Administering Emergency Prescription Drugs: Legal Implications and Policy Considerations

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 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.

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.

Frances Turner Mock is an attorney who worked in the outdoor industry for many years and now specializes in recreation law. Licensed to practice law in North Carolina, she also serves on the North Carolina Outward Bound School Safety Committee and speaks regularly at outdoor conferences.

Originally published in the 2004 Winter issue of The CampLine.
 

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