7 Medical/Legal Aspects of Prehospital Care

Standard Preparatory (Medical/Legal and Ethics)

Competency Integrates comprehensive knowledge of EMS systems, the safety and well-being of the paramedic, and medical/legal and ethical issues, which is intended to improve the health of EMS personnel, patients, and the community.

Introduction Paramedics must: Be familiar with legal issues they encounter in field Be prepared to make medical decisions and appropriate legal decisions Laws vary state to state; protocols vary county to county. Specific legal question: rely on advice of attorney.

Legal Duties and Ethical Responsibilities As paramedic, you have legal duties to patient, crew, medical director, public. Based on accepted standards; set by statutes and regulations Best protection from liability: Perform systematic patient assessment. Provide appropriate medical care. Accurate and complete documentation Discussion Topics Review various cases involving EMTs and paramedics. Discuss these with the students.

Each EMS response has the potential of involving paramedics in the legal system. (© Glen E. Ellman)

Legal Duties and Ethical Responsibilities Promptly respond to both physical and emotional needs of every patient. Treat all patients and their families with courtesy and respect. Maintain skills and medical knowledge. Participate in continuing education programs, seminars, refresher training.

Legal Duties and Ethical Responsibilities Critically review your performance; constantly seek improvement. Report honestly and with respect for patient confidentiality. Work cooperatively with and respect other emergency professionals.

Legal Duties and Ethical Responsibilities Ethical standards are not laws. Principles that identify desirable conduct by members of particular group Morality: principle of right and wrong as governed by individual conscience.

Legal Duties and Ethical Responsibilities The Legal System Constitutional law: based on Constitution of United States; protects people against governmental abuse. Common law (“case” or “judge-made”): society's acceptance of customs and norms over time; changes and grows over years.

Legal Duties and Ethical Responsibilities The Legal System Legislative law (statutory): does not come from court decisions; created by lawmaking or legislative bodies. Administrative law (regulatory): enacted by administrative or governmental agency at either federal or state level.

Legal Duties and Ethical Responsibilities The Legal System Criminal law: crime and punishment. Civil law: noncriminal issues (personal injury, contract disputes, matrimonial issues). Plaintiff: person initiating litigation. Defendant: person against whom complaint is made.

Legal Duties and Ethical Responsibilities The Legal System Tort law: civil wrongs committed by one individual against another. Trial courts: judge or jury determines outcome of individual cases. Appellate courts: hear appeals of decisions by trial or appeals courts. Points to Emphasize Paramedics usually are involved with tort law.

Legal Duties and Ethical Responsibilities Anatomy of a Civil Lawsuit Incident Investigation Filing of complaint Answering of complaint Discovery Examination before trial (deposition) Interrogatory Requests for document production

Legal Duties and Ethical Responsibilities Anatomy of a Civil Lawsuit Trial Decision Appeal Settlement

Legal Duties and Ethical Responsibilities Laws Affecting EMS and the Paramedic Scope of Practice Range of duties and skills paramedics allowed and expected to perform Set by state law or regulation and by local medical direction Policy to guide paramedics in dealing with intervener physicians

Legal Duties and Ethical Responsibilities Laws Affecting EMS and the Paramedic Certification: recognition granted to individual who has met qualifications to participate in certain activity. Licensure: used to regulate occupations. Understand EMS laws and regulations in your state.

Legal Duties and Ethical Responsibilities Laws Affecting EMS and the Paramedic Special motor vehicle laws govern operation of emergency vehicles and equipment; vary state to state. Each state has different laws to protect public. Report spousal abuse, child abuse and neglect, abuse of elderly, sexual assault, gunshot and stab wounds, animal bite, communicable diseases.

Legal Duties and Ethical Responsibilities Laws Affecting EMS and the Paramedic Laws to protect paramedics: Immunity: exemption from legal liability. Good Samaritan laws: immunity for people who assist at medical emergency. Ryan White Comprehensive AIDS Resources Emergency Act (Ryan White CARE Act): exposure to bloodborne or airborne pathogens. Discussion Topics Discuss with the students instances where they may find themselves acting as ”Good Samaritans” rather than paramedics.

Legal Accountability of the Paramedic Required to provide level of care to patients consistent with education and training; equal to other paramedics with equivalent training. Expected to perform duties in reasonable and prudent manner. Intentional tort: civil wrong committed by one person against another based on willful act.

Legal Accountability of the Paramedic Negligence and Medical Liability Negligence: deviation from accepted standards of care recognized by law for protection of others against unreasonable risk of harm. Class Activities As a group, list various skills that if performed incorrectly can result in a negligence charge.

EMS Liability Claims

Legal Accountability of the Paramedic Negligence and Medical Liability Duty to act: formal contractual or informal legal obligation to provide care. Duty to respond to scene and render care to ill or injured patients Duty to obey federal, state, local laws and regulations Duty to operate emergency vehicle reasonably and prudently

Legal Accountability of the Paramedic Negligence and Medical Liability Duty to act: formal contractual or informal legal obligation to provide care. Duty to provide care and transportation to expected standard of care Duty to provide care and transportation consistent with scope of practice and local medical protocols

Legal Accountability of the Paramedic Negligence and Medical Liability Duty to act: formal contractual or informal legal obligation to provide care. Duty to continue care and transportation through to appropriate conclusions

Legal Accountability of the Paramedic Negligence and Medical Liability Breach of duty: Malfeasance: performance of wrongful or unlawful act by paramedic. Misfeasance: performance of legal act in manner harmful or injurious. Nonfeasance: failure to perform required act or duty.

Legal Accountability of the Paramedic Negligence and Medical Liability Res ipsa loquitur: Complainant must prove damages would not have occurred in absence of somebody's negligence. Instruments causing damages were under defendant's control at all times. Patient did nothing to contribute to his own injury.

Legal Accountability of the Paramedic Negligence and Medical Liability Negligence per se (automatic): paramedic violates statute and injury to plaintiff results. Actual damages: plaintiff must prove he was actually harmed in way that can be compensated by award of damages. Plaintiff may seek punitive (punishing) damages. Points to Emphasize List the four components of a negligence claim, including “actual damages to patient.”

Legal Accountability of the Paramedic Negligence and Medical Liability Proximate cause: action or inaction of paramedic immediately caused or worsened damage suffered by plaintiff. Plaintiff needs to prove damage to patient was reasonably foreseeable. Knowledge Application Create several scenarios from each of the four components of negligence. For homework, have the students identify which component each scenario is referring to.

Legal Accountability of the Paramedic Negligence and Medical Liability Defenses to negligence: Good Samaritan laws Governmental immunity Statute of limitations Contributory or comparative negligence

Legal Accountability of the Paramedic Negligence and Medical Liability Appropriate education, training, continuing education Appropriate medical direction Accurate, thorough documentation Professional attitude and demeanor Act in good faith. Use common sense. Covered by medical liability insurance

Legal Accountability of the Paramedic Special Liability Concerns Paramedic's medical director: may be liable to patient for negligent supervision of paramedic. Borrowed servant doctrine: if supervising other emergency care providers, liable for any negligent act they commit.

Legal Accountability of the Paramedic Special Liability Concerns Civil rights: patient may sue for violating his civil rights if you fail to render care for discriminatory reason. Off-duty paramedic: liability may arise in situation in which off-duty paramedic renders assistance at scene.

Legal Accountability of the Paramedic Special Liability Concerns Airway issues: failure to secure airway or failure to recognize airway improperly placed can result in devastating or fatal injuries for patient. Restraint issues: patient who must be physically or chemically restrained due to patient's behavior.

Legal Accountability of the Paramedic Special Liability Concerns Restraint issues: Excited delirium syndrome (ExDS) Restraint or positional asphyxia. Understand and practice safe restraint techniques. Medical restraint is high-risk issue

Paramedic-Patient Relationships Confidentiality Medical or personal information (medical history, assessment findings, treatment) will not be released to third party without express permission of patient or legal guardian.

Paramedic-Patient Relationships Confidentiality Patient consents to release of his records. Other medical care providers have need to know. EMS is required by law to release a patient's medical records. Third-party billing requirements Class Activities Have the students list examples of the terms listed.

Paramedic-Patient Relationships Health Insurance Portability and Accountability Act (HIPAA) Enhances confidentiality of medical records All EMS employees trained in HIPAA compliance Methods to ensure EMS personnel who have been exposed to communicable disease notified in timely fashion.

Paramedic-Patient Relationships Defamation Person makes intentional false communication that injures another person's reputation or good name

Paramedic-Patient Relationships Libel Act of injuring person's character, name, or reputation by false statements in writing or mass media with malicious intent or reckless disregard for falsity of statements.

Paramedic-Patient Relationships Slander Act of injuring person's character, name, or reputation by false or malicious statements spoken with malicious intent or reckless disregard for falsity of statements.

Paramedic-Patient Relationships Invasion of Privacy Release of confidential information, without legal justification, regarding patient's private life; exposes patient to ridicule, notoriety, embarrassment.

Paramedic-Patient Relationships Consent Consent: granting of permission to treat. By law, you must get patient's consent before you can provide medical care or transport. Patient must be competent to give or withhold consent. Knowledge Application Assign the consent terms to the students for homework, requiring the definition and an example of each.

Paramedic-Patient Relationships Consent Informed consent: based on full disclosure of information. Nature of illness or injury; recommended treatments Risks, dangers, benefits of treatments Alternative treatment possibilities; risks, dangers, benefits of accepting each one Dangers of refusing treatment and/or transport

Paramedic-Patient Relationships Consent Expressed consent: most common; person directly grants permission to treat—verbally, nonverbally, in writing. Implied consent: patient requires emergency intervention but is mentally, physically, or emotionally unable to grant consent.

Paramedic-Patient Relationships Consent Involuntary consent: court orders patients to undergo treatment, even though they may not want it. Competent adult in police custody does not lose the right to make medical decisions for himself.

Paramedic-Patient Relationships Consent Minor: consent obtained from parent, legal guardian, court-appointed custodian. Emancipated minor: considered adult. Competent adult may withdraw consent for any treatment at any time; refusal must be informed.

Example of a “release-from-liability” form.

Paramedic-Patient Relationships Refusal of Service Be sure patient legally permitted to refuse care; must be competent adult. Make multiple and sincere attempts to convince patient to accept care. Enlist help of others (family or friends) to convince patient to accept care.

Paramedic-Patient Relationships Refusal of Service Make certain patient fully informed about implications of decision and potential risks of refusing care. Consult with on-line medical direction. Have patient and disinterested witness sign release-from-liability form.

Paramedic-Patient Relationships Refusal of Service Advise patient he may call you again for help, if necessary. Attempt to get patient's family or friends to stay with patient. Document entire situation thoroughly on patient care report.

Paramedic-Patient Relationships Problem Patients Violent Victim of drug overdose Intoxicated adult or minor Ill or injured minor with no adult available to provide consent for medical treatment

Paramedic-Patient Relationships Problem Patients Attempt to develop trust and rapport. Refusal form should be completed and witnessed by police officer. If situation dangerous, police officers or family should consider legal measures. Conversation with patient and refusal witnessed by disinterested third party.

Paramedic-Patient Relationships Boundaries Issues Professional boundaries: ethical and societal limits to interactions between paramedics or health care personnel and patients they serve. Crossing professional boundaries can result in breaching responsibilities.

Paramedic-Patient Relationships Boundaries Issues Danger zones: Being tired: fatigue can lead to problems (medication errors, poor decision making, vehicle crashes). Being seduced: led away from one's principles, ethics, faith, allegiance. Being unprepared

Paramedic-Patient Relationships Legal Complications Related to Consent Abandonment: termination of paramedic-patient relationship without providing for continuation of care while still needed and desired by patient.

Paramedic-Patient Relationships Legal Complications Related to Consent Assault: unlawfully placing person in apprehension of immediate bodily harm without his consent. Battery: unlawful touching of another individual without his consent. Discussion Topics Discuss with the class different skills that if performed without consent could be classified as battery; do the same with assault and false imprisonment.

Paramedic-Patient Relationships Legal Complications Related to Consent False imprisonment: intentional and unjustifiable detention of person without his consent or other legal authority; may result in civil or criminal liability.

Paramedic-Patient Relationships Reasonable Force Minimum amount of force necessary to ensure patient does not cause injury to himself, you, or others. Use of excessive force can result in liability for paramedic. Force used as punishment considered assault and battery.

Paramedic-Patient Relationships Reasonable Force Use of restraints may be indicated for combative patient. Restraints conform to local protocols. Restraining devices: straps, jackets, restraining blankets. Use least amount of force to safely control patient while causing him least amount of discomfort.

Patient restraint is a high-risk endeavor Patient restraint is a high-risk endeavor. The safety of personnel and the patient should be the highest priority.

Paramedic-Patient Relationships Patient Transportation Maintain same level of care as was initiated at scene. Emergency vehicle operations: be familiar with state and local laws. Patient choice of destination and insurance company protocols Facility selection based on patient request, patient need, facility capability

Resuscitation Issues You are under obligation to begin resuscitative efforts when patient unresponsive, pulseless, apneic. Resuscitation not indicated: Do Not Resuscitate (DNR) order Obviously dead; obvious tissue decomposition; extreme lividity Scene too hazardous to enter. Critical Thinking Questions What would you do if your patient has a valid DNR, but his family wants you to resuscitate him?

Resuscitation Issues Advance Directives Document to ensure certain treatment choices honored when patient is unconscious or otherwise unable to express choice of treatments. Living wills, durable powers of attorney for health care, Do Not Resuscitate orders, organ donor cards

Resuscitation Issues Advance Directives Living will: legal document that allows person to specify the kinds of medical treatment he wishes to receive should need arise.

Resuscitation Issues Advance Directives Do Not Resuscitate (DNR) order: legal document that indicates to medical personnel which, if any, life-sustaining measures should be taken when patient's heart and respiratory functions have ceased. Valid DNR orders should be honored as your protocols allow.

Resuscitation Issues Advance Directives Potential Organ Donation Organs and tissues in very high demand and short supply EMS systems vital link in organ procurement and transplant process Consult on-line medical direction when you have identified potential donor.

Resuscitation Issues Death in the Field Must be appropriately dealt with and thoroughly documented. Follow state and local protocols. Contact on-line medical direction for guidance.

Crime and Accident Scenes If you believe crime committed on scene, immediately contact law enforcement if not already involved. Protect yourself and safety of other EMS personnel; primary consideration. Once crime scene deemed safe, initiate patient contact and medical care.

Crime and Accident Scenes Do not move or touch anything at crime scene unless necessary for patient care. Do your best to protect potential evidence. If you need to remove items from scene, be sure to document your actions and notify investigating officers. Discussion Topics Discuss with the group different scenarios of crime scenes, and to can avoid altering the scene.

Crime and Accident Scenes Treat scene of accident in same way. Ensure your own safety and safety of your crew. Treat patients as medically indicated. Use resources available to you.

Duty to Report When abuse or neglect suspected, you must balance need to protect patient confidentiality against need to notify proper authorities. Act with patient's best interest in mind. Many states have rules that require EMS personnel to report suspected abuse to proper authorities.

Duty to Report Do not confront abuser. Not necessary for you to prove abuse or neglect occurred before reporting. Failure to report abuse or neglect bigger liability than reporting.

Documentation Well-documented Patient Care Report Completed promptly after patient contact It is thorough. It is objective. It is accurate. It maintains patient confidentiality.

Documentation Complete well-written patient care report is your best protection in malpractice action. If patient care report incomplete or inaccurate, a written amendment should be attached. Medical records maintained for period of time prescribed by state law.

Template-driven electronic patient records are becoming more common in modern EMS.

Employment Laws Employment laws address employee/employer relationships. Volunteer agencies fall under jurisdiction of many of these laws. Can be complex; consult attorney should problem arise

Employment Laws Americans with Disabilities Act: prohibits discriminating against qualified individuals with disabilities. Title VII: federal law prohibits workplace harassment and discrimination. Discussion Topics As a group, look up and discuss the benefits of each employment law listed.

Employment Laws Amendments to Title VII Equal Employment Opportunity Act of 1972 Age Discrimination and Employment Act of 1967 (ADEA) Age Discrimination Act of 1975

Employment Laws Family and Medical Leave Act of 1993 (FMLA) Fair Labor Standards Act (FLSA): minimum wage, overtime pay, recordkeeping, child labor standards. Occupational Safety and Health Act (OSHA): healthy and safe environment.

Employment Laws The Ryan White Care Act: funds programs to improve availability of health care for victims of AIDS and their families.

Summary Paramedic's job: interaction with law enforcement authorities; involvement in situations that give rise to litigation. Learn and follow all state laws and local protocols. Receive good training. Keep current: continuing education programs, industry journals, recertification or relicensure.

Summary Always obtain informed consent before initiating treatment and/or transport. Practice skills and procedures that reasonable and prudent paramedic would, given same or similar circumstances.

Summary Practice procedures you are trained to perform and are directly authorized to perform by medical control physician or approved local standing orders. Prepare accurate, legible, complete medical records that thoroughly document EMS incident.

Summary Discuss patient information with only those who need to know. Purchase and maintain malpractice insurance; employer does same. Be nice to patients and their families. Act in good faith; use common sense. High-quality patient care and documentation are best protection from liability.