an interesting First Responder Catch-22

[topaz]

More first responder training tonight.  We finally got our books!  That will be awesome -- I have been taking copious notes, and when questions come up, Mike has provided good and clear answers, but I'm certain I've been missing some stuff.  Tonight's class was all about vital signs, recognizing different classes of shock, and how to treat different classes of wounds.

But here's the snag: we can't administer an Epi-Pen.

First responders are trained to provide a very specific level of emergency aid.  We can dress wounds, splint fractures, administer CPR, that sort of thing.  We cannot go beyond our scope of training.  That makes sense -- they don't want a bunch of kids who have gotten 30 hours of classroom instruction to go swaggering out in the world thinking they can perform emergency tracheotomies.

Among the things first responders are not allowed to do is administer medication.  Which includes the Epi-Pen.

Now, our neighbors include one young boy with a very severe peanut allergy.  We all got instruction from them on how to use the Epi-Pen, in case he were to go into shock when his parents aren't around.  My spouse has an allergy to bee stings severe enough to keep an Epi-Pen in her purse.

As a regular joe, I would be covered under the Good Samaritan law if I were to administer the Epi-Pen to someone in good faith.  But for trained first responders, the Good Samaritan law only covers you as long as you stay within your scope of training.

My reading of this is that, until I get my first responder certification, I can legally use the Epi-Pen on someone who's going into shock.  After that, doing so could expose me to liability if anything were to go wrong.

It all reminds me of Michael Pollan's discovery of the bizarre legal rabbit-hole around the poppy: that if you wish to grow opium poppies, you can do so provided you do not know what they are -- that once you realize that fact, you can be held liable for drug trafficking.  It's kinda loopy.  But there we are.

Comments

[coastergalwdw.livejournal.com]

So, is it possible to get specific "official" training in Epi-Pens from some place/someone?

[lhn.livejournal.com]

This isn't legal advice (speaking of liability concerns :-) ), but the MA Good Samaritan law (http://www.mass.gov/legis/laws/mgl/112-12v.htm) says, "Any person, whose usual and regular duties do not include the provision of emergency medical care, and who, in good faith, attempts to render emergency care including, but not limited to, cardiopulmonary resuscitation or defibrillation, and does so without compensation, shall not be liable for acts or omissions, other than gross negligence or willful or wanton misconduct, resulting from the attempt to render such emergency care." (Physicans, nurses, and EMTs have separate provisions relating to emergency care.)

First responders can't administer drugs within the specific scope of their training as first responders. And first responders employed by EMS organizations would presumably fall under the EMS rules (since then it would be their usual and regular duties), which likely does enjoin them from administering drugs. But are there statutes, regulations, or cases that indicate that people with training, but not working in the field, are treated like those whose usual and regular duties etc. rather than like non-medical civilians?

The wording of the statute suggests not. On the other hand, it wouldn't be the first time that "any person" didn't mean any person. And I certainly don't know MA law well. But it at least seems like a question.

[fengshui.livejournal.com]

I think the question here lies in the "whose usual and regular duties do not include the provision of emergency medical care" clause. A lawyer could make the argument that someone who is a certified first responder is someone whose usual and regular duties *in an emergency* include the provision of medical care. Now, whether a single kid needing an Epi-Pen counts as a situation wherein Tim was acting as a First Responder is hard to say.

[docstrange.livejournal.com]

That's probably not the argument that would stick as it is patently not what the statute intends, else why would the statute even mention usual and regular duties? First aid is generally rendered in an emergency. However, that argument and others that perhaps could stick would be made and rebutted at very high cost to the defendant in the civil suit.

Lemme putitthisway: "You don't want to be a test case." It costs a lot.

All that said, to qwrrty: Don't take medical advice from a law firm; don't take legal advice from a medical organization. You're talking about my specialty area - risk mitigation and negligence law - and I won't hazard a guess outside my state of licensure as to such an interpretation of MA law, and I sure would not trust a chain of command entrusted with CYA for themselves on the legal front, rather than giving firm legal advice to you. Trust their medical training, but as to the MGL, ask a MA lawyer who researches and handles cases under MGL 112 §12V.

[creidylad.livejournal.com]

The reason you need a lawyer to clarify this stuff is that they will know how the MA courts have interpreted this legal wording in the past.

[qwrrty.livejournal.com]

I take your point. However, as recently as 2003, the director of the DPH's Drug Control Program found it necessary to recommend through a memo to the Public Health Commissioner (http://www.mass.gov/Eeohhs2/docs/dph/quality/drugcontrol/amend_antidotes.pdf) that the law be amended explicitly to permit first responders to administer epinephrine auto-injectors. So my impression is that this is a widely recognized side effect of Massachusetts public policy and not just the perception among EMTs who may have been fed a bad line.

[harimad.livejournal.com]

The fact that the legislature *hasn't* made the change when it was clearly given the opportunity to, is strong indication that it doesn't want to. So per Youngstown Sheet and Steel[1] the MA courts are likely to say that epi-pens really are not an exception.

This is free legal advice from someone who hasn't practiced in over a decade. It's probably worth what you paid for it. It *is* worth asking a competent MA lawyer about.

Also worth asking him about is a spousal exception, and whether you can get specific written permission from your neighbor (and wife, if there isn't a spousal exception) to administer the epi-pen.


[1] That I was just talking about this am, weirdly enough.

[keyne.livejournal.com]

Also worth asking him about is a spousal exception, and whether you can get specific written permission from your neighbor (and wife, if there isn't a spousal exception) to administer the epi-pen.

I'm actually not planning to sue. So far :-)

[qwrrty.livejournal.com]

I have to tread carefully!

[cruiser.livejournal.com]

Yeah, but if you croak, maybe Morgan or Quinn will - has either expressed an interest in being a lawyer when he grows up?

[docstrange.livejournal.com]

Is a "first responder" meaning an employed EMT? Being certified doesn't make it your job - not your usual and regular duty, hmm? I don't think the orgs are doing much more than CYA unless there is a case on point. This is why a MA atty is necessary.

[keyne.livejournal.com]

(Physicans, nurses, and EMTs have separate provisions relating to emergency care.)

It's an interesting loophole in MA law that Certified Professional Midwives currently have no legal status -- neither formally recognized nor formally forbidden -- and thus, presumably, could be interpreted to be either laypeople OR health professionals "whose usual and regular duties ... include the provision of emergency medical care."

[docstrange.livejournal.com]

Now my non-legal comment: If your neighbor's kid is balooning from a bee sting and appears about to croak, your civil liability may not be the most serious concern in the situation, even to you. Before there were good samaritan acts, everyone would be open to the liability of negligence in that situation; and most would have risen to the situation and done the right thing.

Definitely not legal advice. Human advice.

[catya.livejournal.com]

Intellectual response: Is it actually that you're not legally allowed to do it, or that the good samaritan law would not cover you if something went wrong?

Emotional response: fuck it. if there's an emergency, do the right thing.

[creidylad.livejournal.com]

Intellectually, in NY anyway, it's a question of liability, not "allowed" or "not allowed", and generally the liability is mitigated if treatment is given with consent -- this is my fifteen-years-out-of-date understanding for your neighboring state, anyway.

[qwrrty.livejournal.com]

There's no question in my mind -- if there's an emergency, and no one else is around, I'll use the pen and deal with any fallout later. And the likelihood of there being fallout seems extremely limited. (Who's going to prosecute?)

According to the Berlin rescue squad folks, there is a course that EMTs can take that trains them to administer some forms of medication, which would qualify us for administering the Epi-pen. They're going to look into whether first responders can take that course and get the same certification without taking full EMT training.

So that's only another eight hours of coursework to learn something that takes five minutes for a nurse to show you how to do, but hey, that's life. :-)

[harimad.livejournal.com]

It's not about legal prosecution by the state. It's about a lawsuit from the stabbed or zir family. It happens. A lot.

Which is why there are Good Samaritan Laws.

The necessity for which I loathe.

[creidylad.livejournal.com]

This is why my husband let his EMT certification run out.

[qwrrty.livejournal.com]

Really! Are there similar liability loopholes that affect EMTs as well?

The thing that drives me crazy about this is that it's something that apparently I could have done before training without worrying about liability. The idea that getting certification actually reduces the number of things that I can potentially do is bonkers.

[creidylad.livejournal.com]

He was never an EMT, but he was fully trained to be at one point with an eye towards volunteering. The volunteers who where local to us at the time didn't need new people, and so it was easier just to let the certification run out and go back to being a good samaritan.

[ghislaine.livejournal.com]

Tim, rest assured that if you EVER felt the necessity to use the epi-pen on my child there would ONLY be appreciation.

[agaran.livejournal.com]

...which of course I already assured him of in person.

Something I've always wondered...

[blauzahl.livejournal.com]

How do you know when it is "bad enough" to warrant an epi-pen? No breathing, obviously. But what about the rest?