Wilderness First Aid October 2010

Wilderness First AidWilderness First Aid
And the LawAnd the Law

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.

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

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.

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

Brought to you by:Brought to you by:
If you are interested in any of these products for you or
your programs contact me

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

Attorney for:Attorney for:
• O.A.R.S.
• International Mountain Guides
• Noah’s Ark
• CAMP
• NRS
• American Mountain Guides Association

TrialsTrials
• Whitewater Rafting Companies
• Snow Mobiles
• Ropes Course
• Canoe Liveries
• Climbing Gyms
• Land owners

Adjunct InstructorAdjunct Instructor
Outdoor Recreation Risk Management,
Insurance & Law

Adjunct InstructorAdjunct Instructor
• Ski Area Operations Risk Management

EditorEditor
Outdoor Recreation Law Review

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

UIAA Safety CommitteeUIAA Safety Committee
• Union Internationale Des Associations
D’Alpinisme (International Mountaineering and
Climbing Federation)
• US Member of the UIAA Safety Committee

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

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

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……

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

Professional ResponsibilityProfessional Responsibility
• My job to inform
• Your job to figure out what you want to do with it.

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

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

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

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

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

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.

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)

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

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

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

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

Legal Issues Affecting
Physicians

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

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

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

ProtocolsProtocols
• Written Oral, no difference
• Medical Protocols are only for licensed health care
providers

Hierarchy of “Regulations”Hierarchy of “Regulations”
• Guidelines
• Protocols
• Procedures (or Standards)

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

Violation of PhysicianViolation of Physician
RegulationsRegulations
• Making a medical decision about a person who is
not a patient

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;

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.

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

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.

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;

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.

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.

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.

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.

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.

Standardized Curriculum

Course length
• 56 hour WFR courses
• 120 hour WFR courses

WFR Instructors
• Training behind the people offering the training
• Experience

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

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

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

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

HIPPAHIPPA
• Collection of Patient information stored
electronically
• Patient information transmitted electronically
• Medical Facility on Campus
• HIPPA may apply

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

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

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

Wilderness First Aid October 2010

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Wilderness First Aid October 2010