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by Frances Turner Mock
Medical emergencies that require immediate life-saving prescription drugs
to be administered by a nonlicensed professional create unique problems
for camps. Some medical emergencies (like anaphylactic shock or a severe
asthma attack) can be life-threatening unless treated immediately with
prescription drugs. Yet state laws often prohibit a nonlicensed professional
from dispensing the needed medication. If a camper experiences such an
emergency in the wilderness or in a remote location without access to
professional medical help, a counselor may be the only person in a position
to render critical assistance. Long before such an incident occurs, camps
must decide what prescription drugs to carry in their first-aid kits,
formulate a policy to govern their use, and train counselors in diagnosing
conditions and dispensing medications. This article outlines the potential
legal consequences and what camps should consider when deciding whether
to allow nonlicensed personnel to dispense prescription drugs.
Legal and Insurance Implications
Both federal and state laws regulate prescription drugs. Federal laws
generally address FDA regulations for the approval and labeling of drugs
and criminal laws related to illegal substances; therefore, federal laws
generally offer little guidance for this particular situation. State laws
will probably provide the most pertinent regulation.
Because state law varies, this article addresses general principles.
To determine what laws apply to your program, you will need to have an
attorney in your state both review the state statutes and check with various
state administrative agencies, including medical licensing boards, pharmacy
boards, and agencies that oversee emergency medical services. These resources
should provide information relevant to how the drugs may be obtained,
how they must be labeled or handled, what restrictions are placed on the
physician helping formulate a protocol for the drugs, special laws permitting
dispensing medications in emergency situations, and potential criminal
charges for violating any of these regulations and possible civil liability.
Potential Criminal Charges
Many states have laws that make it a crime to practice medicine or to
dispense prescription drugs without a license. Practicing medicine often
includes diagnosing and treating a medical condition beyond what an individual
is licensed to do. More specifically, the law usually requires a doctor
to assess each individual patient before ordering that prescription drugs
be used. Some emergency medical technicians (EMTs) are allowed to dispense
drugs without talking with a doctor, but most camp counselors are not
EMTs. Therefore, if a counselor makes an independent determination that
a camper needs an emergency prescription drug and administers that drug,
he could technically be violating the law. Battery, frequently defined
as the unwanted and offensive touching of another, is another crime with
which a counselor could be charged. Obtaining permission from the patient
before administering aid could help prevent this type of charge. While
the thought of being charged with a crime for dispensing a life-saving
medication in an emergency situation may seem farfetched, the fact that
some laws preclude this action creates other complications for both camps
and the person administering the drugs.
If a counselor violates the law, the camp cannot protect the individual
from being prosecuted. In fact, the camp could also be prosecuted. While
this possibility may seem unlikely, if a camp chooses to implement a policy
that technically violates the law, it should inform its counselors of
that fact. Some staff members may be very concerned about potential criminal
charges even if that scenario seems improbable. Furthermore, an employer
cannot require an employee to break the law, creating a real conundrum
for a camp formulating a policy to deal with emergencies where life-saving
prescription drugs may need to be given by a nonlicensed individual but
where such acts are illegal.
The good news is that some states have enacted laws to address this
problem. For example, in North Carolina, unlicensed individuals are allowed
to dispense epinephrine to treat anaphylactic shock after proper training
by a licensed physician. An attorney in your state can determine if there
are any laws that provide your camp with similar authorization. Camps
may also be able to work with state agencies to obtain permission to treat
life-threatening conditions with prescription drugs administered by nonlicensed
staff.
Civil Liability
Camps can also be sued for negligence associated with dispensing a prescription
drug. Battery, defined above, can also be grounds for a civil lawsuit
where someone seeks monetary damages. Lawsuits based on negligence could
include claims that the medication should not have been dispensed or that
it was not dispensed properly. Having a protocol in place and training
counselors to be prepared for these emergencies (discussed further below)
should help address those types of claims. However, if dispensing the
drug is a technical violation of the law, a camp could face an additional
potential problem based on a principle called negligence per se. Generally
speaking, negligence per se provides that if an individual (or organization)
violates a state law that is intended to protect people from a specific
harm and someone is adversely affected by that specific harm, the individual
(or organization) is presumed to be negligent. If sued, the camp or individual
may be able to overcome the presumption of negligence and may have other
defenses (like a release form prohibiting liability for negligence or
a “necessity” defense), but it is important to understand
that the presumption of negligence may apply and to understand what defenses
you may have in response to that presumption.
Insurance Implications
Dispensing prescription drugs may also have implications under a camp’s
insurance policy. Frequently, policies include language excluding coverage
for willful, intentional, or criminal acts. Therefore, if dispensing a
prescription drug by a nonlicensed professional is a technical violation
of the law and your policy has this kind of exclusion, your insurance
company may decline coverage for any claims arising from the administration
of prescription drugs. Having insurance coverage is important to cover
any claims and to pay the attorney’s fees to prove you or your staff
were not negligent.
To address the potential legal risks and insurance pitfalls, camps need
to consult with a local attorney and research the laws that apply. An
attorney can also help assess and prepare defenses to potential legal
claims. Administrators should check with their insurance carriers to determine
whether any language in their policies precludes coverage. Then, decisions
about whether and which prescription drugs to carry can be made based
on the laws that apply.
What to Consider When Implementing a Policy
If a camp chooses to include prescription drugs in its first-aid kit,
it should also formulate a policy that governs the administration of those
drugs by nonlicensed individuals. A physician should help create a protocol
that:
- outlines signs and symptoms of the life-threatening medical condition
to be treated;
- provides directions for dispensing the prescription drug;
- lists side effects and the expected outcome; and
- gives instructions for when the patient should be evacuated or taken
to a medical facility. In formulating this policy, camps may want to
review the protocols established by WMA, WMI, SOLO, or other organizations
that specialize in wilderness medicine. Camps should also consult with
other similar programs in their state or region to determine the local
standard of care.
As with dispensing any medications, a record should be kept of what
medication was administered, by whom, why, the effect of the drug, and
what follow-up measures were taken. Finally, a physician or other licensed
professional should train counselors on the protocol and obtain the prescription
drugs in the name of the camp or organization and not in any individual’s
name.
One way to avoid potential legal problems is to have counselors contact
a physician and obtain permission before administering the prescription
medication. A camp should have the name and phone number of a medical
facility that will be available at any time to assist with this type of
situation. This step may not be viable in remote locations (even if cell
or satellite phones are carried) and may not be feasible for all emergencies,
but the protocol should include this information so that such contact
can be made when possible.
In exchange for the invaluable advice and training (and potential on-call
status) of a physician, camps should make efforts to protect the physician
and his practice from potential liability. Camps should contact the state
medical licensing board to investigate any potential issues with the doctor’s
involvement and confirm whether the camp’s or the doctor’s
insurance will cover the physician for any lawsuits brought related to
his involvement with the protocol or staff training. Furthermore, if a
liability release form is used, camps should consider including the consulting
physician as one of the parties released from liability.
Medical emergencies that require the administration of prescription
drugs by nonlicensed professionals create potential legal problems, but
knowing the laws that apply, ensuring that insurance will cover any such
claims, and formulating a protocol with a physician will help camps be
prepared for this unique situation.
Originally published in the 2004 Spring issue
of The CampLine.
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