This article contains generic information – not legal advice. If you find yourself in a questionable or problematic situation, seek professional legal counsel.
In the first article in this series on malpractice liability for premed EMTs, I covered the basic elements of a negligence claim. Familiarizing yourself with some of the major liability concerns for EMTs will enable you to better protect yourself from a negligence claim. As Benjamin Franklin stated, “An ounce of prevention is worth a pound of cure.” Additionally, an awareness about specific medical malpractice issues as a premed student will benefit you in the future as a practicing physician.
Two areas of major liability for EMTs are improper consent/refusals and improper restraint. Before an EMT can perform treatment or action, consent must be obtained. Consent can be either expressed or implied. Expressed consent must be obtained from an adult who is mentally competent and of legal age. It is required that expressed consent be informed. This means that a patient is informed of the benefits and risks associated with the care they will receive.
The patient may communicate expressed consent verbally, with a physical signal such as a head nod, or by signing a written document. However, in the case of an unconscious patient consent is implied. The law presumes that a rational, conscious patient would consent to treatment. If the unconscious patient awakens and is rational, he/she can decide whether to continue treatment. If a physically or mentally incapacitated adult is in need of emergency care and a guardian cannot be contacted, consent is implied. It is presumed the patient’s guardian would grant consent. Individuals under the influence of alcohol or drugs cannot give expressed consent because they cannot make rational decisions.
A parent or guardian must give expressed consent for a child to receive treatment or be transported to a hospital. If the child needs emergency care for a life-threatening situation and the parent or guardian is unavailable, implied consent is presumed.
Child-care providers or schools typically can act on behalf of minors in loco parentis or in place of the parent/guardian. Legally emancipated children are to be treated as adults in the area of consent.
Patients can refuse care for a variety of reasons such as fear, denial, failing to understand the severity of the situation, worrying about leaving home, not wanting to be separated from children or pets, not wanting to miss work, and so on. In such cases, it can be appropriate to speak to the patient and attempt to convince him/her to allow medical care. If a patient initially refuses medical care, it might be prudent to remain on scene in case the patient’s condition deteriorates or the patient changes his/her mind about receiving treatment.
Oftentimes, family members can persuade a patient to receive medical care. Thus, it can sometimes be helpful to ask the patient permission to contact a family member. It is important to note that sharing protected patient information with a family member without the patient’s approval may be a HIPPA violation.
If a patient does refuse care, make sure the patient meets the following criteria:
- Legally able to consent (i.e., of legal age or an emancipated minor)
- Mentally competent and oriented
- Fully informed
- Signs a “release” form
You cannot force a competent patient to receive medical care. From a legal standpoint, subjecting a patient to unwanted care is viewed as assault (i.e., placing a person in fear or threat of bodily harm) and/or battery (i.e., causing harmful or offensive contact). If a patient refuses medical care, it is imperative to document in the official record every step made to convince the patient to receive treatment. Such record keeping is important in protecting yourself and your agency from liability.
When it comes to the issue of improper restraint, it should be understood that “reasonable force” is the force necessary to keep a patient from injuring himself/herself or others. Whether the force is considered “reasonable” is determined by looking at all the circumstances involved which include the patient’s physical strength and size, mental status, and behavior.
Contrary to movie scenes where an ambulance crew forcibly carries someone off in a straightjacket, EMTs (in most localities) cannot legally restrain, treat, or move a behavioral emergency patient against his/her will. Restraining and forcibly moving a patient is a job for law enforcement. Under certain conditions, police can order and assist with EMS restraining or transporting of a patient. Keep in mind that police may not have as extensive medical training as an EMT.
Over the years, there have been numerous lawsuits and mainstream news media coverage about individuals who have died from positional asphyxia (“inadequate breathing or respiratory arrest caused by a body position that restricts breathing”) while police were attempting to restrain them. If you are assisting law enforcement with the restraint of a patient, make certain to only use proper techniques and methods! Never “hog tie” or restrain a patient in any way that impairs breathing. Check vitals throughout the call.
Finally, most states legally allow patients to be transported against their will if they are a danger to themselves or others. Follow your state and local laws when it comes to treating or transporting behavioral emergency patients without consent.
In sum, the area of medical malpractice is complex. EMTs can prevent errors, reduce liability, and improve patient safety by implementing their knowledge of medical malpractice issues when on a call. Becoming a mindful provider from the start of your medical career will develop valuable skills that will serve you well as a physician.
Stay tuned for the next article, “Essential Documentation: “It Didn’t Happen If You Didn’t Write It Down!”Erin Fortner is a licensed attorney in Georgia where she practiced pharmaceutical product liability law and was a special victims unit prosecutor. She lives in the D.C. metro area and is attending a full-time post-baccalaureate program. Ms. Fortner also recently earned her EMT certification.