Administration and Leadership, Major Incidents, Mass Casualty Incidents, News, Training

Pro Bono: Mass Casualty Incidents (MCI) Legal Questions Answered

Issue 5 and Volume 38.

Managing multiple patients at a mass casualty incident (MCI) can be a real challenge. During an MCI response, resources are taxed and you may need to quickly triage the patients to ensure that care is provided first to those most in need. From a legal standpoint, the law generally recognizes that MCIs are not “business as usual” and that it might not be possible to provide the same level of patient care—including documentation of that care—as you would with a single patient or other typical EMS response.

Your duty during an MCI is to act as a reasonable and prudent EMS provider is expected to act given the same or similar situation. If you have MCI protocols, you should learn them and follow them to the best of your ability. Any lawsuits for negligence or abandonment will likely see those protocols as the standard for care that you’ll be judged by.

Here are some common questions and answers to legal issues in an MCI response:

Q: Do I need a separate refusal form completed for every patient who refuses care when they’re obviously not injured?
A: Ideally, you would obtain an informed refusal from every patient and document that refusal (obtaining the patient’s written acknowledgement) on a separate “Informed Decision Making” form. In many MCI situations, those walking around may not even be “patients” at all, especially if the person doesn’t exhibit any injuries, voices no complaints and says they aren’t hurt, and if the mechanism of injury for their situation doesn’t suggest an injury. Failure to obtain a refusal form in that situation wouldn’t be a critical failure. Many people in that situation will be hesitant to sign a refusal form when they are uninjured and never called for help in the first place. Sure, you should try to obtain a well-documented and signed refusal form if you can, but don’t let that delay caring for others who are truly in need. The paperwork can come later. At a minimum, you should document the person’s name and address, that the patient had no complaints or injuries and a description of your interaction with them, including that they didn’t wish any assessment or treatment.

Q: Is it a violation of the Health Insurance Portability and Accountability Act (HIPAA) to combine patient care information, such as vital signs, on a sheet that includes information on multiple patients?
A: No, it isn’t. It may simply be impractical to keep individual records for each patient you encounter at the scene of an MCI, especially when faced with many “walking wounded” with non-life threatening injuries. Keeping a “master sheet” with multiple patient names and information in an MCI event is acceptable.

Q: Is it a HIPAA violation to release patient information to other agencies involved in the MCI response?
A: No. Protected health information about a patient may be shared with other agencies involved in the care of the patient—without the patient’s authorization—under the HIPAA “treatment” exception to obtaining patient permission.

And the HIPAA regulations even recognize that in a disaster response, there may be a need to disclose patient information—without the patient’s authorization—to other entities involved in disaster response for the purposes of notifying or assisting in notifying a family member or others responsible for the care of the individual, or the individual’s location, general condition or death.

Q: Are there HIPAA concerns if we transport multiple patients in the same vehicle?
A: No. It isn’t a violation to transport multiple patients in the same vehicle even though one patient may hear or see information about the other patient’s care. This would be considered an unavoidable “incidental disclosure” under these circumstances.

Q: Can we enlist the help of bystanders at the scene?
A: Yes, if necessary. You need to do what a reasonable EMT or paramedic would do given similar resources. In MCI situations, the adage “desperate times may call for desperate measures” applies. If you need to enlist the help of a bystander or anyone else to assist you in treating, moving or transporting a patient, then do so! Of course it’s important to consider the fact the bystander may have no training and you should instruct the bystander accordingly. But under the law, “Good Samaritan” principles would apply. Unless you acted unreasonably, such as enlisting an untrained bystander when there were three first responders standing there willing to help, it’s extremely unlikely that you would be found negligent even if there were harm to the patient as a result of the bystander’s involvement. This is true as long as you did what others would see as reasonable with the resources at hand.