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Wilderness First Aid October 2010

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Presented at the Association of Outdoor Recreation and Education 2010

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Wilderness First Aid October 2010

  1. 1. Wilderness First AidWilderness First AidAnd the LawAnd the Law
  2. 2. 11/4/06 ©2006 James H. Moss, JD, Outdoor.law@gmail.cDisclaimer:Disclaimer:• All legal advice by it’s very nature isAll legal advice by it’s very nature issubject to change and the laws of eachsubject to change and the laws of eachstate. All legal advice requires a review bystate. All legal advice requires a review byyour local attorney.your local attorney.
  3. 3. 11/4/06 ©2006 James H. Moss, JD, Outdoor.law@gmail.cRealityReality• No matter what we learn here a judge canchange it.• By the time we get done with the conferencea judge has probably changed it.• If you are really bad, you are going to loseno matter what
  4. 4. 11/4/06 ©2006 James H. Moss, JD, Outdoor.law@gmail.cReality II• Risk Management is not Static• Positions I had 10 years ago I have changed• Some positions have changed a lot (this program is anexample 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. 5. 11/4/06 ©2006 James H. Moss, JD, Outdoor.law@gmail.cChangeChange• I have never supported medical decisionsby programs• I used to support carrying epinephrine• I used to support advanced first aidprocedures in the field
  6. 6. 11/4/06 ©2006 James H. Moss, JD, Outdoor.law@gmail.cBrought to you by:Brought to you by:If you are interested in any of these products for you oryour programs contact me
  7. 7. 11/4/06 ©2006 James H. Moss, JD, Outdoor.law@gmail.cJames 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
  8. 8. 11/4/06 ©2006 James H. Moss, JD, Outdoor.law@gmail.cAttorney for:Attorney for:• O.A.R.S.• International Mountain Guides• Noah’s Ark• CAMP• NRS• American Mountain Guides Association
  9. 9. 11/4/06 ©2006 James H. Moss, JD, Outdoor.law@gmail.cTrialsTrials• Whitewater Rafting Companies• Snow Mobiles• Ropes Course• Canoe Liveries• Climbing Gyms• Land owners
  10. 10. 11/4/06 ©2006 James H. Moss, JD, Outdoor.law@gmail.cAdjunct InstructorAdjunct InstructorOutdoor Recreation Risk Management,Insurance & Law
  11. 11. 11/4/06 ©2006 James H. Moss, JD, Outdoor.law@gmail.cAdjunct InstructorAdjunct Instructor• Ski Area Operations Risk Management
  12. 12. 11/4/06 ©2006 James H. Moss, JD, Outdoor.law@gmail.cEditorEditorOutdoor Recreation Law Review
  13. 13. 11/4/06 ©2006 James H. Moss, JD, Outdoor.law@gmail.cOutdoor Recreation LawOutdoor Recreation LawReviewReview• Legal News• Editorials describing legal issues that are affecting youroperation 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 theanalysis• Written in English• Legal & Insurance Resources
  14. 14. 11/4/06 ©2006 James H. Moss, JD, Outdoor.law@gmail.cUIAA Safety CommitteeUIAA Safety Committee• Union Internationale Des AssociationsD’Alpinisme (International Mountaineering andClimbing Federation)• US Member of the UIAA Safety Committee
  15. 15. 11/4/06 ©2006 James H. Moss, JD, Outdoor.law@gmail.cJames 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 ofLand 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 attorneyscombinedcombinedI’ve dealt with the only US litigation over Mt EverestI’ve dealt with the only US litigation over Mt EverestI’ve dealt with Ten Fatalities with no $$ paidI’ve dealt with Ten Fatalities with no $$ paidI’ve dealt with 3 Quadriplegics with no $$ paidI’ve dealt with 3 Quadriplegics with no $$ paidI have taught outdoor skills for universitiesI have taught outdoor skills for universitiesI have worked as a river, mountain, jungle, cycling and rockI have worked as a river, mountain, jungle, cycling and rockclimbing guide and I still guideclimbing guide and I still guide
  16. 16. Presentation Rules
  17. 17. 11/4/06 ©2006 James H. Moss, JD, Outdoor.law@gmail.cResearchResearch• The Wilderness Medical Society asked me toresearch some issues• After receiving the research request, through afriend I met the head of Colorado’s EMT andParamedic program
  18. 18. 11/4/06 ©2006 James H. Moss, JD, Outdoor.law@gmail.cResearch ProcessResearch Process1. Research the law on the issue2. Attempt to find the regulations controllingphysicians and non-physicians3. Contact the state board of health and thephysician’s licensing board to clarify questions4. Call the boards5. Email the boards6. Call and email and call and email……
  19. 19. 11/4/06 ©2006 James H. Moss, JD, Outdoor.law@gmail.cRules 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
  20. 20. 11/4/06 ©2006 James H. Moss, JD, Outdoor.law@gmail.cProfessional ResponsibilityProfessional Responsibility• My job to inform• Your job to figure out what you want to do with it.
  21. 21. First Aid Training
  22. 22. 11/4/06 ©2006 James H. Moss, JD, Outdoor.law@gmail.cFirst Aid Programs RecognizedFirst Aid Programs Recognizedby 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. 23. 11/4/06 ©2006 James H. Moss, JD, Outdoor.law@gmail.cExceptionsExceptions• 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 youfirst 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 youfirst aid is accepted
  24. 24. 11/4/06 ©2006 James H. Moss, JD, Outdoor.law@gmail.cFirst AidFirst Aid LicensesLicensesRecognized by allRecognized by allGovernment/AgenciesGovernment/Agencies• EMT (B)• EMT I (Paramedic)• Physician Assistant• Nurse (RN, LPN)• MD or DO
  25. 25. 11/4/06 ©2006 James H. Moss, JD, Outdoor.law@gmail.cMedical License HierarchyMedical License Hierarchy• Each Succeeding Level Supersedes the PriorLevel– An EMT I controls over an EMT• A License Supersedes a Certificate– An EMT controls over ARC, NSP, NSC
  26. 26. 11/4/06 ©2006 James H. Moss, JD, Outdoor.law@gmail.cSo 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. 27. 11/4/06 ©2006 James H. Moss, JD, Outdoor.law@gmail.cWhat does that mean?What does that mean?• It does not mean WFR is bad, only that it has nolegal standing• If you want to have a state or federal governmentrecognized first aid card see the NPS, NSC,BSA, or ARC• Offer NPS, NSC, BSA or ARC with your WFRcourse.
  28. 28. 11/4/06 ©2006 James H. Moss, JD, Outdoor.law@gmail.cOnly Book Approved by the AmericanOnly Book Approved by the AmericanMedical Association for WildernessMedical Association for WildernessFirst Aid ProtocolsFirst Aid Protocols• Wilderness MedicalSociety PracticeGuidelines for WildernessEmergency Care, 5th(Paperback)
  29. 29. 11/4/06 ©2006 James H. Moss, JD, Outdoor.law@gmail.cWhat does this meanWhat does this mean• It is the only book that has protocols createdaccording to the AMA system• It does not have protocols for most things, theyare still being developed• AMA protocols are recognized by the courts• Protocols are created according to a legallyrecognized process using the consensus
  30. 30. 11/4/06 ©2006 James H. Moss, JD, Outdoor.law@gmail.cWhat is First AidWhat is First Aid• I do not know• I have yet to find a legal definition of first aidexcept• Immediate care to an injured person by a nonphysician
  31. 31. 11/4/06 ©2006 James H. Moss, JD, Outdoor.law@gmail.cWhat isWhat is NotNot First AidFirst Aid• Administering any Prescription Drug• Sticking anything into any wound except to cleanthe wound• Using any prescription prescribed to someoneother than the person receiving the prescription
  32. 32. 11/4/06 ©2006 James H. Moss, JD, Outdoor.law@gmail.cWhat is First AidWhat is First Aid• Administering any drug you can buy at the localconvenience store is OK• Cleaning a wound with water or other cleaningstuff is OK
  33. 33. Legal Issues AffectingPhysicians
  34. 34. 11/4/06 ©2006 James H. Moss, JD, Outdoor.law@gmail.cTheThe FallacyFallacy of “Underof “Underthe Supervision &the Supervision &Control” of a PhysicianControl” of a Physician• Supervision and Control (unless you areLICENSED) means under the physician’s directand immediate control: generally in the sameRoom!• If you are LICENSED, you must be incommunication with a physician in most states– Radio– Cell phone
  35. 35. 11/4/06 ©2006 James H. Moss, JD, Outdoor.law@gmail.cSupervision & 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. 36. 11/4/06 ©2006 James H. Moss, JD, Outdoor.law@gmail.cIf you are LicensedIf you are Licensed• Supervision & Control is specifically defined bystate regulations or statutes• In all but a few states, Supervision and Controlmeans within electronic conversation with an MD– Telephone– Radio
  37. 37. 11/4/06 ©2006 James H. Moss, JD, Outdoor.law@gmail.cProtocolsProtocols• Written Oral, no difference• Medical Protocols are only for licensed health careproviders
  38. 38. 11/4/06 ©2006 James H. Moss, JD, Outdoor.law@gmail.cHierarchy of “Regulations”Hierarchy of “Regulations”• Guidelines• Protocols• Procedures (or Standards)
  39. 39. 11/4/06 ©2006 James H. Moss, JD, Outdoor.law@gmail.cPracticing Medicine w/out aPracticing Medicine w/out aLicenseLicense• Only a Physician can diagnose or make amedical decision concerning a patient• Making medical decisions about someonelicensed or not licensed as anything other than aphysician
  40. 40. 11/4/06 ©2006 James H. Moss, JD, Outdoor.law@gmail.cViolation of PhysicianViolation of PhysicianRegulationsRegulations• Making a medical decision about a person who isnot a patient
  41. 41. Legal Issues Affecting you
  42. 42. 11/4/06 ©2006 James H. Moss, JD, Outdoor.law@gmail.cAlaskaAlaska• Sec. 08.64.380. DefinitionsIn 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 othermental or physical condition; or to attempt to perform or represent thata person is authorized to perform any of the acts set out in thissubparagraph;
  43. 43. 11/4/06 ©2006 James H. Moss, JD, Outdoor.law@gmail.cAlaskaAlaska• Sec. 08.64.360. Penalty for practicing without a license orin violation of chapter• Except for a physician assistant, a mobile intensive careparamedic, or a person licensed or authorized underanother chapter of this title who engages in practices forwhich that person is licensed or authorized under thatchapter, a person practicing medicine or osteopathy in thestate without a valid license or permit is guilty of a class Amisdemeanor. Each day of illegal practice is a separateoffense.
  44. 44. 11/4/06 ©2006 James H. Moss, JD, Outdoor.law@gmail.cAlaska Paramedic RegulationsAlaska Paramedic Regulations• 12 AAC 40.360. GROUNDS FOR SUSPENSION,REVOCATION OR REFUSAL TO ISSUE A LICENSE.The board, after compliance with the AdministrativeProcedure 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 sponsorphysician;• (6) practice without physician sponsorship
  45. 45. 11/4/06 ©2006 James H. Moss, JD, Outdoor.law@gmail.cAlaska Paramedic RegulationsAlaska Paramedic Regulations• 12 AAC 40.370. SCOPE OF AUTHORIZED ACTIVITIES. (a) A licensed mobile intensive care paramedic, when underthe supervision of a sponsor physician, may perform the activities listed in this subsection. The direct supervision ofan activity may be delegated to another physician when the mobile intensive care paramedic is caring for a patient ina hospital, at the scene of a medical emergency when voice contact is monitored by a physician and directcommunication 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 outin (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 aphysician 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 formore than 480 hours, or for more than six calendar months, without becoming licensed as a mobile intensive careparamedic 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, andtreatment of nonemergency medical conditions included in the scope of practice for a physician, physician assistant,or nurse, unless specifically authorized by the board.
  46. 46. 11/4/06 ©2006 James H. Moss, JD, Outdoor.law@gmail.cAlabama StatutesAlabama Statutes• "Practice of medicine or osteopathy" defined.• The "practice of medicine or osteopathy" means:• (1) To diagnose, treat, correct, advise or prescribefor any human disease, ailment, injury, infirmity,deformity, pain or other condition, physical ormental, real or imaginary, by any means orinstrumentality;
  47. 47. 11/4/06 ©2006 James H. Moss, JD, Outdoor.law@gmail.cAlabamaAlabama• 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 hasnot personally examined is usually inappropriate. Before prescribing a drug, a physicianshould make an informed medical judgment based on the circumstances of the situationand on his or her training and experience. Ordinarily, this will require that the physicianpersonally perform an appropriate history and physical examination, make a diagnosis,and formulate a therapeutic plan, a part of which might be a prescription. This processmust be documented appropriately.• (2) Prescribing for a patient whom the physician has not personally examined may besuitable 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 apatient of another physician for whom the prescriber is taking call, or continuingmedication 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 eachnew prescription, depending on good medical practice.• (3) It is the position of the Board that prescribing drugs to individuals the physician hasnever met based solely on answers to a set of questions, as is common in Internet ortoll-free telephone prescribing, is inappropriate and unprofessional.
  48. 48. 11/4/06 ©2006 James H. Moss, JD, Outdoor.law@gmail.cArizonaArizona• 32-1401. Definitions• 8. "Direct supervision" means that a physician,physician assistant licensed pursuant to chapter25 of this title or nurse practitioner licensedpursuant to chapter 15 of this title is within thesame room or office suite as the medical assistantin order to be available for consultation regardingthose tasks the medical assistant performspursuant to section 32-1456.
  49. 49. 11/4/06 ©2006 James H. Moss, JD, Outdoor.law@gmail.cArizona Statutes• 32-1491. Dispensing of drugs and devices; civil penalty;conditions; definition• A. A doctor of medicine may dispense drugs and deviceskept by the doctor if:• 1. All drugs are dispensed in packages labeled with thefollowing information:• (a) The dispensing doctors name, address and telephonenumber.• (b) The date the drug is dispensed.• (c) The patients name.
  50. 50. 11/4/06 ©2006 James H. Moss, JD, Outdoor.law@gmail.cArizona StatutesArizona Statutes• 32-1491. Dispensing of drugs and devices; civil penalty;conditions; definition• D. A doctor shall dispense only to the doctor’s own patientand only for conditions being treated by that doctor. Thedoctor shall provide direct supervision of a medicalassistant, nurse or attendant involved in the dispensingprocess. In this subsection, "direct supervision" means thata doctor is present and makes the determination as to thelegitimacy or the advisability of the drugs or devices to bedispensed.
  51. 51. 11/4/06 ©2006 James H. Moss, JD, Outdoor.law@gmail.cArizona RegulationsArizona Regulations• R4-16-303. Prescribing and Dispensing Requirements A. Aphysician shall record on the patients medical record thename, form and strength of the drug or device dispensed,the quantity or volume dispensed, the date the drug ordevice is dispensed, the medical reasons for dispensingthe drug or device, and the number of refills authorized.• B. Prior to delivery to the patient, a physician shall reviewthe prepared drugs and devices to ensure their compliancewith the prescription and, additionally, ensure that thepatient has been informed of the name of the drug ordevice, directions for its use, precautions, and storagerequirements.
  52. 52. WFR Issues
  53. 53. 11/4/06 ©2006 James H. Moss, JD, Outdoor.law@gmail.cStandardized Curriculum
  54. 54. 11/4/06 ©2006 James H. Moss, JD, Outdoor.law@gmail.cCourse length• 56 hour WFR courses• 120 hour WFR courses
  55. 55. 11/4/06 ©2006 James H. Moss, JD, Outdoor.law@gmail.cWFR Instructors• Training behind the people offering the training• Experience
  56. 56. Playing Doctor
  57. 57. 11/4/06 ©2006 James H. Moss, JD, Outdoor.law@gmail.cMaking Medical Decisions aboutMaking Medical Decisions aboutPeople wanting to attend yourPeople wanting to attend yourprogramsprograms• If you are not an MD or DO you are practicingmedicine without a license• If you as an MD or a DO to do it they are violatingregulations because they are making medicaldecisions about someone who is not a patient• If you deny them access you may be violating theADA
  58. 58. 11/4/06 ©2006 James H. Moss, JD, Outdoor.law@gmail.cHow do you resolve thisHow do you resolve thisproblemproblem• A personal physician of the client does notviolate the ADA• A personal physician knows the patient and thepatients medical needs and is allowed to makemedical decisions concerning the patient.• A personal physician can prescribe thenecessary drugs the client may need
  59. 59. 11/4/06 ©2006 James H. Moss, JD, Outdoor.law@gmail.cViolation of State PhysicianViolation of State PhysicianLaws or RegulationsLaws or Regulations• Issuing a Prescription to an organization• Issuing a Prescription to someone to be usedfor a third party• Knowingly issuing a prescription to a personknowing it will be used on a third person
  60. 60. Laws & Statutes
  61. 61. 11/4/06 ©2006 James H. Moss, JD, Outdoor.law@gmail.cCriminal LawCriminal Law• Conspiring to have a physician to issue aprescription to you knowing it will be used onsomeone else• Using a prescription issued to one person onsomeone else as a commercial guide
  62. 62. 11/4/06 ©2006 James H. Moss, JD, Outdoor.law@gmail.cHIPPAHIPPA• Collection of Patient information storedelectronically• Patient information transmitted electronically• Medical Facility on Campus• HIPPA may apply
  63. 63. 11/4/06 ©2006 James H. Moss, JD, Outdoor.law@gmail.cHIPPAHIPPA• Violation of HIPPA is a $25,000 fine peroccurrence• Any non-authorized person accessing patientinformation without the patient’s permission is aviolation
  64. 64. 11/4/06 ©2006 James H. Moss, JD, Outdoor.law@gmail.cIssues for your MDIssues for your MD• Asking your physician to help you decide if aperson can attend your program when thephysician does not know the person as a patient
  65. 65. 11/4/06 ©2006 James H. Moss, JD, Outdoor.law@gmail.cGood SamaritanGood Samaritan• Good Samaritan does not apply if providing firstaid is part of your job or job description• Good Samaritan does not apply if the statutes orregulations about your job require you to have firstaid• Good Samaritan does not apply if you are involvedin the injury of the person you were working on
  66. 66. Thank You

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