Transcript Slide 1
Refusals
Staying Out Of The Eagles Claws
Johnny V .
Tempe Fire
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WELCOME
Thank-You For Having Me Here … ..Again. Your Medical Direction Is To Be Commended For Finding The Funding Before We Begin Some Background-Why DO This?
Started In E.M.S. In 1980 With P.F.D.
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1990- Became The S.M.E. for P.F.D. And City Attorney Liaison
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Retired In 2000- Full Time Police Officer 2006 Returned To Tempe Fire- Started The M.S.U.- Currently Assistant Chief Emergency Services Retained And Testified In 15 Cases In The State For The Defense Of E.M.S. Personnel – S.M.E. In S.O.C.
Specialize On “ In Custody Deaths ” Every Case I have Ever Been Involved In Was Predictable All Had Sub Standard Documentation Cases Were Defensible But … ..Not Fun For The Players I Am Not A Lawyer Nor Do I Profess To Be Handout Will Be Provided After Class
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OBJECTIVES
If I Do My Job Right You Should …… ..
Have A Much Better Understanding Of Our Legal System Thoroughly Understand The Right To Refuse Comprehend Why People Refuse Differentiate The Consent Types Reinforce Your Authority To Use Force Dealing With Special Circumstances Minimum Documentation Guidelines Ultimately, Stay Out Of Court !
First Things First
LEGAL MUMBO JUMBO
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It Is Expressly Understood And Agreed That The INSTRUCTOR Shall Nowise Be Deemed Or Held To Be Obligated, Liable, Or Accountable For Or Responsible Under Any Guaranties Or Warranties, Express Or Implied, Statutory, By Operation Of Law, Or Otherwise, Including, But Not Limited To ANY IMPLIED WARRANTY OF MERCHANTABILITY OF EDUCATIONAL FITNESS Under The Uniform Educational Code (UEC), In Any Manner Or Form Beyond Its Express Agreements Relative To The Determination Of The Capacity Of Student During Each Level Of Instruction; The Determination Of Successful Level Of Understanding Of The Material By Each Student; And The Ability Of The Student To Digest The Instructional Material During Or After The Conclusion Of The Class, All Herein Before Specifically Set Forth By The Educational Standards As Determined By The ODA/KCFTO And The NFPA So Help Me - - - - Lay Terms……….You Can NoT Hold Me Liable For Today’s Class Should You mess up.
Who’s Here?
WHY SPEND 4 HOURS ON REFUSALS ?
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You Have Excellent Protocols 50% Of All Pre-Hospital Law Suits Are Refusals If It ’ s Predictable it ’ s Preventable Can Be Very Complicated And Yet So Very Easy
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Why?
Folks At Every Level Do Not Understand The Magnitude And Choose To Not Do Their Job Understanding The Magnitude Of The Call Frequency/Risk Profile Low Risk/High Frequency-Chest Pain-Should Be Real Good At This High Risk/Low Frequency-Ped ’ s Code-Harder To Be Good But The Courts Won’t Care- You Better Be Good At It High Risk/High Frequency-Refusals-We Should Be Very Good At These But We Are Not. Why? High Frequency ………… .Treat As Routine
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Is It Possible For Me To Cover Every Possible Refusal Scenario?
GIVE YOU A FISH YOU CAN EAT FOR A DAY, TEACH YOU TO FISH YOU CAN EAT FOR A LIFETIME
THE LEGAL SYSTEM: AN OVERVIEW
Why Should You Know This? If You Have Been To Legal Presentations This Is A Good Review If You Know The Rules Of The Game You Stand A Better Chance Of Winning When Called To Play We Have A Very Messed Up System You Can Do Everything Right And Get Sued You Can Do Everything Wrong And Not Get Sued You Can Do Everything Right, Get Sued And Still Pay Out!
You Can Do Everything Wrong, Get Sued and Not Pay Out!
Your Goal Is Simple
Do Everything Right, Not Get Sued But If You Do, Prove In Court You Did…… And Not Pay A Dime Except Outrageous Lawyers Fees! Let’s Start At The Beginning…Laws
LAW- DEFINED
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The Principles And Regulations Established In A Community By Some Authority And Applicable To Its People, Recognized And Enforced By Judicial Process Can Sometimes Be Referred To As A Statute-A.R.S.
3 Main Types?
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Criminal, Civil And Administrative (Government ’ s Authority To Enforce The Rules) Laws Create Liabilities Liability=Obligation They Are Not Black And White- They Are Grey With Different Shades
CIVIL VS. CRIMINAL LAW
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Criminal Law- Title 13
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Protect You From Harm
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Status, Petty, Misdemeanor, Felony
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Burden Of Proof
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Beyond A Reasonable Doubt Do Time
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Tent City vs. Florence
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Civil Law
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Protect Your Rights Burden Of Proof
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Preponderance Of The Evidence Pay Up People Have Rights People Have The Right To Competent Emergency Care If They Don’t Get It Rights Were Violated
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Someone Was Negligent End Up In Civil Court Can End Up In Both We Get Sued For Negligence
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NEGLIGENCE DEFINED…
Failure To Act As A Reasonably Prudent Person Would In A Similar Situation With Similar Training
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Could A Doctor Testify Against A Paramedic?
How And In What Capacity?
4 Components Of A Negligence Claim Duty To Act
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On Duty/Off Duty/Volunteers Breach The Duty
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Who Determines?
Standard Of Care……….Hmmmmm-We Deviate/Violate Daily Basis Causation
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Did The Actions Contribute To The Final Outcome Damages
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Punitive vs. Compensatory
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Our Lives Have A Monetary Value Ped’s start at 20 million Current Arizona Standard For MunicipalitiesIs Gross Negligence ?
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Who Determines?
GROSS NEGLIGENCE
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A.R.S. § 9-500.02
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Providers Of Emergency Medical Services Procured By Municipality Are Protected By Governmental Immunity From Negligence For Claims Arising Out Of A Municipality's Provision Of Emergency Medical Aid. The Immunity Provided For By The Statute Does Not Apply If The Person Providing Emergency Medical Aid Is Guilty Of
Gross Negligence Or Intentional Misconduct.
Gross Negligence Defined
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Gross, Willful, Or Wanton Conduct Is Action Or Inaction With Reckless Indifference To The Result Or The Rights Or Safety Of Others. A Person Is Recklessly Indifferent If He Or She Knows, Or A Reasonable Person In His Or Her Position Ought To Know: (1) That His/Her Action Or Inaction Creates An Unreasonable Risk Of Harm; And (2) The Risk Is So Great That It Is Highly Probable That Harm Will Result.
WHERE DO WE SEE THIS THE MOST?
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A Conscious And Voluntary Disregard Or Conduct That Is Extreme When Compared With Ordinary We See This The Most?
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Busiest Units
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Early A.M.
On Frequent Flyers Belligerent Patients Best Rule Is TO Not Be Negligent Let Alone Grossly Negligent So Why Do Patients Become Plaintiffs'? Predicting A Law Suit
WHY DO PATIENTS BECOME PLAINTIFFS?
America Has Become A Litigious Society-Greed Unreal Expectations-Who Dies On 911?
Revenge -Rude Service Right a Perceived Wrong-It’s Not For Me…… Transference of Guilt-Sue The Fence Manufacturer If You Fell Asleep And Bay Drown Let’s Be Honest-We Would All Sue Another EMS Provider If…..
Recent Phoenix Events?
4 Major Lawsuits Currently Against Departments For Firefighters Committing Suicide
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CASE STUDY #1
High Risk/High Frequency Multiple Vehicle Accident On Interstate Involving Multiple Vehicles. EMS Arrives On Scene To Find Numerous Occupants Out Walking Around and One Vehicle On It’s Side. Police Have One Person In Custody In The Back Of A Patrol Car. Police Advise EMS That There Are No Injuries And They Can Go Available. EMS Drives Off Without Contacting Any Occupants. Raise Your Hand If You Are Starting To Cringe….. Can You Predict An Issue? If So, You Can Prevent It What Are The Red Flags?
30 Minutes Later EMS is Called Back To The Scene Because The Prisoner, A 52 Year Old Male Is Now Unconscious And Unresponsive Pt. Had A Sub-Dural Bleed, Comatose For 3 Days And Died It Was Your Father……………..Are You Calling A Lawyer?
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ANATOMY OF A LAWSUIT
Lawyer Was Consulted- No Fee Until Case Is Settled Investigation
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SME Contacted -Is There A Case Of Negligence? Gross Negligence?
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Duty, Breach, Causation Against Who?
Notice of Claim-
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Agree On Claim-Settle
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Disagree-Defense Lawyer Retained-First Deposit Complaint Is Answered-Next Deposit Law Suit Is Filed And Served-Next Deposit
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To Agency/You/Your Spouse/Medical Director/Fire Chief Depositions/Discovery-Next Deposit Motion For Summary Judgment-Throw The Case Out Trial- Start Throwing Everyone Under The Bus
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Let The Jury Decide Verdict/Appeal Settlement?-Risk Management, Insurance Carriers Takes Years-Can Cost Millions What Happened In This Case?
What Is A Life Worth?
TAKE A BREAK
DEFENSES TO A NEGLIGENCE CLAIM
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Attacking The Components
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Duty
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Did Law Require You To Act ?
Did Not Breach The Duty To Act
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Standard
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Gross Negligence
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Can Your Documentation Prove It?
Causation- Contribute To The Final Outcome Statute Of Limitations –Title 13-107
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Defined-The Statute Of Limitations Is An Enactment In A Legal System That Sets Forth The Maximum Time After An Event That Legal Proceedings Based On That Event May Be Initiated. Vary From State To State- Crime To Crime Civil Negligence- 2 Years Children ?? 18+2 Criminal
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Petty Offenses: 6 Months Misdemeanors: 1 Year; Felonies: 7 Years None on Murder, Child /Sexual Abuse, Crimes Against Government
DEFENSES TO A NEGLIGENCE CLAIM
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Contributory Negligence Vs. Comparative Negligence
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Contributory Negligence Bars The Plaintiff From Any Recovery If His Own Negligence Contributed To The Loss At All. Most Jurisdictions Have Abandoned This For Comparative Negligence
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Comparative Negligence Is A Plaintiff's Damage Award Is Reduced By The Proportion Of Loss Attributable To His Own Negligence.
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For Example, In The Mcdonald's Coffee Case, The Jury Awarded The Plaintiff $200,000 In Compensatory Damages. Because The Jury Found The Plaintiff 20% At Fault, This Amount Was Reduced To $160,000 Vicarious Liability
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Responsible For The Actions Of Others Employers Prove Employee Did Not Follow Policy
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Hmmmmm Best Defense of All ?
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Don’t Get Sued
REFUSALS
“ I Would Much Rather Be Sued By A Live Patient Than A Dead Patients Family ”
Phueck Yeww
Famous Viet namese Attorney
THE RIGHT TO REFUSE CARE..
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Everyone Has The Right To Refuse Treatment AND Transport Why Do Most People Refuse?
Economic Reasons Religious Reasons Lack Of Trust Lack Of Medical Understanding Can Consent To Some And Refuse Other No Law Against Being Stupid But……..
Alcohol Alone Does Not Cause You To Lose Your Rights
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Requirements For Valid Refusals Determine Competence
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Legal Requirement Mental Requirement And Based On What I Said, What Else?
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Medical Competence
LEGAL COMPETANCE
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Legal 18 Years of Age
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Confirmation?
Variables
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Emancipated Minor Married Reasonable?
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17 years 11 months?
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17 years 1 month When in Doubt …… .
MENTAL COMPETANCE
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Awake, Alert and Oriented To Time, Place, Location, Events Variables ETOH but Oriented x4?
Head Injury Unconscious but then wake up..
Suicidal?
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Third Person Report When In Doubt……
MEDICAL COMPETANCE
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“ You Have An Elevated ST Segment ”… ..
Your Are Having a Myocardial Infarction Put It In Layman Terms
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You Could Die
CONSENT TO TREAT…
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For The Most Part … General Types-Conscious
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Informed/Actual
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Written Parental Pre-Hospital
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Implied Other
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Medical Power Of Attorney Spouse?
Other Cultures?
TREATING WITHOUT CONSENT
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Incompetent To Refuse
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Minor
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Disoriented Suicidal
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Altered Critical Factors
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Danger To EMS
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Medical Urgency Ideally
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Gain Consent Law Enforcement Support
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Authority To Use Force 13-403. Justification; use of physical force The Use Of Physical Force Upon Another Person Which Would Otherwise Constitute An Offense Is Justifiable And Not Criminal Under Any Of The Following Circumstances: A Person Acting Under A Reasonable Belief That Another Person Is About To Commit Suicide Or To Inflict Serious Physical Injury Upon Himself May Use Physical Force Upon That Person To The Extent Reasonably Necessary To Thwart The Result.
A Duly Licensed Physician Or A Registered Nurse Or A Person Acting Under His Direction, Or Any Other Person Who Renders Emergency Care At The Scene Of An Emergency Occurrence, May Use Reasonable Physical Force For The Purpose Of Administering A Recognized And Lawful Form Of Treatment Which Is Reasonably Adapted To Promoting The Physical Or Mental Health.
RESTRAINING
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Be Justified, If Not They MAY Try To Press Criminal Charges Against You
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Assault and Battery
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Unlawful Imprisonment Kidnapping
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Violation OF Civil Rights (Freedom) Follow Your Local Protocol If Time Allows ……
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Medical Control If Possible … .Let Law Enforcement Do It
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What IF They Won ’ t Person To Each Arm ……… ..
Face Up Or On Side If Cuffs Used..Key, Have Officer If Possible In Ride Do Not Become Primary Aggressor If You Injure The Patient If They Injure You? Agg Assault-Felony, Please Press Charges Even If They Only Threatened You
WHAT DO YOU DO WHEN….
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There Is No Need To Restrain But Medical Control Gives The Order?
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Hmmm …… Broken Ankle?
Communication Is Everything
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Your Safety Is Compromised
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Law Enforcement Refuses You Really Feel They Need To Go But They Are Well Within Their Legal Rights To Refuse And Do Not Get Transported?
Find Out Why Get Family, Friends Involved … .Good Witnesses For You Patch … .Not C.N.!
Have Dr. Speak Directly With Patient. It ’ s Recorded Give Options To Drive Self, Call Back Get Phone Number. Do A Follow-up Call (Juries Love This) Document, Document, Document … ..Then
Document, Document, Document
YOUR REQUIREMENTS ?
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Are Excellent!
Here They Are … ..
Do You Follow Them? Every time?
Why Not?
If You Get Sued Guess What??
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Your Agency Could … ..
Your Medical Director and Coordinator Could … Interesting Fact …… I Do Not Have
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A Personal Liability Insurance Policy Why Do You Think?
I Have Chosen To Treat Everyone As If They Were My Family. It’s Always In The Back Of My Mind So I Try To Know Job, Not Get Complacent And Learned The Importance Of Good Documentation. And Above All Try To Be Nice To Everyone. People Don’t Sue People They Like.
SPECIAL CIRCUMSTANCES
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Medical Personnel Prisoners Lawyers On Scene Violent Patients Language Barriers Cultural Issues Religious Issues Traveler ’ s Treating On The Sly
SCENARIO #2
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76 Year Old Hispanic Male Drinking Alcohol All Day And Has A Family Fight With Sons And Wife. During The Argument, He Said He Wishes He Was Dead And Clutches His Chest. He Has A Known Cardiac Condition And Takes Nitro. Family Calls 911 Without His Knowledge. EMS Arrives And He Says …… ..
” Did Not Call You, Get Out Of My House ” I What Are The Issues Here?
Restrain Or Not Restrain?
SCENARIO #3
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Young Couple Hiking In Sedona From Out Of Town. Wife Has Possible Seizure Per Husband Who Describes As Eyes Rolling Back And Period Of Disorientation. On Arrival She Is Lethargic But Oriented X4 And Says She Is Fine. She Allows EMS To Asses And Only Finding Is Incontinence. She States She Does Not Want To Go To The Hospital And Refuses Transport.
What Are The Issues Here?
Restrain Or Not Restrain?
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DOCUMENTATION
Start Off With The Assumption You Will Be Sued In One Year
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Consider This Your Insurance Policy-You Can Write Your Own Coverage Why Can This Be SO Hard?
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No Maximum But Each Case Has A Minimum Document All Elements Of Refusals Refusal Form Signatures “Patient Advised Of Need For Definitive Medical Care For Injury Sustained. Advised Of Possibility Of Infection And Possible Complications Up To Loss Of Arm And Death. Pt. Legal Adult, Awake And Oriented And Competent To Refuse Care Stating They Will Seek Own Care. Patient Read Refusal Form, Initialed And Witnessed. Patient Advised To Call Back If Any Changes”.
REFUSAL TIPPS
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Approach Every Refusal As If They Are Going To Die When You Leave And Sue you Know Your Stuff … .Stone Cold Spread The TURD ……… .
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Medical Control
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Family PoPo Always Leave Patient With Options
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Drive Yourself
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Call BAck Write Your Report As If ………… When In Doubt ………… .
If I had A Nickel For Every Time I Said, Up Or Not ” .
“ Your Going To The Hospital, The Only Choice You Have Is Whether You Are Tied