Prehospital
Medical-Legal Issues
Amy Gutman MD
prehospitalmd@gmail.com
Outline
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Responsibilities ~ Legal, Ethical, Moral
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Overview of the Legal System
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Specific Laws
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Accountability & Malpractice
Specific Paramedic-Patient Issues
Operational Issues
Documentation
Responsibilities
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Legal Responsibilities
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Ethical Standards
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Established by the law-making bodies of government
i.e. DUI, Homicide
Principles of conduct identified by members of a group or profession
i.e. “First do no harm”
Individual Morality
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Individual’s assessment of right & wrong
i.e. “right-to-life”
Legal System
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Law
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Constitutional
Common
Legislative
Administrative
EMS most affected by legislative & administrative laws
Court Systems
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Federal
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Most powerful and widest-reaching
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i.e. “Constitutional Law”
State
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Can be overridden by Federal law
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i.e. “same-sex” marriage over-turned by US courts
Criminal
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Illegal acts; can be state or federal
i.e. breaking & entering
Civil
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i.e. divorce law
Terminology
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Plaintiff
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Defendant
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Person answering charges/ lawsuit
Discovery
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Person bringing lawsuit
Deposition
Interrogation
Documentation
Appeal
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Bringing case to higher court when court’s decision is questioned
EMS-Specific Laws
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Scope of Practice
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Direct vs Indirect Medical Direction
“Intervener” physician
Ability to Practice
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Certification vs Licensure
Authorization to Practice
Other Laws
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Motor Vehicle
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Infectious Disease Exposure
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Assault against Public Safety Officer
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Obstruction of Duty
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Good Samaritan Law
Mandatory Reporting
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Domestic violence
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Animal Bites
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Child & Elder Abuse
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Communicable Diseases
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Criminal Acts
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Out of hospital deaths
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Possession of Controlled
Substances
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GSW, Stabbing & Assault
Accountability & Malpractice
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Standard of Care
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Negligence
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Civil Litigation
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Borrowed Servant Doctrine
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Civil Rights
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Off-Duty Liability
Standard of Care
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“Expected care, skill, & judgment under similar
circumstances by a similarly trained, reasonable
paramedic.”
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Established nationally, regionally, locally
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Documentation demonstrating standard of care
will save your butt!
Negligence
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“Deviation from accepted or expected
standards of care expected to protect from
unreasonable risk of harm.”
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To prove:
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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
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Proof of guilt from “preponderance of evidence”
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“Res Ipsa Loquitur”
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Burden of proof shifts to the defendant
Simple vs. Gross Negligence
Defenses
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Good Samaritan Law
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Government Employees Immunity
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CIA, FBI…not so much Fire Personnel (sorry)
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Statue of Limitations
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Contributory Negligence
Accountability & Malpractice
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How do these affect the your Practice?
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Borrowed Servant Doctrine
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Patient Civil Rights
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Liability when Off-Duty
Paramedic-Patient Issues
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Consent
Refusals
Restraint
Abandonment
Transfer of Care
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Advance Directives
End of Life Decisions
Out of Hospital Death
Confidentiality
Privacy
Consent
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Patient has legal & mental capacity
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Any suggestion of AMS negates capacity
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Patient understands consequences
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Types:
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Informed
Expressed
Implied
Consent Issues
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Minors
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Who is an “Emancipated Minor” in Ohio?
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Prisoners
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Mental Retardation
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Mental Health Disease
Refusals
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Consent for transport vs treatment
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Withdrawl of Consent
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Refusal of Service must ALWAYS
document with witness:
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Legal & mental capacity
Is informed of risks & benefits
Offer alternatives
Who Cannot Refuse Care?
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Unable to understand nature & consequences of
injury or illness
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Unable to make rational decisions regarding
medical care due to physical or mental conditions
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Danger to self &/ or others
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Do not assume incompetence unless obvious
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Politicians aside…and then it is generally obvious!
Restraints
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Prepare to spend a whole lot of time documenting
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Always have a law enforcement report as a “witness” to your report
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Does not provide authorization to harm! Risk being charged with:
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Assault
Battery
False Imprisonment
Patients under arrest can refuse treatment & transport unless
condition exists preventing them from making a rational decision
Restraints
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Involve Law Enforcement early
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Have a plan of action
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Ensure safety of all
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Reasonable force
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Physical & chemical restraints
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Document well
Patient Abandonment
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Unilateral termination of patient-provider
relationship when still required & / or
desired by one party
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Exceptions
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MCI
Risks to well-being
Transfer of Patient Care
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Transfer of Care to other Providers
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Transfer of Care at the ED
Advanced Directives & End of
Life Decisions
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Advanced Directive
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Out of Hospital DNR
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Living Will
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Durable Power of Attorney for Health Care
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Patient Self-Determination Act
Important Points About End of
Life Decisions
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Not a surrender of rights to receive medical care
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Comfort measures appropriate
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Provide Family support and guidance
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When in doubt, resuscitate & contact medical control
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Termination of efforts allowed
Out of Hospital Death
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Initiation of care?
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Some states & regions require:
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Law enforcement response
Justice of the peace, medical examiner or coroner
pronouncement
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Requires medical control
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Survivors/ family may become patients
Patient Confidentiality & Privacy
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“Medical information about a patient will not
be shared with a third party without
consent, statute, or court order”
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Not all information is protected
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In most States, QA/QI is not discoverable
Patient Confidentiality & Privacy
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Colleague & Station Chat
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Scene or Patient Photographs
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Cannot identify the patient & must maintain confidentiality
of specific medical information
? Cell phones
? Media
EMS Radio Dispatch & Discussions
Defamation
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“Communication of false information knowing the
information to be false or with reckless disregard
of whether it is true or false”
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Slander
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Libel
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Protected Classes/Diseases
Operational Issues
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Equipment failure
Interaction with Law
Enforcement
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Crime Scenes
Preservation of Evidence
Vehicle Operation
Medical Control
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Instructor Liability
Hospital Selection
Dispatch
Interfacility Transfers
OSHA
Risk Management
Equipment Failure
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Product Liability
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i.e. ventilator design flaw
Failure on part of owner/operator
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No backup battery for defibrillator
Crime Scenes
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Request law enforcement & await their arrival
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Minimize personnel & their scene contact
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Document alterations to scene created by EMS
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Document pertinent observations
Evidence Preservation
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Avoid cutting through penetrations in the clothing
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Save everything found on victim
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Do no discourage sexual assault patient from
washing
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Can be considered “coercion”
Chain of evidence procedures
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i.e. document turnover of possessions
Vehicle Operation
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The greatest source of EMS-related lawsuits
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The greatest percentages of wins for the
plaintiff and/ or EMS “settlements”
Vehicle Operation – Case Study
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While responding to a MVC at 0300, a driver fails
to yield the right of way at an intersection
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The driver’s traffic signal is green. You attempt to
stop but are unable to causing injury to the driver
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Witnesses state your emergency lights were on
but do not recall hearing your siren
Issues For The Driver’s Attorney
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Were emergency lights really operational?
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Are daily inspections performed?
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Why was the siren not working?
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Were poorly maintained brakes responsible for your
inability to stop?
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What type of maintenance is performed on your ambulance?
Did you exercise due regard for the safety of others?
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Historical investigation as well
Medical Control Issues
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Failure to follow medical control
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Following harmful medical control direction
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Includes Medical Control directing EMS to inappropriate hospital
Includes Following direction of unauthorized person
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Implementing therapies without prior authorization
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The paramedic exceeds the scope of his training or
medical authorization
Instructor Liability
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Discrimination
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Sexual harassment
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Student injury
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Failure to properly train graduate or supervise
student
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Best defense:
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Follow curriculum
Document attendance
Document competency
Hospital Selection
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Paramedic & Medical Control decision
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Closest vs “Most Appropriate” Facility
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Written policies or guidelines
Dispatch
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Untimely dispatch
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Untimely response
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Failure to provide correct address
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Dispatch of inadequate level of care
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Failure to provide pre-arrival instructions
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Inadequate recordkeeping
Interfacility Transfer
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Appropriate equipment & training?
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Travel with specialized providers?
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Printed patient report?
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Is patient “stable”?
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Potential complications with decompensation?
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Are there any specific physician orders?
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Has the patient been accepted?
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Documented and confirmed transferring & accepting physicians?
OSHA & Risk Management
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If you live & work in an OSHA-regulated State…
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“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
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Confidentiality
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Security
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Sharing
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QA, research, M & M
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Protected Classes
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Quality & Effectiveness
Confidentiality
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Written report intended only for those with need to know
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Personal identifiers generally removed for QA/QI
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Radio reports should never contain personal identifiers
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Including terms like “frequent flyer”
Securing & Sharing Information
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Where are patient reports stored?
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Who receives the report at the ED?
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Requests for copies must be routed through an accepted
policy or an attorney
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Does requestor have a need to know?
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No, No, No!:
Yes:
Media
Patient, Family on behalf of patient, Lawyers,
Insurance/ billing companies (sometimes)
Protected Classes
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Some specific disease information is considered
confidential in a PCR
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Tuberculosis
HIV/ AIDS/ STDs
“Mandatory Reporting” is an issue for hospitals
Quality Documentation
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Complete immediately after the patient contact
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Be thorough, accurate, honest, objective & factual
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Caution with abbreviations
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Maintain confidentiality
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Do not alter once written down
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May always add an addendum
Important Points
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Does your chart tell an accurate story relating the events
that happened in a clear, concise format?
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Will the report help you recall this incident if necessary 3
years from now?
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Are you willing to sit in court with only this document?
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Your PCR can be “called” into court without you!
Summary
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There are many legal issues
surrounding EMS & fire services
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Health care providers should
keep up-to-date with local legal
requirements
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Ignorance of the law is neither
an excuse or acceptable!
References
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Cohn, B. M. Azzara, A. J. Legal Aspects of Emergency
Medical Services. W. B. Saunders Company. 1998
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Temple College Division of EMS website
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Page, Wolfberg & White Attorney’s webpage
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Lawyers who only handle EMS cases
All lawyers are also paramedics
Great free stuff on site
Questions?
prehospitalmd@gmail.com