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 non-licensed 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.
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 an