Transcript Module 4 – Legal Issues

S-SV EMS MICN Course
Module 4
EMS Legal Aspects
S-SV EMS Agency MICN Training (Updated 05-2016)
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EMS Legal Aspects
• Definitions Overview
 Criminal Law
 Do Not Resuscitate (DNR)
 Civil Law
 Physician Order For Life
Sustaining Treatment
(POLST)
 Good Samaritan Law
 Advance Directive
 Living Will
 Durable Power of Attorney
for Healthcare
S-SV EMS Agency MICN Training (Updated 05-2016)
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EMS Legal Aspects
• Criminal Law
 Crime and punishment
 State vs. offending person
 “Beyond a reasonable doubt”
S-SV EMS Agency MICN Training (Updated 05-2016)
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EMS Legal Aspects
• Civil Law
 Contracts and domestic relations
 Conflicts between two or more
parties
 One individual against another
o Malpractice suit
 “Preponderance of evidence”
o Unanimous jury not required
S-SV EMS Agency MICN Training (Updated 05-2016)
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EMS Legal Aspects
• Good Samaritan Law
 Individual is protected from liability if they:
o Acted in good faith
o Acted within scope of practice/training (if applicable)
o Did not act negligently
o Did not accept money for
the assistance provided
S-SV EMS Agency MICN Training (Updated 05-2016)
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EMS Legal Aspects
• Good Samaritan Law (cont.)
 CA Health & Safety Code, Division 2.5, § 1799.102
o (2) ….no person who in good faith, and not for
compensation, renders emergency medical or nonmedical
care or assistance at the scene of an emergency shall be
liable for civil damages resulting from any act or omission
other than an act or omission constituting gross
negligence or willful or wanton misconduct
S-SV EMS Agency MICN Training (Updated 05-2016)
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EMS Legal Aspects
• Advance Directive
 Written statement of a person’s wishes regarding
medical treatment, often including a living will, made to
ensure those wishes are carried out should the person
be unable to communicate them to a doctor
S-SV EMS Agency MICN Training (Updated 05-2016)
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EMS Legal Aspects
• Living Will
 Written document stating whether an individual does
or does not want artificial life support if:
o They become terminally ill and will die shortly without life
support; or
o They fall into an irreversible coma
or persistent vegetative state
S-SV EMS Agency MICN Training (Updated 05-2016)
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EMS Legal Aspects
• Durable Power of Attorney For Healthcare
 Allows an individual to empower another with decisions
regarding his or her healthcare and medical treatment
 Becomes active when a person is unable to make
decisions or consciously communicate intentions
regarding treatments
 Person with a durable power of attorney for healthcare
cannot contradict the terms of a living will
S-SV EMS Agency MICN Training (Updated 05-2016)
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EMS Legal Aspects
• Do Not Resuscitate (DNR)
 No chest compressions or
defibrillation
 No assisted ventilation or
advanced airway
 No cardiotonic medications
 Patients shall still receive full
palliative treatment for pain,
dyspnea, major hemorrhage,
or other medical conditions
S-SV EMS Agency MICN Training (Updated 05-2016)
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EMS Legal Aspects
• DNR (cont.)
 Types of EMS approved DNR orders
o Written DNR order dated and signed by a physician (POLST,
EMSA form, patient’s chart – including electronic medical
record, or physicians verbal order sheet signed by an RN)
o Medic Alert DNR wrist or neck medallion
o Patient’s physician verbal order (physician must be on scene)
o California Durable Power of Attorney for Healthcare (agent
or attorney-in-fact must be present and provide ID)
S-SV EMS Agency MICN Training (Updated 05-2016)
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EMS Legal Aspects
• Physicians Orders For LifeSustaining Treatment (POLST)
 Intended to express a patient’s
wishes in end-of-life decisions,
backed by physician’s orders
 CA law mandates recognition by
healthcare workers and provides
immunity for those who comply
in good faith
S-SV EMS Agency MICN Training (Updated 05-2016)
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EMS Legal Aspects
• POLST (cont.)
 Alternative to DNR
 Use is voluntary, does not replace an Advance Directive
 EMS policies still in effect and must be followed
 Any incomplete section implies full treatment for that
section
 Must be signed by physician and patient/guardian/
decision maker to be legal/valid – full treatment
required if signatures are missing
S-SV EMS Agency MICN Training (Updated 05-2016)
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EMS Legal Aspects
• DNR/POLST Notes
 If more than one version/type of form is present, use the
form with the most current date
 When in doubt, prehospital personnel shall begin
resuscitation and contact the base hospital immediately
for direction/consultation
 DNR/POLST documentation should be taken with the
patient to the receiving hospital if transported
 Prehospital personnel are required to include a copy of
the DNR/POLST in their documentation if possible
S-SV EMS Agency MICN Training (Updated 05-2016)
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EMS Legal Aspects
• Other EMS Legal Matters
 EMS Liability Protections
 EMS Medical Authority
 Standard of Care
 Negligence
 Patient Initiated Refusal of
EMS Services
 Misc. EMS Legal Issues
 Prehospital Documentation
 EMS Personnel Licensure/
Certification Enforcement
 Consent
 Suspected Child or Elder/
Dependent Adult Abuse
Reporting
S-SV EMS Agency MICN Training (Updated 05-2016)
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EMS Legal Aspects
• EMS Liability Protections
 CA Health & Safety Code, Division 2.5, § 1799.102
o No person who in good faith, and not for compensation,
renders emergency medical or nonmedical care at the
scene of an emergency shall be liable for any civil
damages resulting from any act or omission. The scene of
an emergency shall not include emergency departments
and other places where medical care is usually offered.
This subdivision applies only to the medical, law
enforcement, and emergency personnel specified in this
chapter.
S-SV EMS Agency MICN Training (Updated 05-2016)
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EMS Legal Aspects
• EMS Liability Protections (cont.)
 CA Health & Safety Code, Division 2.5, § 1799.104
o (a) No physician or nurse, who in good faith gives
emergency instructions to an EMT-II or mobile intensive
care paramedic at the scene of an emergency, shall be
liable for any civil damages as a result of issuing the
instructions.
o (b) No EMT-II or mobile intensive care paramedic
rendering care within the scope of his duties who, in good
faith and in a non-negligent manner, follows the
instructions of a physician or nurse shall be liable for any
civil damages as a result of following such instructions.
S-SV EMS Agency MICN Training (Updated 05-2016)
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EMS Legal Aspects
• EMS Liability Protections (cont.)
 CA Health & Safety Code, Division 2.5, § 1799.106
o ….a firefighter, police officer or other law enforcement
officer, EMT-I, EMT-II, EMT-P, or registered nurse who
renders emergency medical services at the scene of an
emergency or during an emergency air or ground
ambulance transport shall only be liable in civil damages
for acts or omissions performed in a grossly negligent
manner or acts or omissions not performed in good faith.
S-SV EMS Agency MICN Training (Updated 05-2016)
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EMS Legal Aspects
• EMS Medical Authority
 Prehospital personnel function under the authority of a
physician (MD/DO)
o Offline medical control – Follow established LEMSA
policies/protocols (functioning under the authority of the
LEMSA medical director)
o Online medical control – Base hospital order, outside
LEMSA policies/protocols but still within scope of practice
(functioning under the authority of the base hospital
physician providing the orders)
S-SV EMS Agency MICN Training (Updated 05-2016)
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EMS Legal Aspects
• Standard of Care
 State statute/regulation establishes scope of practice
 LEMSA establishes medical control policies and protocols
o California Health and Safety Code: “Every local EMS
Agency shall have a full or part time physician functioning
as the Medical Director to ensure medical accountability”
 Can also be derived from the peer standard
o What a reasonable and prudent EMR, EMT, AEMT,
Paramedic would do in the same or similar circumstances
S-SV EMS Agency MICN Training (Updated 05-2016)
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EMS Legal Aspects
• Standard of Care (cont.)
 The following may also be used to establish a standard
of care in a legal proceeding:
o EMS course curriculum
o EMS textbooks
o Employer policies
o Expert testimony
 Deviation from the standard of care can lead to
allegations of negligence
S-SV EMS Agency MICN Training (Updated 05-2016)
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EMS Legal Aspects
• Negligence
 The following four (4) requirements must be met in
order for negligence to be proven
o Duty to act
o Breech of duty
o Damages occurred
o Proximate cause (damages must
be proven to have been caused
by the breech in the duty to act)
S-SV EMS Agency MICN Training (Updated 05-2016)
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EMS Legal Aspects
• Consent
 Granting of permission to touch
 Granting of permission to treat
S-SV EMS Agency MICN Training (Updated 05-2016)
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EMS Legal Aspects
• Consent (cont.)
 Informed – Risks and benefits explained
 Expressed – Verbal/nonverbal permission granted
 Implied – When surrounding circumstances exist which
would lead a reasonable person to believe that consent
would be given: assumed patient would want treatment
(minor, ALOC, incapacitated, etc.)
 Involuntary – Based on court order, 5150, etc.
S-SV EMS Agency MICN Training (Updated 05-2016)
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EMS Legal Aspects
• Consent (cont.)
 Withdrawal of consent may be done by any competent
adult at any time
o Withdrawal of consent
must be informed
o Not applicable to involuntary
consent (court order, 5150)
S-SV EMS Agency MICN Training (Updated 05-2016)
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EMS Legal Aspects
• Suspected Child or Elder/Dependent Adult Abuse
Reporting
 Child: Any person under age 18
 Elder: Any person over age 65
 Dependent adult: Any person between the age of 18 – 64
who is unable to care for themselves and/or is admitted to
an inpatient 24 hour healthcare facility
S-SV EMS Agency MICN Training (Updated 05-2016)
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EMS Legal Aspects
• Suspected Child or Elder/Dependent Adult Abuse
Reporting (cont.)
 EMS personnel are mandated reporters
o Required by law to report knowledge or observation of
abuse (law enforcement, APS, CPS, etc.)
o Immune from criminal or civil
liability for reporting as required
S-SV EMS Agency MICN Training (Updated 05-2016)
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EMS Legal Aspects
• Patient Initiated Refusal of EMS Service
 Litigation risk
o Approximately 50% of EMS related litigation involves
patients who are NOT transported
S-SV EMS Agency MICN Training (Updated 05-2016)
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EMS Legal Aspects
• Patient Initiated Refusal of EMS Service (cont.)
 Person (not considered to be a patient)
o Competent individual, no complaint or obvious
injury/illness
o Did not call 911 or direct 911 to be called
 Patient:
o Individual who requests EMS assessment, treatment, or
transport or appears to exhibit evidence of an illness or
injury
S-SV EMS Agency MICN Training (Updated 05-2016)
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EMS Legal Aspects
• Patient Initiated Refusal of EMS Service (cont.)
 Competent person/patient
o Capacity to understand the nature of their medical
condition (if applicable) and not impaired
S-SV EMS Agency MICN Training (Updated 05-2016)
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EMS Legal Aspects
• Patient Initiated Refusal of EMS Service (cont.)
 Refusal of service – released at scene (RAS)
o Must be a competent adult or child with a minor illness or
injury
o Must have a plan for follow up medical care (if necessary)
o EMS personnel must concur with release and medical
follow up plan after a complete assessment
S-SV EMS Agency MICN Training (Updated 05-2016)
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EMS Legal Aspects
• Patient Initiated Refusal of EMS Service (cont.)
 Minor patients with a minor illness/injury may be
released to:
o Parent, legal guardian, caregiver, or responsible adult
o Self (age, maturity, environment, and other factors must
be considered)
o Law enforcement
 EMS personnel are required to attempt contact with
parents if not present, and document who a minor
patient was released to
S-SV EMS Agency MICN Training (Updated 05-2016)
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EMS Legal Aspects
• Patient Initiated Refusal of EMS Service (cont.)
 Refusal of service – against medical advice (AMA)
o Must be a competent adult or
minor not requiring legal
parental/guardian consent
o Consider having other EMS
personnel on scene offer
assessment, treatment and/or
transportation
S-SV EMS Agency MICN Training (Updated 05-2016)
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EMS Legal Aspects
• Patient Initiated Refusal of EMS Service (cont.)
 Law enforcement involvement required for the following:
o New ALOC
o 5150 or attempted/verbalized suicidal/homicidal ideation
o Clearly irrational decision with unstable vital signs
o Concern for child neglect or endangerment
 Note: if law enforcement refuses to assist with facilitating
EMS treatment/transport, they may be requested to
speak to the base hospital MICN/physician by telephone
S-SV EMS Agency MICN Training (Updated 05-2016)
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EMS Legal Aspects
• Patient Initiated Refusal of EMS Service (cont.)
 EMS personnel are required to contact the base hospital,
while in close proximity to the patient, for the following
types of patients:
o Previous RAS by EMS within the past 24 hours
o Minors ≤ 3 years old or without an adult signature being
released at scene
o All AMA patients
S-SV EMS Agency MICN Training (Updated 05-2016)
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EMS Legal Aspects
• Patient Initiated Refusal of EMS Service (cont.)
 Special Circumstances
o RAS or AMA consent/documentation should be completed
by ALS personnel whenever possible
o BLS personnel may complete an RAS or AMA if ALS
personnel are unavailable or extremely delayed
o Patients requiring base contact can be released in the
event of documented communication failure if all other
requirements are met
S-SV EMS Agency MICN Training (Updated 05-2016)
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EMS Legal Aspects
• Misc. EMS Legal Issues
 Patient Abandonment
o A form of medical malpractice that occurs when the
provider-patient relationship is terminated without
reasonable notice or a reasonable excuse, and the patient
is not provided with an opportunity to find a qualified
replacement care provider
 False Imprisonment
o Restraint of a person in a bounded area without
justification or consent
S-SV EMS Agency MICN Training (Updated 05-2016)
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EMS Legal Aspects
• Misc. EMS Legal Issues (cont.)
 Assault
o A violent physical or verbal attack
o A threat or attempt to inflict offensive physical contact or
bodily harm on a person that puts the person in immediate
danger of or in apprehension of such harm or contact
 A patient threatened with the possibility of a painful procedure
in order to gain compliance with EMS personnel may claim
assault if they had reasonable anticipation of bodily harm
S-SV EMS Agency MICN Training (Updated 05-2016)
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EMS Legal Aspects
• Misc. EMS Legal Issues (cont.)
 Battery
o An offensive touching or use of force on a person without
the person’s consent
S-SV EMS Agency MICN Training (Updated 05-2016)
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EMS Legal Aspects
• Misc. EMS Legal Issues (cont.)
 Libel
o Injuring an individual’s character
by writing
 Slander
o Injuring an individual’s character
by spoke words
S-SV EMS Agency MICN Training (Updated 05-2016)
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EMS Legal Aspects
• Misc. EMS Legal Issues (cont.)
 Other laws
o Crimes against persons
o Domestic violence reporting
o Motor vehicle laws – operation of emergency vehicles,
response and transport codes
S-SV EMS Agency MICN Training (Updated 05-2016)
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EMS Legal Aspects
• Prehospital Documentation
 Required for all responses where
EMS personnel arrived at scene
 Legal medical record, must be
complete and accurate
 Includes the following:
o Interim patient care report – minimum documentation
that must be left at the receiving facility
o Electronic patient care report (ePCR) – must be provided
to the receiving facility within 24 hours
S-SV EMS Agency MICN Training (Updated 05-2016)
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EMS Legal Aspects
• Prehospital Personnel Licensure/Certification
Enforcement – reportable incidents
o Sentinel events
o Breach of the standard of care
o Medication and/or treatment errors
o Care beyond the appropriate scope of practice
o Failure to follow S-SV EMS policies/protocols
o Suspected violations of § 1798.200 of the H&S code
o Any alleged or known injury to a patient by EMS personnel
S-SV EMS Agency MICN Training (Updated 05-2016)
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