Having VSA’s for VSQ’s By Steven C. LeCroy EMS Expert Witness

Having VSA’s for VSQ’s

By Steven C. LeCroy

EMS Expert Witness

Brain Test

Which of the blocks are bigger?

Is this a perfect circle?

See the dots?

Is this a woman's face or a sax player

Is the blue square in front or in back?

Are these lines straight?

Topics

• Legal Duties and Ethical Responsibilities.• The Legal System.• Laws Affecting EMS and the Paramedic.• Legal Accountability of the Paramedic.• Paramedic-Patient Relationships.• Resuscitation Issues.• Crime and Accident Scenes.• Documentation.

Best Protection

• Your best protection from liability is to perform systematic assessments, provide appropriate medical care, and maintain accurate and complete documentation.

Be good at what you do, so good it’s scary

Legal Duties and Ethical Responsibilities (1 of 2)

• Promptly respond to the needs of every patient.

• Treat all patients and their families with respect.

• Maintain your skills and medical knowledge.

• Participate in continuing education.

Legal Duties and Ethical Responsibilities (2 of 2)

• Critically review your performance, and constantly seek improvement.

• Report honestly and with respect for patient confidentiality.

• Work cooperatively and with respect for other emergency professionals.

Each EMS response has the potential of involving EMS personnel in the legal system.

Sources of Law (1 of 2)

• Constitutional—based on the

U.S. Constitution.• Common—derived from society’s

acceptance of customs and norms.

Sources of Law (2 of 2)

• Legislative—created by law-making bodies such as Congress and state assemblies.

• Administrative—enacted by governmental agencies at either federal or state levels.

Categories of Law(1 of 3)

Criminal—division of the legal system that deals with wrongs committed against society or

its members.

Categories of Law(2 of 3)

Civil—division of the legal system that deals with non-criminal issues and conflicts between two or more parties.

Categories of Law(3 of 3)

Tort—a civil wrong committed

by one individual against another.

Components of a Civil Lawsuit

• Incident• Investigation• Filing of

complaint• Answering

complaint

• Discovery• Trial• Decision• Appeal• Settlement

Depositions

• Shark attack

• Typical deposition

• Attorney games

• Oliver North method

Laws Affecting EMS and the Paramedic

Scope of Practice

• Range of duties and skills paramedics are allowed and

expected to perform.

You may function as a paramedic only under the direct supervision of

a licensed physician through a delegation

of authority.

Licensure and Certification

• Certification refers to the recognition granted to an individual who has met predetermined

qualifications to participate in a certain activity.

• Licensure is a process used to regulate occupations generally granted by a governmental body to engage in a profession or

occupation.

Motor Vehicle Laws

• Vary from state to state, and govern operation of emergency vehicles and the equipment they carry.

Mandatory Reporting Requirements

• Spouse abuse• Child abuse and neglect• Elder abuse• Sexual assault• Gunshot and stab wounds• Animal bites• Communicable diseases

Legal Protection for the Paramedic

• Immunity—exemption from liability granted to governmental agencies.

• Good Samaritan Laws—provide immunity to certain people who assist at the scene of a medical emergency.

• Ryan White CARE Act—requires notification and assistance to paramedics who have been exposed to certain diseases.

• Local laws and regulations.

Legal Accountability of the Paramedic

Negligence

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

Always exercise the degree of care, skill, and judgment expected under like

circumstances by a similarly trained, reasonable paramedic in the same

community.

Components of a Negligence Claim

• Duty to act.

• Breach of duty.

• Actual damages.

• Proximate cause.

Duty to Act

• …is a formal contractual or informal legal obligation to provide care.

Breach of Duty

• …is an action or inaction that violates the standard of care expected from a paramedic.

Breaches of Duty

• Malfeasance—performance of a wrongful or unlawful act by a paramedic.

• Misfeasance—performance of a legal act in a harmful or injurious manner.

• Nonfeasance—failure to perform a required act or duty.

Actual Damages

• …refers to compensable physical, psychological, or

financial harm.

An action or inaction that immediately caused

or worsened the damage is called proximate cause.

Special Liability Concerns

Medical Direction (1 of 2)

• A paramedic’s medical director and on-line physician may be sued if:– Medically incorrect orders were

given to the paramedic;– There was a refusal to authorize the

administration of a necessary medication;

Medical Direction (2 of 2)

• A paramedic’s medical director and on-line physician may be sued if:– The paramedic was directed to take

the patient to an inappropriate facility;

– Negligent supervision of a paramedic is proven.

Borrowed Servant Doctrine

• While supervising an EMT-I or EMT-B, a paramedic may be liable

for any negligent act that person commits.

Civil Rights• If medical care is withheld due to any discriminatory reason, a paramedic may be sued.

– Examples:• Race • Creed • Color • Gender • National origin • Ability to pay (in some cases)

Off-Duty Paramedics

• Performing procedures that require delegation from a physician while off-duty may constitute practicing medicine without a license.

Paramedic-Patient Relationships

Legal Principles (1 of 5)

• Confidentiality is the principle of law that prohibits the release of medical or other personal

information about a patient without the patient’s consent.

Legal Principles (2 of 5)

• Defamation is an intentional false communication that injures another person’s reputation or good name.

Legal Principles (3 of 5)

• Libel is 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.

Legal Principles (4 of 5)

• Slander is 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 (5 of 5)

• A paramedic may be accused of invasion of privacy for the release of confidential information, without

legal justification, regarding a patient’s private life, which might reasonably expose the patient to ridicule, notoriety, or embarrassment.

The fact that the information released is true is not a defense to an action for

invasion of privacy.

Consent

• The granting of permission to treat a patient.

• You must have consent before treating a patient.

• Patient must be competent to give or withhold consent.

Informed Consent

• Consent based on full disclosure of the nature, risks, and benefits of a procedure.

• Must be obtained from every competent adult before treatment may be initiated.

• In most states a patient must be 18 years of age or older to give or withhold consent.

• In general, a parent or guardian must give consent for children.

Expressed Consent

• Verbal, non-verbal, or written communication by a patient who wishes to receive treatment.

• The act of calling for EMS is generally considered an expression of the desire to receive treatment.

• You must obtain consent for each treatment provided.

Implied Consent

• Consent for treatment that is presumed for a patient who is

mentally, physically, or emotionally unable to give consent.

• It is assumed that a patient would want life-saving treatment if able to give consent.

• Also called emergency doctrine.

Involuntary Consent

• Consent for treatment granted by a court order.

• Most commonly encountered with patients who must be held for mental-

health evaluation or as directed by law enforcement personnel who have the

patient under arrest.• May be used on patients whose

disease threatens a community at large.

Special Consent Situations (1 of 2)

• Minors– Usually a person under 18 years of age.– Consent must be obtained from a parent

or legal guardian.

• Mentally incompetent adult– Consent must be obtained from the legal

guardian.

Special Consent Situations (2 of 2)

• For Minors & Mentally incompetent adults…

– If a parent or legal guardian cannot be found, treatment may be rendered under the doctrine of implied consent.

Emancipated Minors

• Person under 18 years of age who is:– Married– Pregnant*– A parent*– Emancipated minors may give informed

consent.

Withdrawal of Consent

• A patient may withdraw consent for treatment at any time, but it must be an informed refusal of treatment.

An example of a “release-from-liability form.”

Refusal of Service

• Not every EMS run results in the transportation of the patient to the hospital.

• Emergency care must always be offered to the patient, no matter how minor the injury or

illness.

If a Patient Refuses (1 of 4)

• Is the patient legally permitted to refuse care?

• Make multiple, sincere attempts to convince the patient to

accept care.

If a Patient Refuses (2 of 4)

• Make sure the patient is informed in his or her decision.

• Consult with on-line medical direction.

If a Patient Refuses (3 of 4)

• Have the patient and a disinterested witness sign a release-from-liability form.

• Advise the patient he or she may call again for help.

If a Patient Refuses (4 of 4)

• Attempt to get someone to stay with the patient.

• Document the entire situation thoroughly.

Legal Complications Related to Consent

Legal Complications Related to Consent (1 of 4)

• Abandonment is the termination of the paramedic-patient relationship without assurance that an equal or greater level of care will continue.

Legal Complications Related to Consent (2 of 4)

• Assault is an act of unlawfully placing a person in apprehension of immediate bodily harm without his or her consent.

• Battery is the unlawful touching of another person without his or her consent.

Legal Complications Related to Consent (3 of 4)

• False imprisonment is the intentional and unjustifiable

detention of a person without his or her consent or other legal authority.

Legal Complications Related to Consent (4 of 4)

• Reasonable force is the minimal amount of force necessary to ensure that an unruly or violent person does not cause injury to himself, herself, or others.

Patient Transportation

• Maintain the same level of care as was initiated at the scene.

• Know the closest, most appropriate facility.

• Respect the patient’s choice of facility without putting patient care in jeopardy.

Resuscitation Issues

Advance Directives

• 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.

A Living Will allows a

person to specify

what kinds of medical treatment he or she

should receive.

Fig. 6-4

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.

A death in the field must be appropriately dealt with and

documented by following local protocol.

Crime and Accident Scenes (1 of 3)

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

• Protect yourself and other EMS personnel.

Crime and Accident Scenes (2 of 3)

• Initiate patient care only when the scene is safe.

Crime and Accident Scenes (3 of 3)

• Preserve the scene as much as possible:– Observe and document anything moved; – Leave gunshot or stabbing holes intact if

possible;– If something must be moved, notify

investigating officers and document your actions.

Documentation

• Complete promptly after patient contact.

• Be thorough.

• Be objective.

• Be accurate.

• Maintain patient confidentiality.

• Never alter a patient care record.

Objectives

• Understand the multiple uses of the EMS cognitive form

• Identify critical elements in specific types of EMS calls

• Distinguish between high risk and low risk refusals of care

• Discuss strategies for convincing patients to be treated and transported

• List the four elements needed to prove negligence

EMS Cognitive ExamWhat Is It?

• Modified version of the Folstein

• A tool - not appropriate for every job

• Best used in conjunction with a complete exam

• Even when a patient can pass the exam it is not universal that they should sign, or you should accept, a refusal

EMS Cognitive ExamWhat The Exam Does

• Can be used to document:– why a refusal should not be accepted– why a 401.445, Baker Act, or Marchman Act

should be initiated

EMS Cognitive ExamWhat The Exam Does

• Conversely, the exam can be used to help us to more safely allow patients to decide for themselves what is in their best interest

EMS Cognitive ExamWhat The Exam Does

• The exam should NOT be used to get out of a transport, but rather to help us do what is best for the patient

• On occasion, patients can pass the exam and still be under the influence of alcohol, drugs, or some medical condition that affects their judgment

Look For A Reason… Why Might Someone Fail?

• Medical reasons– low blood sugar– hypotension– hypoxia– head injury– other

• Non-medical reasons– lack of serious effort by the patient – language– education– visually or hearing impaired

Scoring

• Patients can receive partial credit for responses that require multiple item naming or recitation, but partial scores are not to be estimated based on the patient being “close” to a right answer.

ScenarioYou respond to an unknown medical problem. Upon arrival the wife of the patient meets you at the door and says her husband is sick, has a history of alcoholism, and he refuses to go to the hospital. You find the patient in the bathroom. He is alert and oriented, vitals are normal, blood sugar is 120, pulse oximetry 95 on room air, skin color gray to pale, diaphoretic and he has defecated on himself and all over the floor. He is adamant that he is not going to the hospital, and he scores a 27 on the cognitive exam. According to his wife he has not had any alcohol in three days.

Questions

• Is this a low or high risk refusal?

• Should the refusal be accepted?

• Can this patient be forced to go to the hospital?

DO NOT Make Promises

• When explaining likely hospital treatments or benefits, DO NOT make promises or be too specific– “they’ll put some stitches in”– “you’ll be in and out pretty quickly”– “you’ll get some X-rays”

• This puts the hospital at a disadvantage when the patient arrives with expectations that turn out to be unrealistic.

DO NOT Make Promises!A Better Statement could be:

• “They’ll decide the best way to close this cut”

• “You might not have to be admitted to the hospital”– if you think that might be the case or in

some cases in which that factor may persuade the patient who’s on the fence to go

• “You might get a CT scan or X-rays” This also applies to patients that we transport.

OLMC Contact

• For those patients refusing and OLMC contact is necessary, be sure NOT to prompt patient’s replies to OLMC taped conversations with patients.

Documentation of a Refusal Should Contain

1. History of the incident

2. Description of the patient and how they where encountered

3. Description of the scene

4. Patient assessment and vitals

5. Quote from the patient on why they refuse care and transportation

Documentation of a Refusal Should Contain

6. Patient, and witness, signatures

7. Specific potential consequences

8. Describe specific instructions to follow if symptoms should persist or worsen

9. Possible treatments that either we would provide or might be provided at the hospital

What Is The Most CriticalDocumentation in the Refusal

Process?

• It is NOT the patient’s signature…

• It is the patient care/assessment documentation!

The Patient’s Signature

• Is an acknowledgement releasing the EMS provider from the obligation to render, or continue to render, pre-hospital treatment and/or transport based on the patient’s right to be the sole final decision maker and to be left alone

• The signature also proves that we at least: “made contact and implies we offered our services”

A Signed Refusal

Is in no way

an ironclad release

of liability

Types of Refusals• Low Risk

– A mutual agreement between the patient and the provider that the patient is making alternative plans, and does not desire all or part of our treatment and or transport plan

• High Risk– AMA, “against medical advice”

• The patient’s condition represents a high risk to the patient, the medics and the System

• This may be due to the nature of the illness or injury or due to an altered mental state that puts understanding a refusal into question

99

Three General Areas Of “Refusal”

• Evaluation

• Treatment or any individual component of treatment

• Transport

“Refusal” vs. “Informed Refusal”

• What’s the difference? – This change creates the mind-set that a

patient’s refusal is not simply a rejection of services, but an educated, knowledgeable decline of our service.

Informed Refusal Process

• Legal capacity– Emancipated Minors

• Mental capacity

• Knowledge

Plaintiff’s Attorney’s Argument

“But for the fact that my client was in physical and emotional distress and had no knowledge of the seriousness of the situation, my client would have gladly accepted treatment and transport. It was never explained by EMS.”

The Bottom Line:Refusal Fact To Live By

• If nothing is offered, what is the patient refusing?– Refusals can be, and have been, thrown out

because the patient was never offered anything

– Or if the possible consequences of their decision were never explained to them by the healthcare provider

Refusals have Inherent Risks

• Our goal and responsibility is to assure that our patients continue to be monitored for any adverse affects related to their injury or disease; as well as the procedures and medications we have provided as a temporizing measure

The mechanism of injury or illness,

combined with the setting,

patient and other variables

establishes the level of risk

Refusals Following Medications

• We try not to accept refusals from, for example, severe headache patients who want to refuse following pain and/or anti-emetic medications, or bronchospasm patients who receive adrenogenic agents and/or steroids

• There may be underlying causal factors, not obvious to us; or they might “re-bound” with a Bad Outcome!

Be Suspicious of, “I’ll Be Alright”

• When explaining risks and benefits to a patient, be suspicious of the patient who only keeps saying something like, “I’ll be alright”

• They may be in denial or they may be impaired enough to truly not be able to give an informed decision

• Statements like this DO NOT identify that the patient is truly processing the risks and benefits

• For high risk refusals with serious doubts, ask the patient to repeat back what has just been explained to them. If they can’t do that without prompting, Medical Control will be unlikely to accept the refusal, regardless of Cognitive Exam score

Minor Refusals

• Make all possible efforts to contact parents or designated responsible parties

• Assess risk benefit and clearly communicate your findings to OLMC when no adult representative is available

• Request MCO assistance for documentation prior to requesting OLMC consult

School Bus Accident Refusals

• PCR for patients with complaints

• Gang refusal with all patient names listed and signed by authorized school official

High Risk RefusalsA Few Examples

• Patients receiving ALS interventions• ANY patient who has an altered mental status

and/or had any period of syncope or neurological symptoms

• Diabetics who are alone• Near drownings• Smoke inhalation• TIAs• Possible overdoses

Refusal Scenario #1

You are called to the scene of an MVC, where you find a 42 year old male driver who was restrained, complaining of left upper quadrant pain. The crash involved impact to his door but there was minimal passenger space invasion. The patient is ambulatory and willing to go to the hospital, but he doesn’t want to be immobilized.

Refusal Scenario #2

You are dispatched to the scene of a 76 year old patient with complaint of shortness of breath and coughing. She has a history of COPD, but not of CHF. After an EMS albuterol/atrovent treatment, she says she feels better and doesn’t want to be transported.

Refusal Scenario #3

You are called to the scene of a single vehicle MVC, where PD has the driver in custody. There is an alcohol-like smell on the patient’s breath, and his speech is slightly slurred. He has a suturable laceration to the forehead.

Refusal Scenario #4

You respond to the home of a 38 year old female with a history of diabetes for altered mental status. On arrival, you find the patient to be confused and diaphoretic, with a blood sugar reading “Low”. You push one amp of D50 IV, and the patient becomes more alert and wants to refuse treatment.

What do you do

when a patient won’t go,

and law enforcement won’t help,

and you feel the patient

definitely needs to go?

EMS Team

The EMS system has the duty

to make a determination

of what is in the best interest

of every patient that we contact.

Documentation!

Sword & Shield

or

Worst Nightmare

Objectives

• State the purpose of documentation.• Identify the characteristics of a good

medical record.• Identify the types of calls that require

special documentation.• State the specific information required for

each of the following types of injuries: MVC, falls, head injuries, chest injuries, and extremity injuries.

Identifying the Problem

“a properly completed PCR can prevent a prehospital care provider from being sued, or, in the event that an incident is litigated, can dramatically improve the providers chances of winning the lawsuit.”

- Richard A. Lazar, JD

- Robert J. Schappert III

Why Documentation?

• “Video” tape of the care you provide

• Medical Record for historical purposes

• QA

• Legal purposes

• Who owns the report?

Documentation

• Purpose– Preserves basic patient information– Records changes in patient condition– Justifies treatment– Allows continuity of care– Satisfies regulatory requirements– Provides data for quality control

Documentation

“Protection for EMS personnel”

“Reflection of good patient care”

Documentation

• Characteristics of a good medical record– Accurate– Complete– Legible– Free of extraneous information

Accurate

• Document facts, observations only

• Do NOT speculate about patient or incident

• Double-check numerical entries

• Recheck spellings of– Persons– Locations– Medical terms

Accurate

If you make a mistake,

accurately document

what you actually did,

not what the correct procedure

or treatment should have been.

Never falsify or intentionally

confuse the facts.

Complete

• Include all requested information• If information requested does not apply, note

“not applicable” or “N/A”• Include at least two sets of vital signs on every

patient• Failure to document implies failure to consider• If you look for something and it isn’t there,

document its absence, i.e. negative findings– Example: Radial and Femoral pulses strong and

equal, no abdominal masses found on exam

Complete

If it isn’t documented, it wasn’t done!

Legible

• If you cannot read the report, you may be unable to determine what happened

• Documents presented in court must “speak for themselves”

• If a document cannot be deciphered, the jury has the right to ignore it altogether

Legible

If the report is sloppy,

others will assume that the care was equally sloppy.

Free of Extraneous Information

• Avoid labeling patients (“drunk”, “psych patient”)

• Describe the observations you made

• Preface comments made by the patient with “per the patient” or “patient stated”

Free of Extraneous Information

• Record hearsay only if applicable

• Do NOT record hearsay as facts

• Use quotation marks only if a statement is accurate word-for-word

Free of Extraneous Information

Avoid interjecting humor,

the public does not regard EMS as a funny business

The Patient Care Report

• Misspelled words, illegible hand-writing, and poor writing skills lend themselves to questioning the credibility of the care provider

“Just the Facts Ma’am”

Documentation

• A copy of the report must be left with the patient at the receiving hospital– State law requires this– Patient care has not legally been transferred

until the hospital has your written report

Documentation

• The person who rode with the patient should write the report

• All personnel who participated in care should review the report

Documentation

• If something needs to be corrected, correct it

• The sooner an error is corrected, the more credible and reliable the change is

• Mark through information so it is still readable

• Then write in the new information and initial/date the change

Documentation

If you have a long report, don’t hesitate to use

additional pages

Documentation

• Avoid stating diagnostic impressions

• Report facts and observations

• If you must state a diagnostic impression– Do so within the scope of your training– Include the observations that led to the

impression

Documentation

Avoid using “possible” or “R/O”, or “?” when the observation would have

been obvious to anyone

Documentation

• Be sure treatments recorded match the mechanism of illness or injury and the diagnostic impression

• If something should have been done that was not, state why

• In other words, document the rationale for deviation from the standard of care

Documentation

• If spaces are provided for documenting times, fill them in carefully

• Failing to document times implies lack of concern about the time factor

• If you have a prolonged scene time, state why

Documentation

If you put a monitor on the patient, a hard copy of the EKG should

accompany the report

If a patient warrants a monitor,it should stay on the patient until

transfer of care at the hospital is complete.

Transfer of care at the hospitaloften involves prolonged waiting in the hall.

If a patient was taken off the monitorand suffered an untoward event

while waiting to be transferred to the ED staff,serious consequences and liability exist.

Documentation

• If a patient complains of pain in an area, state what you found when you examined the area

• Failure to record your observations implies that you noted the complaint, but did not investigate it

Information Required For Specific Injuries

• MVC – Type of collision (head-on, roll-over, lateral

impact, etc.)– Degree of damage to vehicles– Location of patients– Use of seatbelts

Information Required For Specific Injuries

• Falls– Where the patient fell from– How far the patient fell– The surface the patient fell onto and in what

position they landed– Why the patient probably fell

Information Required For Specific Injuries

• Head injuries– Level of consciousness– Pupillary responses:

• Pupil size• Reaction to light• Ability to move eyes in all directions in the

standard “H pattern”• Accommodation

Information Required For Specific Injuries

• Head injuries– Presence/absence of

• Discharge from nose and ears• Cervical pain, muscle spasm, tenderness,

deformity• Paresthesias• Altered motor function• Altered sensory function

Information Required For Specific Injuries

• Chest injuries– Position of trachea– Status of neck veins, breath sounds, heart

sounds– Pulses paradoxis– Presence or absence of

• Visual clues like bruising or abrasions• Crepitus• Subcutaneous air• Paradoxical movement of chest wall

Information Required For Specific Injuries

• Extremity injuries– Distal skin color and temperature– Presence or absence of

• Distal pulses• Motor function• Sensory function

Good Documentation is NOT C.Y.A.

Good Documentation is a Reflection of Good

Patient Care

What Not to Documenton a Report

• Incident reports vs. patient care report (PCR)

• Equipment failures

• Crew conflicts

• Your opinions or prejudices

• Slang medical terms: dib, (LOL in NAD, FLK, GOMER, gray lady down, wheels-up, WNL, etc.)

Documentation Methods

• SOAP– Subjective – Objective– Assessment– Plan

• FDR Method (LeCroy method)

– What you Found– What you Did– What were the Results

Calls That Require Special Documentation

• OB• Intubations• Spinal Injuries• Refusals• Competency Issues• Deaths: failure to

initiate care for any reason

Endotrachael Intubation

• Route• Size• Depth

• CO2 and SpO2

• Lung sounds checked throughout

• Tube Check™

• PE findings• Multiple documentation

events• Confirmation in the ED

(essential Risk Management tool)

Spinal Injuries“Sue me, please”

• Neurologic assessment – pre and post intervention

• Pulses motor sensory

• ABCDisability

• Clearly document what spinal precautions were taken from the moment you made patient contact

Spinal Injuries

• Times on the run report should reflect the real times from your CAD

• TTPs for spinal injury must be followed!

• If you didn’t document it…

• What you say vs. what you did

In Summary

Above all:Write each patient care

report like your patient will be dead in two hours!