Legal Issues for EMS Physicians 2014

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1 Legal Issues for EMS Physicians 2014 W. Ann Maggiore, JD, NREMT-P Clinical Faculty UNM/School of Medicine Dep t of Emergency Medicine Overview EMS physicians infrequently brought into suits BUT: TREND IS INCREASING YOUR INSURANCE MAY NOT COVER THE TYPES OF SUITS BEING FILED Part One EMT/MD relationship 1

Emergency Medicine Overview EMS physicians infrequently brought into suits

2 The Legal Relationship Between the EMS Physician and the EMT WHAT IS IT? Agency or Supervisory? AGENCY (employee) Principal assigns tasks to agent Controls details of how tasks are carried out Direct over the shoulder supervision Hire/fire SUPERVISORY General oversight (Black s) EMTs Don t Diagnose! Really? 2

AGENCY (employee) Principal assigns tasks to agent Controls details of how

3 EMS is Not the Practice of Medicine Refer to Dr. Ed Racht s talks Refer to Jerry Overton s talk Evolution of the Relationship Historical perspective Practice under my license The eyes, hands and ears of the MD Before EMS enabling legislation Delegated practice Myth perpetuated by DOT objectives Very few states (Texas) Legal Relationship Legislative and administrative mandates for physician oversight of EMS agencies, systems and providers Where do you fall in the EMS agency s chain of command? 3

license The eyes, hands and ears of the MD Before EMS enabling legislation Delegated practice Myth perpetuated by DOT

4 If they want ADVICE: Hire a consultant! Agency Relationship? Schultz v. Rural Metro of New Mexico-Texas 956 SW2d 757 (1997) Texas case Stretcher drop case Court found service NOT an agent of its medical director Defense tried to identify service as an agent of the MD to fit into definition of health care provider to establish immunity Court said more info needed on level of control MD had over EMTs 4

service NOT an agent of its medical director Defense tried to identify service as an agent of the MD

5 Legal Issues: Other Jurisdictions It s important to know the applicable laws where you practice Texas is Different! Delegated practice legislation Statutes designate what clinical procedures an MD can delegate to other health care providers Canada Most EMS laws are province by province and vary greatly Good Samaritan (not in New Brunswick or Nunavut) In general: no duty to act except Quebec Quebec is unique in that it has juridicial law; civil matters are regulated under French heritage civil law 5

Canada Most EMS laws are province by province and vary greatly Good Samaritan (not in New Brunswick or Nunavut) In general:

6 Canada Paramedics are not licensed except in BC Delegated practice system w/protocols Delegated medical acts = DMAs Move towards more professionalized practice by legislation and colleges Scope of practice 4 levels defined by National Occupational Competency Profile (NOCP) for Paramedics Canada Canadian lawsuits similar to US Delayed EMS response Stretcher spills Slip and fall while being walked to ambulance Tribal Lands Each has its own tribal laws Some very developed; others barely codified Others follow state EMS laws Navajo reservation follows NM law although much of the reservation lies in Arizona Medical investigator may not have jurisdiction on the reservation 6

Delayed EMS response Stretcher spills Slip and fall while being walked to ambulance Tribal Lands Each has its own tribal laws Some very developed; others barely codified

7 Liability DIRECT Failure to perform K responsibilities Negligent supervision Negligent protocol development INDIRECT (rare) Respondeat superior MD is responsible for EMT s actions vicariously Liability PROFESSIONAL (insured) Negligence for prehospital procedures ADMINISTRATIVE (may not be insured) Negligent supervision Employment civil rights issues False claims/fraud The doc doesn t hire..and doesn t fire DEFENSE 7

Liability PROFESSIONAL (insured) Negligence for prehospital procedures ADMINISTRATIVE (may not be

8 Question: Can you be held liable for injury to a patient you haven t met, haven t examined, and haven t treated? Answer: Maybe courts seem to be moving in that direction EMTs are Responsible to Three Avenues of Authority 8

9 3 Avenues of Authority MEDICAL DIRECTOR LICENSING/CERTIFICATION AGENCY EMPLOYMENT PUBLIC PERSONNEL REGS COLLECTIVE BARGAINING AGREEMENTS PRIVATE EMPLOYEE HANDBOOK COLLECTIVE BARGAINING AGREEMEN Part Two Anatomy of a Lawsuit NEGLIGENCE Elements of Negligence LEGAL DUTY BREACH OF STANDARD OF CARE PROXIMATE CAUSE HARM 9

EMPLOYEE HANDBOOK COLLECTIVE BARGAINING AGREEMEN Part Two Anatomy of a Lawsuit

10 Negligence - Duty EMS system has a duty to the public Respond within reasonable time frame Provide reasonable EMS care Transport to appropriate facility EMS MD has duty to perform medical oversight functions Negligence - Breach Standard of care What a reasonable EMS physician would do in the same/similar situation Objective standard Negligence Causation & Harm No harm no foul Even if the standard of care was breached, if no harm results, lawsuit will not succeed Fall back position for medical negligence defense 10

reasonable EMS physician would do in the same/similar situation Objective standard Negligence Causation & Harm No harm no foul

11 Negligent supervision Negligent retention MD knows EMT has performance deficiencies and does nothing to correct Causes of Action Anatomy of a Lawsuit CIVIL RIGHTS CLAIMS Civil Rights Claims Americans with Disabilities (ADA) Discrimination Title VII Due Process/Wrongful Termination 11

Lawsuit CIVIL RIGHTS CLAIMS Civil Rights Claims Americans with

12 Elements of Civil Rights Claims STATUTORY ELEMENTS DISCRIMINATION DUE PROCESS (procedural) NOTICE OPPORTUNITY TO BE HEARD DUE PROCESS (substantive) Patient sues for substandard care Civil Rights Claims - Employment Federal court No cap on damages Possibility of punitive damages Willful, wanton, reckless acts Intentional acts Attorney s fees Your insurance MAY NOT cover defense! The Big Danger PUNITIVE DAMAGES 12

- Employment Federal court No cap on damages Possibility of punitive damages Willful, wanton, reckless

13 Juries are Unpredictable Gray Areas If you withdraw medical control and an employment action results, are you liable? Gray Areas If an EMT gives you incorrect info over the radio and you give orders accordingly, are you negligent? 13

14 Gray Areas If an EMT harms a patient through negligence, are you directly or indirectly liable for the EMTs actions? Part Three Contracts What is a contract? Legal, enforceable agreement Each party gives something and gets something (consideration) Defines the relationship between the parties Memorializes expectations and remuneration 14

Legal, enforceable agreement Each party gives something and gets something

15 Why a Contract? EMS medical control is a marketable skill It carries liability Your contract may help defend a lawsuit by defining your roles, authority and responsibility Why a Contract? Agencies need to understand their responsibility to YOU Many EMS systems want to give you responsibility but not authority! Academic Medicine You still need a contract It may be between your Department of EM and the agency Insurance coverage through public liability fund 15

your roles, authority and responsibility Agencies need to understand their responsibility to YOU Many EMS systems

16 Why a Contract? Scope, authority, responsibility Most doctors aren t trained in negotiating contracts Many MD s sell themselves short MD suits on the rise Forewarned is forearmed! Requires negotiation to reach a meeting of the minds Contract Contract should cite the EMS law in your state under which you function MD/EMT relationship defined Components 16

Many MD s sell themselves short MD suits on the rise Forewarned is forearmed!

17 Components Limitations and exceptions Reporting structure Advisor to FD EMS chief? What to do if someone breaches arbitration? lawsuit? Coverage 24/7/365? EMS MD Consortium model Components WHAT DO YOU GIVE List your services to include: Quality assurance activities - in field evaluation, retrospective chart review, in house evaluation Dispatch supervision and pre arrival instructions Training Physical assessments Liaison activities Components WHAT DO YOU GET? COMPENSATION BENEFITS- CME? TRAVEL REIMBURSEMENT VEHICLE? JUMP KIT? UNIFORM? PPE? PAGER, CELLPHONE, RADIO SUPPORT? OFFICE, SECRETARY, COPYING 17

EMS MD Consortium model Components WHAT DO YOU GIVE List your services to include: Quality assurance activities - in field evaluation, retrospective

18 Components Select how and where your contract disputes will be resolved Should be convenient to both parties Arbitration? Mediation? Lawsuit? Alternative dispute resolution The Big Question: DOES MY INSURANCE COVER THIS??? THE INSURANCE ISSUE Who insures you? For what? Field procedures? Admin/employment issues? Who pays for it? GOING BARE Insurance Issues 18

Alternative dispute resolution The Big Question: DOES MY INSURANCE COVER THIS?

19 Due Process Authority to withdraw/limit medical oversight Addendum to MD contract - due process? Any appeal right? County ordinance to prevent paramedic from getting medical control elsewhere Address whether you can protect paramedic s discipline, QA & training records from discovery Peer review immunity NAEMSP position paper in progress Indemnification Clauses USE EXTREME CAUTION when faced with these hold harmless clauses You may be asked to give up your statutory and constitutional rights and receive nothing in return Refuse to indemnify for employment issues I don t hire/i don t fire defense Don t be too hasty, too busy or too cheap to have an attorney review your proposed contract! Attorney Review 19

review immunity NAEMSP position paper in progress Indemnification Clauses USE EXTREME CAUTION when faced with these hold harmless clauses You may be asked to give up your

20 Negotiation and Compromise Negotiate and compromise It won t happen immediately Take the time to do it right! So here s a contract! 20

Legal Case Studies for EMS Physicians

Legal Case Studies for EMS Physicians W. Ann Maggiore, JD, NREMT-P Clinical Faculty UNM/School of Medicine Dep t of Emergency Medicine Overview EMS physicians infrequently brought into suits BUT: TREND