legal aspects of med prac

LEGAL ASPECTS LEGAL ASPECTS OF Medical OF Medical

CareCareProf. Syed Amin TabishProf. Syed Amin TabishFRCP (London), FRCP (Edin.), FACP, FAMS, MHA FRCP (London), FRCP (Edin.), FACP, FAMS, MHA

(AIIMS)(AIIMS)

Legal Aspects of Medical Legal Aspects of Medical PracticePractice

• With knowledge explosion and technological advances mainly aimed to provide high quality medical care to individual patients, the need for a careful construction of a professional ethics is urgent.

• Citizen’s charter on Health Services

• Consumer Protection Act

Why EthicsWhy Ethics

•Patients are increasingly aware of what they believe to be their human rights & expect doctors to respect them

The Duties of Clinical CareThe Duties of Clinical Care

Rights of patients may be summarized by 3 corresponding duties of care which apply to all patients:

- Protect life & health - Respect Autonomy - Fairness & justice

1. The Duties of Clinical care 1. The Duties of Clinical care

•Protect Life & Health (clinicians to practice medicine to high standard not to cause unnecessary harm/suffering)

2. The Duties of Clinical Care2. The Duties of Clinical Care

Respect Autonomy: • Humans have autonomy – the

ability to reason, plan and make choices about the future

• Doctors are required to respect these attributes (respect for the dignity):

- informed consent - confidentiality (per info)Denying pts. such choice & control

robs them of their human dignity

3. 3. Fairness & justiceFairness & justice• The access to & quality of clinical care

should be need-based rather than favoritism

• Injustice can occur through treating patients unequally according to:

- socioeconomic status - physical attraction - profession - age - race

Equal Access to appropriate care according to NEED

Why should Doctors take these Why should Doctors take these duties seriously?duties seriously?

• Professional regulation (Medical Council)

• The Law (duties are also enshrined in the constitution/statue/common law)

- Doctors may be sued in Civil Law for financial compensation for any harm (failure in professional duty)

- If this harm is intentional: Criminal Law will apply

Why should Doctors take these Why should Doctors take these duties seriously?duties seriously?

• Rational Self-interest: support the right of all patients to high standard of care

• The clinical importance of trust: lack of trust will spoil the quality of pt. care & professional life

• The Doctor-Patient Relationship: treat pts. As active partners in healing process; Problem-solving is by doctors; Decision-making is by both (Doctor & Patient)

Medical MistakesMedical Mistakes

Clinical Negligence•Patient must provide

evidence to the Court that: - they were harmed - the harm was caused by

the accused doctor - the action that causes the

harm was a breach of professional duty

ChallengesChallenges• Consent• Medical negligence• Medical reports• Certificates• Sexual offenses• Confidentiality• Terminal illness• Withdrawing of life-support

Ethics is everyone’s responsibilityEthics is everyone’s responsibility

• The relationship of patient to his physician is by its very nature one of the most intimate

• Foundation: doctor is learned, skilled & experienced in afflictions of body about which patient ordinarily knows little (but are very imp for him)

Ethics is everyone’s Ethics is everyone’s responsibilityresponsibility

• Patient must place great reliance, faith & confidence in the professional word/advice/acts of doctor

• Doctor must act with utmost good faith & to speak fairly & truthfully to the peril of being held liable for damages for deceit or fraud

Fundamental RightFundamental Right

•No person shall be deprived of his life (life with human dignity)

•Emergency care is right of every citizen

•When a person who is innocent or criminal has met with an accident, it is the obligation of health providers to protect his life

• Every doctor under law bound by a contract to serve its patient and cannot refuse treatment. Every doctor has to fulfill certain legal requirements in service by compulsion or voluntarily as defined under law.

• A good working knowledge of the law in this regard, coupled with a thorough understanding of the correct method of dealing with legal aspects helps one to build confidence over riding the fear of LAW

• The Legal aspects of medical practice broadly covers two areas of medical laws:Medical Jurisprudence : It deals with legal aspects of medical practice.

• Forensic Medicine : It deals with medical aspects of law.

Sources of LawSources of Law• PRIMARY SOURCES: Laws passed by the

Parliament or the State Legislative• Ordinances passed by the President and the

Governor• Subordinate legislation: Rules and regulations made

by the executive through the power delegated to them by the Acts.

• SECONDARY SOURCES: Judgments of the Supreme Court, High Court and Tribunals (The ratio decedendi is a binding precedent)

• Judicial legislation• Judgment of Foreign Courts• International Treaty

MEDICALETHICSANDCONDUCTMEDICALETHICSANDCONDUCT• Apart from his routine andusual“clinical”cases,a

doctor will come across certain‘Medicolegal’issues at one time or the other during the practice of his profession.

• DutiesandobligationsofdoctorsareenlistedinthelawsofthelandanddifferentCodesofMedicalEthicsandDeclaration:•HippocraticOath•DeclarationofGeneva•DeclarationofHelsinkionmedicalresearch•InternationalCodeofMedicalEthics

• The Declaration of Geneva of the WMA binds thephysician withthewords,"Thehealthofmypatientwillbemyfirstconsideration,"andtheInternationalCodeofMedicalEthicsdeclaresthat,"Aphysicianshallactinthepatient'sbestinterestwhenprovidingmedicalcare

Legal responsibility of hospital

• Hospital is a public institution• Deals with life and death• Hence carries specified responsibilities &

liabilities within and outside the hospital• Failure to comply invites legal action• Legal responsibilities are bound to

different category of people and institution by contracts

• Breach of any contract held the hospital legally responsible

Emergency DoctrineEmergency Doctrine• In Emergencies, CONSENT can be

implied in the law if immediate treatment is necessary to avoid life- or limb-threatening condition

• Clinical management should precede the legal duties in trauma cases brought for treatment

Medical NegligenceMedical Negligence

•A doctor must posses a reasonable degree of proficiency & apply the proficiency with a reasonable degree of diligence

•Failure of the doctor to provide medical services (with requisite skill & care) gives rise to action in medical negligence under criminal, civil or consumer court

Medical NegligenceMedical Negligence

•A doctor is negligent if he doesn't offer his services in an emergency situation

•A doctor breaches his duty of care when he fails to reach the standard of proficiency expected of him

Legal concept of NegligenceLegal concept of Negligence• Human Behaviour towards

others: failure to act reasonably & prudently

• Failure or breach of duty owed to the patient doctor has the obligation to perform that duty in a manner that will bring it to a successful conclusion)

• Damage to the individual for breach of duty (there must be some damage to the patient resulting from breach of duty owed)

Medical malpracticeMedical malpractice• The plaintiff must prove that the

treatment given was below the degree and skill expected of a competent doctor and that the negligence proximately caused the injury or death……….. The bare possibility of causation will not suffice

TORTTORT• Civil wrong (negligence) committed

by one individual against another is known as TORT, where, a person fails to take proper care, so that damage results

• Civil Law deals with legal actions which seek the redress of wrongs which are not criminal in nature

• Criminal Law involves a legal action filed by a state government against defendants and deals with definitions of crimes and their punishment

NegligenceNegligence• Harmful conduct that deviates

from accepted standards of duty & care

• A doctor who injures a patient by conduct that fails to meet the legal standard of due care may be liable for negligence in an action for malpractice

Specific elements of Specific elements of NegligenceNegligence

In order for a complaining party to sustain an action for negligence against a defending party, 4 elements must be proved in the court of law:

• Existence of doctor-patient relationship giving rise to a duty of due care

• Breach of that duty• Proximate cause (injury): Fall from a

Stretcher in ED sustains bruises/MI after 4 months; is unlikely to rove that the fall caused MI

• Damages

Res Ipsa LoquiturRes Ipsa Loquitur• In most malpractice cases, the

plaintiff is required to prove negligence through the testimony of an expert medical witness

• An exception: doctrine of res ipsa loquitur (the thing speaks for itself): when medical mishap could not be due to someone’s negligence (presence of a sponge or clamp in the body cavity of a patient who has had surgery is a self-evident indication of negligent conduct by some member of the operating team)

Error of Clinical JudgmentError of Clinical Judgment• Some mishaps are unavoidable,

being within the wide range of variability and uncertainty that is inherent in biological processes

• Common causes for negligent actions include failure to attend, amputation of wrong limb or digit, missed fractures,, tight plaster casts, poor results from spinal procedures, damage to newborn from anoxia or forceps

Error of clinical judgment - IIError of clinical judgment - II

• Removal of healthy kidney instead of pathological

• Operation on healthy eye• Leaving gauze or instrument in

the body cavity during surgery• Anesthetic errors• Not performing sensitivity tests

for certain drugs before administering

• Failed tubal sterilization

MalpracticeMalpractice

•Professional negligence•Lack of reasonable care &

skill •Willful negligence in the

treatment of a patient whereby the health or life of a patient is endangered

Criminal NegligenceCriminal Negligence

• Negligence is so great as to go beyond matter of mere compensation

• Not only the doctor has made wrong diagnosis and treatment, but he/she has shown gross neglect for life and safety of the patient

• Doctor may be prosecuted for having caused injury or death of a patient by a rash & negligent act amounting to culpable homicide

CONSENTCONSENT

• One of the most basic human rights is freedom from physical interference

• A person of sufficient maturity and mental capacity can choose whether to submit to the ministrations of a doctor

• With few exceptions, consent to examination is an absolute prerequisite before a doctor approaches the patient

• Failure to obtain consent may lead to recovery of damages in a civil action

BatteryBattery

•Battery: an unpermitted contact with the patient

•A clinician who fails to obtain consent for treatment or who provides treatment beyond or contrary to what the patient has consented to

Types of ConsentTypes of Consent• Implied Consent: is provided by the

behaviour of the patient; e.g. patient presents at Outpatient Clinic

• Express Consent: Any thing other than implied consent. It may be oral or written

• Informed Consent: consent must be obtained after a reasonable explanation of the proposed procedure to patient, so that he is enable to make informed decision whether or not to submit

The Extension DoctrineThe Extension Doctrine• Provides an exception to the general

rule that a patient’s consent is limited to those procedures contemplated when consent is given

• If in the course of authorized medical intervention a doctor discovers a life-threatening condition that requires immediate treatment and the patient is unable to consent (e.g. under anesthesia), the doctor may extend the operation or procedure without the patient’s express consent

Therapeutic privilegeTherapeutic privilege• A situation where full disclosure to the

patient might be harmful and therefore contraindicated, a doctor may have a therapeutic privilege to withhold information

• This privilege avails only when the patient’s distress and apprehension are so great that full disclosure of all risks might cause emotional harm or induce the patient to refuse treatment, fail to cooperate with treatment, or make an irrational choice of treatment alternatives

• Used in rare circumstances only

Medical reports & certificatesMedical reports & certificates

• Reports on the medical conditions of a person (victim or accused)folowing injury

• Death certificate• Reports for Life-insurance• Certificate of illness• Certificate of fitness• All these documents must be

prepared with meticulous accuracy

Sexual Assault (Rape)Sexual Assault (Rape)

• Rape is a legal conclusion and not a medical diagnosis

• The medical diagnosis of a rape victim should be limited to the actual clinical findings at the time of examination

• If MoH trust female Gynecologist fail to reach the fact definitely, or if circumstances so demand, take the judge permission to have the victim examined by male forensic doctor

Medical Exam. of a femaleMedical Exam. of a female

The medical examination by a Gynecologist or Forensic Doctor of a woman subjected to sexual assault shall be done in presence of:

• guardian• female general practitioner• nurse

ReportReport

Incidents requiring a report to the proper official relevant agencies while maintaining as much patient confidentiality as possible, include:

• Drug & chemical poisoning• Road traffic accident• Gun-shot wounds• Physical assault

Gunshot & Stab WoundsGunshot & Stab Wounds

•Reports of these acts of violence are usually made to police

Dead-on-ArrivalDead-on-Arrival• If the case of death is natural, death

certificate & burying license must be submitted to relatives

• Un-natural death: be reported to police for possible investigation & for assessment of need for a referral to forensic medicine sp.

• Initiate resuscitation unless it is clear that patient has been dead for some time

• Mention that deceased was brought dead

• Body to be examined by a committee• In case there is no clear cause of death,

take 50 ml blood in plain tube & send to Toxicology Centre

Cause of DeathCause of Death• In case the results (from

toxicology lab) are negative, the cause of death can be mentioned as “Death possible due to hidden disease leading to cardiopulmonary arrest”

• All dead bodies should be kept for 2 hours before transferring to mortuary

• Patient’s belongings should be handed over to relatives, if the cause of death is natural.

Medico-legal casesMedico-legal cases•A case or injury or ailment

where an attending doctor after taking history & clinical examination of the patient, thinks that some investigation by law-enforcing agencies are essential so as to fix responsibility regarding the case in accordance with the law of the land

Medico-legal casesMedico-legal cases• Motor vehicle accidents (RTAs)• Factory/industry accidents• Suspected homicide, suicide• Poisoning• Burn injuries• Injury where foul play is suspected• Sexual offenses• Unconscious cases where cause is not

known• Cases brought dead with improper

history• Cases referred by Court

MLC Injury ReportMLC Injury Report• Must be prepared on the appropriate

form• Should be written in a neat and legible

handwriting by the examining doctor• Report should be completed as early as

possible after examining the person• Time of examination along with date• Where nature of injury cannot be

ascertained, patient must be kept under observation and admitted in ward

• General physical examination should always be undertaken & findings recorded

• Opinion will depend on X-ray & other reports

Preservation of trace evidencePreservation of trace evidence

•All clothing worn by an injured and removed in the hospital shall be preserved, packed after drying

•Gastric lavage, bullet pellets etc. taken out of the body of a patient be preserved in sealed containers & labeled properly, preserved under safe custody

Doctor’s DefenceDoctor’s Defence• When something untoward happens

following a diagnostic or therapeutic procedure, the doctor must take following step/s:– complete the patient’s record &

recheck the written notes– be frank enough and inform clearly of

the mishap and show genuine concern about the unfortunate mishap

– contact professional bodies to seek advice

– professional indemnity insurance cover

Health Law Health Law • field of legal practice, scholarship

and law reform relating to the delivery of health care

• deals with health care delivery at macro and micro level

• rapidly expanding and dynamic field - scientific, social, economic, legal, philosophical and political influences

Why Study Health Law in Why Study Health Law in Medical School?Medical School?

• all aspects of the practice of medicine, and healthcare more broadly, are affected by the law

• important for physicians to have an awareness of how the law affects them and their patients

• Medical Council of Canada expects competency in this area

Influences on the Influences on the Development of Health Law Development of Health Law

in Canadain Canada• health care reform movement (re

organization and financing of health care system)

• increasing litigation and new types of litigation – e.g. class action suits re medical devices– wrongful life lawsuits

Influences on the Influences on the Development of Health Law Development of Health Law

in Canada in Canada • advances in science and technology

– e.g. genetic research– reproductive technologies

• advances in information technology– computerized patient information– vast amount of health info on the internet

• evolution of field of bioethics, increasing influence of new perspectives

Law and EthicsLaw and Ethics• law influenced by ethics and to some

extent the converse is true• obviously important to comply with the

law, but what the law says may not be the ultimate answer to a moral question

• many ethical principles re medical practice now codified - tends to blur the distinction (rules-based vs. virtue ethics)

• some similarities in reasoning - clarifying facts, principles and their application

Overview of the Canadian Overview of the Canadian Legal SystemLegal System• where does the law come from? • areas of law• Canadian constitutional framework• the court system

Sources of LawSources of Law• Legislation

– statutes– regulations– federal and provincial

• Judicial Decisions– sometimes referred to as the “common

law”– precedents

Nature of the LawNature of the Law• degree of uncertainty• role of judicial interpretation• constantly evolving

Divisions of LawDivisions of Law• Public Law

– disputes between individual and state– e.g. criminal law, administrative law,

constitutional law

• Private Law – sometimes referred to as “civil law”– disputes between individuals– e.g. torts, contracts, property law

Canadian Constitutional Canadian Constitutional FrameworkFramework• Constitution Act 1867 (British North

America Act) - division of powers between federal and provincial governments

• Charter of Rights and Freedoms 1982 - legislation and actions of government can be challenged, based on the rights granted in the Charter

Structure of the CourtsStructure of the Courts• superior provincial court -->

provincial Court of Appeal --> Supreme Court of Canada

• (federal courts)• (inferior courts)• administrative tribunals, e.g. NF

Medical Board

Health Law TopicsHealth Law Topics• Canada’s health care system

– structure, funding, supply of and access to health services

• regulation of health professionals e.g. MD’s

• medical negligence • consent• confidentiality and disclosure of health

information

Health Law TopicsHealth Law Topics• medical care of minors• medical care of patients with mental

disabilities• abortion• regulation of reproductive technologies• genetics and the law• end of life decision making• medical research

1. Structure and Dynamics 1. Structure and Dynamics of Canadian Health Care of Canadian Health Care

SystemSystem• complex legal framework• areas of federal and provincial jurisdiction• Canada Health Act - establishes criteria

that provincial health plans are supposed to meet

• provinces responsible for administration of health care - hospitals, insurance for and supply of services

• the future?

2. Regulation of the 2. Regulation of the Medical ProfessionMedical Profession

• provincial responsibility• “self-regulating” professions• body created by statute in each

province– e.g. NF Medical Board– standards for licensure– deals with allegations of incompetence,

incapacity or misconduct– can generate its own policies, guidelines

3. Civil Liability3. Civil Liability• a.k.a. negligence, “malpractice”,

“getting sued”• law in this area mostly “judge-made”• informed consent• standard of care

4. Complex Emerging Issues4. Complex Emerging Issues– e.g. reproductive technologies– electronic health care records - privacy

issues– cost constraints - impact on insured services

and on individual care

• complex issues affected by several sources and divisions of law (courts, legislatures, federal, provincial, criminal, civil, Charter of Rights) as well as ethics, public policy

Topics to DiscussTopics to Discuss• Legal vs. Ethical vs. Moral Responsibilities• Review of the Legal System• Specific Laws Applicable to EMS• Accountability & Malpractice• Specific Paramedic-Patient Issues• Operational Issues• Documentation

Legal vs. Ethical vs. Moral Legal vs. Ethical vs. Moral ResponsibilitiesResponsibilities

• What are the differences?

– Legal Responsibilities

– Ethical Standards– Morality

The Legal SystemThe Legal System• Sources of Law

– Constitutional– Common– Legislative– Administrative

• Legislative and Administrative are often the focus of EMS Providers

The Legal SystemThe Legal System

• Federal vs. State Court

• Categories of Law– Criminal Law– Civil Law

• Tort Law

What are examples of how each of these may affect the paramedic?

The Legal SystemThe Legal System• Terminology

– Plaintiff– Defendant– Discovery phase

• Deposition• Interrogation• Documentation

– Appeal

Laws Affecting EMSLaws Affecting EMS• Scope of Practice

– Texas– Medical Direction– Intervener physician

• Ability to Practice– Certification or Licensure– Authorization to Practice

Laws Affecting EMSLaws Affecting EMS

• Motor Vehicle Laws

• Infectious Disease Exposure

• Assault against Public Safety Officer

• Obstruction of Duty

• Good Samaritan Law

• Ryan White CARE Act

Laws Affecting EMSLaws Affecting EMS• Mandatory Reporting

– Domestic violence– Child & Elder abuse– Criminal Acts– GSW, Stabbing & Assault– Animal Bites– Communicable Diseases– Out of hospital deaths– Possession of Controlled Substances

Accountability & Malpractice Accountability & Malpractice IssuesIssues

• Standard of Care• Negligence• Civil Litigation Specifics• Borrowed Servant Doctrine• Patient Civil Rights• Liability when off-duty

Accountability & MalpracticeAccountability & Malpractice

• Standard of Care– The expected care, skill, & judgment under

similar circumstances by a similarly trained, reasonable paramedic

• Negligence– Deviation from accepted or expected

standards of care expected to protect from unreasonable risk of harm

What are the required components for proof of a negligence claim in EMS?

Accountability & MalpracticeAccountability & Malpractice• Civil Cases

– Proof of guilt required by a “preponderance of evidence”

– “res ipsa loquitur”• Burden of proof shifts to the defendant

• Simple vs. Gross Negligence

DefensesDefenses• Good Samaritan Law• Government Immunity• Statue of Limitations• Contributory Negligence

Accountability & MalpracticeAccountability & Malpractice• How do these affect the Paramedic’s

Practice?– Borrowed Servant Doctrine– Patient Civil Rights– Liability when Off-Duty

Specific Paramedic-Patient Specific Paramedic-Patient IssuesIssues

• Issues Surrounding Consent

• Refusals• Restraint• Abandonment• Transfer of Patient

• Advance Directives & End of Life Decisions

• Out of Hospital Death

• Confidentiality & Privacy

• Issues Surrounding Consent– Patient has legal & mental capacity– Patient understands consequences– Types of Consent

• Informed• Expressed• Implied• Involuntary

• Issues Surrounding Consent– Specific Consent Issues

• Minors• Emancipated Minor• Prisoners

• Refusals– Consent for Transport vs. Treatment– Withdrawing Consent– Refusal of Service

• Has legal & mental capacity• Is informed of risks & benefits• Offer alternatives• All of the above are well documented &

witnessed

• Refusals– Incompetent Persons

• Unable to understand the nature & consequences of his/her injury/illness

• Unable to make rational decisions regarding medical care due to physical or mental conditions

• Do not assume incompetence unless obvious

• Restraint– Definitions

• Assault• Battery• False Imprisonment

• Restraint– In Custody of Law Enforcement or

Corrections– Patient is not competent to refuse &

requires care– Patient is a danger to self or others

(involve law enforcement)– Does not provide authorization to harm!

• Restraint– Involve Law Enforcement Early– Have a plan of action– Ensure safety of all– Reasonable force– Physical restraints– Chemical restraints– Document well

• Patient Abandonment– Unilateral termination of the patient-

provider relationship• Still needed and desired

– Exceptions• MCI• Risks to well-being

Can a paramedic turn over care of a patient to an EMT?

• Transfer of Patient Care– Transfer of Care to other Providers– Transfer of Care at the ED

• Advanced Directives & End of Life Decisions– Definitions

• Advanced Directive• Out of Hospital DNR• DNR vs. DNAR• Living Will• Durable Power of Attorney for Health Care• Patient Self-Determination Act

• Advanced Directives & End of Life Decisions– Living Will– Durable Power of Attorney for Health Care

– Texas Out of Hospital DNR• Terminal Condition no longer required• Identification Devices• EMS requirements• Revocation

Can a Texas Paramedic honor an Advanced Directive (other than a DNR)?

• Advanced Directives & End of Life Decisions– Patient does not surrender rights to

receive medical care– Comfort measures appropriate– Provide Family support and guidance– When in doubt, resuscitate & contact

medical control– Termination of efforts allowed

• Out of Hospital Death– Initiation of care?– Many counties and cities require:

• law enforcement response and/or• Justice of the peace pronouncement

– Some jurisdictions use a medical examiner or coroner system

– Required medical control authorization– Survivors may now be the patients

• 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 some states, QA/QI information is not

discoverable

• Patient Confidentiality & Privacy– Colleague & Station Talk

• Must not identify the patient• Maintains confidentiality of specific medical

– Scene or Patient Photographs– EMS Radio Dispatch & Discussions– “Need to Know” Basis

• Patient Confidentiality & Privacy– You have treated & transported a 50-year-old

local salesman who is originally diagnosed in the ED with PCP. At the station, you discuss this case including the name of the patient’s business. Since PCP is associated with HIV/AIDS, your coworker suspects this man is infected. Your coworker discusses this case with a friend (the patient’s employer) who then discusses this matter with your patient (his employee). (cont’d)

Group Discussion: Patient

Confidentiality & Privacy

1. What are the possible

consequences for you?

2. What if the patient does not have

HIV/AIDS?

• Patient Confidentiality & Privacy– 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

Operational IssuesOperational Issues• 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 IssuesOperational Issues• Equipment Failure

– Product Liability• Design flaw in ventilator

– Failure on part of owner/operator• No backup battery for defibrillator

Operational IssuesOperational Issues• Interaction with Law Enforcement

– Crime Scenes• Request law enforcement• Await law enforcement arrival if possible• Minimize areas of travel and contact with

scene• Document any alterations to the scene

created by EMS personnel• Minimize personnel within scene if possible• Document pertinent observations

Operational IssuesOperational Issues• Interaction with Law Enforcement

– Evidence Preservation• Avoid cutting through penetrations in the

clothing• Save everything – clothing of assault victim,

items found on person, etc• Prevent sexual assault victim from washing• Follow sound chain of evidence procedures

Operational IssuesOperational Issues• Vehicle Operation

– It is 3:00 am. While responding to a MVC, 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 do so. Witnesses state your emergency lights were on but do not recall hearing your siren. The driver is injured.(cont’d)

Operational IssuesOperational Issues• Vehicle Operation

– What issues might the driver’s attorney consider?• Were all of your 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 PM is performed on your ambulance?

• Did you exercise due regard for the safety of others?

Operational IssuesOperational Issues• Medical Control Issues

– Failure to follow med contr direction– Following obviously harmful direction– Implementing therapies without prior

authorization– Following direction of an unauthorized person– Med Contr directs EMS to an inappropriate

hospital– The paramedic exceeds the scope of his

training or medical authorization

Operational IssuesOperational Issues• Instructor Liability

– Student discrimination– Sexual harassment– Student injury during laboratory– Patient claim re. Failure to properly train

graduate or supervise student– Instructors – Follow curriculum,

document student attendance & competency

Operational IssuesOperational Issues

• Hospital Selection– Paramedic & Medical Control decision– Closest & Appropriate Facility– Written policies or guidelines

What is the closest & most appropriate facility? What does this mean?

Operational IssuesOperational Issues• Dispatch Issues

– Untimely dispatch – Failure to provide responding units with

adequate directions (incorrect address)– Dispatch of inadequate level of care– Failure to provide pre-arrival instructions– Inadequate recordkeeping

Operational IssuesOperational Issues• Interfacility Transfer Issues

– Do you have the necessary equipment & training?

– Should any specialized providers accompany you?

– Do you have a patient report including history?– Is the patient “stable”? What are the potential

complications?– Are there any specific physician orders?– Does the patient have a DNR order?– Has the patient been accepted (MOT)? Who

are the transferring & accepting physicians?

Operational IssuesOperational Issues• OSHA & Risk Management

– OSHA generally not applicable to government employees

• New Texas Sharp Injury Prevention Rules

– In many States, State OSHA Rules are applicable to nearly all

– “Each employee shall comply with occupational safety and health standards and all rules, regulations, and orders issued persuant to this Act which are applicable to his own actions and conduct”

DocumentationDocumentation• Patient Confidentiality• Securing/Sharing/Requests for

Information• Protected Classes• Quality & Effectiveness

DocumentationDocumentation• Patient Confidentiality

– Written report only intended for those with a need to know

– Personal identifiers may be removed for QA/QI uses

– Patient radio reports should not contain personal identifiers

DocumentationDocumentation• Securing/Sharing/Requests for

Information– Where are completed patient reports

stored?– Who received the report at the ED?– Requests for copies should be routed

through an accepted policy or an attorney– Does the requestor have a need to know?

DocumentationDocumentation• Protected Classes

– In some states, patient information related to sexually transmitted diseases or other specific diseases has become protected as confidential

– Washington state• Can not refer to HIV/AIDS or STD status in

report without consent• Then, only with a clear need to know

DocumentationDocumentation• Quality & Effectiveness

– Complete soon after the patient contact– Be thorough and accurate– Be honest, objective and factual– Caution with abbreviations– Maintain confidentiality– Do not alter

DocumentationDocumentation• Quality & Effectiveness

– Does your report relay to future healthcare providers the information you obtained regarding this patient?

– Is the information clear and concise?– 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?

SummarySummary• There are many legal

issues surrounding the EMS environment

• The paramedic should attempt to keep up-to-date with local legal requirements

• Ignorance is not acceptable!

Chapter 3Chapter 3Medical, Legal, Medical, Legal,

and Ethical Issuesand Ethical Issues

National EMS Education National EMS Education Standard Competencies Standard Competencies (1 of (1 of

Preparatory

Uses simple knowledge of the emergency medical services (EMS) system, safety/ well-being of the emergency medical responder (EMR), and medical/legal issues at the scene of an emergency while awaiting a higher level of care.

Medical/Legal and Ethics

• Consent/refusal of care

• Confidentiality

• Advance directives

• Tort and criminal actions

• Evidence preservation

• Statutory responsibilities

Medical/Legal and Ethics (cont’d)

• Mandatory reporting

• Ethical principles/moral obligations

• End-of-life issues

IntroductionIntroduction• Laws differ from one location to another,

so EMRs should learn the specific laws that apply in their state or jurisdiction.

• Do not lose sight of these concepts:– Above all else, do no harm.

– Provide all your care in good faith.

– Provide proper consistent care, be compassionate, and maintain your composure.

Duty to Act Duty to Act (1 of 2)(1 of 2)

• If you are employed by an agency as an EMR and you are dispatched to the scene of an accident or illness, you have a duty to act.– You must proceed promptly to the

scene and render emergency medical care within the limits of your training and available equipment.

Duty to Act Duty to Act (2 of 2)(2 of 2)

• Failure to respond or render care leaves you and your agency vulnerable to legal action.

Standard of CareStandard of Care• The standard of care is the manner

in which you must act or behave.

• You must meet two criteria:– You must treat the patient to the best

of your ability.

– You must provide care that a reasonable, prudent person with similar training would provide under similar circumstances.

Scope of CareScope of Care• Scope of care is defined by:

– The US Department of Transportation, Emergency Medical Responder Educational Standards

– Medical protocols or standing orders

– Online medical direction

Ethical Responsibilities Ethical Responsibilities and Competence and Competence (1 of 2)(1 of 2)

• Treating a patient ethically means doing so in a manner that conforms to accepted professional standards of conduct.– Stay up-to-date on skills and knowledge.

– Review your performance and assess your techniques.

– Evaluate your response times.

– Take continuing education classes.

– Participate in quality improvement activities.

Ethical Responsibilities Ethical Responsibilities and Competence and Competence (2 of 2)(2 of 2)

• Ethical behavior requires honesty.– Always provide complete and correct

reports to other EMS providers.

– Never change a report except to correct an error.

Consent for Treatment Consent for Treatment (1 of 4)(1 of 4)

• Consent simply means giving approval or permission.

• Expressed consent– The patient actually lets you know—

verbally or nonverbally—that he or she is willing to accept treatment.

– The patient must be of legal age and able to make a rational decision.

• Implied consent– The patient does not specifically refuse

emergency care.

– Do not hesitate to treat an unconscious patient.

• Consent for minors– Under the law, minors are not

considered capable of speaking for themselves.

• Consent for minors (cont’d)– Emergency

treatment must wait until a patient or legal guardian consents to the treatment.

– If permission cannot be quickly obtained, do not hesitate to give appropriate medical care.

• Consent of mentally ill patients– If the person appears to be a threat to

self or others, place this person under medical care.

– Know your state’s legal mechanisms for handling these patients.

– Do not hesitate to involve law enforcement agencies.

Patient Refusal of Care Patient Refusal of Care (1 of 2)(1 of 2)

• Any person who is mentally in control has a legal right to refuse treatment.

• Help the person understand the consequences of refusing care by explaining:– The treatment

– The reason that the treatment is needed

– The potential risks if treatment is not provided

– Any alternative treatments that may help

Patient Refusal of Care Patient Refusal of Care (2 of 2)(2 of 2)

• Patient refusals should be documented on your patient care record according to your agency protocols.

Advance Directives Advance Directives (1 of 3)(1 of 3)

• An advance directive is a document that specifies what a person would like to be done if he or she becomes unable to make his or her own medical decisions.

• A living will– Written document drawn up by a patient, a

physician, and a lawyer

– States the types of medical care the person wants or wants withheld

• A durable power of attorney for health care– Allows a patient to designate another

person to make decisions about medical care

• A do not resuscitate (DNR) order– Written request giving permission to

medical personnel not to attempt resuscitation in the event of cardiac arrest

• If you are unable to determine if an advance directive is legally valid, begin appropriate medical care.– Some states have systems in place,

such as bracelets, to identify patients with advance directives.

AbandonmentAbandonment• Abandonment occurs when a trained

person begins emergency care and then leaves the patient before another trained person takes over.

• Once you have started treatment, you must continue it until a person who has at least as much training arrives and takes over.

Persons Dead at the Scene Persons Dead at the Scene (1 of 2)(1 of 2)

• If there is any indication that a person is alive, you should begin providing care.

• You cannot assume a person is dead unless one of these conditions exists:– Decapitation

– Rigor mortis

– Tissue decomposition

– Dependent lividity

Persons Dead at the Scene Persons Dead at the Scene (2 of 2)(2 of 2)

• If any of the signs of death are present, consider the patient to be dead.

• It is important that you know the protocol your department uses in dealing with patients who are dead on the scene.

NegligenceNegligence• Negligence occurs when a patient

sustains further injury or harm because the care administered did not meet standards.

• These conditions must be present:– Duty to act

– Breach of duty

– Resulting injuries

– Proximate cause

Confidentiality Confidentiality (1 of 2)(1 of 2)

• Most patient information is confidential.– Patient circumstances

– Patient history

– Assessment findings

– Patient care given

• Information should be shared only with other medical personnel.

Confidentiality Confidentiality (2 of 2)(2 of 2)

• In certain circumstances, you may release confidential information to designated individuals.

• Health Insurance Portability and Accountability Act of 1996 (HIPAA)– Strengthens laws for the protection of

the privacy of health care information and safeguards patient confidentiality

Good Samaritan LawsGood Samaritan Laws• Protect citizens from liability for

errors or omissions in giving good-faith emergency care

• Vary considerably from state to state

• May no longer be needed– Provide little or no legal protection for a

rescuer or EMS provider

RegulationsRegulations• Become familiar with the federal,

state, local, and agency regulations that affect your job.

• Certification or registration may be required to work as an EMR.

• You are responsible for keeping certifications or registrations current.

Reportable Events Reportable Events (1 of 2)(1 of 2)

• Reportable crimes include:– Knife wounds

– Gunshot wounds

– Motor vehicle collisions

– Suspected child or elder abuse

– Domestic violence

– Dog bites

– Rape

Reportable Events Reportable Events (2 of 2)(2 of 2)

• Learn which crimes are reportable in your area.

• Failure to notify proper authorities of reportable events may result in sanctions against you or your agency.

Crime Scene Operations Crime Scene Operations (1 of (1 of 3)3)

• Many emergency medical situations are also crime scenes.

• Keep these considerations in mind:– Protect yourself.

– If you determine that a crime scene is unsafe, wait until law enforcement personnel give you the signal that the scene is safe for entry.

– Your priority is patient care.

• Considerations: (cont’d)– When you are assessing the scene,

document anything that seems unusual.

– Move the patient only if necessary.

– Touch only what you need to touch to gain access to the patient.

– Preserve the crime scene for investigation.

– Do not cut through knife or bullet holes in the patient’s clothing.

• Considerations: (cont’d)– Be careful where you

place equipment.

– Keep nonessential people away.

– Work with the appropriate law enforcement authorities on the scene.

– Write a short report about the incident.

Documentation Documentation (1 of 3)(1 of 3)

• Your documentation is the initial account describing the patient’s condition and the care administered.– Serves as a legal record of your

treatment

– Provides a basis for evaluating the quality of care provided

– Should be clear, concise, accurate, and readable

• Documentation should include:– Condition of the patient when found

– Patient’s description of the injury/illness

– Patient’s initial and repeat vital signs

– Treatment you gave the patient

– Agency and personnel who took over treatment of the patient

– Any reportable conditions present

• Documentation should include: (cont’d)– Any infectious disease exposure

– Anything unusual regarding the case

Summary Summary (1 of 3)(1 of 3)

• As an EMR, you have a duty to act when you are dispatched on a medical call as a part of your official duties.

• You should understand the differences between expressed consent, implied consent, consent for minors, consent of mentally ill persons, and the right to refuse care.

• Advance directives give a patient the right to have care withheld.

• You should understand the concepts of abandonment, negligence, and confidentiality, as well as the purpose of Good Samaritan laws.

• Certain events that deal with contagious diseases, abuse, or illegal acts must be reported to the proper authorities.

• Crime scene operations are a complex environment.

Review Review 1.Emergency medical responders have

the legal duty to act:

A.only when they are being compensated by a certified agency.

B. if they witness an emergency scene while not on duty.

C.even when outside of their response jurisdiction.

D.if they are employed by an agency as EMRs.

ReviewReviewAnswer:

D. if they are employed by an agency as EMRs.

ReviewReview2.Patients are legally able to make a

decision regarding their care if they: A. are of legal age according to state law. B. have injuries that are not life

threatening. C. willingly accept transport to the

hospital. D. have bystanders who can verify their

competency.

ReviewReviewAnswer:

A. are of legal age according to state law.

ReviewReview3.EMRs have the ethical responsibility

to: A. provide care only when a paramedic is

present. B. discuss details of each case with their

coworkers and families. C. transport all patients to the closest

hospital. D. conform to accepted professional

standards of conduct.

ReviewReviewAnswer:

D. conform to accepted professional standards of conduct.

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