See all posts in the network tagged with
That didn’t take long. Yesterday’s drowning death in Alameda, California prompted an about face today as the policy prohibiting firefighters from effecting a land based water rescue was reversed.
My question is – will those who made the “tough choices” back in 2009 to cut the budget – who no doubt reveled in the hold-the-line against taxes rhetoric – have the courage to step forward now, or will they shift their feet and try to find someone else to blame?
A tragic drowning in Alameda California has left the public stunned and the media smelling blood in the water – all because police officers and firefighters stood by and watched.
The incident occurred yesterday, and here is the news footage.
The headline could just have easily read:
- Firefighters blame lawyers for downing death – liability concerns too great or
- Dammed if you do dammed if you don’t – sued by deceased’s family or cited by OSHA, pick your poison
- How far do we go in the name of safety?
One thing is for sure, the government bean counters and tax control fanatics were no where to be found for an interview, and will likely remain in hiding on this one. Left standing to take the brunt of the political backlash are the first responders.
Regardless of how you feel you would have personally acted under the circumstances, the reality is that some policy maker in government made a decision not to provide funding for this kind of eventuality. Like bean counters everywhere they made a conscious decision to roll to proverbial dice. Usually, first responders (particularly firefighters) get them off the hook by risking their lives to overcome the obstacles, be it fighting fires despite being dangerously understaffed, using outdated equipment, or 1970s style safety practices. This time the first responders didn’t take up the slack. Part of me wants to say shame on them… but there’s a bigger story.
I am interested to see if the blame will reach the bean counters this time, or will it stop with the first responders.
If you have been following this blog for very long, you know there have been a large number of theft cases in the volunteer service where a high ranking official (treasurer, president or fire chief) steals large sums of money from the organization. None of these cases (and there are over 60 of them since 2008) are as strange and tragic as the one involving Jeffrey Lee Shifflett, the former fire chief of the Hardy Volunteer Fire Co., in Bedford County, Virginia.
On July 7, 2009, Shifflett, his wife Deborah, and his adult son Cory were charged with embezzling close to $250,000 from the Fire Company. On July 8, 2009, Shifflett committed suicide.
The criminal charges proceeded against Mrs. Shifflett and Cory Shifflett. Another chapter in the ugly affair came to a close last week as Mrs. Shifflett entered a guilty plea in Bedford County Circuit Court.
A West Virginia paramedic has been fired and charged criminally after allegedly slapping a patient.
Paramedic Michael Wears, 37, was fired last week by the Kanawha County Emergency Ambulance Authority following an investigation into the incident, which occurred on May 19, 2011. He was charged by Dunbar Police with battery.
The patient was in police custody at the time, and handcuffed in the back of a cruiser. He and Wears alleged got into an altercation leading to the slap. According to police, the patient was intoxicated at the time and the battery occured in the presence of the police officer.
A St. Louis Fire Department deputy chief who was passed over for promotion to fire chief in 2007, has won a race discrimination suit against the city.
Deputy Chief Charles Coyle claimed that the city discriminated when it promoted a battalion chief, Dennis Jenkerson, to be the fire chief. Chief Coyle is black and Chief Jenkerson is white.
The city claimed that the promotion was based on Chief Jenkerson’s higher test scores and the fact he was viewed as a better fit by Public Safety Director Charles Bryson, who is black. However, the St. Louis County jury sided with Chief Coyle and awarded $300,000 in actual damages and $50,000 in punitive damages.
The case has to be considered in the context of race relations in the St. Louis Fire Department over the past few years. In 2004, the city’s first black fire chief, Sherman George, refused to promote any firefighters alleging that the 2004 testing process was flawed because it did not adequately judge each candidate’s ability to perform at fires or emergency scenes.
A group of black firefighters, Firefighters’ Institute for Racial Equality, alleged the process was racially biased in favor of whites and filed suit alleging disparate impact discrimination. However, the courts disagreed finding the evidence of disparate impact to be lacking. See Stewart v. City of St. Louis, 532 F.3d 939 (8th Cir., 2008).
Meanwhile, a lawsuit was filed by several firefighters who were on the promotional lists as well as the firefighters’ union, seeking to compel the chief to make the promotions. The trial court sided with the firefighters, but in 2005 the Missouri Court of Appeals upheld Chief George, finding that he had the discretion to promote or not. See State ex rel. Killingsworth v. George, 168 SW 3d 621 (MO App.,2005)
By 2007, no promotions had been made and a showdown developed between Chief George and Mayor Francis Slay (who is white), along with his Public Safety Director, Charles Bryson. Chief George refused Bryson’s direct order to make the promotions and was demoted to deputy chief. An acting chief, Deputy Chief Steve Kotraba, was appointed and he made the promotions.
Chief George subsequently appealed his demotion, first through the civil service process and then through the courts. He also filed a separate race discrimination suit. Shortly after the demotion he opted to retire. In 2010, Chief George lost both his appeal and his discrimination lawsuit.
It was in this context that Chief Coyle claims he was passed over for promotion to fire chief as the successor to Chief George. No word yet on an appeal.
The Fairfax County Fire Department is in the middle of a double-header of sorts, but its no game. The department has been sued in two separate Federal lawsuits by two female firefighters for sexual harassment, and the department has lost the first case at trial. Both suits allege a hostile workplace.
The first suit was brought by firefighter Mary Getts Bland, who retired last year. She alleged that Lieutenant Timothy Young harassed her despite her complaints to the department about his conduct. A May 3, 2011 pre-trial ruling by Judge James C. Cacheris sets forth the facts in considerable detail for anyone interested.
Last week a jury ruled in Bland’s favor, awarding her $250,000 and finding that the department knowingly tolerated the harassment. Judge Cacheris had previously dismissed Bland’s civil rights claim and a claim that she was retaliated against. For more on the decision.
The second suit was filed by firefighter Stacey Bailey, who alleges that Young as well as other male firefighters harassed her. She also alleged that a lung injury she suffered during a training evolution was caused by harassment, but that allegation was dismissed by Judge Gerald Bruce Lee on December 21, 2010. Here is Judge Lee’s ruling.
Attorney Ellen K. Renaud represents both Bland and Bailey. Bailey’s suit is scheduled for trial in June.
Following up on yesterday’s post and discussion with Michael Morse and Rescuing Providence, the question has been posed about the legality of using police officers to take people with diminished capacity into custody as a way to authorize us to treat and transport them against their will.
There is a lot of good, down to earth advice we come across in the fire and EMS communities. Having been a firefighter for ten years before I started law school, one of the things I focused on in my studies was understanding the legal underpinnings of that down to earth advice.
We have probably all been taught at one time or another that police officers have the authority to take people into custody, and authorize their treatment. Could the solution to the dilemma we face with a patient with diminished capacity be that simple? Could it be that in a close case we simply need to defer to the other guys/gals in blue? Ahhhhh…… it’s a bit more complicated than that.
All states have laws that authorize a police officer to take a person into “protective custody” when they are deemed to be unable to care for themselves, a risk to themselves, or are otherwise incapacitated. A few states limit the protective custody power to people who are intoxicated, but most states do not impose such a limitation.
Once a person is arrested or is taken into protective custody, a police officer has a legal duty to protect the safety of his/her prisoner. In addition, states universally have laws that require all persons to comply with the lawful orders of a police officer. Combining those two laws, a police officer has the authority to direct us to take a person in their custody to a medical facility against that person’s wishes.
However, that is the extent of the officer’s authority. The officer cannot override the patient’s right to consent or decline treatment. For example, a police officer cannot order us to start an IV or push meds over a prisoner’s objection. Nor could the officer order an ER physician to treat a patient against the patient’s will. That would require an independent determination by the medical provider that the patient lacks capacity.
So what is the advantage of using a police officer’s power to place someone into protective custody? By using a police officer to take someone into protective custody, we are exchanging our determination that a patient lacks mental capacity, for the police officer’s determination that the patient lacks capacity and needs to be taken into protective custody. In my mind there is no advantage – other than perhaps having an additional witness to the patient’s state of mind.
Of course if the patient is violent or resists, the involvement of police is invaluable. In some cases, a patient may be more compliant if the police officer orders them to be transported, although the opposite can also be true. But strictly from a legal perspective, a police officer has no greater authority to order treatment for a person in protective custody than otherwise exists. It still comes down to our determination of whether or not the patient is capable of understanding the risks of declining aid and the benefits of accepting aid, and making a voluntary decision.
And now for a brief commercial: The 2nd Edition of Legal Considerations For Fire and Emergency Services is due to be released on June 15, 2011. The 2nd Edition adds an entire chapter on EMS related issues ranging from what we are talking about here - to DNR orders, HIPAA and medical confidentiality. It also addresses many of the hottest legal topics facing the fire service, including digital imagery, social media, grooming and tatoos, along with updated cases including the US Supreme Court decision in Ricci v. DeStafano (the New Haven case) and an overview of the ruling in Lewis v. Chicago. For more info.
Posted in EMS
My friend, colleague from the Providence Fire Department, and fellow author/blogger Mike Morse, has posed a hypothetical question to me. At least he has assured me that the case is hypothetical and bears no relation to a real incident. Take a look at Rescuing Providence.
One of the most difficult situations that a firefighter, EMT or paramedic can face is the challenge of dealing with a patient whose mental capacity is in question, and who wants to refuse aid. The issues are complicated, the stakes are high, and if a mistake is made – in the wisdom of hindsight – it will appear to everyone that the decision was blatantly wrong.
Having had the opportunity to consider this challenge both from the provider and the legal perspective for longer than I care to admit, here is how I approach the subject. Let me warn you up front: it’s a little complicated. If you want a simple answer – there’s plenty of them out there, but in this area a simple answer isn’t worth the ink or pixels used to write it.
We will start with a basic premise and expand on it:
A patient must have capacity in order to consent to/decline aid. If the patient lacks capacity, and you think they need to be treated or go to the ER, then that is what’s got to happen.
- Capacity has 2 aspects – legal capacity and mental capacity. While legal capacity is usually a straightforward analysis (ie. the patient must be at or over the age of consent and not legally adjudicated to be incompetent), evaluating mental capacity is usually more complicated. The list of things that impact mental capacity is a long one: how many drinks a person has had, what meds they are on, psychiatric conditions, their present state of mind, knowledge of their surroundings…. The list could go on and on. It is ironic that in a court of law two doctors, each with the full resources of a hospital behind them – can differ in their opinion of a patient’s mental capacity despite having hours, days and weeks to evaluate a patient, yet first responders are expected to get it right in the field in a matter of minutes.
- A patient who chooses to decline aid must do so knowingly (ie. we need to explain the consequences of declining aid, and the benefits of receiving aid to the patient). I know it sounds like overkill, but hear me out.
- The process of explaining the consequences of declining aid and the benefits of receiving aid gives us an opportunity to evaluate whether or not the patient understands the risks and consequences of declining aid. A patient who cannot understand/comprehend the risks of declining and benefits of treatment lacks the mental capacity to decline aid…. even if they are otherwise alert and oriented x3.
- For our sake, and the financial well being of our families, we need to thoroughly document this process of explaining the risks and benefits on the run report. Noting “pt refused ama” does not even begin to cut it. We need to document what we have explained and whether the patient appears to understand what we are saying (ie. “Patient stated she understands she may have a ruptured spleen or other serious internal injuries that could cause her to lose consciousness without warning and die. She also stated that she understands that a brief ER visit could let her know for sure and possibly save her life”). These comments should also appear on her refusal of aid form if a separate form is used.
Following this process and documenting what is said is important whether (a) we are going to transport a patient against their stated wishes, or (b) we allow the patient to decline aid – because we could be sued in either event.
Frankly, I’d prefer to defend you in (a)!!!!!! In fact, suits over (a) do not happen very often. Suits over (b) are much more common.
Posted in EMS
A second firefighter with Chancellor Volunteer Fire Rescue in Spotsylvania County, VA has been charged with sexually assaulting a minor in a fire department vehicle. That is two in the last 2 weeks. Here is the first story, from just 11 days ago. The latest assault took place on April 18. 2011 and involved a 17 year old junior firefighter.
I am not sure where to begin with this one. The titles I considered will give you some idea of the possible directions this post could have taken:
- Roanoke Captain Called A Boon to Local Attorneys (2 lawsuits and a grievance hearing in just over a year provide needed relief to Roanoke lawyers in a down economy);
- Sex Crazed Firefighters Stealing Legal Headlines (five of the past six fire law blog posts involved some sort of sexual misconduct or sex based issue).
- Good News Bad News For Roanoke Captain (your now a lieutenant but at least you have a job).
But in the final analysis I figured the best bet is to just to tell the story in the simplest terms possible.
Roanoke Fire Captain Dennis Croft, who was terminated for having sex in the fire station while on duty on April 15, 2010, has been reinstated but demoted to lieutenant. That decision was issued this week by a city grievance panel.
Croft denies he has sex in the station but acknowledges he allowed his then girlfriend, EMT Deborah Van Ness, to spend the night at his station. He even reported the infraction immediately to his superiors and because both parties agreed no sex was involved, he received a reprimand.
Croft’s problems began when his relationship with Van Ness ended, and she changed her story claiming that they did in fact have sex in the fire station on the evening in question. As a result Croft was terminated. Croft sued Van Ness for defamation (suit #1) and filed a grievance over his termination.
He also filed a suit against the city to challenge the make up of the grievance panel (suit #2). Croft lost both of the lawsuits. In the defamation suit the judge ruled that since both parties agree they had a sexual relationship the only dispute was over the dates, and that was not actionable as defamation. In the grievance panel make up case, the court ruled that the city had the right to select the panel.
Nevertheless, the most important decision of the three cases – the grievance panel’s decision on Croft’s future employment with the city – was a victory. Croft was reinstated, although as a lieutenant.
By the way, did you catch Linda Willing’s post on sexual misconduct in the fire service? You can’t make this stuff up!!!!
A volunteer firefighter from Fairfield County, South Carolina has been accused of sexually assaulting a legally blind fire victim over the weekend.
On Saturday, Ralph Marthers , 51, returned to the home of the female victim following a small fence fire to deliver a copy of the fire report when the assault took place. As unbelievable as the story sounds, it gets even worse: Mathers is a registered sex offender. (more…)
In one of the most bizarre fire service cases in recent times, a state court judge in Texas has issued a ruling in the case of a transgendered woman seeking over $600,000 in benefits as the surviving spouse of a LODD firefighter.
Judge Randy Clapp ruled today that the marriage between Wharton Fire Department Captain Thomas Araguz III, who died in the line of duty on July 3, 2010, and Nikki Azagus, was void because Nikki was formerly a man. She was born Justin Graham Purdue.
Simona Longoria, Thomas’ mother, filed the lawsuit seeking to have the marriage voided on one of two grounds: first because it was between two men and second because it was based upon a fraud perpetrated by Nikki.
The suit alleges Thomas discovered the fraud just prior to his death and moved out seeking to end the marriage. Allegedly Nikki’s gender was first disclosed to Thomas during custody proceedings in the spring of 2010. Ms. Longoria claims Thomas was emotionally distraught over being deceived. Nikki Aragus claims that Thomas knew about her gender and supported her.
The court’s ruling centered on the fact that under Texas law, two men cannot be married and Nikki was legally considered to be a man because she was “born a man”. Accordingly, the $600,000 in benefits will go to Thomas’ children.
Was it the lie she told that got her fired, or was the lie just a convenient excuse to get rid of a female firefighter who forced her way on the job to begin with? That is the issue at the center of a lawsuit filed last week in the US District Court for the Western District of Pennsylvania.
Victoria Bozic was fired by the city of Washington Fire Department on March 5, 2009, shortly after she misrepresented where she lived during an alleged interrogation about her residency. Just six months earlier Bozic had been hired through a settlement of her claims that she had not been hired in 2008 because she was pregnant. The city also gave her a $20,000 settlement.
Bozic was the department’s first female firefighter, and the fact it took a complaint to the EEOC about being passed over for employment – seems to give some credibility to her allegations that she has been singled out for special scrutiny. On the other hand, should a fire department be saddled with an employee with a propensity to ignore things like residency requirements, and forced to grant her a free pass when she is caught fibbing?
On May 11, 2011, a Michigan jury awarded $12.5 million to a girl who was sexually assaulted by an EMT during a non-emergency transport. The suit arose out of an incident that occurred on July 25, 2006 in Wayne County in a Superior Ambulance.
The victim, who was 14 at the time, had cut herself multiple times and was mentally unstable. She was being transported from the Henry Ford Hospital to Harbor Oaks Hospital, a children’s psychiatric facility. She was in a 5 point psychiatric restraint at the time of the assault.
EMT Matt DeFillippo confessed to the sexual assault, pled guilty and was sentenced to serve 3 ½ years in prison. The ambulance driver, Tim O’Connell, who notified superiors but did not stop the attack, was not criminally charged.
The suit sought damages from Superior Ambulance, DeFillippo and O’Connell. The theory against Superior was based on two theories, respondeat superior and negligent hiring. Respondeat superior is the legal theory that makes an employer liable for the actions of an employee committed within the scope of his/her employment.
As a general rule in respondeat superior cases, sexual assaults are considered to be outside the scope of employment and thus cannot be the basis for an employer to be held liable unless the employer is aware of a propensity of the employee to commit such acts. Recall the infamous Sacramento Porn Star Celebrity Ball case, where the Sacramento Fire Department was held not to be liable for the sexual assault perpetrated by two on-duty firefighters because it was outside the scope of their employment.
The Sacramento case is important for another reason: The California Court of Appeals rejected the use of the negligent supervision theory as nothing more than a back-door way of circumventing the scope of employment argument.
Nevertheless, in the Michigan case the jury found DeFillippo to be 70% responsible for what occurred and Superior Ambulance 30% at fault. O’Connell was not found to be liable at all.
An appeal is expected. More on the story.
Appellate decision in the case prior to trial with a full discussion of the facts.
The horseplay related death of a junior high school student on May 18, 2010 has prompted a wrongful death lawsuit against the Normal (IL) Fire Department and the local school department.
The youngster, Donnie Hampton, 13, collapsed after engaging in a punching game called “body shots” in a school bathroom. The Normal Fire Department responded, treated and transported the youth, who died at Advocate Hope Children’s Hospital. An autopsy concluded that he had a heart condition that contributed to his death.
Hampton’s mother, Jasmine Brooks, filed the suit on the one year anniversary of Donnie’s death alleging that school personnel failed to warn the students about the dangers of the game, and failed to properly monitor the bathrooms. She also alleges that Normal FD paramedics failed to properly assess and treat Donnie in a timely manner.
For more on the story. Here is a news video about the original incident back in May, 2010.
A California firefighter has been reinstated following an investigation into allegations that he had sex on apparatus on multiple occasions.
Firefighter Brandon Wilson of the French Camp Fire District was ordered reinstated by the fire board on Thursday. The accusations date back to 2007.
The Supreme Court of Delaware has upheld the conviction of Joseph M. Taye in the death of Delaware City firefighter Michelle Smith. Taye was convicted of murder and sentenced to life in prison for the December 20, 2008 accident.
Smith drove an ambulance to the scene of a prior motorcycle accident, and was attending to the injured motorcyclist at the time she was struck. Taye, a parapalegic who was using a long thin pole to operate the pedals of his vehicle, was returning home from a strip club and was speeding and tailgating the time of the crash. He fled the scene with the help of an accomplice.
Taye was charged with first degree murder based on the fact that he was (1) driving recklessly, and (2) killed a “firefighter” in the performance of her duties. Ordinarily, recklessly causing the death of another person constitutes involuntary manslaughter, but under Delaware law that charge can be increased to murder when the victim is a police or firefighter.
Taye’s attorney did not deny that he was responsible for the accident, but alleged he was merely negligent, not reckless in causing the crash. They also alleged that Smith was acting as an EMT at the time of the accident, not a firefighter.
Taye was convicted of murder by a jury, and appealed the verdict on the grounds that Smith was not a “firefighter” because she was working on an ambulance at the time.
The Delaware Supreme Court dispensed with Taye’s arguments in very short order concluding there was ample evidence in the record of the case for the trial judge to conclude Smith was a firefighter. Here is a copy of the decision. State v. Taye
In 2009, the Delaware legislature enacted Michelle Smith’s Law that extended coverage of the murder charges to adds paramedics, EMTs, fire marshals, and police officers to those expressly covered by the law. Previously the law only mentioned law enforcement officers, corrections employees or firefighters.
The statute now reads:
§ 636. Murder in the first degree; class A felony.
(a) A person is guilty of murder in the first degree when:
(4) The person recklessly causes the death of a law-enforcement officer, corrections employee, fire fighter, paramedic, emergency medical technician, fire marshal or fire police officer while such officer is in the lawful performance of duties;
The Clark County (NV) Fire Department has taken disciplinary action against a firefighter accused of abusing his sick leave. Firefighter Donald Munn, an 18-year veteran of the department, has been terminated. Munn logged $26,648 worth of sick leave in 2010.
The abuse of sick leave in Clark County is being investigated by FBI for possible criminal violations, which may include fraud, wire fraud, and conspiracy to name a few offenses. Another 13 firefighters in addition to Munn remain under investigation. The FBI is going through approximately 2 million emails written by firefighters to obtain details about the abuse. Allegedly the abusers used emails to plan their use of sick leave in order to create overtime opportunities for other firefighters.
Posted in Disciplinary Action
A wildland firefighter with the Oklahoma Forestry Services has been arrested and charged in conjunction with up to 60 fires set over the past two years. Mike Malenski, 38, has been employed by OFS for the past 7 years. He has been placed on administrative leave pending termination proceedings. Click here for video coverage.
The theft problem in the volunteer fire service continues: last week the long time treasurer of the Glen Ellyn (IL) Volunteer Fire Company, David Garmoe, was placed on administrative leave after he was accused of embezzling more than $260,000 in fire department funds.
Garmoe, 54, a 26 year member of the fire company and treasurer for the past 20 years, has been arrested and charged with eight counts of theft, two counts of continuing a financial crime enterprise, one count of financial institution fraud, one count of money laundering, and two counts of forgery.
The Glen Ellyn Police Department began investigating after fire company officials found a discrepancy in the Fire Company bank accounts in February, 2011. They concluded that since 2004, Garmoe wrote approximately 87 unauthorized checks to himself and his business, West Chicago Fire Equipment Supply Company, from the Glen Ellyn Volunteer Fire company’s bank account.
After the fraud was exposed, the fire company hired an outside auditor to review the company’s finances.
A former California fire chief has been cleared of criminal charges that led to his dismissal in 2008. Chief Peter Egedi of the Fillmore Fire Department was accused of misappropriating thousands of dollars. The charges were formally dismissed today.
Chief Egedi was placed on administrative leave in April 2008, and terminated in October, 2008. You may recall that he filed a wrongful termination suit in April 2010. That suit is still pending.
Senior Deputy District Attorney Kevin Drescher said the charges were dismissed due to insufficient evidence. More on the story.
Firefighters in Edison, New Jersey have taken the unusual tact of suing city officials in Federal court for political discrimination and retaliation. The firefighters allege that recent cutbacks and disciplinary actions stem from political retribution that goes back years.
Named as defendants in the suit are Mayor Antonia Ricigliano, Management Specialist William Stephens, Assistant Public Safety Director Richard Laid, and former Business Administrator Dennis Gonzalez. Firefighters supported Ricigliano in her most recent election in 2009, but that support eroded shortly after she was elected. The firefighters previously opposed Stephens when he ran for mayor in 2005, and point to his presence in the administration as the catalyst for many of the problems they are facing.
Long held as one of our Constitutional rights, the right to be free from political discrimination flows from the First Amendment’s right to free speech and freedom of association. It rarely arises as an allegation from unionized or classified civil service employees, who typically have tenure, protection through collective bargaining, and are insulated from the political whims of elected officials. More often it arises when an exempt employee (fire chief or fire commissioner) is replaced for political reasons. A recent law review article by Christopher V. Fenlon offers an excellent overview of the law in this regard.
The suit was filed by firefighters Anthony Pepe, James Walsh and Christopher Seich as named plaintiffs, along with Local 1197, IAFF and union president Robert Yackel. You may recall President Yackel’s son Peter was involved in a Federal civil rights lawsuit against the previous administration over his being disciplined for displaying a campaign sign at work in 2009. Local 1197 and President Yackel also sued Edison in state court last fall over staffing cuts.
Following up on a story posted by Dave Statter earlier today, a young firefighter with the Chancellor Volunteer Fire Department has been charged with statutory rape of a 13 year old girl following an incident in Spotsylvania, Virginia that involved a fire department vehicle.
Justin Baber, 23, allegedly met the victim through a mis-sent text message, and she agreed to rendezvous with him. Barber used a fire department vehicle for the rendezvous.
Here is a news video on the arrest. However several news sources are reporting that the victim “recanted” her story to a counselor. Others are reporting that she “recounted” her story to a counselor….. big difference there folks….