By: William “Wes” Ward
Our conference takes place April 25-30, 2022. Register here.
EMS agencies and their providers are in the risk prevention and mitigation business designed to prevent and resolve medical and rescue situations that harm the general public we are bound to protect. Less attention is paid to internal risk management addressing our EMS staff and other critical internal issues related to a well-functioning and efficient EMS or fire operation.
There are too many examples of employees mistreating each other and violating their rights, including: assault and battery; rape; tampering with safety equipment; embezzlement; child pornography; theft; cyberstalking; and other examples of misconduct – and at times, criminal activities on- and off-duty. All of these issues are ripe for litigation.
In addition to the criminal activities, there are also career and reputation damaging events involving the misuse of social media, driving violations, and training accidents added to those issues requiring proactive management and enforceable policy, including codes of conduct to guide the behavior of employees both on- and off-duty.
Elected officials, directors, managers, and providers are responsible for creating a safe place for your EMS employees, providers, and staff inside the station and on the emergency scene. This may incur protections off-duty as well. Understanding the means and methods to prevent these adverse legal processes is the basis of litigation prevention.
EMS agencies are also subject to medical malpractice litigation brought on by medical mistakes, including missed intubations, using the wrong medications or medications that have expired, practicing outside of their established protocols, patient abandonment, and other medical errors or misfeasance. Litigation prevention and managing risk is the cornerstone of a well-organized and managed department and is the responsibility of the leadership and the employees of the organization.
While medical malpractice is one factor, leadership must understand the largest litigation payouts affecting departments are based on Civil Rights violation claims. Your employees or patients can sue you and the department for violating their protected rights under the law found under the Constitution. These include: Title VII Civil Rights violations, sexual discrimination, religious discrimination, gender discrimination, or discrimination based on sexual identity, hostile workplace, harassment, sexual harassment, hazing, bullying, and stalking. One of the prevention methods to avoid litigation is that you provide up-to-date and enforceable policies, standard operating procedures (SOP), and standard operating guidelines (SOG), and train your employees annually with updates and scenarios based situations.
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The patient also has rights under the law; for example, EMS providers may have violated their protected 4th Amendment rights preventing illegal use of excessive force in their treatment and at times restraint and transportation to a medical or jail facility.
In one recent example, a Columbus, Ohio, man who works as an EMT was charged for his violent contact with a restrained patient in an ambulance. The EMT is facing charges of official misconduct and misdemeanor battery. He is accused of grabbing the handcuffed patient’s head and pushing his thumbs down on the man’s eyelids during a transport where the patient was restrained but became belligerent. He was reported to his supervisor by the two sheriff deputies accompanying the patient to the hospital.
Related to violations of patients’ 4th Amendment rights, the courts continue to clarify 4th Amendment patient protection issues. One of the cases pending before several courts are the use of ketamine on patients for restraining purposes at times at the direction and request of the police. A recent example is the case of Elijah McClain. A recent settlement agreement was reached between McClain’s parents and the City of Aurora, totaling $15 million, making it one of the largest police-related settlements in Colorado history. Remember the reported facts that McClain was not suspected of committing any crime at the time of his arrest on August 24, 2019. Instead, he had been walking home from a convenience store when someone called 911 to report him as acting suspiciously.
Reports detail officers’ physical assault of McClain and paramedics’ administration of the powerful anesthetic ketamine at a dose much too high for someone McClain’s size. The settlement comes after a grand jury issued 32 indictments against three Aurora police officers and two paramedics involved in detaining McClain, including charges of manslaughter and criminally negligent homicide in his death. Those public safety officers (police and paramedics) will stand trial in the death of this individual and there will be no such defense as qualified immunity here due to the willful disregard for his safety and his protected rights.
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Other cases include using nonchemical restraints, such as compression techniques or strapping the patient to the gurney. This can cause harm to the patient, including death from compression asphyxia, dislocations, or other injuries – such as fractured necks and shoulder or elbow dislocations.
Another violation of patient 4th Amendment rights is the improper release of personal health information (PHI) under the Health Insurance Portability and Accountability Act (HIPAA). After an unencrypted laptop containing PHI data fell off the bumper of an ambulance and was not recovered, the Department of Health and Human Services’ Office for Civil Rights (OCR) announced that a small Georgia ambulance service agreed to pay a $65,000 fine and adopt a demanding corrective action plan to settle potential HIPAA violations.
EMS organizations and departments are held to a higher standard by the public. You help create that standard as a provider, department, and the public at large through your policies and procedures and the character of your employees. All too often, we breach that public trust by misbehavior by the leadership, managers, and providers through policy violations and criminal activities.
Well-written articulated best practices assist departments in avoiding legal jeopardy in addition to well-constructed code of conduct and ethical standards policies guiding department behavior will reinforce the policies you already have in place. It is nearly impossible to write a policy for every conceivable action affecting your staff. Therefore, codes of conduct and ethical standard policies provide expectations for the staff to adopt and follow both on- and off-duty.
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The simple remedy of “see something, say something,” and “getting involved early,” is available for those employees squaring off in the station; however, it is not a well-used tool in our personnel toolbox. With a failure to use those tools at the right time, we ultimately end up in the courtroom to resolve an issue or disagreement generally at a cost to the department either financially or a loss of personnel due to terminations or resignations.
It is imperative for leadership and even elected officials to be well versed in the laws affecting our department operations and presenting a process of identifying and avoiding risk; understanding your professional and personal accountabilities; your supervisory responsibilities to the department, your providers, and yourself and are designed to prevent most, if not all of, the jeopardies that will challenge your department.
Use your legal counsel and human resources to review your policies and consult with these resources periodically to ensure a safe work environment for your employees and the public they serve. It is time and money well spent.
Battalion Chief William “Wes” Ward currently works full-time as the director of EMS for Center Point Fire District. He is also the administrator for the Alabama EMS Challenge, which is an Alabama fire college program that brings high-quality, physician-led continuing education to paramedics in Alabama. Wes holds a master’s degree in public administration degree and is currently working toward his PhD.
