PAX Centurion - January / February 2015

www.bppa.org PAX CENTURION • January/February 2015 • Page 31 Mauled while working? New legislation aims to safeguard your health Legal Notes: Jennifer N. Smith, Esq. Sandulli Grace P.C., Counsel to Members of the Boston Police Patrolmen’s Association W hile responding to a call on December 10, 2014, for an intoxicated and unconscious woman at theWyndham Hotel in Boston, Boston Police Patrolmen’sAssociation-Emer- gency Medical Services Division (“BPPA-BEMS”) member, EMT Tony O’Brien was viciously attacked by his patient in a highly publi- cized incident. O’Brien was injured by his assailant while attempting to assess her condition, provide emergency medical treatment, and trans- port the woman to the hospital. Before the intoxicated woman could be restrained and subdued, she ferociously bit and scratched O’Brien. His bloody wounds included deep scratches from his head to his shoulders and large chunk of flesh missing from his left hand that the woman had removed with her teeth. O’Brien and the woman were both treated at Massachusetts General Hospital. Based on the mode of his injuries, O’Brien was understandably concerned that he could have been exposed to HIV or hepatitis. However, when O’Brien inquired with the hospital to learn if he had been ex- posed to any contagious diseases during the attack, MGH could not provide him with any information: O’Brien’s attacker had refused to be tested for any contagious disease. Currently, G.L. c. 111 Section 111C provides that if a health care facility diagnoses a trans- ported or deceased person as having an infectious disease that is considered “dangerous to the public health,” as defined by 105 CMR 172, the health care facility shall notify the police officer, fire, fighter, EMT, corrections officer, ambulance operator, or attendant, who, “while acting in his professional capacity, attends, assists, or trans- ports a person,” to the facility of the possibility that the first-responder has been exposed to a contagious disease. However, Section 111C does NOT require the patient to submit to testing or allow the facility to provide the first responder with any information in instances where no diagnosis has been made. Where O’Brien’s assailant refused to be tested, the law privileges her right to medical privacy over O’Brien’s ability to safeguard his health and get appropriate prophylactic medical treatment. Unfortunately, the situation O’Brien faced is not at all unique: first responders regularly face exposure to contagious diseases while work- ing. As the currently law stands, Massachusetts emergency workers have NO right to know what, if any, diseases they have been exposed to by perpetrators, suspects, or patients, while working, unless the patient/ defendant consents to provide a sample or the patient/defendant is diagnosed. Fortunately for O’Brien, the Suffolk County District Attorney’s Office recognized the unconscionable inequity of the situation and requested that the woman submit to a blood test to determine if she had exposed O’Brien to a contagious disease, and share the results with O’Brien, as a condition of her release at her arraignment (she was charged with assaulting a public employee). Ultimately, as a condition of her release, the woman assented to the testing, and the results were shared with O’Brien, but the gory incident illustrates a serious flaw in the law that endangers all first responders. O’Brien’s union, the BEMS-BPPA, working in concert with the BPPA, sprung into action to remedy the issue. The Unions hoped to cre- ate a legislative solution to help all first responders who are exposed to contagious diseases while working. Attorney Ken Grace, working with Attorney Nick Pollard, both of Sandulli Grace, P.C., drafted an amend- ment to G.L. c. 111, Section 111C that provides a mechanism for the first responder’s employer (or the local Department of Public Health) to file a petition in District Court seeking an order requiring that the patient provide a blood or bodily fluid sample for testing, where the patient/ defendant refuses testing or no diagnosis has been made. In addition, the proposed amendment mandates that the results of the test be shared with the first responder who may have been exposed within 48 hours of the test. The amendment to G.L. c. 111, Section 11C, H.R. 3284, 189th Gen. Ct. (Mass. 2015), “AnAct relating to Public Safety and Public HealthWorker Protec- tions,” was filed earlier this month by Representative Nicholas Col- lins, of South Boston. The legis- lative fix was carefully crafted balance the scales: it protects privacy but it also aims to protect first responders. Under the amendment, the District Court could only compel testing in instances where such testing is reason- able and necessary. To demonstrate that testing was necessary, the first responder’s employer must first demonstrate that the first responder has: • Been exposed to bodily fluid(s) that are known to transmit a highly contagious disease; • Reason to believe the patient/defendant may have a highly conta- gious disease in question that could have been transmitted by the bodily fluid(s) to which the first responder was exposed; • Sought testing within seven days of exposure; and • Made an attempt to obtain a sample from the patient voluntarily. Without an affirmative demonstration that the testing was necessary as described, the District Court could not require the patient/defendant to provide a sample for testing. We are optimistic about the prospect that H.R. 3284 will become law and that this potentially devastating loophole will close. In the interim, if you suspect that you have been exposed to a contagious disease purposely or inadvertently; by a victim, patient, or suspect, first and foremost, immediately file the requisite standardized trip form with the treating facility. Then, for the sake of your health and well being, notify your employer and your union, and if necessary consult an attorney. Your union and your union attorneys understand the unique difficulties and potential dangers you face as a first responder, and we stand ready, willing, and able to help you protect your health and get you the neces- sary medical treatment you deserve.