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CHAPTER 13 – EMS

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. Subpoenaed 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.

Mr. Hageman allegedly assaulted his wife at their home, and criminal charges were filed against him. His wife also received a domestic violence protective order against him, suspending all contact by him with his wife or child until a full hearing could be scheduled.

Barbara Belovich, Esq. issued a subpoena to Mr. Hageman’s psychiatrist, in preparation for the protective order hearing, seeking all of his medical treatment records. The psychiatrist’s office, without any release from Mr. Hageman, faxed the records to Ms. Belovich, Esq.

On the day of the hearing on the protective order, the prosecutor in the criminal assault case attended the hearing as an observer. Prior to the start of the hearing, Ms. Belovich, Esq. gave the prosecutor a copy of the psychiatric treatment records.

The hearing did not proceed since Mr. & Mrs. Hageman entered into a separation agreement that was ultimately incorporated into a divorce decree entered by the trial court.

Chief Justice Moyer confirmed in his opinion that the medical records were entered into evidence never used in the divorce or the criminal case:

“Hagerman’s medical records were therefore never admitted into evidence in the divorce / protective-order case. Likewise, they were not admitted in the criminal matter, and Hagerman was ultimately acquitted.”

Shortly after the divorce decree was entered, Mr. Hagerman then sued for disclosure of his medical records without his authorization: Barbara Belovich, Esq., Hagerman’s ex-wife, Dr. Thysseril (psychiatrist), Oak Tree Physicians (Sr. Thysseril’s employer), and Southwest General Center (the hospital housing Oak Tree). The trial judge granted summary judgment for all defendants; he appealed. The Ohio Court of Appeals for Cuyahoga County affirmed the dismissal of all defendants, except the attorney, Barbara Belovich, Esq. The Ohio Supreme Court agreed to hear her discretionary appeal.

The Ohio Supreme Court majority held that the lawsuit against Ms. Belovich, Esq. should be reinstated. Chief Justice Moyer reviewed numerous state and federal laws which protect the confidentiality of medical records, including the medical exception in the Ohio Public Records Act [Ohio Rev. Code 149.43(A)(1)(a)] and the federal Health Information Portability and Accountability Act of 1966 [“HIPAA” and federal HIPAA regulations; 45 CFR 164.502]. The majority held:

“By giving the psychological records she obtained in the divorce case to the prosecutor in the criminal case against Hageman, Belovich violated Hageman’s rights to keep that information confidential. Allowing attorneys with such information obtained through discovery to treat the information as public would violate the policy of maintaining the confidentiality of medical records. We therefore recognize that waiver of medical confidentiality for litigation purposes is limited to the specific case for which the records are sought and that an attorney who violates this limited waiver by disclosing the records to a third party unconnected to the litigation may be held liable for these actions.”

Legal Lessons Learned: Fire & EMS Departments should have a clear SOG or policy on release of patient EMS records when a subpoena is served on the department. Suggestion – notify the patient that a subpoena has been served and give the patient an opportunity to file a motion to quash the subpoena. If there is a motion filed, your FD attorney can provide the records to the judge for an “in camera” inspection.

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, now posted at www.uc.edu/cas/firescience

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.

Numerous FDs are asking whether EMS personnel should perform these blood draws for police in their community. The simple advice: NO. EMS personnel are not authorized to perform this task, and are not protected from civil lawsuits or criminal assault charges under Senate Bill 17.

The legislature’s official analysis of the new law includes the following description of the blood draw (see highlighted section):

“Adds a new provision to both the Vehicle Implied Consent Law and the Watercraft Implied Consent Law that specifies that: (1) if a person is arrested for any of the list of offenses that subjects a person to either of those Laws and the person has two or more prior convictions of state OVI, state OVUAC, state OMWI, or "equivalent offenses," the arresting law enforcement officer must request the person to submit, and the person must submit, to a chemical test of the person's whole blood, blood serum or plasma, breath, or urine for the purpose of determining the alcohol, drug of abuse, controlled substance, metabolite of a controlled substance, or combination content of the person's whole blood, blood serum or plasma, breath, or urine, (2) the officer is not required to advise the person of the consequences of refusing to submit to the test and is not required to give the person the warning form otherwise required to be given under the particular Implied Consent Law, (3) if the person refuses to submit to a chemical test upon request of the officer, the officer may employ whatever reasonable means are necessary to ensure that the person submits to a chemical test of the person's whole blood or blood serum or plasma, (4) the officer is immune from criminal and civil liability based upon any claim for acts taken under the provision described in clause (3) unless the officer acted with malicious purpose, in bad faith, or in a wanton or reckless manner, and (5) if the test results indicate a prohibited concentration of alcohol, a controlled substance, or a metabolite of a controlled substance in the person's whole blood, blood serum or plasma, breath, or urine at the time of the alleged offense the person's driver's or commercial driver's license or permit or nonresident operating privilege is suspended as a "prohibited concentration suspension." [Emphasis added.]

http://www.legislature.state.oh.us/analysis.cfm?ID=127_SB_17&ACT=As%20Enrolled&hf=analyses127/s0017-ps-127.htm.

Senate Bill 17 amended the Ohio Revised Code (underlines show amendments), but continued to former language which authorized only “health care providers” to conduct blood draws:

“(D)(1)(a) In any criminal prosecution or juvenile court proceeding for a violation of division (A) or (B) of this section or for an equivalent offense that is watercraft-related, the result of any test of any blood or urine withdrawn and analyzed at any health care provider, as defined in section 2317.02 of the Revised Code, may be admitted with expert testimony to be considered with any other relevant and competent evidence in determining the guilt or innocence of the defendant.

Health care providers are listed in the Ohio Revised Code as a “physician, a registered nurse, or a qualified technician, chemist, or phlebotomist physician.” Senate Bill 17 did not add EMS to the list:

“When a person submits to a blood, breath, urine, or other bodily substance test, only at the request of a law enforcement officer under section 1547.111 of the Revised Code or a blood or urine sample is obtained pursuant to a search warrant. Only a physician, a registered nurse, 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.”

Senate Bill 17 also provided criminal and civil immunity for police, not for EMS:

“(2) If a person refuses to submit to a chemical test upon a request made pursuant to division (B)(1) of this section, the law enforcement officer who made the request may employ whatever reasonable means are necessary to ensure that the person submits to a chemical test of the person's whole blood or blood serum or plasma. A law enforcement officer who acts pursuant to this division to ensure that a person submits to a chemical test of the person's whole blood or blood serum or plasma is immune from criminal and civil liability based upon a claim for assault and battery or any other claim for the acts, unless the officer so acted with malicious purpose, in bad faith, or in a wanton or reckless manner.”

Legal Lessons Learned: If your FD has been requested to do blood draws, your Medical Advisor should consult with Ohio EMS Board’s Medical Advisor. Do not perform blood draws unless your Medical Advisor provides written authority, pursuant to a specific protocol.

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

The full opinion can be read at http://www.ag.state.oh.us/legal/opinions/2008/2008-001.pdf. The opinion references that the Ohio General Assembly has amended Ohio Rev. Code 505.84 “so as to grant a board of township trustees the authority to establish charges for the use of fire and rescue services as well as for ambulance and emergency medical services. Sub. H.B. 255, 125 th General A. (2004) (eff. March 31, 2005). ”

Legal Lessons Learned: This is a helpful opinion.

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.”

This case arose in a dispute between neighbors. Lauri Weinfeld owns the Lakeside Center Banquet Hall, a party center hosting outside weddings, banquets and other parties next to her home in Stark County. Her neighbors, Robert and Katherine Welling, have complained about the noise and traffic, and allegedly started up noisy farm equipment to disrupt parties. They also allegedly turned floodlights on the Banquet Hall, and videotaped people arriving and leaving.

Ms. Weinfield filed a lawsuit to stop the interference with her business. As this case was pending, someone in Spring, 2000 threw a rock threw a plate-glass window of the Banquet Hall. She immediately suspected it was the Weinfeld’s son, Robert

Ms. Weinfield decided to take more direct action – she not only printed reward posters, but she decided to distribute them at Robert’s school, and at his father’s place of business, a Pepsi bottling plant.

$500.00
REWARD
for any information which leads to the
conviction of the person(s) responsible
for throwing a rock through the window
of Lakeside Center Banquet Hall
also known as the “ Party Center”)
in the Dee Mar Allotment, in Perry
Township, on Monday, May 8 or
Tuesday, May 9 th, 2000
___________
 
Any tips will be kept confidential.
Call the Perry Township Police
Department’s Detective Bureau at
478-5121.
Reward will be paid in cash.

The Wellings filed a countersuit against Ms. Weinfeld, claiming the posters invaded their privacy by unreasonably putting them and their children in a “false light.” The lawsuit by Ms. Weinfeld, and counter-claim by the Wellings, went to a jury trial. The jury returned a defense verdict for the Wellings, and also awarded them damages on their invasion of privacy counter-claim: $5,412.38 in compensatory damages, $250,000 in punitive damages, and attorney fees of $10,000.

The trial judge, on a motion by Ms. Weinfeld, reduced the jury’s $250,000 punitive damage award to $35,000, and gave the Wellings the right to ask for another trial. The Wellings filed an immediate appeal. The Ohio Court of Appeals rejected the “false light” invasion of privacy case, so the Wellings asked the Ohio Supreme Court to hear their appeal, and the court agreed.

The Ohio Supreme Court ruled (5 to 2), holding for the first time in Ohio that individuals who have been put into a “false light” by the misconduct of another can sue for invasion of privacy. The majority of the court held, “We therefore recognize the tort of false-light invasion of privacy…. In Ohio, one who gives publicity to a matter concerning another that places the other before the public in a false light is subject to liability to the other for invasion of privacy if (a) the false light in which the other was placed would be highly offensive to a reasonable person, and (b) the actor had knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the other would be placed.”

Legal Lessons Learned : Fire & EMS Departments can use this decision in training to remind their personnel that HIPAA protects patients from release of protected health information, and patients can sue for breach of privacy.

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.”

In 2004, Mr. Cantrell applied for renewal of his paramedic certificate and on the form he acknowledge a prior conviction - in 1998, he had pled guilty to sexual imposition, a third-degree misdemeanor. While employed at the Scioto County jail, and he had consensual sex in the jail with a woman arrested for DUI with whom had previously been romantically involved.

The EMS Board launched an investigation, and discovered that in 2000 he had previously applied for renewal of his EMS certificate, and had not disclosed the 1998 misdemeanor conviction. He advised the Board that the sentencing judge in 1998 had informed him that this was not a reportable “crime of moral turpitude.”

He requested an administrative hearing, and the EMS Board’s hearing officer recommended a 90-day suspension of his paramedic certificate since the conviction was so old, and he came forward to admit it. The EMS Board rejected this recommendation, and permanently revoked his certificate – since as a jailer he was “in a position of authority, and [he] breached the trust of the public.”

Mr. Cantrell appealed to the Court of Common Please, and the judge ordered the EMS Board to reinstate his paramedic certificate. The Board then appealed to the Court of Appeals, which held that the EMS Board had not abused their discretion in permanently revoking the certificate since the conviction was a “crime of moral turpitude.”

“Moral turpitude” is described in the Ohio Administrative Code as “the act of baseness, vileness, or the depravity and social duties which one owes to society, contrary to accepted and customary rule of right and duty between human beings.” Ohio Adm. Code 4765:1 – 01 (R). For example, a crime of “moral turpitude” includes an EMT who was convicted of assault in Bivens v. Ohio State Bd. of Emergency Med. Services, 165 Ohio App.3d 390, 2005-Ohio-5999.

Legal Lesson Learned – Report offenses that may fit “crime of moral turpitude.”

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.

This obligation to serve all property includes property owned and operated by a governmental body or public agency. Ohio AG Opinion 1989-028. This includes state prisons, the Ohio Turnpike, interstate highway, and public school buildings. The fact that public agencies do not pay property taxes does not excuse the township ’s obligation to provide emergency services.

The Ohio legislature has authorized fire & EMS billing, but has not specifically authorized billing of county or other governmental entity. Since none of these statutes specifically authorize townships to charge other county or other governmental entities, the Ohio AG concluded that the township “has no authority to charge the county MRDD Board” for emergency services.

The township may redraw the boundaries of the fire district, and thereby exclude the MRDD facility. The township could then have the option of contracting with MRDD for their paying for emergency services. “We emphasize, however, that so long as the MRDD facility is located within the fire district, it is entitled to the same services provided to other property within the district, and the township may not charge the MRDD Board for the facility’s use of such services.”

“Insurance Only” Billing: The Township contracts with a city FD for fire & EMS emergency services, and the FD uses a billing company to bill the insurance companies of Township residents. The Ohio AG opinion confirmed this is lawful. Ohio Rev. Code 505.84 authorizes the township to “establish reasonable charges for the use of fire and rescue services, ambulance services, or emergency medical services.” Effective March 31, 2005, the Ohio General Assembly granted townships authority to establish charges for the use of fire and rescue services, as well as ambulances and emergency medical services. Sub. H.B. 255, 125 thGeneral Assembly, www.legislature.state.oh.

The Ohio AG’s opinion states, however, such insurance only billing “is permissible so long as: (1) the money collected is not the basis of the city’s compensation under the contract; and (2) any money collected may not be retained by the city or collection agency, but must be paid to the township clerk for deposit in the fire and rescue services, ambulance services, and emergency services fund as required by R.C. 505.84. 2003 Op. Att’y Gen. No. 2003-017. See also 1984 Op. Att’y Gen. No. 84-048; 1981 Op. Att’y Gen. No. 81-203. Furthermore, the township may not delegate to the city or the collection agency its authority under R.C. 505.84 to waive all or part of the billed charges for any resident. 2003 Op. Att’y Gen. No. 2003-017.”

The Ohio AG’s opinion also commented on the Township’s contract with the city for fire & EMS services, “You have stated that the contract between the city and township is silent as to the collection of insurance money. Obviously, the parties, the insureds, and the insurance companies would benefit from having such an obligation specified in the contract. See 2003 Op. Att’y Gen. No. 2003-017.”

Legal Lessons Learned: “Insurance only” billing is becoming very common.

NEWSLETTER IS NOT PROVIDING LEGAL ADVICE; Posted by UC solely as information and for the benefit of students.

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