Staying out of Court for Emergency Responders Abigail Williams, RN, BSN, JD, MPH Abigail Williams &...

Staying out of Court

for Emergency Responders

Abigail Williams, RN, BSN, JD, MPHAbigail Williams & Associates PC

RI-1 DMAT Safety Officer

Who I am and What I do…

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

Why Are We Here ?

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 hissleep, 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, isn’t 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

don’t 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 Health Care Providers ?

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 ?

Abby’s Answer # 1


Abby’s answer #2


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 lawyer’s perspective Filing a claim and the litigation

process


“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…


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 lawyer’s 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 can’t 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 can’t 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 can’t 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


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….

In reverse order…..

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 can’t sue me…I can’t

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


Restraint

FDA guidelines OK to restrain for safety

Patient Staff Other

Once you restrain, you are responsible for the safety of the patient

Restraint

Isolation Quarantine DECONTAMINATION

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” 14th Amendment USC

The Sanders Court’s 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 individual’s 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 defendant’s 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

PlanningTraining

DebriefingPlanningTraining


Debriefing

PlanningTraining



Debriefing

PlanningTraining



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!!!!

Oh yeah…

Documentation JP Frog Tobash SPOS

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?


#2 You can’t always just pick up the phone for help.


#3 Warning signs are only good if you recognize them.

• Surveillance systems• Decontamination units

and other cool toys….


#4 Nobody relies on a complex disaster plan.


#5 In a drill, staff sit by their phones waiting for the call. In a disaster, they can’t be found.


#6 Just because your plan passes the regulatory or administrative standards doesn’t mean it will work.


#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.


#8 … Don’t forget the bad guys


#9 Nothing attracts freaks like a good disaster


#10 Your CEO will make a lousy Incident Commander

(no matter what he or she thinks!)


#11. A disaster is not the time to try new things.


#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

A lot of what we do requires risk taking…

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

Abby’s 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


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


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……

Questions????

Thank you!!!! Thank you very much

Abby WilliamsAbigail Williams &

Associates340 Main Street

Worcester, MA 01608Phone (508)795-1955

Fax (508)[email protected]

Staying out of Court for Emergency Responders Abigail Williams, RN, BSN, JD, MPH Abigail Williams &...

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