Medical/Legal and HIPAA Review

Silver Cross EMS SystemNovember 2015 EMD CE

Introduction

Laws differ from one state to another, so EMDs should learn the specific laws that apply in their state or jurisdiction. As an EMD you are responsible to follow state, dispatch center and local EMS system protocols.

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.

Your best protection from liability is to perform a thorough initial caller survey, provide appropriate medical care based on the current EMDPRS, and maintain accurate and complete records.

EMD Best Protection

Promptly respond to the needs of every caller.

Dispatch appropriate units to the correct address.

Maintain your skills and medical knowledge. Participate in continuing education. Critically review your performance,

and constantly seek improvement. Report honestly.

Legal Duties and Ethical Responsibilities

Something that one is obligated to do. Holds you ultimately responsible for your actions. You and your agency can be held liable for damages that may occur as a result of your actions, practices or conduct.

Liability

5 Common Areas of Liability

Failure to Dispatch Delay in Dispatch Failure to Properly Prioritize Calls

Failure to Send Units to the Correct Address

Sending the Wrong Unit to Call

Constitutional◦ Based on the U.S. Constitution

Common◦ Derived from society’s acceptance of customs and

norms Legislative

◦ Created by lawmaking bodies such as Congress and state assemblies

Administrative◦ Enacted by governmental agencies at either

federal or state levels

Sources of Law

Criminal◦ Division of the legal system that deals with wrongs

committed against society or its members

Civil◦ Division of the legal system that deals with non-

criminal issues and conflicts between two or more parties

Tort◦ A civil wrong committed by one individual against

another

Categories of Law

Incident Investigation Filing of complaint

Answering complaint

Components of a Civil Lawsuit

Discovery Trial Decision Appeal Settlement

Scope of Practice

Scope of care is defined by:◦ The US Department of Transportation,

Emergency Medical Dispatcher National Standards

◦ Medical protocols or standing orders, EMDPRS

What you are allowed to do, based on your training and protocols.

Standard 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.

EXEMPTIONS FROM LIABILITY

Good Samaritan laws provide protection to persons◦ Acting in emergencies◦ Acting in “good faith” to the best of your

ability◦ Acting without regard to financial

compensation or reward◦ Not guilty of gross negligence or malicious

misconduct toward victim

Deviation from accepted standards of care recognized by law for the protection of others against the unreasonable risk of harm

Simple Negligence: conduct that was not purposeful or malicious. An honest mistake.

Gross Negligence: Action that was undertaken with malicious intent. Didn’t follow policy.

Negligence

Duty to act Breach of duty Actual damages Proximate cause

Components of a Negligence Claim

A formal contractual or informal legal obligation to provide care

Duty to Act

Breach of DutyAn action or inaction that violates the standard of care expected from an EMD

Malfeasance◦ Performance of a wrongful or unlawful act

Misfeasance◦ Performance of a legal act in a harmful or

injurious manner Nonfeasance

◦ Failure to perform a required act or duty

Breaches of Duty

Refers to compensable physical, psychological, or financial harm

Actual Damages

Proximate CauseAn action or inaction that immediately caused or worsened the damage

All EMS providers that function within an EMS System, function under the authority of the EMS Medical Director

EMDPRS are reviewed and approved by the EMS Medical Director

Medical Direction

If medical care is withheld due to any discriminatory reason, an EMS provider may be sued. ◦Examples: Race Creed Color Gender Sexual orientation National origin Ability to pay (in some cases)

Civil Rights

Confidentiality ◦ The principle of law that prohibits the release of

medical or other personal information about a patient without the patient’s consent

◦ Health Insurance Portability and Accountability Act (HIPAA)

Legal Principles

Established in 1996 ◦ Changed the methods EMS providers use to file for

insurance and Medicare payments.◦ Patients are given the right to inspect and copy their

health records. Privacy protection for EMS patients

◦ All EMS employees must be trained in HIPAA compliance.

◦ EMS providers must develop barriers to unauthorized disclosure of patients’ protected health information.

◦ Disclosures of information—except for treatment, obtaining payment, health care operations, and disclosures mandated or permitted by law—must be preauthorized in writing.

◦ HIPAA requires providers to post notices in prominent places advising patients of their privacy rights.

◦ HIPAA provides both civil and serious criminal penalties for violations of privacy.

HIPAA and EMS

According to Public Safety Communications online, August 26, 2010 edition, HIPAA only applies to “covered agencies”. ◦ General rules of thumb are: 1) nearly all ambulance

services and other health-care providers (facilities, physicians, etc.) are covered entities, and 2) most dispatch agencies are not covered entities. Thus, these organizations may freely communicate protected health information, through any means and to any party without violating the privacy regulations. Fortunately, HIPAA permits any disclosures of PHI that are necessary for patient treatment purposes.

View full article here: http://psc.apcointl.org/2010/08/26/hipaa-radio-emd/

Does HIPAA apply to EMD?

Defamation◦ An intentional false communication that injures another

person’s reputation or good name Libel

◦ The act of injuring a person’s character, name, or reputation by false statements made in writing or through the mass media With malicious intent or reckless disregard for the

falsity of those statements Slander

◦ The act of injuring a person’s character, name, or reputation by false or malicious statements spoken. With malicious intent or reckless disregard for the

falsity of those statements

Legal Principles

Attempt to develop trust and some rapport with patient.

Regardless of type of problem patient, always document encounter in detail.

Problem Callers

Legal Terms

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.

Assault720 ILCS 5/12-1: A person commits an assault when, without lawful authority, he engages in conduct which places another in reasonable apprehension of receiving a battery. (Class C Misdemeanor)

Battery720 ILCS 5/12-3: A person commits battery if he intentionally or knowingly without legal justification and by any means, (1) causes bodily harm to an individual or (2) makes physical contact of an insulting or provoking nature with an individual. (Class A Misdemeanor)

Legal Terms

Reasonable force The minimal amount of force necessary to ensure that an unruly or violent person does not injure

themselves or others.

False imprisonment The intentional and unjustifiable detention of a person without his or her consent or other legal authority (IL – Unlawful Restraint – 720 ILCS 5/10-3)

Legal Complications

A document created to ensure that certain treatment choices are honored when a patient is unconscious or otherwise unable to express his or her choice of treatment

Advance Directive

Do Not Resuscitate Order (DNR) indicates

which, if any, life-sustaining

measures should be taken when the patient’s

heart and respiratory

functions have ceased.

In Illinois, a photocopy of a DNR is valid as long as it is a full copy.

The DNR must travel with the patient.◦ The family or nursing home staff must give the

DNR or a copy to EMS before transport.

A durable power of attorney for health care◦ Allows a patient to designate another person to

make decisions about medical care

DNR Paperwork

Persons Dead at the Scene

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

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

◦ Rigor mortis (stiffening of muscles)

◦ Tissue decomposition

◦ Dependent lividity (blood pooling)

If you believe a crime has been committed, involve law enforcement.

Protect victims and callers. Initiate patient care only when the scene is

safe. Encourage caller to preserve evidence at

crime scenes.

Crime Scenes

Silver Cross EMSS August 2012 System CME

Will County 9-1-1 EMDPRS, April 2012

NHTSA EMD National Standard Curriculum, 1996

AAOS Emergency Medical Responder, 5th Edition

Public Safety Communications Online, APCO International.org

Resources