Chapter 13 - EMS
Article 13-31 (Dec. 2011)
Article 13-30 (Oct. 2011)
Link: OHIO: AMBULANCE STAFFING - NEW STATUTE
Article 13-28 (June 2011)
Link: OHIO: MEDICAL PROVIDER'S EXPRESSON OF SYMPATHY IS NOT ADMISSIBLE
Article 13-27
NEW MEXICO - TWO FF WERE SENT TO PARAMEDIC 14-MONTH SCHOOL AT FD EXPENSE AND ON PAYROLL – EACH SIGNED CONTRACT AGREEING TO RUN AS PARAMEDICS AT FD FOR TWO YEARS - ONE RESIGNED 6 MONTHS, OTHER 7 MONTHS - LAWSUIT TO COLLECT PAYMENT DISMISSED BECAUSE FD DID NOT BARGAIN WITH UNION ON THIS NEW PROGRAM
On Feb. 7, 2011, in County of Los Alamos v. John Martinez, Michael Dickman, and Robbie Stibbard, President of Local #3279, Court of Appeals of New Mexico, 2011 N.M. App. LEXIS 21, 2011 NMCA 27, the Court the trial judge’s grant of summary judgment to the union. “The district court determined that paramedic training contracts are subjects of mandatory bargaining and that the County may not unilaterally enter into such contracts with Union members without including the Union in its negotiations. For the reasons that follow, we affirm the decision of the district court.”
The facts are set forth by the Court:
“Defendants John Paul Martinez and Michael Dickman (Defendants) were employees of the Los Alamos County Fire Department and members of the Union. Defendants were accepted to participate in a voluntary paramedic training program at Eastern New Mexico University in Roswell, New Mexico. The County offered contracts to Defendants called housing agreements, which Defendants entered into with the County. The contracts provided that the County would allow Defendants to continue their employment on paid status with full salary while they attended the paramedic training, that it would provide per diem or reimbursement for lodging, meals, and travel, and that it would make a vehicle available to them to drive to and from Roswell.
Defendants agreed that in return they would comply with several provisions in the contract, including maintaining employment as firefighter paramedics with the County for at least two years after completion of the fourteen-month training program. A failure to abide by the terms of the contract could result in disciplinary action up to and including termination. Further, Defendants agreed that if they failed to complete the training or maintain employment with the County as provided by the contract, they would reimburse the County for all expenses incurred by the County associated with the training. The County could, in its sole discretion, waive the reimbursement requirement for good cause shown.
Both Defendants executed a contract with the County, and both completed the paramedic training program. Martinez signed his contract and remained employed with the County for seven months after completing the program. He then voluntarily left his employment without making reimbursement. Dickman signed his contract and remained employed for six months after completing the program. He also voluntarily left his employment without making reimbursement.”
County sued two paramedics
The County sued the two paramedics for breach of contract and restitution. In early 2007, several months after the lawsuit was filed, the Local filed a motion to Intervene, which the trial judge granted.
Union intervenes
The union’s complaint in intervention requested a declaratory judgment that the paramedic training contracts were void “because the issue involved a subject of mandatory bargaining that had not been negotiated with the Union and the contracts were therefore unenforceable.”
The County argued that under their Management rights clause in the Collective Bargaining Agreement (January 1, 2004, through December 31, 2005), they had the right to enter into contracts with the two paramedics. They also argued that the so-called “zipper clause” in the CBA there was need to negotiate the contracts. Zipper clause includes: “The parties agree that this is the complete and only agreement between the parties.”
The Court disagreed. “The district court did not err in determining in the summary judgment proceeding that, as a matter of law, the Union did not waive its right to bargain based on the zipper clause.”
Legal Lessons Learned: If your FD has a CBA which is silent about 2-year “work off” obligation for reimbursement of paramedic training, it would be advisable to reach agreement with the union on this new condition of employment.
Article 13-26
D.C. - “PATIENT BILL OF RIGHTS” TO BE POSTED IN EACH D.C. FIRE / EMS DEPARTMENT AMBULANCE - SUPERVISORY REVIEW OF NON-TRANSPORTS ADDED IN 2010
Effective March 9, 2011, the District of Columbia Fire & EMS Department has implemented a “Patient Bill of Rights.” The Department has published the document on their website and as a General Order (required reading for all personnel) and plans to mount a copy in each ambulance. The FD kindly given me permission to reproduce the document and they encourage other jurisdictions to consider adoption of these principles:
DISTRICT OF COLUMBIA FIRE & EMS DEPARTMENT
PATIENT BILL OF RIGHTS
As our patient, you have the right to expect competent and compassionate service from us. If you have any questions, comments, compliments, or complaints about our service you are encouraged to call the Office of the Fire & EMS Chief at 202-673-3320, or email us at: director.fems@dc.gov.
YOU MAY EXPECT:
1. To receive timely and appropriate medical services without regard to age, race, religion, gender, sexual orientation, national origin, disability, or any other protected class.
2. To be transported in a clean and properly maintained ambulance to an appropriate medical facility. We may not be able to take you to the hospital of your choice.
3. That we will never refuse to transport you and we will never use any method to discourage you from receiving medical treatment or transportation.
4. To have your vital signs checked and documented whether or not you are transported to a hospital.
5. To have your past medical history, medications and your current complaint of illness or injury, along with the assessment, interventions and treatment performed by our emergency personnel, thoroughly and truthfully documented on your patient care report.
6. That your patient care report and protected health information will be securely retained and stored, remain confidential and be available for your review, as required by law.
7. That you can refuse drugs, treatment, procedures or transportation offered to the extent permitted by law, and to be informed of the potential consequences of the refusal of any drugs, treatment, procedures or transportation.
8. That all of our personnel who come to help you will be clean, neat, dressed in the appropriate uniforms, and looking professional.
9. That our personnel will explain to you or your family what is being done to assist you, and we will answer any questions you may have about your treatment. If you speak another language, assistance will be provided so you can make informed health care decisions.
10. That all of our personnel will be polite, compassionate, considerate, empathetic, respectful and well-mannered. Any employee will furnish their unit number and Fire/EMS Department ID number upon request.
11. That your privacy, modesty and comfort will be our concern.
12. To receive, upon request, a reasonable explanation of any charges for emergency medical care provided by us.
Please remember that you have the responsibility to cooperate with our personnel so we can provide the best and correct type of care for you.
EMS Task Force – Continuous Improvement; D.C. Mayor’s Press Release
On March 30, 2011, Mayor Vincent Gray issued a press release which discussed continuing improvements in EMS services:
Mayor Vincent C. Gray today introduced a “Patient Bill of Rights” that has been developed and implemented by the District of Columbia’s Fire and Emergency Medical Services (FEMS) Department. “The men and women of the District’s a Fire and Emergency Medical Services Department strive to provide the best possible service each and every day,” Mayor Gray said. “In concert with a strategic plan we have developed and to implement the comprehensive recommendations of the EMS Task Force, the DC Fire and EMS Department has made, and will continue to make, system-wide improvements and operational adjustments. A‘Bill of Rights’ for each patient is one of these improvements.”
Annually, FEMS responds to about 160,000 emergency calls for service. Over 130,000, or 80 percent, of these calls are medical in nature. FEMS has employed several solutions to problems with the system, including the “Street Calls” program, which identifies those patients who call frequently and regularly. This program finds other solutions than a transport to the emergency room and has resulted in a 50 percent reduction of repeat transports for patients involved in the program. In an effort to measure customer or patient satisfaction with FEMS, recent surveys or customer-satisfaction ratings among patients transported indicates that 95 percent were “very satisfied” or “satisfied” with EMS delivery and service.
To bring these efforts full circle and help clarify patients’ expectations, Acting DC Fire Chief Kenneth B. Ellerbe recently approved the implementation of the District of Columbia Fire and Emergency Medical Services Department Patient Bill of Rights. All patients have the right to expect: competent and compassionate service from FEMS, including timely and appropriate medical services; to be transported in a clean and properly maintained ambulance; that FEMS will never refuse to transport them; that FEMS personnel will check vital signs; that FEMS personnel will protect health information; that FEMS personnel will dress and act in a professional manner; that FEMS personnel will explain what is being done to assist patients; that FEMS personnel will be polite, compassionate, considerate and respectful; and that a patient’s privacy and comfort will be of utmost concern to FEMS personnel. http://mayor.dc.gov/DC/Mayor/About+the+Mayor/News+Room/Press+Releases/Mayor+Gray+Releases+Patient+Bill+of+Rights+Developed+by+DC+Fire+and+Emergency+Medical+Services.
Historical Background
The Bill of Rights can also be found online at: http://fems.dc.gov/DC/FEMS/About+FEMS/Publications/DC+Patient+Bill+of+Rights.
Assistant Fire Chief Rafael Sa’adah, rafael.saadah@dc.gov, advises that the healthcare bill of rights concept can be traced to 1997, when President Bill Clinton established an Advisory Commission on Consumer Protection and Quality in the Health Care Industry which developed a “Patient Bill of Rights.” http://govinfo.library.unt.edu/hcquality/press/potus1.html. He also notes that the Nashville Fire Department should be credited as an early adopter of this concept for EMS, and that most EMS patient bill of rights, including DC’s, are based on Nashville’s template.
Nashville FD
In 1999, the Nashville FD established a Patient’s Bill of Rights: http://nashfire.org/ems/pbor.htm. Nashville FD’s Medical Director, Dr. Corey Slovis, corey.slovis@vanderbilt.edu, kindly called the author of this Newsletter to confirm that the posted Bill of Rights is the original language adopted in 1999, and it is still in active use.
In March, 2003, Dr. Slovis, Dr. Keith Wren, and Nashville FD Deputy Fire Chief Steve Meador wrote an article in JEMS about their Bill of Rights, www.jems.com; abstract at http://www.ncbi.nlm.nih.gov/pubmed/12652278.
DC’s 2010 Supervisory Review Of Non-Transports
According to press reports, this Patient Bill of Rights was developed in part because of an EMS run on Feb. 10, 2010 where a 2-year old girl with breathing problems was not initially transported to the hospital by DC Fire & EMS. She was transported several hours later after a second 911 response, and subsequently died at the hospital of pneumonia http://www.jems.com/article/news/dc-officials-try-improve-ems-a.
In March 2010, then-Fire & EMS Chief Dennis L. Rubin implemented a new policy requiring supervisory review and approval of all non-transports. He also pledged to implement a Patient Bill of Rights. That pledge was completed by new Fire & EMS Chief Kenneth B. Ellerbe, who took office in January 2011.
Legal Lessons Learned: The DC Fire/EMS Department has taken a very positive step in developing the Patient Bill of Rights.
Article 13-25
TESTIMONY IN MUDER TRIAL - EMERGENCY ROOM NURSE AND NEIGHBORS OF VICTIM WERE PROPERLY ALLOWED TO TESTIFY ABOUT WHAT VICTIM TOLD THEM BEFORE SHE DIED - GOOD LESSON FOR EMS
On Oct. 4, 2010, in Leon Wilson v. Mary Berghuis, Warden, 2010 U.S. Dist. LEXIS 11690, U.S. District Court for Western District of Michigan, a federal Magistrate denied the petition for a writ of habeas corpus by a Michigan inmate convicted of second degree murder in state court. The Magistrate held that the jury was properly allowed to hear the testimony by ER nurse and victim’s neighbors about injured woman’s statements to them.
Their testimony did not violate the 6th Amendment. The Sixth Amendment's Confrontation Clause provides that, "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him."
The Magistrate described the graphic facts:
On June 23, 2002, Grand Rapids police officer responded to a vehicle fire. Officer McCarthy “was unable to get near the burning vehicle because it was ‘completely engulfed’ in flames, but ‘it didn't appear anyone was inside.’ (Tr. 63). Officer McCarthy then heard someone yell, ‘hey, over here.’ (Tr. 63). McCarthy ran to the location and observed a female who was ‘completely naked and was still smoking.’ (Tr. 63-66).
As Officer McCarthy described the woman's condition:
Her entire body was burned. Her hair and her head and her pubic hair was still smoking, her body was smoking. For lack of a better term, there was skin dripping off her body on to the end of the driveway."
Defendant told police officers “a story” that was shown to be false:
“Petitioner [Leon Wilson] reported that the victim, Ladena, had contacted him to report that her vehicle was out of gas. (Tr. 68). According to Petitioner, he and Ladena rode in Petitioner's vehicle to a gas station where Ladena filled a container with five dollars worth of gas. (Tr. 68). Petitioner stated that Ladena then reentered his vehicle and placed the gas cannister between her legs, at which point Petitioner returned to Neland Avenue. (Tr. 68-69). According to Petitioner, when he arrived at the location on Neland, he exited the vehicle. (Tr. 69). Petitioner reported that Ladena then began smoking a cigarette which caused ‘a huge fire.’ (Tr. 69-70). According to Petitioner, Ladena then exited the vehicle, at which point he ‘rolled her on the ground to put the flames out.’ (Tr. 70).’
The prosecutor called Cheryl Huberts, ER Nurse:
“Huberts was employed as an emergency room nurse. (Trial Transcript, January 15, 2004, 75-76). Huberts treated Ladena Wilson when she arrived at the hospital that evening. (Tr. 76). When Wilson arrived she was alert and responsive to questions. (Tr. 76-78). As Wilson was being treated, Huberts asked her ‘is there anything you want me to say to anybody?’ to which Wilson responded, ‘tell her babies that she loved them and that their daddy did this to her.’(Tr. 78).”
The prosecutor also called several neighbors, including Fredrick Thomas:
Thomas “witnessed the pair ‘fussing in the SUV.’ (Tr. 46). Immediately thereafter, Thomas witnessed an explosion, immediately after which ‘he gets out and she jumps out and said he set me on fire.’ (Tr. 46). The woman then began running around ‘hollering’: ‘Please, somebody help me. He set me on fire. Please somebody help me. He set me on fire.’”
The federal Magistrate held that each of these witnesses could testify about Ladena Wilson’s statements. “[The] statements in question were made to ordinary citizens who were neither acting with nor as agents of law enforcement. There exists no clearly established Supreme Court authority that the statements in question fall within the purview of the Confrontation Clause.”
The federal Magistrate also reviewed the U.S. Supreme Court’s decision in Crawford v. Washington, 541 U.S. 36 (2004). The federal Magistrate found that this important decision, rendered two years after Mr. Wilson’s conviction, does not prohibit testimony by the ER nurse and the neighbors, since they were not law enforcement personnel.
Michael Crawford stabbed a man who allegedly tried to rape his wife, Sylvia. At his trial, the State played for the jury Sylvia's tape-recorded statement to the police describing the stabbing, even though he had no opportunity for cross-examination. The Washington Supreme Court upheld petitioner's conviction after determining that Sylvia's statement was reliable. The question presented is whether this procedure complied with the Sixth Amendment's guarantee that, "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him."
At trial, Mr. Crawford claimed self-defense and wanted to call his wife, Sylvia, who was present during the incident. His wife refused to testify under State of Washington marital privilege statute, which generally bars a spouse from testifying without the other spouse’s consent. The prosecutor then played for the jury Sylvia’s tape-recorded statements to the police where she told them the stabbing was not in self-defense. The U.S. Supreme Court reversed the conviction:
“In this case, the State admitted Sylvia's testimonial statement against petitioner, despite the fact that he had no opportunity to cross-examine her. That alone is sufficient to make out a violation of the Sixth Amendment.”
The federal Magistrate ruled that even if Crawford was applied retroactively, the testimony by neighbors and ER nurse was proper.
“There exists no clearly established Supreme Court authority that the statements in question fall within the purview of the Confrontation Clause. Moreover, there exists persuasive authority that the challenged testimony does not constitute ‘testimonial statements’ and, therefore, its admission does not implicate Petitioner's Confrontation Clause rights.”
Legal Lessons Learned: If EMS or firefighters hear a victim describe the criminal conduct of another which caused their injuries, include this in your run report; it will be very helpful when you testify in Court.
Article 13-24
EMS: PARAMEDIC SUED FD AND MEDICAL DIRECTOR AFTER HE WAS SUSPENDED FROM PARAMEDIC DUTIES - ANGER MANAGEMENT - MEDICAL DIRECTOR PROPERLY DISMISSED FROM CASE BUT PLAINTIFF CAN SEEK TO PROVE FD SHOULD HAVE GIVEN HIM DUE PROCESS HEARING
On Sept. 16, 2010, in Bryan Braswell v. Shoreline Fire Department (WA) and Dr. Gary Somers, U.S. Court of Appeals for the 9th Circuit in San Francisco, 2010 U.S. App. LEXIS 19308, held that a Federal Judge in Seattle properly dismissed the FF’s claim that the Medical Director tortuously interfered with his employment, since the FF does not have a sufficient “property interest” in his job to support such a claim. The Court of Appeals, however, in an unusual decision, remanded the case for further discovery against the FD on the claim that the FD breached his “liberty interest” in finding a future a paramedic position with another FD. http://www.ca9.uscourts.gov/datastore/opinions/2010/09/16/09-35974.pdf.
EMS run that led to suspension of duties:
“On November 30, 2005, Plaintiff and his paramedic partner were dispatched to the residence of Tommy Davis, who had called emergency services complaining of chest pain. As part of the examination, Plaintiff asked whether Mr. Davis had used any recreational drugs that evening. Mr. Davis became agitated. Plaintiff administered a lung exam and instructed Mr. Davis to breathe deeply. However, Mr. Davis either would not or could not comply. Plaintiff bent down and spoke directly into Mr. Davis' face, instructing him repeatedly to breathe deeply. After several requests, Mr. Davis became angry and asked Plaintiff what his problem was. Plaintiff repeated his instructions and asked Mr. Davis to give him ‘a little less attitude.’
The exchange between Plaintiff and Mr. Davis led to a verbal altercation. Mr. Davis stood up and threw a file folder on a desk so forcefully that papers and objects flew off the desk. Mr. Davis told the paramedics to leave. Plaintiff asked Mr. Davis to fill out a release form stating that he did not consent to treatment. Mr. Davis replied, using profanities, that he would not sign the form. In the course of the altercation, Plaintiff asked whether he should call the police, and Mr. Davis responded that he would give Plaintiff a reason to throw him in jail. Feeling physically threatened and suspecting that Mr. Davis, who was rummaging through desk drawers, might be looking for a weapon, Plaintiff and his partner left without treating Mr. Davis or obtaining a release form.
The next day, Plaintiff met with his fire department supervisors and two union representatives to discuss the incident. Several days later, Plaintiff met with the chief of the fire department, the deputy chief, and Dr. Somers. Dr. Somers, after having reviewed written statements from witnesses, stated that Plaintiff had an anger management problem, that he failed to identify medically significant symptoms in Mr. Davis, and that he abandoned Mr. Davis. Dr. Somers told Plaintiff that Plaintiff was no longer authorized to practice paramedicine under Dr. Somers' medical license.”
FF resigned his paramedic position: [Note: Court decision not clear on whether the Medical Director meant this to be a permanent revocation.]
“Because Dr. Somers had revoked Plaintiff's ability to practice under his medical license, Plaintiff could not legally practice paramedicine with Shoreline. See Wash. Rev. Code §§ 18.71.030(13), 18.71.205(6). For that reason, Shoreline reassigned Plaintiff from a paramedic position back to a firefighter position. Shoreline froze Plaintiff's salary at the higher paramedic level until his firefighter salary caught up to that level. Plaintiff's paramedic certification was not revoked, but it lapsed in 2007 when Plaintiff failed to seek recertification.”
Court of Appeals agrees that claim that Medical Director “tortuously interfered” with FF’s employment was properly dismissed.
“The United States Supreme Court has defined the boundaries of a ‘property interest’ in the context of the Fourteenth Amendment: To have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it. . . . Property interests, of course, are not created by the Constitution. Rather, they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law—rules or understandings that secure certain benefits and that support claims of entitlement to those benefits. Bd. of Regents of State Colls. v. Roth, 408 U.S. 564, 577 (1972)….
Plaintiff fails to demonstrate that Washington law creates a property interest in the statutorily required supervision by Dr. Somers. Plaintiff points to no Washington statute or regulation that limits a medical director's discretion to revoke a paramedic's permission to practice under his or her license. Without such a limit on a medical director's authority to revoke a paramedic's permission to practice, Plaintiff could not have a ‘legitimate claim of entitlement’ to that permission.”
But Court finds FF has a federal “liberty interest” in future employment: “Plaintiff also argues that Defendants violated his liberty interest in pursuing his profession as a paramedic when they revoked his permission to practice in a way that damaged his reputation, thereby effectively precluding him from ever finding other employment in his field. On this issue, we reverse the grant of summary judgment and remand for further proceedings. *** Here, Chief Marcus Kragness provided deposition testimony that Plaintiff would not likely be hired as a paramedic by any other fire department because of his removal from the Shoreline paramedic position. That testimony raises a triable issue of fact as to whether Plaintiff has suffered a deprivation of his liberty interest in pursuing his paramedical career.”
Legal Lessons Learned: FDs that are considering revoking a FF’s EMS duties for a substantial period of time, or terminating the FF (career, part-time or volunteer), should consider providing the employee with an administrative due process hearing (tape recorded or videotaped) before making the final decision.
Further Comment: This lawsuit was filed in federal court under 42 USC 1983 (a so called “1983 suit”). Title 42 U.S.C. § 1983 was enacted in 1871 after the Civil War, to allow lawsuits in federal court against state and local agencies when their officials violate the rights of US citizens. The statute provides that "[e]very person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof 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." These “1983 suits” have long been filed against police agencies, where plaintiffs allege police were inadequately trained or supervised, leading to death or injury or false arrest of another. Increasingly, “1983 suits” are being filed against fire & EMS departments. A local government cannot be sued under 42 U.S.C. § 1983 for injuries caused by its employees or agents unless it is the "execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy" that causes the injury. Monell v. Department of Social Services, 436 U.S. 658, 694 (1978). Maintaining detailed training records of fire & EMS personnel, including period reviews of EMS protocols and SOGs, and documented corrective actions, are essential in the defense of a “1983 suit.”
Article 13-23
OHIO: EMS - PATIENT WHO IS FLAILING, FIGHTING, SPITTING DURING TRANSPORT - BENDING BACK PATIENT’S WRIST TO CONTROL HIM NOT IN PROTOCOL AND PERHAPS NEGLIGENT - BUT NOT WILLFUL OR WANTON MISCONDUCT – LAWSUIT DISMISSED
On June 4, 2010 in Aaron M. Christie v. Violet Township Fire Department, the Court of Appeals for Fifth District, Fairfield, OH, held 2 to 1 that the trial judge should have granted the FD’s and the individual paramedics’ motion for summary judgment, and dismissed the lawsuit after pre-trial discovery was completed. http://www.fifthdist.org/may312010/Christie.pdf.V
Violet Township EMS were transporting the patient to the hospital following a seizure, and he began “flailing, kicking, fighting, spitting, and cursing” in the back of the ambulance.” At that point, a FD Lieutenant (who is also a part-time police officer) “applied the joint manipulation on [Christie’s] wrist.” The patient cried out, “it hurts, stop it” and he stopped trashing around. The pressure was released and he was safely brought to the ER, with no injuries to his wrist.
Court held:
“We find although the use of the procedure may have been negligent, there is no evidence that it was malicious, wanton or reckless in its application. All five responders stated it was the only way [Aaron Christie] became calm. Given these undisputed facts, and even if some termed [Christie] ‘an asshole’ after the incident, we find the actions complained of do not rise to the level of wanton and willful misconduct.”
The Dissenting judge would have allowed a jury to decide if the wrist lock constituted willful or wanton misconduct.
Legal Lessons Learned: Review with your Medical Director the protocol to be followed to control a violent patient. Ohio Rev. Code 4765.49 provides that EMS are “not liable in damages in a civil action for injury, death, or loss to person or property resulting from an individual’s administration of emergency medical services, unless administered in a manner that constitutes willful or wanton misconduct.”
Article 13-22
OHIO: EMS BLOOD DRAWS FOR POLICE IN DUI ARRESTS
Ohio General Assembly has enacted, and the Governor has signed into law, Substitute Senate Bill 58, which will become effective September 16, 2010. http://www.legislature.state.oh.us/bills.cfm?ID=128_SB_58.
Ohio Revised Code 1547.11 will now read:
“(D)(1)((b) ….Only a physician, a registered nurse, an emergency medical technician- intermediate, an emergency medical technician-paramedic, or a qualified technician, chemist, or phlebotomist shall withdraw blood for the purpose of determining the alcohol, drug, controlled substance, metabolite of a controlled substance, or combination content of the whole blood, blood serum, or blood plasma. This limitation does not apply to the taking of breath or urine specimens. A person authorized to withdraw blood under this division may refuse to withdraw blood under this division if, in that person's opinion, the physical welfare of the defendant or child would be endangered by withdrawing blood.”
[Underlined is new addition.]
Fortunately, the immunity provisions in Ohio Revised Code 4506.17 have also been amended:
“(F) A test of a person's whole blood or a person's blood serum or plasma given under this section shall comply with the applicable provisions of division (D) of section 4511.19 of the Revised Code and any physician, registered nurse, emergency medical technician-intermediate, emergency medical technician-paramedic, or qualified technician, chemist, or phlebotomist who withdraws whole blood or blood serum or plasma from a person under this section, and any hospital, first-aid station, clinic, or other facility at which whole blood or blood serum or plasma is withdrawn from a person pursuant to this section, is immune from criminal liability, and from civil liability that is based upon a claim of assault and battery or based upon any other claim of malpractice, for any act performed in withdrawing whole blood or blood serum or plasma from the person. The immunity provided in this division also extends to an emergency medical service organization that employs an emergency medical technician-intermediate or emergency medical technician-paramedic who withdraws blood under this section.
The Ohio EMS Board will be drafting new regulations. In the meantime, the Board has scheduled an Open Forum:
Tim Erskine [TErskine@DPS.STATE.OH.US]
7/28/2010
“An Open Forum will be held on Wednesday August 18 prior to the EMS Board meeting. It will include an overview of SB 58, medical concerns, and chain of custody considerations. A draft of the rules under development by the EMS Board will be presented and a Question and Answer session with a panel of representatives of law enforcement officers, medical personnel, and legal counsel will follow.”
Legal Lessons Learned: The author of this newsletter is a former Washington, D.C. police officer and federal / local prosecutor; we were well trained in “chain of custody” and courtroom testimony. Ohio EMS personnel will need similar training.
Article 13-21
OHIO: EMS - GURNEY COLLAPSED AND INJURED PATIENT - TRIAL JUDGE DENIED MOTION TO DISMISS TO ALLOW PRE-TRIAL DISCOVERY - COURT OF APPEALS REVERSES – COMPLAINT DID NOT ALLEGE SPECIFIC FACTS SHOWING WILLFUL OR WANTON MISCONDUCT - FACT THAT 911 CALL WAS FOR ANKLE INJURY AND DID NOT REQUIRE EMERGENCY TRANSPORT DOES NOT DEFEAT THE STATUTORY DEFENSE ENJOYED BY OHIO EMS & FIRE
On April 7, 2010, in Shirlena Mathis v. City of Cincinnati, et.al, the Ohio Court of Appeals for Hamilton County held (3 to 0) that the trial judge in Court of Common Pleas erred when the judge did not grant the motion to dismiss the City of Cincinnati and six EMS / Fire personnel. Mere “conclusory statements” that EMS / Fire conduct was willful or wanton misconduct is not enough to all pre-trial discovery (depositions; gurney maintenance records; etc) to proceed. http://www.hamilton-co.org/appealscourt/docs/decisions/C-090613_04072010.pdf.
Shirlena Mathis had injured her ankle the evening of June 6, 2007. The next day she dialed 911 and Cincinnati Fire Division ambulance responded and transported her to University Hospital. When the patient was loaded onto the gurney, it collapsed to the ground (opinion does not specify when this happened) and she suffered injury to her back. She filed a lawsuit against the City and six Fire / EMS personnel, seeking damages for pain & suffering, medical expenses and lost wages.
The City’s attorney promptly filed a motion to dismiss, prior to any pre-trial depositions or other pre-trial discovery, citing Ohio Revised Code 2744.02(A)(1). Under this statute, the Ohio General Assembly provided a general grant of immunity to political subdivisions against civil lawsuits for injury, death, or loss to person or property caused by any act or omission of the political subdivision or its employees in connection with a governmental or proprietary function.
The trial judge denied the motion to dismiss, so that plaintiff’s counsel can have pre-trial discovery and seek to find evidence about willful and wanton misconduct, including evidence concerning the gurney, its maintenance, and the training of EMS personnel. The City filed an immediate appeal, and the Court of Appeals agreed to hear the case on its accelerated calendar.
The Court of Appeals reversed the trial judge:
“Therefore, the judgment of the trial court is reversed, and … we hereby enter judgment for the appellants and dismiss Mathias’ complaint.”
The Court of Appeals flatly rejected the plaintiff’s argument that this case falls within the “Motor Vehicle Exception” to the City’s political subdivision general immunity. Under Ohio Rev. Code 2744.02(B)(1), political subdivisions may be liable for the negligent operations of their vehicles by employees.
The Court of Appeals held that this exception does not apply to EMS responding to an emergency call. Ohio Rev. Code 2744.02(B)(1)(c) “states that as long as the emergency medical employee is responding to an emergency medical call, and the employee’s conduct does not constitute willful or wanton misconduct, the City has immunity from civil liability.”
The fact that this EMS run would not require an emergency transport (red lights and siren) to the hospital does not change the statutory defense of the EMS personnel.
“While Mathis argues that the City’s employees were not responding to an emergency, ‘R.C. 2744.02(B)(1)(c) is intended to extend immunity based on the initial nature of the call, regardless of whether EMS personnel subsequently learn that immediate assistance is unnecessary.’”
[Quoting from 2002 decision in Bostic v. Cleveland, 8th Dist. No. 79336, 2002- Ohio- 333.]
The plaintiff’s complaint merely alleged that the EMS personnel engaged in willful or wanton misconduct when the gurney collapsed. That is not sufficient – specific facts need to be include in the complaint to meet the definition of “willful or wanton misconduct.” Willful misconduct is “an intent, purpose or design to injure.” Wanton misconduct involves the failure “to exercise any care whatsoever toward those whom [one] owes a duty of care, and [the] failure occurs under circumstances in which there is great probability that harm will occur.”
Legal Lessons Learned: Ohio EMS and fire personnel enjoy a broad statutory defense to civil liability. Hopefully trial judges will rely on this decision to promptly dismiss other lawsuits against EMS and fire. [Note: this case was decided by the Court of Appeals on its accelerated calendar, typically done to quickly dispose of cases, and therefore the Court did not issue a formal “opinion” of the Court.]
Article 13-20
OHIO – DISCLOURE OF PATIENT MEDICAL INFORMATION - EMPLOYEE BROKE HER RIGHT ELBOW WHILE OFF WORK AND ASKED HER DOCTOR TO COMPLETE FMLA FORM SUPPORTING TWO MONTHS OF MEDICAL LEAVE - DOCTOR DID NOT BREACH PATIENT’S RIGHTS WHEN CONFIRMED TO COMPANY SHE WAS MEDICALLY FIT TO PROMPTLY RETURN TO WORK ON LIGHT DUTY
On Sept. 30, 2009, in Garland v. Seven Seventeen Credit Union, Inc., et al.; Brodell, et al, 184 Ohio App. 339, 2009-Ohio-5214, the Ohio Court of Appeals for Trumbull County, held that the trial judge properly dismissed a lawsuit by a patient against a physician and his medical practice for disclosure of medical information to her employer. The plaintiff, Kim Garland, worked at the credit union for 15 years as a “teleservices representative” assisting customers on the telephone with loan applications.
On April 24, 2005 while off duty and at her mother’s house, she slipped n the floor and broke her right elbow. She went to an Urgent Care Center and then had follow care with her family physician, Dr. James Brodell, who gave her a note to keep her arm in a sling, and be off work for two months until June 27, 2005. At the request of the employer, Kim Garland had Dr. Brodell complete a Family Medical Leave Act (FMLA) form on April 27, 2005.
The Seven Seventeen credit union then sent a letter directly to Dr. Brodell asking if Kim Garland could return to work on May 9, 2005, if they provided her with light duty work (filing, alphabetizing letters, and proofreading forms).
Dr. Brodell agreed, with a handwritten note.
Km Garland returned to work, but on May 12, she bumped her injured right elbow on a file cabinet, and had to go to the local Emergency Room. She was then off work for several weeks, and finally returned to her regular job.
She then sued Dr. Brodell for “disclosure of confidential information” because he responded to the light duty letter from the credit union, without her prior authorization. The trial judge granted summary judgment to Dr. Brodell and dismissed her lawsuit.
The Ohio Court of Appeals agreed, citing the Ohio Supreme Court’s decision in Biddle v. Warren Gen. Hosp (1999), 86 Ohio St.3d 395, 715 N.E.2d 518:
“In Ohio, an independent tort exists for the unauthorized, unprivileged disclosure to a third party of nonpublic medical information that a physician or hospital has learned within a physician-patient relationship.”
The Ohio Court of Appeals (2 to 1) agreed with the trail judge who dismissed this lawsuit:
“The trial court concluded that Dr. Bodell was acting under the continued authorization of Garland when he responded to Seven Seventeen’s follow-up inquiry about revised job duties. We agree.”
The one dissenting judge criticized the employer for contacting the physician directly:
“Nevertheless, if Seven Seventeen wished for clarification of Dr. Brodell’s opinion, it was required to get Garland’s further authorization prior to contacting the doctor. It did not.”
Legal Lessons Learned: We are living in a “litigious society” and both doctors and EMS personnel may be very cautious in disclosure of patient health information without the patient’s written authorization.
Article 13-19
FED – HIPAA – U.S. DEPARTMENT OF HEALTH & HUMAN SERVICES ISSUES “BREACH NOTIFICATION RULE”
On August 24, 2009, the interim final regulations were issued. http://www.hhs.gov/ocr/privacy/hipaa/administrative/breachnotificationrule/
These regulations implement the “HITECH” statute passed by Congress, the Health Information Technology for Economic and Clinical Health. The statute defines a “breach” of HIPAA as the:
“unauthorized acquisition, access, use or disclosure of protected health information which compromises the security or privacy of the protected health information, except where an unauthorized person to whom the information was disclosed would not reasonably have been able to retain such information.”
The regulations provide for two different types of notifications:
• Breach involving more than 500 individuals:
“If a breach affects 500 or more individuals, a covered entity must provide the Secretary with notice of the breach without unreasonable delay and in no case later than 60 days from discovery of the breach.”
• Breach of less than 500:
“For breaches that affect fewer than 500 individuals, a covered entity must provide the Secretary with notice annually. All notifications of breaches occurring in a calendar year must be submitted within 60 days of the end of the calendar year in which the breaches occurred. Notifications of all breaches occurring after the effective date in 2009 must be submitted by March 1, 2010. This notice must be submitted electronically by following the link below and completing all information required on the breach notification form. A separate form must be completed for every breach that has occurred during the calendar year.
If a covered entity that has submitted a breach notification form to the Secretary discovers additional information to report, the covered entity may submit an additional form, checking the appropriate box to signal that it is an updated submission.”
http://www.hhs.gov/ocr/privacy/hipaa/administrative/breachnotificationrule/brinstruction.html
The on line form requires that you identify the cause of the breach, including:
• Theft
• Loss
• Improper Disclosure
• Unauthorized Access
• Hacking / IT Incident
http://transparency.cit.nih.gov/breach/index.cfm
Legal Lessons Learned: FDs and EMS departments should review these regulations during HIPAA training. The department’s EMS Officer should carefully read these regulations.
Article 13-18
OHIO: HEPATITIS-B - HOSPITAL NOTIFIED PATIENTS THAT A “NONEMPLOYEE HEALTH CARE WORKER” MAY HAVE INFECTED THEM - SURGEON WHO DID HEART-VALVE REPLACEMENT MUST TESTIFY ABOUT HIS PERSONAL MEDICAL HISTORY
On Sept. 16, 2009, in Ward et al v. Summa Health System, et al, 184 Ohio App. 3d 254, 2009-Ohio-4859 (Court of Appeals of Ohio, Ninth District, Summit County), Donald Ward and his wife, Susan Ward, sued the hospital and several “John Does” after Donald Ward contracted Hepatitis B (she had previously been vaccinated).
About one month after this surgery, the Akron City Hospital learned that a health care worker, a “nonemployee health-care worker” at the hospital had Hepatitis-B. The hospital conducted an investigation and under a “look-back program” notified patients of their possible exposure. Donald Ward was informed that this health-care worker started exhibiting symptoms of jaundice about one month after his surgery and he was one of the patients who had contact with this unnamed person.
The Hospital’s Director of Infectious Control and Clinical Safety prepared “unusual-occurrence reports.” Those reports included information from hospital workers who were informed that the information would be confidential, and protected from disclosure under the “peer review” and “risk-management” confidentiality provisions in the Ohio Revised Code (Ohio Rev. Code 2305.24, 2305.251, 2305.253 and 2317.02(A)). The Director provided plaintiffs’ with an affidavit to this effect, and refused to turn over any of the “unusual-occurrence reports.”
The plaintiffs therefore sought to take the deposition of Dr. Robert Debski, who had performed the heart valve surgery. He is a “nonemployee health-care worker” at the hospital. Prior to his deposition, Dr. Debski’s attorney advised that while he would testify about the surgery he performed, he would refuse to answer any questions related to the doctor’s personal medical history.
Mr. and Mrs. Ward filed a motion to compel Dr. Debski to testify, and Dr. Debski filed a motion for a protective order. The Court of Common Pleas judge denied the Wards’ motion to compel, refused to review the hospital’s “unusual-occurrence reports” in camera (in his chambers), and granted Dr. Debski’s motion for a protective order. When plaintiffs did not file an affidavit of merit from a medical expert, confirming there was medical malpractice, the judge also dismissed their lawsuit.
The Court of Appeals reversed the trial judge, holding:
(1) The Hospital records are confidential only if a “peer-review committee” at the Hospital actually investigated the incident.” The trial judge must hold a hearing to confirm this.
(2) Dr. Debski can be deposed about whether he had the Hepatitis-B virus.
“While Dr. Debski is a physician, the testimony being sought concerns his role as a patient: the Wards do not wish to ask Dr. Debski about his patients or their record; the Wards want to ask Dr. Debski about himself. Nothing in the plain language of the [physician- patient confidentiality statute, Ohio Rev. Code 2317.02(B)(1)] prohibits this inquiry.”
Legal Lessons Learned: FDs that learn a member has Hepatitis-B or other infectious disease should also conduct a “look-back program” and notify patients and others who may have been exposed. Ohio Rev. Code 4765.12 protects EMS peer review and quality assurance programs:
“Information generated solely for use in a peer review or quality assurance program conducted on behalf of an emergency medical service organization is not a public record under section 149.43 of the Revised Code. Such information, and any discussion conducted in the course of a peer review or quality assurance program conducted on behalf of an emergency medical service organization, is not subject to discovery in a civil action and shall not be introduced into evidence in a civil action against the emergency medical service organization on whose behalf the information was generated or the discussion occurred.
No emergency medical service organization on whose behalf a peer review or quality assurance program is conducted, and no person who conducts such a program, because of performing such functions, shall be liable in a civil action for betrayal of professional confidence or otherwise in the absence of willful or wanton misconduct.”
[Note: In 2005, Congress passed the Patient Safety and Quality Improvement Act, Pub. Law 109-41, that encourages thorough safety investigations by hospitals and other health providers. The safety investigation reports are protected from disclosure. “Patient safety work product” reports are privileged and may not be disclosed, except under very narrow exceptions. http://www.pso.ahrq.gov/statute/pl109-41.htm ]
Article 13-17
FEDERAL: “RYAN WHITE ACT” AMENDED - HOSPITALS MUST AGAIN NOTIFY EMERGENCY RESPONDERS OF EXPOSURE TO LIFE-THREATENING INFECTIOUS DISEASES
On Oct. 20, 2009, the ‘‘Ryan White HIV/AIDS Treatment Extension Act of 2009’’ was signed into law by President Obama. The original law was passed in 1990, and was named after the Indiana teenager who contracted AIDS from a hemophilia treatment in 1984, and died April 8, 1990. The revised Act again requires hospitals to notify the emergency responders’ department within 48 hours if a patient was transported to the hospital with certain “potentially life-threatening” infectious diseases (that provision was deleted during the 2006 reauthorization). The new Act can be read by Google search or at GPO (Government Printing Office) web: http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=111_cong_bills&docid=f:s1793enr.txt.pdf.
The U.S. Department of Health & Human Services, http://hab.hrsa.gov/, has 180 days to issue new guidelines to hospitals on the diseases that must be disclosed to emergency responders. Under the old guidelines, the following infectious diseases were included:
• Infectious pulmonary tuberculosis
• Hemorrhagic fevers
• Hepatitis B
• Meningococcal disease
• HIV, including AIDS
• Plague
• Diphtheria
• Rabies (http://www.iaff.org/hs/pdf/ryanwhiteact.pdf).
NOTIFICATION WITHIN 48 HOURS TO EMERGENCY RESPONDERS’ “DESIGNATED OFFICER”
Hospitals and other medical treating facilities are not required to contact the transporting EMS personnel, but they must contact the FD or EMS Department’s “designated officer.” That officer must then inform all department personnel who had possible exposure.
For example, the Act provides:
SEC. 2695A. ROUTINE NOTIFICATIONS WITH RESPECT TO AIRBORNE
INFECTIOUS DISEASES IN VICTIMS ASSISTED.
(a) ROUTINE NOTIFICATION OF DESIGNATED OFFICER.—
(1) DETERMINATION BY TREATING FACILITY.—If a victim
of an emergency is transported by emergency response
employees to a medical facility and the medical facility makes
a determination that the victim has an airborne infectious
disease, the medical facility shall notify the designated officer
of the emergency response employees who transported the
victim to the medical facility of the determination.
(2) DETERMINATION BY FACILITY ASCERTAINING CAUSE OF
DEATH.—If a victim of an emergency is transported by emergency response employees to a medical facility and the victim dies at or before reaching the medical facility, the medical facility ascertaining the cause of death shall notify the designated officer of the emergency response employees who transported the victim to the initial medical facility of any determination by the medical facility that the victim had an airborne infectious disease.
(b) REQUIREMENT OF PROMPT NOTIFICATION.—With respect to a determination described in paragraph (1) or (2) of subsection
(a), the notification required in each of such paragraphs shall be made as soon as is practicable, but not later than 48 hours after the determination is made.
DUTIES OF THE “DESIGNATED OFFICER” FROM EMERGENCY RESPONDER’S DEPARTMENT
The Act defines the duties of the designated officer.
SEC. 2695B. REQUEST FOR NOTIFICATION WITH RESPECT TO VICTIMS ASSISTED.
(2) INITIATION OF PROCESS BY EMPLOYEE.—If an emergency response employee believes that the employee may have been exposed to an infectious disease by a victim of an emergency who was transported to a medical facility as a result of the emergency, and if the employee attended, treated, assisted, or transported the victim pursuant to the emergency, then the designated officer of the employee shall, upon the request of the employee, carry out the duties described in subsection (b) regarding a determination of whether the employee may have been exposed to an infectious disease by the victim.
(b) INITIAL DETERMINATION BY DESIGNATED OFFICER.—The duties referred to in subsection (a) are that—
(2) the designated officer involved collect the facts relating to the circumstances under which, for purposes of subsection
(a), the employee involved may have been exposed to an infectious disease; and
(2) the designated officer evaluate such facts and make a determination of whether, if the victim involved had any infectious disease included on the list issued under paragraph (2) of section 2695(a), the employee would have been exposed to the disease under such facts, as indicated by the guidelines issued under paragraph (2) of such section.
I SUBMISSION OF REQUEST TO MEDICAL FACILITY.—
(1) IN GENERAL.—If a designated officer makes a determination
under subsection (b)(2) that an emergency response
employee may have been exposed to an infectious disease, the
designated officer shall submit to the medical facility to which
the victim involved was transported a request for a response
under subsection (d) regarding the victim of the emergency
involved.
(2) FORM OF REQUEST.—A request under paragraph (1)
shall be in writing and be signed by the designated officer
involved, and shall contain a statement of the facts collected
pursuant to subsection (b)(1).
WHY WAS THE NOTIFICATIONS PROVISIONS DROPPED IN 2006?
Good question. The Act has been reauthorized four times, and while the amount of funding and types of grants has been controversial, the notification provisions were not. When President Obama signed into law the 2009 Act (with Ryan White’s mother present in the White House), he referenced the funding controversy but said nothing about the notification issue: “In a few minutes, I’m going to sign the fourth reauthorization of the Ryan White CARE Act. Now, in the past, policy differences have made reauthorizations of this program divisive and controversial.” http://www.whitehouse.gov/the-press-office/remarks-president-signing-ryan-white-hivaids-treatment-extension-act-2009.
Some have speculated that it was merely a Congressional staff decision, and the deletion was not caught before it went to President Bush for signature in 2006. Others have speculated that it was deleted intentionally by hospital lobbyists: http://en.wikipedia.org/wiki/Ryan_White.
Fortunately, the International Association of Fire Chiefs, IAFF, and other fire and EMS service organizations learned of this 2006 deletion, and effectively “lobbied” for its reinstatement:
http://www.iafc.org/displayindustryarticle.cfm?articlenbr=41048; see also National Association of State EMS Officials, http://www.nasemso.org/.
[Personal note: In about 1987, the FD on was then serving on started giving firefighters Hepatitis B shots; we learned from a police officer, almost one year after the run, that a deceased driver entrapped in a MVA crash into a building had hepatitis. Fortunately, none of our personnel became infected.]
Legal Lessons Learned: FD / EMS should appoint a “designated officer” for receiving hospital notifications (such as your EMS Officer). Suggestion – that officer should personally go to each hospital in your area and provide their name and contact information to that hospital’s notification person; also send a confirming letter, with marked copy to the Hospital’s ER Medical Director.
Article 13-16
FLORIDA – PATIENT DIES DURING STRUGGLE AT PSYCHIATRIC FACILITY WITH POLICE AND EMS - LAWSUIT AGANST EMS AND POLICE DISMISSED - QUALIFIED IMMUNITY
On Sept. 9, 2009, in Stephen Lillo, Personal Rep. of the Estate of John R. Lillo, Jr. v. Darrell A. Bruhn, et al, U.S. District Court for Northern District of Florida (Pensacola), 2009 U.S. Dist. LEXIS 82025, the Court dismissed two EMS and the police officers from this lawsuit alleging deprivation of civil rights under 42 U.S.C. 1983. The EMS and police are municipal employees who enjoy "qualified immunity" and plaintiff has shown no evidence they violated "clearly established constitutional rights of which a reasonable person would have known."
On Jan. 21, 2004, at about 10:30 pm, Officer Matthew Holt, Fort Walton Beach PD, observed John Lillo wandering in traffic. He knew Lillo and escorted him to the sidewalk. At about 11:40 pm, Officer Holt police again observed Lillo wandering in traffic; he was nude from the waste down and was defecating, in view of others outside a boarding house. He was arrested for disorderly conduct; Officer Holt called for back up because Lillo had been combative in the past.
Six officers responded. They handcuffed him, put him in the back of a cruiser, and because of his apparent psychotic condition, decided to take him to a psychiatric hospital (Bridgeland) for involuntary examination under the Florida "Baker Act." At about 12:20 a.m, while arriving at Bridgeland, Lillo shattered the rear window of the police cruiser. Police back-up was again called.
A nurse at Bridgeland assessed Lillo in the back of the cruiser; he was combative and did not want to go inside. The officers convinced Lillo to get out of the cruiser, and put leg restraints on him. They put him inside on a chair; he tried to get up and leave and struggled with the police.
The officers wrestled him to the ground. A nurse called the physician on duty, who proscribed Ativan and Geodon as needed to control his violent behavior. The drugs were administered; it takes about 20 minutes to take effect. At 1:10 am, a nurse called Ft. Walton Beach FD for EMTs to take him to a hospital for drug testing. A Battalion Chief (Robert Bullard), and two EMT responded. Lillo was on the floor, thrashing around and struggling against his restraints; Lillo was also hitting his head against the floor.
The Court wrote that as EMT Charles George, and police officers, restrained Lillo’s legs, Battalion Chief Bullard tried to stop Lillo from hitting the floor with his head. "In an effort to prevent Lillo from injuring himself, Bullard used his hands and knees to keep Lillo’s head still."
A paramedic and EMT from Okaloosa County EMS also responded. The paramedic, Wally Ebbert, called a physician at the Ft. Walton Beach Medical Center, who authorized the paramedic to administer intravenously Haldol, an anti-psychotic medication. The paramedic testified:
"after he administered Haldol to Lillo, Lillo continued to struggle, then suddenly stopped breathing; no pulse was detected at approximately 1:30 a.m. Officers immediately removed Lillo’s restraints, and Ebbert performed cardiopulmonary resuscitation, which restored Lillo’s pulse. At approximately 1:45 a.m., EMS transported Lillo to Ft. Walton Beach Medical Center, arriving 10 minutes later. Lillo was pronounced dead a 2:19 pm."
The autopsy by the Medical Examiner, Dr. Andrea Minyard, reported the cause of death as complications of acute psychosis. Her reported noted multiple abrasions, lascerations and contusions of the face, scalp and extremities, as well as deep contusions of the skin and muscle of the posterior neck.
Plaintiff’s expert, Dr. Michael Berkland, reviewed the autopsy photos and testified that Lillo had "extensive deep subcutaneous hemorrhage that extends down and involves the musculature of the cervical and upper thoracic spine." Based on the reports of Battalion Chief Bullard restraining Lillo’s head with his hands and knees, he also concluded:
" Lillo’s death was the result of asphyxia induced by compression and restraint of the neck and upper back."
The plaintiff sued all the police officers, plus Battalion Chief Ballard and FF / EMT Charles George, from Fort Walton Beach FD, alleging they violated his civil rights under 42 U.S.C. 1983; the plaintiff also claimed that they showed "deliberate indifference to a serious medical need."
Qualified Immunity doctrine:
"Qualified immunity protects municipal officers from liability under [42 U.S.C. Section] 1983, provided their actions were within the scope of their discretionary authority and did not violate clearly established constitutional rights of which a reasonable person would have known."
EMS dismissed - qualified immunity. The Court held:
"George, who was a firefighter and emergency medical technician, assisted Bullard by securing Lillo’s legs. In any event, given Lillo’s combative actions, the court finds it was necessary to apply some force to control Lillo. Based on the court’s findings of fact and the relevant law, it appears that Bullard and George are also entitled to summary judgment on the grounds of qualified immunity."
Police officers also dismissed:
"There is no evidentiary support for plaintiff’s suggestion that the officers (and presumably Chief Bullard and George) were motivated by maliciousness or a desire to punish Lillo at any point during the hour and a half the officers had Lillo in custody. Instead, the undisputed evidence shows that the officers were concerned for Lillo’s well- being, their own safety, and the safety of third parties. The court’s task is not to consider, in hindsight, what the officers could have or should have done differently…. Because the undisputed evidence shows the officers in this case did not violate Lillo’s constitutional rights, they are entitled to qualified immunity." [Case citation omitted.]
Legal Lessons Learned: When dealing with psychotic patients, bring lots of help and thoroughly document your actions.
Article 13-15
OHIO: EMT CAN TESTIFY IN MURDER TRIAL ABOUT COMMENTS OF VICTIM MADE IN AMBULANCE REGARDING HER ASSAILANTS - VICTIM DIED 36 HOURS LATER - EXCEPTION TO HEARSAY RULE
On Sept. 10, 2009, in State of Ohio v. Kathleen Steele and Anthony Pratt, the Court of Appeals for Cuyahoga County, 2009 Ohio 4704, 2009 Ohio App. LEXIS 3996, (3 to 0) reversed the trial judge, and held that EMS may testify about the comments the 80-year-old victim told them in the ambulance before she died 36-hours later. Patient knew she was talking to a medical provider, and her comments were therefore expected to be truthful.
Police responded to a 911 call and found Virginia Austin lying in the hallway floor outside her apartment, with her dress pulled up to her neck, and her breasts exposed. She had been struck in the head and extremities. Anthony Pratt and Kathleen Steele was still in her apartment, which had been ransacked.
Three brief interviews with victim:
Cleveland police officers responded to a 911 call, and talked to her as she lay on the floor outside her apartment. An officer asked Ms. Austin "if someone had broken into her house." She replied, "yes." The officer then asked if she had been sexually assaulted, and she said, "no."
EMS responded and placed her Ms. Austin on a cot, and put her in the ambulance. An EMT asked her "What happened inside, was there anybody inside the apartment who did that to her." Ms. Austin said, "that two people inside the apartment caused the injuries to her."
A Cleveland police officer, after EMT told him about victim’s comments, climbed into the back of the ambulance and asked Ms. Austin, "if she knew who did this to her." Ms. Austin nodded her head and said "yes." The officer then asked "if it was a man that had done that to her." Ms. Austin answered "yes." The officer then asked "if the man who had been standing in her apartment when we arrived had done this." Ms. Austin seemed to become frightened, and with tears welling in her eyes, said, "yes." The officer then asked "if his girlfriend, Kathleen Steele, did this, too." Ms. Austin answered, "yes."
Right To Confront Witnesses: The Sixth Amendment to the U.S. Constitution guarantees that a person accused of committing a crime has the right to confront and cross-examine witnesses testifying against him. The U.S. Supreme Court in Davis v. Washington, 547 U.S. 813 (2006), held that police interviews of a victim to enable police assistance to meet an ongoing emergency were admissible in evidence, even if the victim was deceased by the time of trial. Whereas, police interviews for the purpose of gathering evidence for prosecution were not admissible (improper gathering of "testimonial" evidence).
Applying those rules to this case, the police interview of Ms. Austin (Interview 1) while she was lying outside her apartment was admissible since the police had just arrived at a crime scene and had an ongoing emergency. However, the police interview in the ambulance was not admissible because the police had by then secured the scene. (Interview 3).
EMS questions to patient are judged by a different standard (Interview 2):
"Austin’s statements to the EMT in reviewed under a different standard. Unlike statements to law enforcement, statements to medical personnel are typically made in pursuit of treatment, not investigation. Statements to medical personnel are not made ‘under circumstances which lead an objective witness reasonably to believe that the statement would be available for use at a later trial.’ State v. Stahl (2006), 111 Ohio St.3d 186, 196, 2006 Ohio 5482, P36."
***
The 80-year-old Austin was in obvious physical and emotional distress as she lay in the ambulance, and any reasonable person under those circumstances would have understood the EMT’s questions as relating to medical care, not criminal investigation.
The Court therefore concluded that the "EMT questioned Austin for the primary purpose of medical treatment rather than to obtain information relevant to the police investigation. Austin’s statements, therefore, were nontestimonial" [are admissible at trial].
Concurring Judge (Sean C. Gallagher): He would also allow into evidence the police officers interview (Interview 3) in the back of the ambulance. "Here the testimony established, although the officers did not know it, the perpetrators were still on the scene; therefore it cannot be said the scene was secure." He would also allow the officers to testify since the victim’s comments were "excited circumstances" under Evidence Rule 803(2).
Legal Lessons Learned: EMS should carefully document statements by victims of crime. Many courts will allow "excited utterances" by a victim to be admitted. Evidence Rule 803(2) defines an excited utterance as "a statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by an event or condition."]
Article 13-14
OHIO: HINI FLU PANDEMIC - IF GOVERNOR DECLARES EMERGENCY, PARAMEDICS AND INTERMEDIATES MAY BE ATHUTHORIZED TO GIVE FLU SHOTS
On Aug. 21, 2009, the State Medical Director, Dr. Carol Cunningham, sent out letter that if Governor Strickland declares an emergency, Paramedics and Intermediates may give flu shots (1) after completing the training required by the Centers For Disease Control and Prevention, and (2) after a protocol is issued by the local public health agency. See http://www.ems.ohio.gov/ (click on "Position Papers").
The Ohio EMS Board does NOT recommend this be performed by first responders or EMT-basics.
Ohio Administrative Code 4765-6-03 provides authority for EMS to administer immunizations under physician medical direction after the Governor declares an emergency. The regulation provides in part that EMS may: "perform immunizations and administer drugs or dangerous drugs, in relation to the emergency, provided that first responder or EMT is under physician medical direction and has received appropriate training regarding the administration of such immunizations and / or drugs."
Legal Lessons Learned: Ohio FDs and EMS organizations need to coordinate with their Medical Advisors, and have local protocols in place approved by your Medical Advisor, prior to start of immunizations. Any adverse reactions by those receiving the immunization should be carefully documented. Suggestion: complete an EMS report, and carefully document instructions provided on seeking follow-up care by the person’s own physician.
Article 13-13
OHIO: CONFIDENTIAL MEDICAL RECORDS – OHIO SUPREME COURT SENDS "STRONG MESSAGE" THAT THOSE WHO IMPROPERLY DISCLOSE RECORDS CAN BE SUED FOR DAMAGES - ATTORNEY IN DIVORCE ACTION SUBPOENAED HUSBAND’S PSYCHIATRIC RECORDS, BUT THEN WITHOUT HIS PERMISSION GAVE THEM TO PROSECUTOR IN PENDING ASSAULT CASE
On July 9, 2008, the Ohio Supreme Court in Hageman v. Southwest General Health Ctr., 119 Ohio St.3d 185, 2008-Ohio-3343, held that release of a patient’s medical records, obtained through litigation, could result in personal liability for the attorney. This case should send a message to fire & EMS organizations regarding patient records – there is not only an obligation under HIPAA, but also under state law to protect patient medical information. Chief Justice Moyer wrote the opinion of the majority opinion (5 to 2). Kenneth Hageman began seeking psychiatric treatment in January, 2003, including homicidal thoughts about his wife. He was treated for bipolar disorder through July 2003. His wife filed for divorce in February, 2003 and was represented by attorney Barbara Belovich, Esq. Mr. Hageman filed a counterclaim in the divorce action, seeking custody of the couple’s minor child.
Article 13-12
KENTUCKY: PATIENT REFUSAL - DIED OF CARDIAC ARREST FIVE HOURS LATER – LAWSUIT BY SPOUSE AGAINST EMS IS REINSTATED - GOOD SAMARITAN IMMUNITY DOES NOT APPLY TO PAID EMS - RELEASE OF LIABILITY FORM CAN NOT STOP LAWSUIT FROM PROCEEDING SINCE FACTUAL DISPUTE ABOUT ADVICE GIVEN TO PATIENT
On August 22, 2008, in Rose Annette Cook vs. Anderson County Emergency Medical Services, et al., the Kentucky Court of Appeals, No. 2007-CA-000122 MR (Ky. App. 2008), held (3 to 0) that the trial judge improperly dismissed the two EMS (one paramedic and one EMT) from the lawsuit. The Court of Appeals ruled that the trial judge should not have dismissed the EMS, since Kentucky Good Samaritan statute, KRS 411.148(1), has a clear exception in 411.148(2): "[n]othing in this section applies to the administering of such care or treatment where the same is rendered for remuneration or with the expectation of remuneration." [Author’s comment – I have deleted their names since the case has not yet been tried.]
On May 11, 2006, David Cook was driving home, and became lightheaded ad pulled to the side of the road. Anderson County EMS was dispatched to the scene. They took vitals and an EKG, and determined he was dehydrated and needed to be transported to the hospital. Mr. Cook, instead, called his wife who responded to the scene.
Mr. Cook and Rose Cook signed the "Release of Liability / Refusal to Consent To Treatment" form, and she drove Mr. Cook home. Five hours later he suffered a cardiac arrest and died. Mrs. Cook filed a lawsuit against the two EMT, individually and as agents for Anderson County EMS, alleging negligence. She further alleged that Taylor altered and destroyed documents to cover-up the alleged negligence.
The two EMS filed a motion to dismiss, asserting they were immune from liability under the KY Good Samaritan statute, KRS 411.148(1), which states: "No … person certified as an emergency medical technician by the Kentucky Cabinet for Health and Family Services … shall be liable in civil damages for administering emergency medical care or treatment at the scene of an emergency…." The trial judge agreed to dismiss the lawsuit.
On appeal, the KY Court of Appeals reversed. Since the two EMS personnel are paid for their services, KRS 411.148(2) exempts them from the protections of the Good Samaritan immunity. The Kentucky Legislature has created one exemption - paid school teachers are immune from liability. The Court wrote: "The legislature chose only to carve out this one exception to the remuneration rule."
What about volunteer EMS? The Court said, "We do not opine that an EMT is without the protection of KRS 411.148 when responding as a volunteer. In fact, due to their specialized training, this would be the very action the legislature seeks to encourage with the enactment of KRS 411.148."
The two EMS also lost their argument that Mrs. Cook had waived her right to sue them, because she signed the "Release of Liability / Refusal To Consent To Transport" form. The Court held:
"There is a factual dispute, however, as to what was state by [the Paramedic] and [the EMT] to the Cooks about David’s condition. Rose states that [the Paramedic] advised them that David would be okay, an EKG had been performed and David’s hear was normal, and that he was just dehydrated. Rose also states that [the Paramedic] advised David to go home, get in the air conditioning, and drink Gatorade. She additionally contends that had they been told that David was having a heart attack, or that his EKG was abnormal, then they would have insisted he be transported to the hospital immediately and that she would not have signed the release form."
The Court noted that the two EMS "specifically state they advised David that he required further medical attention, requested to take him to the hospital and David, thereafter, refused medical transport."
Given these factual disputes, the Court held that a lawsuit should not be dismissed "unless the pleading party appears not to be entitled to relief under any state of facts which could be proved in support of his claim."
Legal Lessons Learned: In refusal cases, EMS should not only get the patent to sign the Refusal / Waiver form, they should also prepare a run report detailing the symptoms noted and their communication with the patient about the need to go with them to the hospital.
Article 13-11
OHIO EMS BOARD – EMS PERSONNEL SHOULD NOT CONDUCT BLOOD DRAWS FOR POLICE
E-mail of 12/23/08: Larry Bennett,
Attached Blood draw for OVI opinion and will soon be posted to our web page as soon as we can, as that information management system is currently down due to someone hacking in a virus. Thanks!
John E. Sands Chief EMS Operations Ohio Division of EMS 1-614-387-0649 off 1-614-995-7012 fax jesands@dps.state.oh.us
The following note is being posted on EMS Board web site:
Withdrawing Blood for OVI Evidence Collection
The EMS Board has received questions regarding whether an emergency medical technician (EMT) is authorized to withdraw blood for law enforcement purposes. Under current law, only the following individuals are authorized to withdraw blood for the purpose of determining its drug or alcohol content: a physician, a registered nurse, or a qualified technician, chemist, or phlebotomist. The question raised with the EMS Board has been whether an EMT is considered a "qualified technician" and therefore authorized to perform such blood draws.
The EMS Board has determined that an EMT does not appear to be a "qualified technician" for the purpose of withdrawing blood pursuant to a law enforcement matter. The certification provided to EMTs permits the performance of emergency medical services as set forth in Sections 4765.01, 4765.37, 4765.38, and 4765.39 of the Ohio Revised Code. The performance of withdrawing blood for the purpose of evidence collection does not constitute an "emergency medical service" as defined in the aforementioned laws and is not an element of emergency care. Therefore, the EMS Board has deemed that the performance of withdrawing blood for the purpose of evidence collection falls outside of the Ohio EMS scope of practice and would not qualify as an authorized emergency medical service performed in the role of an EMS provider.
Carol A. Cunningham, M.D., FACEP, FAAEM State Medical Director Ohio Department of Public Safety, Division of EMS
Legal Lessons Learned: Read details about the Ohio statute in my earlier article 13-10.
Article 13-10
OHIO: DUI – POLICE REQUESTING BLOOD DRAWS BY EMS - CAUTION
A new Ohio law became effective 9/30/08, which authorizes police under certain circumstances to draw blood from impaired drivers of motor vehicle and boats, without their consent. On June 23, 2008, the Ohio 127th General Assembly enacted Amended Substitute Senate Bill Number 17, http://www.legislature.state.oh.us. The bill was signed into law by the Governor on 6/27/08.
Article 13-9
TEXAS – TWO FIREFIGHTERS WERE TERMINATED FOR NOT PASSING PARAMEDIC TRAINING - EACH SIGNED AN AGREEMENT WHEN HIRED THAT BECOMING PARAMEDIC WAS JOB CONDITION - NOT ENTITLED TO APPEAL TO CIVIL SERVICE COMMISSION SINCE WERE NOT FIRED FOR DISCIPLINARY REASONS
On July 24, 2008, in Anthony R. Jackson and James Nunez v. City of Texas City, the Court of Appeals of Texas, First District, 2008 Tex. App. LEXIS 5573, held (2 to 1) that the trial judge properly dismissed their lawsuit after their termination. Both FF were hired in 2001, and as authorized under the Collective Bargaining Agreement with the FD Local, each firefighter signed a “Conditions Of Employment” document requiring they become EMT-paramedics.
In 2002, they both completed their probationary periods. In 2005, the Fire Chief assigned them to paramedic training classes. Neither FF was able to pass the training class, and therefore could not take the State certification exams.
In 2006, they were both terminated from the FD. Each received a letter from the Fire Chief with an offer of conditional reinstatement if they agreed to take an “educational leave of absence” without pay for eight months, obtain paramedic certification during that time at his own expense, repurchase uniforms, and agree to waive all appeal rights if he were unsuccessful in obtaining the required paramedic certification.”
Each FF rejected the Fire Chief’s offer, and they filed a lawsuit on August 11, 2006, asking the court to issue an injunction prohibiting the City from terminating them. The trial judge refused to issue the injunction, and instead granted the City motion to dismiss their lawsuit.
The Texas Court of Appeals agreed, holding that under Texas statutes, the firefighters were not entitled to a disciplinary suspension, and appeal to the City’s Civil Service Commission. “Section 174.006 of the Texas Local Governmental Code clearly gave Texas City and TCFD the authority to modify civil service requirements by a collective bargaining agreement.”
The Court of Appeals also rejected the two firefighters’ argument that the Fire Chief should have classified their terminations as “incompetence or shirking of their duty” whereby they would have been entitled to appeal to the civil service commission. The majority of the Court wrote, “Jackson and Nunez were terminated for failure to fulfill their conditions of employment under the provisions of the Conditions Of Employment agreements they both signed when they were first employed by TCFD.”
The one dissenting judge argued that the firefighters were in fact terminated for disciplinary reasons. “All that the firefighters want at this junction is the procedural right given to them by the legislature, which is the right to have a civil service review of their termination.”
LEGAL LESSONS LEARNED: A signed agreement to complete paramedic training and be certified by the State is binding. A best practice is to also specify the time period in which such certification must be obtained.
Article 13-8
BILLING: OHIO AG ISSUES OPINION CONFIRMING THAT A TOWNSHIP MAY BILL ITS RESIDENTS FOR FIRE PROTECTION SERVICES, EVEN WHEN THOSE SERVICES ARE BY CONTRACT WITH A VILLAGE FIRE DEPARTMENT
On Jan. 14, 2008, Ohio Attorney General Marc Dann issued Opinion 2008-001 to the Jackson County Prosecutor, confirming that a Township may bill its residents for fire protection services rendered by a nearby Village Fire Department
Article 13-7
EMS Billing – Transporting Patient Unable To Sign – Jan. 1, 2008 Medicare Regulations Require Additional Documentation
On Nov. 27, 2007, the U.S. Department of Health & Human Services, Centers of Medicare and Medicaid Services published their final rule, effective Jan. 1, 2008, requiring additional documentation for Medicare billing of emergency transports of patients who are physically or mentally unable to sign an Assignment of Benefits Form.
Apparently the Centers of Medicare and Medicaid Services (CMS) was concerned about fraud in the ambulance industry, including private ambulance services. The CMS commented that the new regulations would “help ensure that services were in fact rendered and were rendered as billed.” Fed. Reg., Nov. 27, 2007, Vol. 72, Nov. 227, page 66323 (the new regulations are in 42 CFR 424.36, which can be read on Electronic Code of Federal Regulation, http://ecfr.gposccess.gov).
Fire & EMS departments which bill for EMS services should modify their billing authorization form when transporting a patient unable to sign:
EMS crew member should indicate on the form the reason the patient is unable to sign (for example, “unconscious”); and then either:
EMS crew should then either:
(a) Get signature of “Authorized Representative” [such as relative or other person who receives government benefits on behalf of the patient; someone who arranges treatment or handle’s the patient’s affairs; patient’s Legal Guardian; someone with Health Care Power of Attorney; or representative of an institution that furnishes care]; or
Get receiving hospital representative’s signature on the form, or get a document created by hospital confirming receipt of patient (such as hospital Face Sheet or Admissions Record).
Regarding hospital documentation, the CMS originally required only a hospital representative signature; in response to comments from the ambulance industry comments that this is sometimes very difficult to receive, they modified the regulations. “Specifically, we are allowing a secondary form of verification be used in lieu of the proposed signed contemporaneous statement from a representative of the facility that received the beneficiary (which remains an alternative).” See new paragraph (b)(6) in following regulation.
§ 424.36 Signature requirements.
(b) (6) An ambulance provider or supplier with respect to emergency ambulance transport services, if the following conditions and documentation requirements are met.
(i) None of the individuals listed in paragraph (b)(1), (2), (3), or (4) of this section was available or willing to sign the claim on behalf of the beneficiary at the time the service was provided;
(ii) The ambulance provider or supplier maintains in its files the following information and documentation for a period of at least four years from the date of service:
(A) A contemporaneous statement, signed by an ambulance employee present during the trip to the receiving facility, that, at the time the service was provided, the beneficiary was physically or mentally incapable of signing the claim and that none of the individuals listed in paragraph (b)(1), (2), (3), or (4) of this section were available or willing to sign the claim on behalf of the beneficiary, and
(B) Documentation with the date and time the beneficiary was transported, and the name and location of the facility that received the beneficiary, and
(C) Either of the following:
( 1 ) A signed contemporaneous statement from a representative of the facility that received the beneficiary, which documents the name of the beneficiary and the date and time the beneficiary was received by that facility; or
( 2 ) The requested information from a representative of the facility using a secondary form of verification obtained at a later date, but prior to submitting the claim to Medicare for payment. Secondary forms of verification include a copy of any of the following—
( i ) The signed patient care/trip report;
( ii ) The hospital registration/admissions sheet;
( iii ) The patient medical record;
( iv ) The hospital log; or
( v ) Other internal hospital records.
Legal Lessons Learned: Workwith your EMS billing company to develop a form so EMS crews can obtain the required signatures and documentation.
Article 13-6
OHIO – SUPREME COURT AUTHORIZES INVASION OF PRIVACY LAWSUITS FOR PUTTING ANOTHER PERSON IN A “FALSE LIGHT” – PATIENTS MAY USE THIS CASE IN OHIO TO SUE FOR ALLEGED HIPAA VIOLATIONS AND IMPROPER DISCLOSURE OF PATIENT HEALTH INFORMATION
On June 6, 2007, in Welling v. Weinfeld, 113 Ohio St.3d 464, 2007-Ohio-2451, the Ohio Supreme Court for the first time recognized the “false-light” theory of invasion of privacy. This could lead to future litigation against FF / EMS who publicly discuss medical information on patients and put the patient in a “false light.”
Article 13-5
ILLINOIS – PARAMEDIC’S TERMINATION FOR MISTREATMENT OF POLICE PRISONER IS REVERSED – 17 YEARS ON FD AND SUFFERING FROM DEPRESSION AND WAS BIPOLAR
On March 21, 2007, the Illinois Appellate Court in Timothy Hermesdorf v. Hohn H. WU, as Chief of Naperville Fire Department, 2007 Ill. App. LEXIS 288, held that the city improperly terminated paramedic Hermesdorf since he had an unblemished 17 years of service, and the city’s Board of Police and Fire Commissioners failed to determine whether his misconduct towards a patient in the police station was the substantial result of his psychiatric illnesses. The court held that the Board should provide another hearing for the paramedic, and if it finds his conduct related to his illnesses, then they should “fashion a disciplinary sanction consistent with fairness and justice.”
On September 19, 2004, at 2:44 am, the tones dropped for a female prisoner in custody at the city’s police department. Paramedics Hermesdorf and his partner, Ron Marx, responded and it appeared the woman was suffering from a panic or anxiety attack. She was sitting in the cell, drooling and yelling and appeared to be hyperventilating. Hermesdorf walked over to the woman, pulled her head up by her hair, and said, “What the hell is your problem.”
The woman said she wanted her anti-anxiety medicine, and did not want to go to the hospital because she had no insurance and could not afford it. Paramedic Ron Marx told hi partner to stop pulling her hair. Instead, Hermesdorf grabbed her by one arm and held it behind her back to get her to stand up. When she screamed in pain, he told her, “Ill break your f---ing arm. You have to calm down.” Paramedic Marx again told him to stop.
A police officer and Hermesdorf lifted her onto a gurney. When the woman tried to sit up, Hermesdorf pushed her down on her chest and said, “Set you ass down.” When she tried getting up a second time, Hermesdorf grabbed her by the neck and pushed her down again. After she was loaded into the ambulance, Marx told Hermesdorf to ride up front. Hermesdorf apologized to Marx and said, “He lost it.”
At the Jan. 27, 2005 hearing before the city’s Board of Police and Fire Commissioners, the city called as witnesses Paramedic Ron Marx, as well as the patient and several police officers. Hermesdorf also testified, and told the Board about his depression and bi-polar diagnosis. He introduced in evidence a doctor’s letter showing that on September 19, the vary day of this EMS run, he had been admitted to a psychiatric unit of Provena Mercy Center at 8 pm He reported he had been on Paxil since 2002 for depression, and he was suffering from severe depression for past couple of months with “explosive behaviors.” He was discharged from the psychiatric unit on September 26, 2004, with a diagnosis of depression and “Bipolar II Disorder.” He was prescribed Trazodone, Risperdal, Depakote and an increased dosage of Paxil. The Board voted to terminate him (on May 8, 2006, he was granted a non-duty disability pension).
On appeal, the trial judge upheld the termination. The Court of Appeals, however, reversed the trial court. While the Court of Appeals agreed that the Board had sufficient evidence to find Hermesdorf guilty of the charges of mistreating the patient, and this misconduct was serious, the Board failed to carefully consider the medical evidence. “In light of plaintiff’s otherwise unblemished employment record and the medical evidence presented, we conclude that it was unreasonable for the Board to have discharged plaintiff for cause without having made specific findings as to whether plaintiff’s illnesses were substantially related to his misconduct. ”
Legal Lessons Learned: Be alert to fellow firefighters and EMS exhibiting signs of depression and urge them to get professional help, through an Employee Assistance Program or through private physicians; FDs should require personnel who are on medications that can affect their conduct to report the use of these medications; termination a long-term, classified employee with a good work record, suffering from mental illness is very difficult.
Article 13-4
OHIO – PARAMEDIC’S CERTIFICATE REVOKED - CONVICTED OF SEXUAL IMPOSITION, A MISDEMEANOR OF “MORAL TURPITUDE” - CONSENSUAL SEX WITH FEMALE INMATE WHILE HE WAS WORKING AS JAIL GUARD
On Jan. 5, 2007, in Billy J. Cantrell v. Ohio State Board of Emergency Medical Services, 2007 WL 102130, 2007-Ohio-149, the Court of Appeals for Scioto County held that the EMS Board had the authority to overturn the hearing officer’s recommendation of a 90-day suspension of EMT certificate, and to permanently revoke the certificate. “Although the penalty may seem harsh for the one-time violation that occurred several years ago, we recognize that the board retains ultimate authority to set the punishment for violation of its rules and its decision regarding punishment is beyond review.”
Article 13-3
PARAMEDIC PROPERLY TERMINATED FOR NOT PROMPTLY DISCLOSING MEDICAL MISTAKE - CARDIAC PATIENT WAS ADMINISTERED D50 INSTEAD OF EPINEPHRINE DOWN ET TUBE – PARAMEDIC DID NOT ADVISE THE TRANSPORT CREW, THE OFFICER IN CHARGE, OR THE EMERGENCY ROOM
On March 31, 2006, in Snyder v. Beavercreek Township, 2006 Ohio 1612, 2006 Ohio App. LEXIS 1460 (2 nd Appellate District; Greene County), the Ohio Court of Appeals upheld the termination of a paramedic. The court rejected her argument that this discipline was too sever given her lack of previous disciplinary problems or medical mistakes. The court held that termination was appropriate since the paramedic “failed to inform anyone that she had made a mistake.”
The Fire Department responded on a run on August 30, 2004 for a cardiac arrest at a local restaurant. The first crew to arrive started CPR. The second crew hooked up a monitor. Paramedic Snyder was on the third crew to arrive, along with a more senior paramedic who was the Officer In Charge.
Snyder spoke to the patient’s wife, as others started an IV line. The patient’s wife advised Snyder that her husband was an insulin dependent diabetic. Paramedic Snyder informed the rest of the crew, and she took a glucometer reading of 41 milligrams. She informed the OIC that they needed to “look at” the blood sugar level as a possible cause of the cardiac arrest.
The OIC told Paramedic Snyder to first assist with inserting an endotracheal tube. Snyder assisted with inserting the ET Tube, and then Snyder administered the first dose of Epinephrine down the ET Tube. Snyder then retrieved an ampoule of Dextrose 50% solution (D50) as well as another dose of Epinephrine.
She kneeled by the patient’s head, with the two drugs on the floor by her knees. She then mistakenly administered 50 ml of the D50 down the ET Tube, instead of the Epinephrine. She then performed a second blood sugar check – it had risen from 41 to 79 milligrams. The transport crew drove the patient to Miami Valley Hospital, where he was pronounced dead.
A few hours later, Paramedic Snyder received a call from another paramedic who had been on the run. He told her that she needed to document the fact that she administered the D50 down the ET Tube. The court’s opinion states, “At that point, Snyder explained, ‘Oh my God, I must have done that. I did that, didn’t I?’”
The Township Board of Trustees brought administrative charges of “misfeasance and gross neglect of duty, ” and held a hearing. They voted to terminate the paramedic and issued several written findings, including “Regardless of whether Ms. Snyder actually realized she was making a mistake while pushing the D50 down the ET Tube while she was doing it, the Board finds that Ms. Snyder unequivocally knew, immediately after pushing D50 down the tube, that she made a mistake.” The Township also found, “Ms. Snyder knowingly failed to inform the emergency transport crew that the D50 had been administered improperly.”
The Trustees also found that under the Great Miami Valley EMS protocol, the D50 was to be administered by IV only, since it is known to “have a narcotic effect on tissue and could seriously injure or kill a patient if administered down the ET Tube and into the lungs. Further, 50 ml is five times the amount of liquid medication that can be safely administered through an ET Tube. This was an egregious error by Ms. Snyder.”
After her termination, she filed an appeal to the Court of Common Pleas for Greene County, which affirmed her termination based on the administrative record. On appeal to the 3-judge Court of Appeals, her legal counsel claimed there was no support in the record for the Township Trustees’ finding that she “ knowingly” failed to inform others of her mistake, since she may not have even been aware of her mistake when the patient was transported. The Court of Appeals disagreed, citing her testimony before the Trustees, “when asked whether Snyder had told the patient’s widow that she administered the D50, Snyder answered affirmatively. The widow of the patient also testified that Snyder had informed her that she administered the D50.”
Ms. Snyder on appeal also contended “the Trustees erred by finding that she demonstrated a lack of proficiency with respect top Department policies and procedures. However, given that she administered a drug in an improper manner and that she failed to inform anyone of the mistake, we conclude that this argument is without merit.”
Legal Lessons Learned: Do not compound a mistake by covering it up; promptly disclose it, document it on the run report and establish a corrective action plan including continuing education.
Article 13-2
DETROIT EMS ENJOY “QUALIFIED IMMUNITY” FROM FEDERAL LAWSUIT - HELPFUL PRECEDENCE
On November 18, 2006, the U.S. Court of Appeals for the 6 th Circuit (located in Cincinnati) in Patricia Jackson v. Andreas Schultz and Richard Cardoura, 429 F.3d 586, held that the two Detroit EMTs could not be sued for their alleged failure to provide adequate care for a gunshot victim who had been shot in a bar. The Court held that EMTs enjoy “qualified immunity” from federal constitutional lawsuits because “ there are no cases finding a constitutional right to medical care under these exact (or even vaguely similar) circumstances.”
The lawsuit alleges that the on September 16, 2000, a bar patron had fired his weapon, numerous times and “indiscriminately” struck Alter Keith Jackson, the plaintiff’s son. The lawsuit makes a bold allegation – that the Detroit EMTs found him alive and bleeding profusely, but they merely loaded him into the back of the ambulance where they “watched him die.” She further alleges that they did not administer any life support for her son, and also failed to transport him to a trauma center, less than two miles away.
The federal lawsuit claims the two EMTs deprived her son of his constitutional rights by failing to provide care for a person “in their custody.” She had also filed a lawsuit in Michigan state court, which had been dismissed. The two EMTs had filed a motion to dismiss this federal action, but the trial judge denied this motion, holding that the facts “as alleged” in the complaint constitute a clearly established constitutional right to emergency medical care. The two EMTs filed an appeal prior to trial, and the 6 th Circuit reversed and ordered the lawsuit dismissed.
The 6 th Circuit relied on prior case precedent, and held that there is no federal constitutional violation for EMTs to render incompetent, or even no care, unless (1) patient is in custody, or (2) a “state-created” danger has been alleged. In this case, the patient was never in custody. “In this case the EMTs did nothing to restrain” the unconscious patient. He was only constrained by virtue of his injuries, which were in no way connected to the conduct of the EMTs.
There were no facts alleged in the lawsuit that could establish a “state-created” danger. The EMTs did nothing to expose him to any further “private acts of violence.” The EMTs did nothing to prevent others from assisting him (citing a case where police threatened to arrest private search and rescue divers at the scene of a drowning). There was no allegation that “the EMTs knew or should have known that their actions specifically endangered the decedent.”
Legal Lessons Learned: This decision should discourage federal constitutional lawsuits against EMS personnel in states covered by the 6 th Circuit: Michigan, Ohio, Kentucky and Tennessee. Thoroughly documented EMS run reports also discourage lawsuits.
Article 13-1
“INSURANCE ONLY” BILLING - OHIO ATTORNEY GENERAL OPINION - CANNOT CHARGE COUNTY MRDD FACILITY - FUNDS MUST GO TO TOWNSHIP CLERK
On September 16, 2005, Ohio Attorney General Jim Petro issued a written opinion to Clinton County Prosecuting Attorney, Wilmington, OH, advising that a Township that contracts with a City FD must provide service to all properties in the Township fire district, including the County MRDD (Mental Retardation and Developmental Disabilities) facility, and the FD may not charge the county (and presumably the County employees and patients) for these emergency services. See www.ag.state.oh.us, Opinion 2005-036.
The AG’s opinion states Ohio Rev. Code 505.37 (c) authorizes a township to create a fire district, encompassing any portions of the township “whenever it is expedient and necessary to guard against occurrences of fire or to protect the property and lives of citizens against damages any property located within the township. ” When a fire district is created, emergency services must be furnished to all on an equal basis. Ohio AG Opinion No. 1966-114.
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Posted by UC solely as information and for the benefit of students.