CHAPTER 13 – EMS

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:
1. 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."
2. 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."
3. 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. 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.

[Full article is in Larry Bennett's new book, "Ohio Fire & EMS Law – Officer Development" (7/2009); see details on placing tax deductible order at www.uc.edu/cas/firescience.]

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.

[Full article is in Larry Bennett's new book, "Ohio Fire & EMS Law – Officer Development" (7/2009); see details on placing tax deductible order at www.uc.edu/cas/firescience.]

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

[Full article is in Larry Bennett's new book, "Ohio Fire & EMS Law – Officer Development" (7/2009); see details on placing tax deductible order at www.uc.edu/cas/firescience.]

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.”

[Full article is in Larry Bennett's new book, "Ohio Fire & EMS Law – Officer Development" (7/2009); see details on placing tax deductible order at www.uc.edu/cas/firescience.]

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.”

[Full article is in Larry Bennett's new book, "Ohio Fire & EMS Law – Officer Development" (7/2009); see details on placing tax deductible order at www.uc.edu/cas/firescience.]

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.

[Full article is in Larry Bennett's new book, "Ohio Fire & EMS Law – Officer Development" (7/2009); see details on placing tax deductible order at www.uc.edu/cas/firescience.]

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

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