant Chief Emergency Services
Retained And Testified In 15 Cases In The State For The Defense Of
E.M.S. Personnel –S.M.E. In S.O.C.
Specialize On “In Custody Deaths”
Every Case I have Ever Been Involved In Was Predictable
All Had Sub Standard Documentation
Cases Were Defensible But…..Not Fun For The Players
I Am Not A Lawyer Nor Do I Profess To Be
Handout Will Be Provided After Class
OBJECTIVES
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If I Do My Job Right You Should……..
Have A Much Better Understanding Of Our Legal
System
Thoroughly Understand The Right To Refuse
Comprehend Why People Refuse
Differentiate The Consent Types
Reinforce Your Authority To Use Force
Dealing With Special Circumstances
Minimum Documentation Guidelines
Ultimately, Stay Out Of Court !
First Things First
LEGAL MUMBO JUMBO
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It Is Expressly Understood And Agreed That The INSTRUCTOR Shall
Nowise Be Deemed Or Held To Be Obligated, Liable, Or Accountable For
Or Responsible Under Any Guaranties Or Warranties, Express Or
Implied, Statutory, By Operation Of Law, Or Otherwise, Including, But
Not Limited To ANY IMPLIED WARRANTY OF MERCHANTABILITY
OF EDUCATIONAL FITNESS Under The Uniform Educational Code
(UEC), In Any Manner Or Form Beyond Its Express Agreements Relative
To The Determination Of The Capacity Of Student During Each Level Of
Instruction; The Determination Of Successful Level Of Understanding Of
The Material By Each Student; And The Ability Of The Student To Digest
The Instructional Material During Or After The Conclusion Of The Class,
All Herein Before Specifically Set Forth By The Educational Standards As
Determined By The ODA/KCFTO And The NFPA So Help Me - - - - -
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Lay Terms……….You Can NoT Hold Me Liable For Today’s Class Should
You mess up.
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Who’s Here?
WHY SPEND 4 HOURS ON REFUSALS ?
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You Have Excellent Protocols
50% Of All Pre-Hospital Law Suits Are Refusals
If It’s Predictable it’s Preventable
Can Be Very Complicated And Yet So Very Easy
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Why?
Folks At Every Level Do Not Understand The Magnitude And Choose
To Not Do Their Job
Understanding The Magnitude Of The Call
Frequency/Risk Profile
Low Risk/High Frequency-Chest Pain-Should Be Real Good At This
High Risk/Low Frequency-Ped’s Code-Harder To Be Good But The
Courts Won’t Care- You Better Be Good At It
High Risk/High Frequency-Refusals-We Should Be Very Good At
These But We Are Not. Why?
High Frequency………….Treat As Routine
Is It Possible For Me To Cover Every Possible Refusal Scenario?
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GIVE YOU A FISH YOU CAN EAT FOR A DAY, TEACH YOU TO
FISH YOU CAN EAT FOR A LIFETIME
THE LEGAL SYSTEM: AN OVERVIEW
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Why Should You Know This? If You Have Been To
Legal Presentations This Is A Good Review
If You Know The Rules Of The Game You Stand A
Better Chance Of Winning When Called To Play
We Have A Very Messed Up System
You Can Do Everything Right And Get Sued
You Can Do Everything Wrong And Not Get Sued
You Can Do Everything Right, Get Sued And Still Pay
Out!
You Can Do Everything Wrong, Get Sued and Not Pay
Out!
Your Goal Is Simple
 Do Everything Right, Not Get Sued But If You Do,
Prove In Court You Did…… And Not Pay A Dime
Except Outrageous Lawyers Fees!
Let’s Start At The Beginning…Laws
LAW- DEFINED
The Principles And Regulations Established In A
Community By Some Authority And Applicable To Its
People, Recognized And Enforced By Judicial Process
Can Sometimes Be Referred To As A Statute-A.R.S.
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3 Main Types?
– Criminal, Civil And Administrative (Government’s
Authority To Enforce The Rules)
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Laws Create Liabilities
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Liability=Obligation
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They Are Not Black And White- They Are Grey With
Different Shades
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CIVIL VS. CRIMINAL LAW
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Criminal Law- Title 13 •
– Protect You From
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Harm
– Status, Petty,
Misdemeanor, Felony•
Burden Of Proof
– Beyond A Reasonable
Doubt
Do Time
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– Tent City vs.
Florence
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Civil Law
– Protect Your Rights
Burden Of Proof
– Preponderance Of
The Evidence
Pay Up
People Have Rights
People Have The Right To
Competent Emergency Care
If They Don’t Get It Rights
Were Violated
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Someone Was Negligent
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End Up In Civil Court
Can End Up In Both
We Get Sued For Negligence
NEGLIGENCE DEFINED…
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Failure To Act As A Reasonably Prudent Person Would In A Similar Situation
With Similar Training
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Could A Doctor Testify Against A Paramedic?
How And In What Capacity?
4 Components Of A Negligence Claim
Duty To Act
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On Duty/Off Duty/Volunteers
Breach The Duty
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Who Determines?
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Standard Of Care……….Hmmmmm-We Deviate/Violate Daily Basis
Causation
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Did The Actions Contribute To The Final Outcome
Damages
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Punitive vs. Compensatory
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Our Lives Have A Monetary Value
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Ped’s start at 20 million
Current Arizona Standard For MunicipalitiesIs Gross Negligence ?
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Who Determines?
GROSS NEGLIGENCE
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A.R.S. § 9-500.02
– Providers Of Emergency Medical Services Procured By
Municipality Are Protected By Governmental Immunity
From Negligence For Claims Arising Out Of A
Municipality's Provision Of Emergency Medical Aid. The
Immunity Provided For By The Statute Does Not Apply If
The Person Providing Emergency Medical Aid Is Guilty Of
Gross Negligence Or Intentional Misconduct.
Gross Negligence Defined
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Gross, Willful, Or Wanton Conduct Is Action Or Inaction
With Reckless Indifference To The Result Or The Rights
Or Safety Of Others. A Person Is Recklessly Indifferent If
He Or She Knows, Or A Reasonable Person In His Or Her
Position Ought To Know: (1) That His/Her Action Or
Inaction Creates An Unreasonable Risk Of Harm; And (2)
The Risk Is So Great That It Is Highly Probable That
Harm Will Result.
WHERE DO WE SEE THIS THE MOST?
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A Conscious And Voluntary Disregard Or Conduct That
Is Extreme When Compared With Ordinary
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We See This The Most?
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Busiest Units
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Early A.M.
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On Frequent Flyers
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Belligerent Patients
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Best Rule Is TO Not Be Negligent Let Alone Grossly
Negligent
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So Why Do Patients Become Plaintiffs'? Predicting A
Law Suit
WHY DO PATIENTS BECOME
PLAINTIFFS?
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America Has Become A Litigious Society-Greed
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Unreal Expectations-Who Dies On 911?
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Revenge -Rude Service
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Right a Perceived Wrong-It’s Not For Me……
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Transference of Guilt-Sue The Fence Manufacturer If
You Fell Asleep And Bay Drown
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Let’s Be Honest-We Would All Sue Another EMS
Provider If…..
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Recent Phoenix Events?
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4 Major Lawsuits Currently Against Departments For
Firefighters Committing Suicide
CASE STUDY #1
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High Risk/High Frequency
Multiple Vehicle Accident On Interstate Involving Multiple
Vehicles. EMS Arrives On Scene To Find Numerous
Occupants Out Walking Around and One Vehicle On It’s
Side. Police Have One Person In Custody In The Back Of A
Patrol Car. Police Advise EMS That There Are No Injuries
And They Can Go Available. EMS Drives Off Without
Contacting Any Occupants.
Raise Your Hand If You Are Starting To Cringe….. Can
You Predict An Issue? If So, You Can Prevent It
What Are The Red Flags?
30 Minutes Later EMS is Called Back To The Scene Because
The Prisoner, A 52 Year Old Male Is Now Unconscious And
Unresponsive
Pt. Had A Sub-Dural Bleed, Comatose For 3 Days And Died
It Was Your Father……………..Are You Calling A Lawyer?
ANATOMY OF A LAWSUIT
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Lawyer Was Consulted- No Fee Until Case Is Settled
Investigation
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SME Contacted
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-Is There A Case Of Negligence? Gross Negligence?
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Duty, Breach, Causation
Against Who?
Notice of Claim–
Agree On Claim-Settle
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Disagree-Defense Lawyer Retained-First Deposit
Complaint Is Answered-Next Deposit
Law Suit Is Filed And Served-Next Deposit
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To Agency/You/Your Spouse/Medical Director/Fire Chief
Depositions/Discovery-Next Deposit
Motion For Summary Judgment-Throw The Case Out
Trial- Start Throwing Everyone Under The Bus
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Let The Jury Decide
Verdict/Appeal
Settlement?-Risk Management, Insurance Carriers
Takes Years-Can Cost Millions
What Happened In This Case?
What Is A Life Worth?
TAKE A BREAK
DEFENSES TO A
NEGLIGENCE CLAIM
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Attacking The Components
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Duty
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Did Law Require You To Act ?
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Did Not Breach The Duty To Act
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Standard
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Gross Negligence
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Can Your Documentation Prove It?
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Causation- Contribute To The Final Outcome
Statute Of Limitations –Title 13-107
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Defined-The Statute Of Limitations Is An Enactment In A Legal System That Sets Forth
The Maximum Time After An Event That Legal Proceedings Based On That Event May
Be Initiated.
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Vary From State To State- Crime To Crime
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Civil Negligence- 2 Years
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Children ?? 18+2
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Criminal
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Petty Offenses: 6 Months
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Misdemeanors: 1 Year;
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Felonies: 7 Years
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None on Murder, Child /Sexual Abuse, Crimes Against Government
DEFENSES TO A
NEGLIGENCE CLAIM
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Contributory Negligence Vs. Comparative Negligence
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Contributory Negligence Bars The Plaintiff From Any Recovery If
His Own Negligence Contributed To The Loss At All. Most
Jurisdictions Have Abandoned This For Comparative Negligence
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Comparative Negligence Is A Plaintiff's Damage Award Is
Reduced By The Proportion Of Loss Attributable To His Own
Negligence.
• For Example, In The Mcdonald's Coffee Case, The Jury
Awarded The Plaintiff $200,000 In Compensatory Damages.
Because The Jury Found The Plaintiff 20% At Fault, This
Amount Was Reduced To $160,000
Vicarious Liability
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Responsible For The Actions Of Others
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Employers
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Prove Employee Did Not Follow Policy
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Hmmmmm–
Best Defense of All ?
• Don’t Get Sued
REFUSALS
“I Would Much Rather Be Sued By A Live Patient Than
A Dead Patients Family”
Phueck Yeww
Famous Viet namese Attorney
THE RIGHT TO REFUSE CARE..
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Everyone Has The Right
To Refuse Treatment
AND Transport
Why Do Most People
Refuse?
Economic Reasons
Religious Reasons
Lack Of Trust
Lack Of Medical
Understanding
Can Consent To Some
And Refuse Other
No Law Against Being
Stupid But……..
Alcohol Alone Does Not
Cause You To Lose Your
Rights
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Requirements For Valid
Refusals
Determine Competence
– Legal Requirement
– Mental Requirement
And Based On What I
Said, What Else?
– Medical Competence
LEGAL COMPETANCE
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Legal 18 Years of Age
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Confirmation?
Variables
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Emancipated Minor
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Married
Reasonable?
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17 years 11 months?
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17 years 1 month
When in Doubt…….
MENTAL COMPETANCE
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Awake, Alert and Oriented To Time, Place, Location,
Events
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Variables
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ETOH but Oriented x4?
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Head Injury
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Unconscious but then wake up..
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Suicidal?
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Third Person Report
When In Doubt……
MEDICAL COMPETANCE
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“You Have An Elevated ST Segment”…..
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Your Are Having a Myocardial Infarction
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Put It In Layman Terms
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You Could Die
CONSENT TO TREAT…
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For The Most Part…
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General Types-Conscious
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Informed/Actual
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Written
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Parental
Pre-Hospital
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Implied
Other
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Medical Power Of Attorney
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Spouse?
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Other Cultures?
TREATING WITHOUT
CONSENT
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Incompetent To Refuse •
– Minor
– Disoriented
– Suicidal
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– Altered
Critical Factors
– Danger To EMS
– Medical Urgency
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Ideally
– Gain Consent
– Law Enforcement
Support
Authority To Use Force
13-403. Justification; use of
physical force
The Use Of Physical Force Upon
Another Person Which Would
Otherwise Constitute An Offense Is
Justifiable And Not Criminal Under
Any Of The Following Circumstances:
A Person Acting Under A Reasonable
Belief That Another Person Is About
To Commit Suicide Or To Inflict
Serious Physical Injury Upon Himself
May Use Physical Force Upon That
Person To The Extent Reasonably
Necessary To Thwart The Result.
A Duly Licensed Physician Or A
Registered Nurse Or A Person Acting
Under His Direction, Or Any Other
Person Who Renders Emergency Care
At The Scene Of An Emergency
Occurrence, May Use Reasonable
Physical Force For The Purpose Of
Administering A Recognized And
Lawful Form Of Treatment Which Is
Reasonably Adapted To Promoting
The Physical Or Mental Health.
RESTRAINING
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Be Justified, If Not They MAY Try To Press Criminal Charges Against
You
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Assault and Battery
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Unlawful Imprisonment
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Kidnapping
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Violation OF Civil Rights (Freedom)
Follow Your Local Protocol
If Time Allows……
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Medical Control
If Possible….Let Law Enforcement Do It
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What IF They Won’t
Person To Each Arm………..
Face Up Or On Side
If Cuffs Used..Key, Have Officer If Possible In Ride
Do Not Become Primary Aggressor
If You Injure The Patient
If They Injure You? Agg Assault-Felony, Please Press Charges Even If
They Only Threatened You
WHAT DO YOU DO WHEN….
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There Is No Need To Restrain But Medical Control Gives The Order?
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Hmmm……Broken Ankle?
Communication Is Everything
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Your Safety Is Compromised
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Law Enforcement Refuses
You Really Feel They Need To Go But They Are Well Within Their
Legal Rights To Refuse And Do Not Get Transported?
Find Out Why
Get Family, Friends Involved….Good Witnesses For You
Patch….Not C.N.!
Have Dr. Speak Directly With Patient. It’s Recorded
Give Options To Drive Self, Call Back
Get Phone Number. Do A Follow-up Call (Juries Love This)
Document, Document, Document…..Then
Document, Document, Document
YOUR REQUIREMENTS ?
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Are Excellent!
Here They Are…..
Do You Follow Them? Every time?
Why Not?
If You Get Sued Guess What??
– Your Agency Could…..
– Your Medical Director and Coordinator Could…
Interesting Fact……I Do Not Have
– A Personal Liability Insurance Policy
– Why Do You Think?
I Have Chosen To Treat Everyone As If They Were My
Family. It’s Always In The Back Of My Mind So I Try
To Know Job, Not Get Complacent And Learned The
Importance Of Good Documentation. And Above All
Try To Be Nice To Everyone. People Don’t Sue People
They Like.
SPECIAL CIRCUMSTANCES
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Medical Personnel
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Prisoners
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Lawyers On Scene
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Violent Patients
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Language Barriers
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Cultural Issues
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Religious Issues
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Traveler’s
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Treating On The Sly
SCENARIO #2
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76 Year Old Hispanic Male Drinking Alcohol
All Day And Has A Family Fight With Sons
And Wife. During The Argument, He Said He
Wishes He Was Dead And Clutches His Chest.
He Has A Known Cardiac Condition And
Takes Nitro. Family Calls 911 Without His
Knowledge. EMS Arrives And He Says……..” I
Did Not Call You, Get Out Of My House”
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What Are The Issues Here?
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Restrain Or Not Restrain?
SCENARIO #3
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Young Couple Hiking In Sedona From Out Of
Town. Wife Has Possible Seizure Per Husband
Who Describes As Eyes Rolling Back And
Period Of Disorientation. On Arrival She Is
Lethargic But Oriented X4 And Says She Is
Fine. She Allows EMS To Asses And Only
Finding Is Incontinence. She States She Does
Not Want To Go To The Hospital And Refuses
Transport.
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What Are The Issues Here?
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Restrain Or Not Restrain?
DOCUMENTATION
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Start Off With The
Assumption You Will Be
Sued In One Year
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Consider This Your
Insurance Policy-You
Can Write Your Own
Coverage
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Why Can This Be SO
Hard?
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No Maximum But
Each Case Has A
Minimum
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Document All Elements
Of Refusals
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Refusal Form
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Signatures
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“Patient Advised Of Need
For Definitive Medical
Care For Injury Sustained.
Advised Of Possibility Of
Infection And Possible
Complications Up To Loss
Of Arm And Death. Pt.
Legal Adult, Awake And
Oriented And Competent
To Refuse Care Stating
They Will Seek Own Care.
Patient Read Refusal
Form, Initialed And
Witnessed. Patient Advised
To Call Back If Any
Changes”.
REFUSAL TIPPS
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Approach Every Refusal As If They Are Going To Die When
You Leave And Sue you
Know Your Stuff….Stone Cold
Spread The TURD……….
– Medical Control
– Family
– PoPo
Always Leave Patient With Options
– Drive Yourself
– Call BAck
Write Your Report As If …………
When In Doubt………….
If I had A Nickel For Every Time I Said, “Your Going To The
Hospital, The Only Choice You Have Is Whether You Are Tied
Up Or Not”.
QUESTIONS?
FUTURE LADDER FOLKS
TAKE A BREAK