Medical-Legal Issues (HB)

Several factors must be considered when performing medical care in the backcountry. While you are generally OK so long as you are trying to do the right thing, you need to make sure that you are still protecting yourself if something happens and the patient gets permanently disabled or dies.

Don’t worry about being sued; worry about losing a lawsuit. If you do what you were trained to do and make decisions based on the information you have and justify those decisions, you don’t need to worry about it. The medicine you practice should be based on the medical needs and best interest of the patient, not on the fear of a lawsuit.

Standards of Practice

A standard of practice is generally thought of as the reasonable actions a person would take in relation to their peers. In the case of wilderness medicine, there are two different standards. The first is based on the organization, if any, sponsoring the event. The second standard is applied to the caregiver.

An organization should provide the scope of care that can be given while “on duty.” If you exceed this scope, you could potentially be liable even though you might have a higher level of training. Similarly, if you are not adequately trained and attempt treatment outside of your ability (even though that treatment might be acceptable within the organization’s scope), you could be liable.

Generally, the standards will dictate the level of aid allowed until that patient has entered the local healthcare system. At this time, most providers will be expected to adhere to the standards that have been published by bodies such as the Wilderness Medical Society, American Heart Association (for CPR/AED), and the National Association of EMS Physicians.

Another body, the Wilderness Medicine Education Collaborative, has published a “scope of practice.” In reality, this organization is a loose cartel of the larger training schools and closely matches their school’s respective curriculum.

Consent

You must have consent from the patient. Implied consent may be assumed by patients that are unconscious or minors in the absence of a parent or guardian. Any patient with a normal mental status has the right to refuse treatment.

Abandonment

Abandonment occurs when you stop treatment, and the patient suffers subsequent harm. Leaving a patient to go for help is not considered abandonment.

Negligence

Negligence is loosely defined as failing to provide an “honest” service that you have a duty to perform. With respect to wilderness medicine, we are concerned with two forms: gross negligence and willful negligence. These two forms of negligence are more than would be done by simple carelessness or failure to act.

Gross negligence is performing treatments with indifference to others’ safety and is LIKELY to cause further injury to the patient.

Willful negligence is the willful disregard for others’ safety where the provider’s unreasonably risky actions will ALMOST DEFINITELY result in injury to the patient.

The following example can illustrate an example of the difference of the above. Let’s say you have a patient that has no pulse and breathing. Simple negligence would be failing to start CPR even though you have been trained to do so. Gross negligence would be deciding to perform only part of the CPR–only rescue breathing despite the absence of pulse–against what you had been trained. Willful negligence would be trying some kind of CPR you saw on the internet despite knowing that it is inappropriate.

Willful negligence would be doing CPR like this:

 

Good Samaritan Rule

“Good Samaritan” laws have been enacted in most states to encourage people to assist with emergencies when they do not have a duty to act. These laws protect providers against simple negligence (though not gross or willful negligence).

Generally, you must give the aid near the scene where the incident occurred, and it must be unscheduled and unplanned. What this means is that you cannot reduce a buddy’s dislocation by telling them to meet you in the woods behind their house after they fell from the roof, landing on their shoulder.

You must have consent and not abandon the patient.

An essential part of this is not accepting compensation for the aid provided. The patient can make you whole–if you used bandages from your kit, they could replace those. But you cannot materially profit from the incident–like the patient buying you an expensive jacket or something.

You must also act within the scope of your training. Watching a YouTube video on darting a chest does not qualify as training. Nor does doing some “run and gun” weekend class. The training needs to follow established practices and be within the “scope of practice” for that training level.

Once aid has begun, you are under a legal obligation to continue that care until the patient is no longer in danger. That could be getting the patient to a place that provides professional care or the arrival of a person with a higher level of training than you.

Duty to Act

“Duty to act” is a legal definition. You have a duty to act if:

• You have a prior relationship with the person, AND
• The person is under your direct care, AND
• The person is a participant in an activity you have been hired explicitly for, AND
• You are contractually required to provide medical services.

In the context of Medical Incident Technicians, this is NOT you.