Wilderness First Aid October 2010

1. Wilderness First AidWilderness First Aid And the LawAnd the Law

2. 11/4/06 ©2006 James H. Moss, JD, Outdoor.law@gmail.c Disclaimer:Disclaimer: • All legal advice by it’s very nature isAll legal advice by it’s very nature is subject to change and the laws of eachsubject to change and the laws of each state. All legal advice requires a review bystate. All legal advice requires a review by your local attorney.your local attorney.

3. 11/4/06 ©2006 James H. Moss, JD, Outdoor.law@gmail.c RealityReality • No matter what we learn here a judge can change it. • By the time we get done with the conference a judge has probably changed it. • If you are really bad, you are going to lose no matter what

4. 11/4/06 ©2006 James H. Moss, JD, Outdoor.law@gmail.c Reality II • Risk Management is not Static • Positions I had 10 years ago I have changed • Some positions have changed a lot (this program is an example of that!) • Some have changed yesterday and will change tomorrow. • To be an Effective Risk Manager you must stay current, stay aware and stay awake.

5. 11/4/06 ©2006 James H. Moss, JD, Outdoor.law@gmail.c ChangeChange • I have never supported medical decisions by programs • I used to support carrying epinephrine • I used to support advanced first aid procedures in the field

7. 11/4/06 ©2006 James H. Moss, JD, Outdoor.law@gmail.c James H. Moss, J.D.James H. Moss, J.D. • OSU Environmental Interpretation • Capital Law School, J.D. • 500 Clients in Outdoor Recreation Field – Individuals to Organizations – Concessionaires & Permittees – Manufactures to Retailers

13. 11/4/06 ©2006 James H. Moss, JD, Outdoor.law@gmail.c Outdoor Recreation LawOutdoor Recreation Law ReviewReview • Legal News • Editorials describing legal issues that are affecting your operation and how they need to change • Analysis of groups of cases that are affecting your business • Specific case analysis with the actual case hyperlinked to the analysis • Written in English • Legal & Insurance Resources

14. 11/4/06 ©2006 James H. Moss, JD, Outdoor.law@gmail.c UIAA Safety CommitteeUIAA Safety Committee • Union Internationale Des Associations D’Alpinisme (International Mountaineering and Climbing Federation) • US Member of the UIAA Safety Committee

15. 11/4/06 ©2006 James H. Moss, JD, Outdoor.law@gmail.c James H. Moss, J.D.James H. Moss, J.D. I am the only attorney/person to win an appeal to the Board ofI am the only attorney/person to win an appeal to the Board of Land Appeals (NPS/BLM)Land Appeals (NPS/BLM) I’ve participated in my OR lawsuits than all other attorneysI’ve participated in my OR lawsuits than all other attorneys combinedcombined I’ve dealt with the only US litigation over Mt EverestI’ve dealt with the only US litigation over Mt Everest I’ve dealt with Ten Fatalities with no $$ paidI’ve dealt with Ten Fatalities with no $$ paid I’ve dealt with 3 Quadriplegics with no $$ paidI’ve dealt with 3 Quadriplegics with no $$ paid I have taught outdoor skills for universitiesI have taught outdoor skills for universities I have worked as a river, mountain, jungle, cycling and rockI have worked as a river, mountain, jungle, cycling and rock climbing guide and I still guideclimbing guide and I still guide

16. Presentation Rules

17. 11/4/06 ©2006 James H. Moss, JD, Outdoor.law@gmail.c ResearchResearch • The Wilderness Medical Society asked me to research some issues • After receiving the research request, through a friend I met the head of Colorado’s EMT and Paramedic program

18. 11/4/06 ©2006 James H. Moss, JD, Outdoor.law@gmail.c Research ProcessResearch Process 1. Research the law on the issue 2. Attempt to find the regulations controlling physicians and non-physicians 3. Contact the state board of health and the physician’s licensing board to clarify questions 4. Call the boards 5. Email the boards 6. Call and email and call and email……

19. 11/4/06 ©2006 James H. Moss, JD, Outdoor.law@gmail.c Rules for this PresentationRules for this Presentation • I am not out to get you • I am presenting the law • It is not personal • It is the law • It does not matter if you like it • It is the law • Everyone else works within the law

21. First Aid Training

22. 11/4/06 ©2006 James H. Moss, JD, Outdoor.law@gmail.c First Aid Programs RecognizedFirst Aid Programs Recognized by Federal & State Governmentsby Federal & State Governments • National Ski Patrol: Outdoor Emergency Care • American Red Cross: All First Aid • National Safety Council: Wilderness First Aid • Boy Scouts of America: All First Aid

23. 11/4/06 ©2006 James H. Moss, JD, Outdoor.law@gmail.c ExceptionsExceptions • WFR recognized by IOGA – But the recognition is by organization offering the class • If you take an X hour class from the groups on the list you first aid is accepted • WFR recognized by Grand Canyon NP – But the recognition is by organization offering the class • If you take an X hour class from the groups on the list you first aid is accepted

24. 11/4/06 ©2006 James H. Moss, JD, Outdoor.law@gmail.c First AidFirst Aid LicensesLicenses Recognized by allRecognized by all Government/AgenciesGovernment/Agencies • EMT (B) • EMT I (Paramedic) • Physician Assistant • Nurse (RN, LPN) • MD or DO

25. 11/4/06 ©2006 James H. Moss, JD, Outdoor.law@gmail.c Medical License HierarchyMedical License Hierarchy • Each Succeeding Level Supersedes the Prior Level – An EMT I controls over an EMT • A License Supersedes a Certificate – An EMT controls over ARC, NSP, NSC

26. 11/4/06 ©2006 James H. Moss, JD, Outdoor.law@gmail.c So Hierarchy of SupervisionSo Hierarchy of Supervision • MD or DO • Nurse (RN, LPN) • Physician Assistant* • EMT I (Paramedic) • EMT (B) • Any First Aid Card *In some states PA’s may equal Nurses

27. 11/4/06 ©2006 James H. Moss, JD, Outdoor.law@gmail.c What does that mean?What does that mean? • It does not mean WFR is bad, only that it has no legal standing • If you want to have a state or federal government recognized first aid card see the NPS, NSC, BSA, or ARC • Offer NPS, NSC, BSA or ARC with your WFR course.

28. 11/4/06 ©2006 James H. Moss, JD, Outdoor.law@gmail.c Only Book Approved by the AmericanOnly Book Approved by the American Medical Association for WildernessMedical Association for Wilderness First Aid ProtocolsFirst Aid Protocols • Wilderness Medical Society Practice Guidelines for Wilderness Emergency Care, 5th (Paperback)

29. 11/4/06 ©2006 James H. Moss, JD, Outdoor.law@gmail.c What does this meanWhat does this mean • It is the only book that has protocols created according to the AMA system • It does not have protocols for most things, they are still being developed • AMA protocols are recognized by the courts • Protocols are created according to a legally recognized process using the consensus

30. 11/4/06 ©2006 James H. Moss, JD, Outdoor.law@gmail.c What is First AidWhat is First Aid • I do not know • I have yet to find a legal definition of first aid except • Immediate care to an injured person by a non physician

31. 11/4/06 ©2006 James H. Moss, JD, Outdoor.law@gmail.c What isWhat is NotNot First AidFirst Aid • Administering any Prescription Drug • Sticking anything into any wound except to clean the wound • Using any prescription prescribed to someone other than the person receiving the prescription

32. 11/4/06 ©2006 James H. Moss, JD, Outdoor.law@gmail.c What is First AidWhat is First Aid • Administering any drug you can buy at the local convenience store is OK • Cleaning a wound with water or other cleaning stuff is OK

33. Legal Issues Affecting Physicians

34. 11/4/06 ©2006 James H. Moss, JD, Outdoor.law@gmail.c TheThe FallacyFallacy of “Underof “Under the Supervision &the Supervision & Control” of a PhysicianControl” of a Physician • Supervision and Control (unless you are LICENSED) means under the physician’s direct and immediate control: generally in the same Room! • If you are LICENSED, you must be in communication with a physician in most states – Radio – Cell phone

35. 11/4/06 ©2006 James H. Moss, JD, Outdoor.law@gmail.c Supervision & Control DefinedSupervision & Control Defined • Defined by CO as within 30 minutes • Defined by UT as within the same office • Defined by AZ as within the same room

36. 11/4/06 ©2006 James H. Moss, JD, Outdoor.law@gmail.c If you are LicensedIf you are Licensed • Supervision & Control is specifically defined by state regulations or statutes • In all but a few states, Supervision and Control means within electronic conversation with an MD – Telephone – Radio

39. 11/4/06 ©2006 James H. Moss, JD, Outdoor.law@gmail.c Practicing Medicine w/out aPracticing Medicine w/out a LicenseLicense • Only a Physician can diagnose or make a medical decision concerning a patient • Making medical decisions about someone licensed or not licensed as anything other than a physician

41. Legal Issues Affecting you

42. 11/4/06 ©2006 James H. Moss, JD, Outdoor.law@gmail.c AlaskaAlaska • Sec. 08.64.380. Definitions In this chapter, (6) "practice of medicine" or "practice of osteopathy" means: (A) for a fee, donation or other consideration, to diagnose, treat, operate on, prescribe for, or administer to, any human ailment, blemish, deformity, disease, disfigurement, disorder, injury, or other mental or physical condition; or to attempt to perform or represent that a person is authorized to perform any of the acts set out in this subparagraph;

43. 11/4/06 ©2006 James H. Moss, JD, Outdoor.law@gmail.c AlaskaAlaska • Sec. 08.64.360. Penalty for practicing without a license or in violation of chapter • Except for a physician assistant, a mobile intensive care paramedic, or a person licensed or authorized under another chapter of this title who engages in practices for which that person is licensed or authorized under that chapter, a person practicing medicine or osteopathy in the state without a valid license or permit is guilty of a class A misdemeanor. Each day of illegal practice is a separate offense.

44. 11/4/06 ©2006 James H. Moss, JD, Outdoor.law@gmail.c Alaska Paramedic RegulationsAlaska Paramedic Regulations • 12 AAC 40.360. GROUNDS FOR SUSPENSION, REVOCATION OR REFUSAL TO ISSUE A LICENSE. The board, after compliance with the Administrative Procedure Act (AS 44.62), will, in its discretion, revoke, suspend, or refuse to issue a license for • (5) practice beyond the scope authorized by the sponsor physician; • (6) practice without physician sponsorship

45. 11/4/06 ©2006 James H. Moss, JD, Outdoor.law@gmail.c Alaska Paramedic RegulationsAlaska Paramedic Regulations • 12 AAC 40.370. SCOPE OF AUTHORIZED ACTIVITIES. (a) A licensed mobile intensive care paramedic, when under the supervision of a sponsor physician, may perform the activities listed in this subsection. The direct supervision of an activity may be delegated to another physician when the mobile intensive care paramedic is caring for a patient in a hospital, at the scene of a medical emergency when voice contact is monitored by a physician and direct communication is maintained, or when under the specific written standing order of a physician. The activities are – (1) electrocardiographic monitoring and defibrillation; – (2) initiating and maintaining intravenous routes using approved intravenous techniques and solutions; – (3) performing endotracheal intubation and pulmonary ventilation by approved methods; – (4) performing gastric suction by intubation; – (5) obtaining blood for laboratory analysis; – (6) administering parenterally, orally, or topically any approved agents or solutions; – (7) use of pneumatic antishock devices; and – (8) performing other emergency procedures authorized by a sponsoring physician. • (b) A person enrolled in a mobile intensive care paramedic training program may perform the activities set out in (a) of this section insofar as: – (1) the activities are required as part of the training program; – (2) the activities that take place in a hospital are supervised by a physician, physician assistant, or nurse; and – (3) the activities that take place outside a hospital are supervised by a licensed mobile intensive care paramedic, or a physician sponsor, or the physician sponsor’s designee. • (c) While functioning as an intern in Alaska, a person may not perform the activities listed in (a) of this section for more than 480 hours, or for more than six calendar months, without becoming licensed as a mobile intensive care paramedic by the board. • (d) The scope of authorized activities for a mobile intensive care paramedic does not include primary patient care, such as dispensing nonemergency medications, performing physical examinations for nonemergency purposes, and treatment of nonemergency medical conditions included in the scope of practice for a physician, physician assistant, or nurse, unless specifically authorized by the board.

46. 11/4/06 ©2006 James H. Moss, JD, Outdoor.law@gmail.c Alabama StatutesAlabama Statutes • "Practice of medicine or osteopathy" defined. • The "practice of medicine or osteopathy" means: • (1) To diagnose, treat, correct, advise or prescribe for any human disease, ailment, injury, infirmity, deformity, pain or other condition, physical or mental, real or imaginary, by any means or instrumentality;

47. 11/4/06 ©2006 James H. Moss, JD, Outdoor.law@gmail.c AlabamaAlabama • 540-X-9-.11 Contact With Patients Before Prescribing. • (1) It is the position of the Board that prescribing drugs to an individual the prescriber has not personally examined is usually inappropriate. Before prescribing a drug, a physician should make an informed medical judgment based on the circumstances of the situation and on his or her training and experience. Ordinarily, this will require that the physician personally perform an appropriate history and physical examination, make a diagnosis, and formulate a therapeutic plan, a part of which might be a prescription. This process must be documented appropriately. • (2) Prescribing for a patient whom the physician has not personally examined may be suitable under certain circumstances. These may include, but not be limited to, admission orders for a patient newly admitted to a health care facility, prescribing for a patient of another physician for whom the prescriber is taking call, or continuing medication on a short-term basis for a new patient prior to the patient’s first appointment. Established patients may not require a new history and physical examination for each new prescription, depending on good medical practice. • (3) It is the position of the Board that prescribing drugs to individuals the physician has never met based solely on answers to a set of questions, as is common in Internet or toll-free telephone prescribing, is inappropriate and unprofessional.

48. 11/4/06 ©2006 James H. Moss, JD, Outdoor.law@gmail.c ArizonaArizona • 32-1401. Definitions • 8. "Direct supervision" means that a physician, physician assistant licensed pursuant to chapter 25 of this title or nurse practitioner licensed pursuant to chapter 15 of this title is within the same room or office suite as the medical assistant in order to be available for consultation regarding those tasks the medical assistant performs pursuant to section 32-1456.

49. 11/4/06 ©2006 James H. Moss, JD, Outdoor.law@gmail.c Arizona Statutes • 32-1491. Dispensing of drugs and devices; civil penalty; conditions; definition • A. A doctor of medicine may dispense drugs and devices kept by the doctor if: • 1. All drugs are dispensed in packages labeled with the following information: • (a) The dispensing doctor's name, address and telephone number. • (b) The date the drug is dispensed. • (c) The patient's name.

50. 11/4/06 ©2006 James H. Moss, JD, Outdoor.law@gmail.c Arizona StatutesArizona Statutes • 32-1491. Dispensing of drugs and devices; civil penalty; conditions; definition • D. A doctor shall dispense only to the doctor’s own patient and only for conditions being treated by that doctor. The doctor shall provide direct supervision of a medical assistant, nurse or attendant involved in the dispensing process. In this subsection, "direct supervision" means that a doctor is present and makes the determination as to the legitimacy or the advisability of the drugs or devices to be dispensed.

51. 11/4/06 ©2006 James H. Moss, JD, Outdoor.law@gmail.c Arizona RegulationsArizona Regulations • R4-16-303. Prescribing and Dispensing Requirements A. A physician shall record on the patient's medical record the name, form and strength of the drug or device dispensed, the quantity or volume dispensed, the date the drug or device is dispensed, the medical reasons for dispensing the drug or device, and the number of refills authorized. • B. Prior to delivery to the patient, a physician shall review the prepared drugs and devices to ensure their compliance with the prescription and, additionally, ensure that the patient has been informed of the name of the drug or device, directions for its use, precautions, and storage requirements.

52. WFR Issues

56. Playing Doctor

57. 11/4/06 ©2006 James H. Moss, JD, Outdoor.law@gmail.c Making Medical Decisions aboutMaking Medical Decisions about People wanting to attend yourPeople wanting to attend your programsprograms • If you are not an MD or DO you are practicing medicine without a license • If you as an MD or a DO to do it they are violating regulations because they are making medical decisions about someone who is not a patient • If you deny them access you may be violating the ADA

58. 11/4/06 ©2006 James H. Moss, JD, Outdoor.law@gmail.c How do you resolve thisHow do you resolve this problemproblem • A personal physician of the client does not violate the ADA • A personal physician knows the patient and the patients medical needs and is allowed to make medical decisions concerning the patient. • A personal physician can prescribe the necessary drugs the client may need

59. 11/4/06 ©2006 James H. Moss, JD, Outdoor.law@gmail.c Violation of State PhysicianViolation of State Physician Laws or RegulationsLaws or Regulations • Issuing a Prescription to an organization • Issuing a Prescription to someone to be used for a third party • Knowingly issuing a prescription to a person knowing it will be used on a third person

60. Laws & Statutes

61. 11/4/06 ©2006 James H. Moss, JD, Outdoor.law@gmail.c Criminal LawCriminal Law • Conspiring to have a physician to issue a prescription to you knowing it will be used on someone else • Using a prescription issued to one person on someone else as a commercial guide

62. 11/4/06 ©2006 James H. Moss, JD, Outdoor.law@gmail.c HIPPAHIPPA • Collection of Patient information stored electronically • Patient information transmitted electronically • Medical Facility on Campus • HIPPA may apply

63. 11/4/06 ©2006 James H. Moss, JD, Outdoor.law@gmail.c HIPPAHIPPA • Violation of HIPPA is a $25,000 fine per occurrence • Any non-authorized person accessing patient information without the patient’s permission is a violation

64. 11/4/06 ©2006 James H. Moss, JD, Outdoor.law@gmail.c Issues for your MDIssues for your MD • Asking your physician to help you decide if a person can attend your program when the physician does not know the person as a patient

65. 11/4/06 ©2006 James H. Moss, JD, Outdoor.law@gmail.c Good SamaritanGood Samaritan • Good Samaritan does not apply if providing first aid is part of your job or job description • Good Samaritan does not apply if the statutes or regulations about your job require you to have first aid • Good Samaritan does not apply if you are involved in the injury of the person you were working on

66. Thank You

Wilderness First Aid October 2010

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Wilderness First Aid October 2010