What I am not… A fanatic about the law Diplomatic Touchy feely Shy about telling you what I think An attorney for NDMS
About my practice… I represent patients in state and federal court I represent health care providers and associations in EMS and Emergency Medicine…outside of MA I teach terrorism and law, health care law, trial practice and risk management I write chapters, books and articles – mostly in the medical literature
We are here because…. We do not want to get sued We want to reduce our legal liability We want to give better patient care We might end up in court As a defendant As an expert As a witness We are interested in the law
To put what I do in perspective….. Q: This myasthenia gravis, does it affect your memory at all? A: Yes. Q: And in what ways does it affect your memory? A: I forget. Q: You forget. OK. Can you give us an example of something you've forgotten? Q: Now doctor, isn't it true that when a person dies in his sleep, he doesn't know about it until the next morning? A: Would you repeat that question, please? Q: Doctor, what makes you so sure you know the cause of death? A: Other than the autopsy?
Last one…. Q: Doctor, before you performed the autopsy, did you check the pulse A: No. Q: Did you check for blood pressure? A: No. Q: Did you check for breathing? A: No. Q: So, then it is possible, isnt it, that the patient was alive when you began the autopsy? A: No.
Q: How can you be so sure, Doctor? A: Because his brain was sitting on my desk in a jar. Q: But could the patient have still been alive nevertheless? A: Yes, it is possible that he could have been alive and practicing law somewhere.
Objectives Learn about the law Learn how it applies to emergency response Learn how to protect yourself Learn what to do if you get sued
General Legal Principles 3 areas of law Administrative Criminal Civil Counsel is expected to plead not beg
There are 3 sources of law Statutory law Administrative law Common law
Statutory law Rules enacted by legislative bodies Statutes become laws after being approved by the Senate and the House of Representatives Once approved by the above they then need to be signed into law by the Governor or the President Usual issues are of constitutionality and interpretation
Administrative Rules and regulations that are enacted by agencies that were created by the legislature. Examples include the Board of Registration in Medicine, Nursing, EMS, et al Department of Public Health Office for Emergency Services FDA, NLRB, etc DHS, FEMA, NDMS, DHHS, etc.
Common Law Law that originates from individual case decisions Vary from case to case Jurisdiction to jurisdiction Day to day Judge to judge
General Legal Principles Criminal State is the offended party There is an exact form of punishment Fine Confinement
General Legal Principles Civil Case between 2 parties Idea is to compensate the injured party Medical Malpractice Professional Negligence
Why we need lawyers… With all of these laws and rules, why dont we just follow them? Because interpretations and perspectives vary! We need lawyers because of the exceptions, the interpretations, the subtle combinations of laws, the different jurisdictions….
Why do people sue???? No established relationship with the patient or family Patients are very dependent on you Do not have all of the answers Stress Unrealistic expectations Everyone always lives on TV Assumption that all care will take place immediately Anger/frustration
Why do People Sue Health Care Providers ? Abbys Answer # 1
Why do People Sue Health Care Providers ? Abbys answer #2
Why do People Sue Health Care Providers ? They are angry and frustrated They have unrealistic expectations
What is Malpractice ? Injured party MUST prove more probably than not: Duty Breach Causation Damage
Predisposing Factors The health care system in general Stress in general Staffing shortages The economy Technologic imperative Access to and availability of information …..?.....
Course of a Malpractice Claim Predisposing factors The incident The aftermath The decision to see a lawyer The lawyers perspective Filing a claim and the litigation process
Course of a Malpractice Claim The Incident Direct or indirect patient interaction Administrative negligence Credentialing/training Planning
Course of a Malpractice Claim The aftermath Deal with the problem Patient (family) experiences pain, fear, distress and other emotions Mitigation of current / future damages Prevention is key If you ignore the problem, Lightning will strike twice…
Course of a Malpractice Claim The decision to see a lawyer You never know what makes someone take that first step… I have a friend who… my wife read in the paper… I saw on 60 minutes… My life will never be the same I want to make sure that the doctor/nurse never does this to anyone else again I am really angry but I cannot get anyone to listen to me… And then they sent me a bill!
Course of a Malpractice Claim The lawyers perspective What really happened ? Perception is not the only reality Is there an injury ? Is there liability ? Is there a connection between the two ? Can I prove it…. ? What records are there? Can I get them?
Is there an injury? Soft and subjective injuries Death Physical Emotional distress Objective Lost wages Other financial losses Because it is the right thing to do.
Is there liability? Was there a duty ? Was there a breach of the duty ? What was the standard of care at the time What does the expert say ? Judgment v. Mistake v. Negligent Gross negligence Intentional
Liability and immunity…. Immunity is QUALIFIED!!!! It is NOT absolute It has successfully been pierced in disaster response…
Medical Director Liability ….they cant sue me…I am just the medical director… ….I never even saw the patient… ….they are not my employees…. This is a DISASTER – we are doing the best that we can do under the circumstances
Responder Liability ….they cant sue me…I am just the EMT, volunteer, etc… ….I can handle this… …they never told me … ….I am a volunteer…. This is a DISASTER – we are doing the best that we can do under the circumstances
Program Liability ….they cant sue me…I am just the employer… They assume the risk…. ….I never even saw the patient… ….they are not my employees…. This is a DISASTER – we are doing the best that we can do under the circumstances
Course of a Malpractice Claim Filing a claim What you need to know before you do it Juries believe in tort reform Juries give medical providers great latitude on matters of judgment ESPECIALLY WHEN CARE HAS BEEN RENDERED IN AN EMERGENCY!!!!! It takes forever and costs a lot of money Sometimes during discovery the case changes Drop defendants Drop the claim?
Things about which we need to worry….. ICS Restraint HIPPA EMTALA Practicing outside the scope of practice Self dispatch Credentialing Informed consent Intentional torts….
Informed Consent Requires: Information given that is material The recipient must have the capacity to understand what you are telling him/her Language barriers Sight/hearing or other communication barriers Mental capacity/stress…. Emergency exception… Refusal of care is WAY more important…
EMTALA We still violate it….. We see everyone Everyone gets treated the same UNTIL THERE IS A DISASTER…
Practicing outside the scope… Only do what you are trained and licensed to do….
HIPPA and Confidentiality HIPPA Garden variety respect for confidences Confidentiality v. the duty to warn Imminent danger Threat must be life threatening Gossip
Tort Law Defamation of character Provision of false information which tends to injury Slander Libel
Tort Law Misrepresentation or fraud Responder misleads the patient Infliction of emotional distress
Tort Law Wrongful disclosure of information Share information that you should not share relatives looking for a victim of a disaster????
The next 2 are tied… Self dispatch Credentialing
Self dispatch If you are not invited to the party…do not go!!!!!
Credentialing Disaster Responders…scope of practice ….they cant sue me…I cant credential people in the midst of a disaster … ….I have to rely on what they tell me their training is… ….not my job to credential them…. This is a DISASTER – we are dong the best that we can do under the circumstances
Restraint FDA guidelines OK to restrain for safety Patient Staff Other Once you restrain, you are responsible for the safety of the patient
ICS We all know what it is…. We all use it….Right??? We all use it in a way that integrates with all other services….. We use it in our jobs in a consistent manner every day…….
November 27, 2001 Why is this date important to us? What effect does it have on us today? HINT: Who is David Sanders?
Facts of the Sanders case Teacher shot during the Columbine massacre But for the delay in emergency response…due to failure to follow ICS… he would have survived Municipal agency not immune Case settled
Is there a right to emergency response ? Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State... subjects, or causes to be subjected, any citizen of the United States... to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress 14 th Amendment USC
The Sanders Courts interpretation This section of the fourteenth amendment was originally enacted in 1871, and was specifically drafted to provide a mechanism available to any individual to seek redress for violations of their rights by any person(s) acting on behalf of the state. (Sanders) The framers of this amendment appear to have contemplated the implementation of this amendment to provide a method of redress under specific circumstances, those being for the willful, knowing or purposeful deprivation of life, liberty or property by state action.
Bottom line is…..no right to assistance…. The Fourteenth Amendment serves to protect its citizens from the arbitrary, abusive, or oppressive use of governmental (state, local or municipal) power BUT: Fourteenth Amendment does not confer an "affirmative right to governmental aid, even where such aid may be necessary to secure life, liberty, or property interests of which the government itself may not deprive the individual."
To every rule there is an exception…..or two… special-relationship doctrine only applies in situations where the state imposes limitations upon an individual's freedom to act on his or her own behalf and therefore protect himself from harm Do we ever do that?????
For example: An affirmative duty to protect an individual arises from the limitation of movement which is imposed on the individuals freedom to act on his own behalf…… Evacuation? Quarantine? Shelter in place?
And….. state-created or enhanced danger doctrine the state creates a dangerous situation or renders citizens more vulnerable to danger that the environment created by the state actors must actually be dangerous, they must actually know it is dangerous, and to be liable, they must have used their authority to create an opportunity that would not otherwise have existed
For example High speed car chase Operating an emergency vehicle in an unsafe manner and injuring someone Extrication from a building that is structurally compromised without any training….
Even still it is not so easy to sue…. the court will ask….. Whether plaintiff was a member of a limited and specifically definable group; Whether defendants conduct put plaintiff at substantial risk of serious, immediate, and proximate harm; Whether the risk to plaintiff was obvious or known to the defendant; Whether defendant acted recklessly in conscious disregard of that risk; and If such conduct, when viewed in total, "shocks the conscience" of society (federal judges)
Protection???? Why are we even having this conversation? Good Samaritan statutes… State and federal immunity…
Current legal position on immunity and liability Original cause means an affirmative act Intervention places the victim in a worse position than originally exists Places the victim in a position where he is at the mercy of responders ie: death in protective custody, delay in dispatch of 911, etc
How do we protect ourselves? Planning Training Debriefing Planning Training Debriefing Planning Training Debriefing Planning Training Debriefing Planning Training Debriefing Planning Training Debriefing Planning Training Debriefing Planning Training Debriefing Planning Training Debriefing Planning Training Debriefing Planning Training Debriefing Planning Training Debriefing
Documentation IF it is not documented it was not done Good care exists only if it is documented, bad care exists all by itself Beware of acronyms NEVER ALTER A RECORD…NEVER!!! Properly entered additions and corrections are fine. Always maintain the monitor strips!!!!
Disaster Planning Everyone has their own idea of what to do….. Need to have a functional working group TRAINING AND AWARENESS ARE KEY!!!
For what do we need to plan? Lots and lots of data available Same old themes continue to pop up We acknowledge the problems (sort of) We do not fix the problems
THE DIRTY DOZEN FOR DISASTER PLANNING #1 There is no such thing as a working backup generator If your working generator is located in the same area as your non-working generator….you may be in trouble. How many times has your power gone out and your back up generator not gone on?
THE DIRTY DOZEN FOR DISASTER PLANNING #2 You cant always just pick up the phone for help.
THE DIRTY DOZEN FOR DISASTER PLANNING #3 Warning signs are only good if you recognize them. Surveillance systems Decontamination units and other cool toys….
THE DIRTY DOZEN FOR DISASTER PLANNING #4 Nobody relies on a complex disaster plan.
THE DIRTY DOZEN FOR DISASTER PLANNING #5 In a drill, staff sit by their phones waiting for the call. In a disaster, they cant be found.
THE DIRTY DOZEN FOR DISASTER PLANNING #6 Just because your plan passes the regulatory or administrative standards doesnt mean it will work.
THE DIRTY DOZEN FOR DISASTER PLANNING #7 PPE [Personal Protective Equipment] is a great thing if people know where it is and how to use it, and can get to it in a disaster.
THE DIRTY DOZEN FOR DISASTER PLANNING #8 … Dont forget the bad guys
THE DIRTY DOZEN FOR DISASTER PLANNING #9 Nothing attracts freaks like a good disaster
THE DIRTY DOZEN FOR DISASTER PLANNING #10 Your CEO will make a lousy Incident Commander (no matter what he or she thinks!)
THE DIRTY DOZEN FOR DISASTER PLANNING #11. A disaster is not the time to try new things.
THE DIRTY DOZEN FOR DISASTER PLANNING #12 There are rules in disasters too!
How can you tell if your plan is doomed to fail??? It lives in a locked office It is in a really big notebook It has dust on the cover It is being used as a door stop It has never been tested
We are delusional when we think that we cannot be sued
Not time to panic yet because… In reality the immunity that is granted is pretty strong… As long as you are doing the job that you are trained to do in a reasonable manner
Abbys Rules to Staying Out of Court Treat your patients as you would like to be treated. All patients who present to the emergency department get seen. Consent is less important than refusal. Restraint is a good thing Documentation
Abbys Rules to Staying Out of Court Never wrestle with a pig; you both get covered in mud and the pig enjoys it. There are rules in a disaster. Black humor, fart jokes and sexual innuendo are all really funny….but can get you sued, fired, or impact your license. The appropriate ETOH level for someone who is a chronic drinker may not be zero Documentation
Abbys Rules to Staying Out of Court Joe average nut ball and other frequent visitors to the ED get sick or injured too. Being sued is a cost of doing business, it does not mean that you are a bad person. Do not treat your patients with an eye toward litigation, treat them with an eye toward your best care.
What not to do if something happens…. Panic Assume that you are at fault Revisit the medical record and make your documentation more accurate and complete. (Do NOT ALTER the record!) Discuss the case with anyone other than your supervisor and other direct care providers….and then only for the benefit of the patient and his/her care.
What to do if something happens Take a deep breath Call risk management Call me any time……