RefusalsStaying Out Of The Eagles Claws

Johnny V .Tempe Fire

WELCOME WELCOME WELCOME WELCOME • Thank-You For Having Me Here…..Again. Your Medical Direction Is

To Be Commended For Finding The Funding• Before We Begin Some Background-Why DO This?• Started In E.M.S. In 1980 With P.F.D.

– 1990- Became The S.M.E. for P.F.D. And City Attorney Liaison– Retired In 2000- Full Time Police Officer– 2006 Returned To Tempe Fire- Started The M.S.U.- Currently

Assistant Chief Emergency Services• Retained And Testified In 15 Cases In The State For The Defense Of

E.M.S. Personnel –S.M.E. In S.O.C.• Specialize On “In Custody Deaths” • Every Case I have Ever Been Involved In Was Predictable• All Had Sub Standard Documentation • Cases Were Defensible But…..Not Fun For The Players• I Am Not A Lawyer Nor Do I Profess To Be• Handout Will Be Provided After Class

OBJECTIVESOBJECTIVES• If I Do My Job Right You Should……..• Have A Much Better Understanding Of Our Legal

System• Thoroughly Understand The Right To Refuse• Comprehend Why People Refuse• Differentiate The Consent Types• Reinforce Your Authority To Use Force• Dealing With Special Circumstances• Minimum Documentation Guidelines• Ultimately, Stay Out Of Court !• First Things First

LEGAL MUMBO JUMBOLEGAL MUMBO JUMBO

• It Is Expressly Understood And Agreed That The INSTRUCTOR Shall Nowise Be Deemed Or Held To Be Obligated, Liable, Or Accountable For Or Responsible Under Any Guaranties Or Warranties, Express Or Implied, Statutory, By Operation Of Law, Or Otherwise, Including, But Not Limited To ANY IMPLIED WARRANTY OF MERCHANTABILITY OF EDUCATIONAL FITNESS Under The Uniform Educational Code (UEC), In Any Manner Or Form Beyond Its Express Agreements Relative To The Determination Of The Capacity Of Student During Each Level Of Instruction; The Determination Of Successful Level Of Understanding Of The Material By Each Student; And The Ability Of The Student To Digest The Instructional Material During Or After The Conclusion Of The Class, All Herein Before Specifically Set Forth By The Educational Standards As Determined By The ODA/KCFTO And The NFPA So Help Me - - - - -

• Lay Terms……….You Can NoT Hold Me Liable For Today’s Class Should You mess up.

• Who’s Here?

WHY SPEND 4 HOURS ON REFUSALS ?WHY SPEND 4 HOURS ON REFUSALS ?

• You Have Excellent Protocols• 50% Of All Pre-Hospital Law Suits Are Refusals• If It’s Predictable it’s Preventable• Can Be Very Complicated And Yet So Very Easy

– Why?• Folks At Every Level Do Not Understand The Magnitude And Choose

To Not Do Their Job• Understanding The Magnitude Of The Call• Frequency/Risk Profile• Low Risk/High Frequency-Chest Pain-Should Be Real Good At This• High Risk/Low Frequency-Ped’s Code-Harder To Be Good But The

Courts Won’t Care- You Better Be Good At It• High Risk/High Frequency-Refusals-We Should Be Very Good At These

But We Are Not. Why? • High Frequency………….Treat As Routine• Is It Possible For Me To Cover Every Possible Refusal Scenario?

• GIVE YOU A FISH YOU CAN EAT FOR A DAY, TEACH YOU TO FISH YOU CAN EAT FOR A LIFETIME

THE LEGAL SYSTEM: AN OVERVIEWTHE LEGAL SYSTEM: AN OVERVIEW

Why Should You Know This? If You Have Been To Legal Presentations This Is A Good Review

If You Know The Rules Of The Game You Stand A Better Chance Of Winning When Called To Play

We Have A Very Messed Up System You Can Do Everything Right And Get Sued You Can Do Everything Wrong And Not Get Sued You Can Do Everything Right, Get Sued And Still Pay

Out! You Can Do Everything Wrong, Get Sued and Not Pay

Out! Your Goal Is Simple

Do Everything Right, Not Get Sued But If You Do, Prove In Court You Did…… And Not Pay A Dime Except Outrageous Lawyers Fees!

Let’s Start At The Beginning…Laws

LAW- DEFINEDLAW- DEFINED

• The Principles And Regulations Established In A Community By Some Authority And Applicable To Its People, Recognized And Enforced By Judicial Process

Can Sometimes Be Referred To As A Statute-A.R.S.• 3 Main Types?

– Criminal, Civil And Administrative (Government’s Authority To Enforce The Rules)

• Laws Create Liabilities• Liability=Obligation• They Are Not Black And White- They Are Grey With

Different Shades

CIVIL VS. CRIMINAL LAWCIVIL VS. CRIMINAL LAW• Criminal Law- Title 13

– Protect You From Harm– Status, Petty,

Misdemeanor, Felony• Burden Of Proof

– Beyond A Reasonable Doubt

• Do Time– Tent City vs. Florence

• Civil Law– Protect Your Rights

• Burden Of Proof– Preponderance Of The

Evidence• Pay Up

• People Have Rights

• People Have The Right To Competent Emergency Care

• If They Don’t Get It Rights Were Violated

– Someone Was Negligent

– End Up In Civil Court

• Can End Up In Both

• We Get Sued For Negligence

NEGLIGENCE DEFINED…NEGLIGENCE DEFINED…• Failure To Act As A Reasonably Prudent Person Would In A Similar Situation

With Similar Training– Could A Doctor Testify Against A Paramedic?

• How And In What Capacity?• 4 Components Of A Negligence Claim• Duty To Act

– On Duty/Off Duty/Volunteers• Breach The Duty

– Who Determines?– Standard Of Care……….Hmmmmm-We Deviate/Violate Daily Basis

• Causation– Did The Actions Contribute To The Final Outcome

• Damages– Punitive vs. Compensatory– Our Lives Have A Monetary Value– Ped’s start at 20 million

• Current Arizona Standard For MunicipalitiesIs Gross Negligence ?– Who Determines?

GROSS NEGLIGENCEGROSS NEGLIGENCE• A.R.S. § 9-500.02

– Providers Of Emergency Medical Services Procured By Municipality Are Protected By Governmental Immunity From Negligence For Claims Arising Out Of A Municipality's Provision Of Emergency Medical Aid.  The Immunity Provided For By The Statute Does Not Apply If The Person Providing Emergency Medical Aid Is Guilty Of Gross Negligence Or Intentional Misconduct. 

•  Gross Negligence Defined– Gross, Willful, Or Wanton Conduct Is Action Or Inaction

With Reckless Indifference To The Result Or The Rights Or Safety Of Others. A Person Is Recklessly Indifferent If He Or She Knows, Or A Reasonable Person In His Or Her Position Ought To Know: (1) That His/Her Action Or Inaction Creates An Unreasonable Risk Of Harm; And (2) The Risk Is So Great That It Is Highly Probable That Harm Will Result.   

WHERE DO WE SEE THIS THE MOST?WHERE DO WE SEE THIS THE MOST?

• A Conscious And Voluntary Disregard Or Conduct That Is Extreme When Compared With Ordinary

• We See This The Most?

– Busiest Units

– Early A.M.

– On Frequent Flyers

– Belligerent Patients

• Best Rule Is TO Not Be Negligent Let Alone Grossly Negligent

• So Why Do Patients Become Plaintiffs'? Predicting A Law Suit

WHY DO PATIENTS BECOME PLAINTIFFS?

WHY DO PATIENTS BECOME PLAINTIFFS?

America Has Become A Litigious Society-Greed

Unreal Expectations-Who Dies On 911?

Revenge -Rude Service

Right a Perceived Wrong-It’s Not For Me……

Transference of Guilt-Sue The Fence Manufacturer If You Fell Asleep And Bay Drown

Let’s Be Honest-We Would All Sue Another EMS Provider If…..

Recent Phoenix Events?

4 Major Lawsuits Currently Against Departments For Firefighters Committing Suicide

CASE STUDY #1CASE STUDY #1• High Risk/High Frequency• Multiple Vehicle Accident On Interstate Involving Multiple

Vehicles. EMS Arrives On Scene To Find Numerous Occupants Out Walking Around and One Vehicle On It’s Side. Police Have One Person In Custody In The Back Of A Patrol Car. Police Advise EMS That There Are No Injuries And They Can Go Available. EMS Drives Off Without Contacting Any Occupants.

• Raise Your Hand If You Are Starting To Cringe….. Can You Predict An Issue? If So, You Can Prevent It

• What Are The Red Flags?• 30 Minutes Later EMS is Called Back To The Scene Because

The Prisoner, A 52 Year Old Male Is Now Unconscious And Unresponsive

• Pt. Had A Sub-Dural Bleed, Comatose For 3 Days And Died• It Was Your Father……………..Are You Calling A Lawyer?

ANATOMY OF A LAWSUITANATOMY OF A LAWSUIT• Lawyer Was Consulted- No Fee Until Case Is Settled• Investigation

– SME Contacted– -Is There A Case Of Negligence? Gross Negligence?– Duty, Breach, Causation

• Against Who?• Notice of Claim-

– Agree On Claim-Settle– Disagree-Defense Lawyer Retained-First Deposit

• Complaint Is Answered-Next Deposit• Law Suit Is Filed And Served-Next Deposit

– To Agency/You/Your Spouse/Medical Director/Fire Chief• Depositions/Discovery-Next Deposit• Motion For Summary Judgment-Throw The Case Out• Trial- Start Throwing Everyone Under The Bus

• Let The Jury Decide• Verdict/Appeal• Settlement?-Risk Management, Insurance Carriers• Takes Years-Can Cost Millions• What Happened In This Case?• What Is A Life Worth?

TAKE A BREAK

DEFENSES TO A NEGLIGENCE CLAIM

DEFENSES TO A NEGLIGENCE CLAIM

• Attacking The Components– Duty

• Did Law Require You To Act ?– Did Not Breach The Duty To Act

• Standard – Gross Negligence

• Can Your Documentation Prove It?– Causation- Contribute To The Final Outcome

• Statute Of Limitations –Title 13-107 – Defined-The Statute Of Limitations Is An Enactment In A Legal System That Sets Forth

The Maximum Time After An Event That Legal Proceedings Based On That Event May Be Initiated.

– Vary From State To State- Crime To Crime– Civil Negligence- 2 Years– Children ?? 18+2– Criminal

• Petty Offenses: 6 Months • Misdemeanors: 1 Year; • Felonies: 7 Years• None on Murder, Child /Sexual Abuse, Crimes Against Government

DEFENSES TO A NEGLIGENCE CLAIM

DEFENSES TO A NEGLIGENCE CLAIM

• Contributory Negligence Vs. Comparative Negligence – Contributory Negligence Bars The Plaintiff From Any Recovery If

His Own Negligence Contributed To The Loss At All. Most Jurisdictions Have Abandoned This For Comparative Negligence

– Comparative Negligence Is A Plaintiff's Damage Award Is Reduced By The Proportion Of Loss Attributable To His Own Negligence.

• For Example, In The Mcdonald's Coffee Case, The Jury Awarded The Plaintiff $200,000 In Compensatory Damages. Because The Jury Found The Plaintiff 20% At Fault, This Amount Was Reduced To $160,000

• Vicarious Liability– Responsible For The Actions Of Others– Employers– Prove Employee Did Not Follow Policy– Hmmmmm-– Best Defense of All ?

• Don’t Get Sued

REFUSALSREFUSALS

“I Would Much Rather Be Sued By A Live Patient Than A Dead Patients Family”

Phueck Yeww Famous Viet namese Attorney

THE RIGHT TO REFUSE CARE..THE RIGHT TO REFUSE CARE..

• Everyone Has The Right To Refuse Treatment AND Transport

• Why Do Most People Refuse?

• Economic Reasons• Religious Reasons• Lack Of Trust• Lack Of Medical

Understanding• Can Consent To Some And

Refuse Other• No Law Against Being

Stupid But……..• Alcohol Alone Does Not

Cause You To Lose Your Rights

• Requirements For Valid Refusals

• Determine Competence– Legal Requirement– Mental Requirement

• And Based On What I Said, What Else?

– Medical Competence

LEGAL COMPETANCELEGAL COMPETANCE• Legal 18 Years of Age

– Confirmation?

• Variables

– Emancipated Minor

– Married

• Reasonable?

– 17 years 11 months?

– 17 years 1 month

• When in Doubt…….

MENTAL COMPETANCEMENTAL COMPETANCE• Awake, Alert and Oriented To Time, Place, Location,

Events

• Variables

• ETOH but Oriented x4?

• Head Injury

• Unconscious but then wake up..

• Suicidal?

– Third Person Report

• When In Doubt……

MEDICAL COMPETANCEMEDICAL COMPETANCE• “You Have An Elevated ST Segment”…..

• Your Are Having a Myocardial Infarction

• Put It In Layman Terms

– You Could Die

CONSENT TO TREAT…CONSENT TO TREAT…• For The Most Part…

• General Types-Conscious

– Informed/Actual

– Written

– Parental

• Pre-Hospital

– Implied

• Other

– Medical Power Of Attorney

– Spouse?

– Other Cultures?

TREATING WITHOUT CONSENT

TREATING WITHOUT CONSENT

• Incompetent To Refuse– Minor– Disoriented– Suicidal– Altered

• Critical Factors– Danger To EMS– Medical Urgency

• Ideally– Gain Consent– Law Enforcement

Support• Authority To Use Force• 13-403. 13-403. Justification; use of Justification; use of

physical forcephysical force

• The Use Of Physical Force Upon The Use Of Physical Force Upon Another Person Which Would Another Person Which Would Otherwise Constitute An Offense Is Otherwise Constitute An Offense Is Justifiable And Not Criminal Under Justifiable And Not Criminal Under Any Of The Following Circumstances:Any Of The Following Circumstances:

• A Person Acting Under A Reasonable A Person Acting Under A Reasonable Belief That Another Person Is About Belief That Another Person Is About To Commit Suicide Or To Inflict To Commit Suicide Or To Inflict Serious Physical Serious Physical Injury Upon Himself Upon Himself May Use Physical Force Upon That May Use Physical Force Upon That Person To The Extent Reasonably Person To The Extent Reasonably Necessary To Thwart The Result.Necessary To Thwart The Result.

• A Duly Licensed Physician Or A A Duly Licensed Physician Or A Registered Nurse Or A Person Acting Registered Nurse Or A Person Acting Under His Direction, Or Any Other Under His Direction, Or Any Other Person Who Renders Emergency Care Person Who Renders Emergency Care At The Scene Of An Emergency At The Scene Of An Emergency Occurrence, May Use Reasonable Occurrence, May Use Reasonable Physical Force For The Purpose Of Physical Force For The Purpose Of Administering A Recognized And Administering A Recognized And Lawful Form Of Treatment Which Is Lawful Form Of Treatment Which Is Reasonably Adapted To Promoting Reasonably Adapted To Promoting The Physical Or Mental Health.The Physical Or Mental Health.

RESTRAININGRESTRAINING

• Be Justified, If Not They MAY Try To Press Criminal Charges Against You

– Assault and Battery– Unlawful Imprisonment– Kidnapping– Violation OF Civil Rights (Freedom)

• Follow Your Local Protocol• If Time Allows……

– Medical Control• If Possible….Let Law Enforcement Do It

– What IF They Won’t• Person To Each Arm………..• Face Up Or On Side• If Cuffs Used..Key, Have Officer If Possible In Ride• Do Not Become Primary Aggressor• If You Injure The Patient• If They Injure You? Agg Assault-Felony, Please Press Charges Even If

They Only Threatened You

WHAT DO YOU DO WHEN….WHAT DO YOU DO WHEN….

• There Is No Need To Restrain But Medical Control Gives The Order?– Hmmm……Broken Ankle?

• Communication Is Everything– Your Safety Is Compromised– Law Enforcement Refuses

• You Really Feel They Need To Go But They Are Well Within Their Legal Rights To Refuse And Do Not Get Transported?

• Find Out Why• Get Family, Friends Involved….Good Witnesses For You• Patch….Not C.N.!• Have Dr. Speak Directly With Patient. It’s Recorded• Give Options To Drive Self, Call Back• Get Phone Number. Do A Follow-up Call (Juries Love This)• Document, Document, Document…..Then• Document, Document, Document

YOUR REQUIREMENTS ?YOUR REQUIREMENTS ?

• Are Excellent!• Here They Are…..• Do You Follow Them? Every time?• Why Not?• If You Get Sued Guess What??

– Your Agency Could…..– Your Medical Director and Coordinator Could…

• Interesting Fact……I Do Not Have– A Personal Liability Insurance Policy– Why Do You Think?

• I Have Chosen To Treat Everyone As If They Were My Family. It’s Always In The Back Of My Mind So I Try To Know Job, Not Get Complacent And Learned The Importance Of Good Documentation. And Above All Try To Be Nice To Everyone. People Don’t Sue People They Like.

SPECIAL CIRCUMSTANCESSPECIAL CIRCUMSTANCES

• Medical Personnel

• Prisoners

• Lawyers On Scene

• Violent Patients

• Language Barriers

• Cultural Issues

• Religious Issues

• Traveler’s

• Treating On The Sly

SCENARIO #2SCENARIO #2• 76 Year Old Hispanic Male Drinking Alcohol

All Day And Has A Family Fight With Sons And Wife. During The Argument, He Said He Wishes He Was Dead And Clutches His Chest. He Has A Known Cardiac Condition And Takes Nitro. Family Calls 911 Without His Knowledge. EMS Arrives And He Says……..” I Did Not Call You, Get Out Of My House”

• What Are The Issues Here?

• Restrain Or Not Restrain?

SCENARIO #3SCENARIO #3

• Young Couple Hiking In Sedona From Out Of Town. Wife Has Possible Seizure Per Husband Who Describes As Eyes Rolling Back And Period Of Disorientation. On Arrival She Is Lethargic But Oriented X4 And Says She Is Fine. She Allows EMS To Asses And Only Finding Is Incontinence. She States She Does Not Want To Go To The Hospital And Refuses Transport.

• What Are The Issues Here?

• Restrain Or Not Restrain?

DOCUMENTATION DOCUMENTATION • Start Off With The

Assumption You Will Be Sued In One Year

• Consider This Your Insurance Policy-You Can Write Your Own Coverage

• Why Can This Be SO Hard?

– No Maximum But Each Case Has A Minimum

• Document All Elements Of Refusals

• Refusal Form

• Signatures

• “Patient Advised Of Need For Definitive Medical Care For Injury Sustained. Advised Of Possibility Of Infection And Possible Complications Up To Loss Of Arm And Death. Pt. Legal Adult, Awake And Oriented And Competent To Refuse Care Stating They Will Seek Own Care. Patient Read Refusal Form, Initialed And Witnessed. Patient Advised To Call Back If Any Changes”.

REFUSAL TIPPSREFUSAL TIPPS

• Approach Every Refusal As If They Are Going To Die When You Leave And Sue you

• Know Your Stuff….Stone Cold• Spread The TURD……….

– Medical Control– Family– PoPo

• Always Leave Patient With Options– Drive Yourself– Call BAck

• Write Your Report As If …………• When In Doubt………….• If I had A Nickel For Every Time I Said, “Your Going To The

Hospital, The Only Choice You Have Is Whether You Are Tied Up Or Not”.

QUESTIONS?QUESTIONS?

FUTURE LADDER FOLKS

TAKE A BREAK