FDNY has settled a gender discrimination case with five female EMS officers for $1 million. The women claim they were wrongfully passed over for promotion by lesser qualified males.
View more videos at: http://nbcnewyork.com.
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FDNY Pays $1 million on Gender Discrimination Claim
Posted in Civil Suit, Constitutional Rights, Discrimination, EMS, Municipal Liability, Promotions
Maryland AG Says Patient Photos Trigger HIPAA
The Maryland Attorney General’s office has issued a memo to EMS providers and personnel stating that photos taken of patients who are identifiable constitutes “individually identifiable health information” under HIPAA, the release of which through any means (including social media) is a violation.
The memo was dated May 30, 2013 and began being circulated to local and regional EMS providers this week. It was issued by Assistant Attorney General Sarah M. Sette.
Quoting from the memo, HIPAA applies to “photographs of patients taken by EMS providers if the patient can be identified, whether directly through their features, or indirectly through unique clothing or a license plate or the nature of the particular injury or motor vehicle crash or event. Similarly, a photograph of a medical record such as EKG, or a unique injury or treatment, might also be susceptible to being linked to a specific patient.
“Accordingly, distributing such a photograph, whether via email, by posting it on Facebook, or through other media, may be an unauthorized disclosure of protected health information and violate HIPAA.”
The memo also discusses the penalties that violators face, including fines of up to $250,000 and 10 years in prison, and the fact that Maryland state law governing medical confidentiality, Health General Article, Sections 4-30 l, et seq., is also applicable and carries fines of up to $250,000, imprisonment, and possible civil liability to the victims.
Here is a copy of the memo. MD EMS Social Media
For those concerned, neither HIPAA nor state medical confidentiality laws prohibit the taking of photos, dash or helmet cam video, or other types of imagery. What is required is that any imagery that shows an identifiable patient must be treated as part of the patient’s confidential medical record.
For those currently using my digital imagery and/or social media policies… you are protected… no need to change a thing.
Posted in Confidentiality, EMS, Municipal Liability, Social Media
The Costs Of Medical Helicopters
Medical helicopter transports can be a life saver, but after the fact can be a bank breaker.
Posted in EMS, General legal issues, Lesson Learned
Texas Firefighter Sues For Comp Disability
A Texas firefighter who was terminated while recuperating from a back injury has filed suit seeking $1 million in damages.
University Park Fire Department Paramedic Brad Tucker, 31, was injured on October 20, 2011 while lifting a patient. He had been on workers compensation recuperating until February 2012 when the City of University Park stopped both his compensation and medical coverage.
According to the lawsuit, the city acted “unilaterally and without any legitimate basis”. The city is self-insured for comp purposes.
Tucker retained an attorney who appealed the decision to the Texas Board of Insurance, Workers Compensation Division. The Workers Comp Division ordered the city to reinstate both Tucker’s compensation and health benefits.
Thereafter Tucker was ordered to report to fire department headquarters, where he was told he had to either report for full duty by November 2, 2012, or face termination. Unable to return to full duty he was terminated on November 2, 2012.
Tucker promptly filed a claim of disability discrimination with the EOOC and the Texas Workforce Commission, who issued a right to sue letter in April. His lawsuit was filed last week alleging disability discrimination under federal and state law, wrongful termination, and retaliation.
Here is a copy of the complaint. Brad-Tucker-v-University-Park
Posted in ADA, Civil Suit, Discrimination, EMS, Municipal Liability, Workers Compensation
Jacksonville Fire Facing Wrongful Death Suit
The Jacksonville, Florida Fire and Rescue Department is facing a wrongful death lawsuit over the death of a 15 year old baseball player.
On May 15, 2010 Andrew Cohn was playing at Dinsmore Park when he collided with a runner at first base. The collision is believed to have caused an irregular heart rhythm leading to cardiac arrest.
His family claims that Jacksonville Fire and Rescue was negligent in their response. Crews were initially delayed due to a train blocking their route, and failed to promptly notify dispatch. Crews then allegedly wasted vital time due to a locked gate and inexplicably standing in the outfield before attending to Andrew.
According to Andrew’s father, Harold Cohn, "The crowd was just shrill, yelling at them to jump the fence, go around, hurry. There were two or three occasions I look up in the outfield and saw two people standing there with medical bags just standing there looking and peering out here."
Harold also claims the crews did not bring a defibrillator with them, and then lied on a report about using one. Since the accident, the Cohns have been very active is fundraising to support AED purchases for schools and recreational areas. The have told reporters that any damages they receive will go toward purchasing more AEDs.
Posted in Civil Suit, EMS, Municipal Liability, Negligence, Wrongful death
Stroke Victim Sues Illinois Fire Department
An Illinois woman has filed suit against the Aurora Fire Department claiming the failure of three paramedics to properly diagnose her stroke caused her to suffer permanent injuries.
Susan Miller filed the suit in Kane County Circuit Court last week. She claims that paramedics assumed she was intoxicated when she was actually having a stroke.
Miller called 911 at 2:00am on May 28, 2012, for numbness in her arm and because she fell and could not get up. She alleges the medics examined for only "six minutes" during which time she admitted to having consumed alcohol earlier in the day.
The medics left her with instructions to “sleep it off”. Three hours later her husband transported her to an emergency room, but the damage was done. According to the complaint:
- "As a result in the delay in receiving the proper medical treatment for her stroke, Miller suffered and continues to suffer from various injuries including but not limited to permanent facial paralysis, vision loss and one-sided paralysis. "
- "The defendant's utter indifferent or conscious disregard for the safety of Miller is evident from defendant's failure to discover a danger through recklessness or carelessness and which could have been discovered with the exercise of ordinary care."
Posted in Civil Suit, Duty to Act, EMS, Municipal Liability, Negligence
The Consequences of Looking The Other Way in the Facebook Age
The New York Post ran an expose Sunday about the apparent widespread practice by FDNY EMTs of taking emergency scene pictures of patients and posting them in the social media. The article lists example after example of outrageous behavior and callous attitude. The reporter notes: “The photos of grisly corpses, gruesome wounds or humiliating circumstances provide fodder for mocking and gawking.”
The problem is hardly a new one, nor is it limited to FDNY. However, it comes of the heals of two recent high profile social media cases involving inappropriate tweets, one involving FDNY EMS Lt. Timothy Dluhos, currently suspended, and the other involving FDNY Fire Commissioner Sal Cassano’s son Joseph, an EMT who resigned.
Many will read the NY Post headlines and dismiss the photo-taking debacle by reciting any of a number of worn-out slogan-esque explanations… the EMTs showed a lack of common sense, stupid is as stupid does, WTF were they thinking, etc. etc. etc.
However, the cause of this problem is actually much bigger than a cutesy little expression and IMHO goes to the heart of our culture. People – coworkers and supervisors alike – had to know that the photo taking and posting was going on. What prompts us… each of us … coworkers and supervisors… to make a deliberate choice to look the other way at misconduct rather than do something about it?
How is it that there can be near universal condemnation after a firefighter is disciplined for posting something inappropriate – like we saw in 2010 when NY EMT Mark Musarella posted a photo of a murder victim on Facebook – yet beforehand the “condemners” lack the willingness… the courage to reach out to the person to say “Hey man… I have been noticing some of things you’ve been posting, and I am concerned for you. You are headed for trouble.”… Was the posting that led to the discipline the first inappropriate post the person ever made? I’m not buying that one!
Do “officers” deliberately ignore inappropriate conduct by subordinates because they fear a backlash against them in the stations? Does ignoring misconduct make headlines like we are seeing in the NY Post more likely or less likely? Does our firehouse culture support stricter regulations on photo taking and social media use, or will we collectively fight tooth and nail against any effort by the fire chief to draw a line?
While we debate, the clock is ticking on our opportunity to address the photo taking and inappropriate posting problem.
New York sits between two states that have chosen to address the problem through legislation. Both New Jersey and Connecticut have made it a criminal offense for an emergency responder to take a photo of a patient or victim, and a separate criminal offense to post it online. A CRIMINAL OFFENSE!!!!
In NJ, besides making photo taking or posting a photo a crime – the law also allows a victim to sue a firefighter, EMT, paramedic or other responder who takes their picture (or posts it without their written permission) and recover $1,000 per photo plus attorneys fees. Both the NJ and CT laws have exceptions for legitimate work related photo taking for training and documentation purposes.
Do we really want the legislature to fix this problem for us?
I cannot help but go back to something one of my captains told me very early in my career with Providence. He said “Kid, we either keep our own house clean, or someone’s gonna come in here and clean it for us… and we’re probably not going to like the way they keep it clean…” He was not talking about housework….
This is where the fire service finds itself today. We have an internal housekeeping problem. It is a serious problem but it is one we can fix… we can get our own house in order… but we have to overcome those parts of our culture that are preventing us from implementing the solution.
…. Let me rephrase. In 48 states, we still have the opportunity to fix this problem on our own terms. There is still time. It will take leadership… and followership…
Although….. in the aftermath of the NY Post expose, I am thinking we may be down to 47 states… It is hard to imagine that someone in the NY state legislature is not working on a solution to help FDNY get their house in order.
City Council Hearing Set For Thursday on DCFD Readiness
The drama continues in our nation’s capitol as City Councilmember Tommy Wells prepares to hold a special hearing into ongoing issues the department’s readiness.
DC Breaking Local News Weather Sports FOX 5 WTTG
Not surprisingly, officials have been quick to blame the current lack of readiness on the previous administration that ended December 31, 2010.
For those interested, here is a copy of the transition plan from the former administration.
2011 Fire and EMS Department Transition Plan-1
Among the points it discusses are a new fleet maintenance program (which would appear to have been scrapped) along with 2010 apparatus purchases that were awaiting delivery including 6 new engines, 2 new ladders, 2 refurbed ladders, 16 F450 EMS units and 2 heavy duty EMS units.
The plan recommends the purchase of 5-6 more engines in 2011, 1 tower ladder and 18 to 20 EMS units…. So much for “the past administration didn’t tell us” or “the past administration left us high and dry”….
FDNY EMT’s Tweets A Career Ender
The son of FDNY Fire Commissioner Salvatore Cassano has become the fire service‘s latest cyber-casualty courtesy of his propensity to tweet racist, sexist, and in general stupid comments.
FDNY EMT Joseph Cassano, 23, resigned today following news reports that quoted numerous tweets going back at least two years. Among the tweets being quoted:
“Getting sick of picking up all these obama lovers and taking them to the hospital because their medicare pays for an ambulance and not a cab”
“Gotta love people with the iPhone 5 and brand new Jordan’s whip out their benefits card #f–kobama #ipaidforyourstuff.”
“Got kicked in the shin by a drunk and had to carry a 275 pound guy down 5 flights of stairs . . . my job is the worst #yearandahalftogo.”
“MLK [Martin Luther King Jr.] could go kick rocks for all I care, but thanks for the time and a half today.” [tweeted on Martin Luther King day]
“I hate ems”
“Everybody wanna be a firefighter, but don’t nobody wanna be a damn EMT.”
“U couldn’t pay me enough to be a cop, there’s absolutely no direction in that department and I’m very glad I’m going the other way.”
“News flash to half of the island,… ur white! Stop talking like ur a shwoog.”
“This dumb shwoogie Flo-rida should be shanked for what he did to levels”
“I saw a sick jew walking on bloomingdale and thought of you.”
“I like jews about as much as hitler #toofar? NOPE.”
“I love boob jobs . . . I wish every girl in America were forced to get one once they turn 18.”
“I’ll vote in the presidential election when a candidates main purpose is to make breast enhancement surgery free to all who want it.”
Commissioner Cassano released the following statement:
“I am extremely disappointed in the comments posted online by my son Joseph, which do not reflect the values – including a respect for all people – that are held by me, my family and the FDNY. I have worked hard for many years, as have so many people in the agency, to make the FDNY more diverse and inclusive. There is no place – and I have no tolerance – for statements that would harm the good reputation we enjoy due to our honorable service to all New Yorkers.
“As a parent, this is very painful for me, but I believe my son has made the right decision. I love him very much and, with the support and love of our entire family, we will get through this together.”
Lesson Learned: posting things on the internet is different than saying things in private to close trusted friends… STILL!!!!!!!!!
Maryland Medic Loses Wrongful Termination Suit
A Maryland paramedic has lost his bid to have his termination overturned. Norris Phillip Donohoe Jr. was terminated from his employment for the Town of Berlin last year following allegations by two EMS coworkers of harassment.
Donohoe claims he has never been disciplined in 23 years with the Berlin Fire Company and that the allegations came as a shock to him. He also alleges that the town of Berlin lacks the authority to discipline or fire him because he works for the fire company not the town.
To understand the legal landscape, Donohoe is an employee of the Berlin Fire Company. Under a 2009 agreement between the fire company and the town, fire company EMS personnel were leased to the town in order to make them eligible for state retirement and benefits.
The town claims the “lease” arrangement makes the paid EMS personnel subject to the same personnel policies as other town employees. Donohoe disagrees claiming that he reports to the president of the Berlin Fire Company and the fire chief. At issue appears to be the town’s anti-harassment policies and the authority of HR to investigate and discipline violations.
Donohoe was terminated last May, and filed suit last July naming Mayor Gee Williams, Berlin’s five council members, and Town Administrator Tony Carson. The situation became so tenuous that in August the town council voted to suspended all payments to the fire company
Yesterday, Worcester County Circuit Court Judge David B. Mitchell granted the town’s motion to dismiss the case. News reports indicate that the judge based his ruling on rather peculiar grounds: sovereign immunity.
Having not seen the ruling, I am at a loss to explain how sovereign immunity (normally raised as a defense in tort actions) would find its way into a wrongful termination case, let alone serve as an absolute defense. Most states have severely limited the application of sovereign immunity – with a number of states finding it to be unconstitutional. Furthermore, most wrongful termination cases are based on contract law – an area where sovereign immunity long ago ceased to be an issue.
Donohoe’s attorney Robin Cockey is vowing to appeal.
Incidentally – if sovereign immunity applies to municipalities in Maryland for contract-based claims… why would anyone risk doing business with a municipality? With sovereign immunity applied to contracts a municipality would effectively be immune from having to pay the debts they incur. The thought of it is so bizarre – that there must be something else going on. If any of our Maryland friends have inside info – please fill us in.
Alameda Not Liable for Drowning Suicide
The lawsuit brought against the city of Alameda for not rescuing a suicidal man who drown himself in San Francisco Bay two years ago has been dismissed. Raymond Zack, 52, committed suicide by wading out into the frigid waters off of Crown Beach on Memorial Day, 2011.
Firefighters and police were unable to rescue him due to the lack of water rescue equipment and the fact that personnel had been ordered not to enter the water because their water rescue training had lapsed.
In a five page ruling issued yesterday, Judge George Hernandez Jr. concluded that Zack’s family failed to establish that firefighters and police officers had a legal duty to do more than they did.
Here are some of the more notable quotes from the judge in reaching his conclusion:
Liability may only be imposed on rescue personnel if “an officer voluntarily assumes a duty to provide a particular level of protection, and then fails to do so, or if an officer undertakes affirmative acts that increase the risk of harm to the plaintiff.”
Plaintiffs have not alleged any facts that show the officers responding to the 911 call at Crown Memorial State Beach on May 30, 2011 assumed any duty of care to Mr. Zack or undertook affirmative acts that increased the risk of harm to him.
[T]he Supreme Court … set forth seven factors for a court to consider in determining whether a duty of care is owed to a particular plaintiff, including (1) the foreseeability of harm to the injured party; (2) the degree of certainty that the injured party suffered harm; (3) the closeness of the connection between defendant’s conduct and the injury suffered; (4) the moral blame attached to defendant’s conduct; (5) the policy of preventing future harm; (6) the extent of the burden to defendant; and (7) the consequences to the community of imposing a duty. Balancing these factors, the court finds that Plaintiffs have failed to allege facts supporting a duty of care to decedent
Here is a copy of the ruling. Dismissal
Here is more on the story.
Posted in Civil Suit, Duty to Act, EMS, Wrongful death, You Can't Make This Stuff Up
Foolish Act in Ohio Creates New Nightmare for New Colorado Chief
The foolish act of sending an inappropriate photo in 2010 has come back to haunt a new Colorado fire chief.
Fire Chief Bryan Ware, 37, took the reins of the newly created Beulah Fire Protection and Ambulance District in Beulah, Colorado earlier this month following a fire-EMS consolidation. He was previously in charge of the Beulah Ambulance District dating back to when he was hired in 2010.
Coincidentally, Chief Ware resigned from the Huron (Ohio) Fire Department in 2010 in the midst of a criminal investigation for having sent a picture of testicles to a group of friends as a joke. One of the recipients of the photo was a 16 year old boy who was on a soccer team that Chief Ware coached.
Chief Ware was charged with disseminating matter harmful to juveniles, pled guilty, and was placed on probation. The probation ended in October, 2012.
The disclosure of the charge has prompted a division in the community and the department with a number of firefighters resigning. The district board reportedly knew about the charge and some other details about the chief, but felt he was doing an excellent job as chief.
Posted in Criminal Law, Disciplinary Action, EMS, Volunteers, You Can't Make This Stuff Up
Police Fire Wars – International Edition: South Africa
The facts are not all in, but it appears we have another instance of police fire wars, this time in South Africa. Dave Statter is on this so there’s no need to repeat it all here – but what we know is:
Paramedic Garth Andrew Van Zyl was arrested at the scene of a vehicle accident on Tuesday following a confrontation with police officers. Van Zyl was apparently questioning why one officer was refusing to address traffic control and the officer replied “you don’t come here and tell me what to do” and “this is my scene and you don’t belong here, I give the orders here”.
It went downhill from there….. Sounds SOOOoooooo familiar….
Posted in Criminal Law, EMS, Police-Fire, Wrongful Arrest, You Can't Make This Stuff Up
FDNY Facing ADA Challenge By Desk Bound EMT
Today’s burning question: I am an EMT and hurt my wrist on the job in 1997. In 2001 after two surgeries I needed an accommodation and asked to be assigned to a job “that would not require large volume typing, lifting, or straining.” The department gave me a desk job but in 2010 they eliminated my position. Then when we could not agree on another position, they terminated me. Don’t they have to continue to accommodate my disability?
Answer: If your job is to work as an EMT on an ambulance, they probably do not have to continue to accommodate you with a light duty assignment. HOWEVER… there may be another question: is your job still an EMT??? Or have you been employed in that “light duty” position for so long that you now have a different set of essential functions to qualify for?
A female EMT has filed suit against FDNY claiming her termination in 2010 violated the Americans with Disabilities Act because the department failed to continue to accommodate her for a wrist injury that occurred back in 1997.
EMT Kimberly Perez was injured while caring for a patient in 1997. In 2001 she requested an accommodation on account of her disability and was reassigned to EMS dispatch. Later she was assigned to the Ambulance Call Report Unit, and in 2004 she was assigned to the Recruitment Unit.
In 2010 her Recruitment Unit position was eliminated. She was offered at least 9 other positions, each of which she claimed she could not perform. As a result she was terminated because she was “unable to perform the duties of her position … by reason of a service related medical condition”.
Perez filed suit on December 14, 2012 in US District Court for the Eastern District of New York claiming she had been discriminated against on account of her disability. Here is a copy of the complaint. Perez v FDNY
As for the law…the Americans with Disabilities Act (ADA) and the new and improved Americans with Disabilities Act Amendments Act (ADAAA) protect employees with a disability who are qualified to perform the essential functions of a position. Under the ADAAA an employer is required to make a reasonable accommodation IF that accommodation would allow a disabled employee to successfully perform the essential functions of a job.
This is where Perez’s case starts to go sideways. Granting her a desk job for nine years does not appear to have helped her find her way back to an ambulance (ie. the long-term accommodation has not allowed her to be able to perform the essential functions of being an EMT for FDNY), so it is unlikely that the continuation of a desk job would be considered a “reasonable accommodation”. In order to be eligible for ADA protection an employee must be able to perform the essential functions of the job with (or without) the reasonable accommodation. Her insistence that she be accommodated by being placed in a light duty position would seem to contradict the very predicate she needs to demand a reasonable accommodation.
The ADA does not a guarantee a pay-check-for-life for a disabled employee who can no longer perform a job. A light duty assignment MAY BE a reasonable accommodation in some circumstances – but there is also a great deal of confusion over this issue. The bottom line is an employer does not have to create a new position to accommodate an employee with a disability.
But here is the trap for employers. By allowing long term light duty assignments an employer can inadvertently end up creating new positions with different essential functions… essential functions that are considerably more lenient than the requirements of the employee’s original position. Reading the complaint it does not appear that Perez is specifically alleging liability under this sort of theory but the complaint is drafted in fairly general terms that may be sufficient to use that theory if her original theory fails. To avoid this trap, employers need to think through the implications of light duty assignments, develop clear policies, and follow them!
The discussion of light duty as a reasonable accommodation under the ADAAA becomes even more complicated because of other laws that intersect, including the Family Medical Leave Act (FMLA), civil service laws, workers compensation laws, collective bargaining agreements, and even public employee pension laws. It can create a mind-boggling quagmire for employers, employees, unions and lawyers alike.
One final point about the Perez complaint from a legal perspective: the complaint does not allege that she is a qualified person with a disability who can perform the essential functions of the job. Without that predicate, the case cannot go far under the ADAAA. The complaint does allege violations of New York state and local laws – and perhaps those laws offer greater protection… but without a Federal cause of action the case may be looking at an early exit from Federal court.
Posted in ADA, Burning Question, Civil Suit, Discrimination, EMS, FMLA, Labor Law, Municipal Liability
Honolulu Medics Allege FLSA Overtime Violations
EMTs and paramedics have filed a Fair Labor Standards suit against the city and county of Honolulu claiming they have been wrongfully denied overtime compensation. The suit was filed in U.S. District Court for the District of Hawaii.
Medics claim they have not been paid overtime for all the hours they work in excess of 40 hours per week. The suit seeks compensation for those extra hours going back three years, the maximum period that employees are allowed to go back under the FLSA. It also asks the court for an injunction against further violations, along with penalties and attorneys fees.
Paramedic Sonya Adams is one of the lead plaintiffs in the case. She was quoted as saying “Every pay period employees enter our time correctly, but when we get our paychecks, there are shortages in overtime for many of us that can take as long as six years to correct. We love our jobs and helping people in emergency situations, but none of us can afford to wait six years to get paid.
Plaintiff’s attorney, Carl Varady was quoted as saying “All employers including the City must obey federal overtime law and regulations. Honolulu residents receive valuable and life saving services from their EMTs and Paramedics. Federal law requires that they be paid overtime when they work more than 40 hours in a week.”
UPDATE: 12/19/2012: Here is the Complaint in the Adams suit. HonoluluEMS
Posted in Civil Suit, EMS, FLSA, Municipal Liability, Wage and Hour
YCMTSU New Orleans Clerk Boots Ambulance at Emergency Scene
A New Orleans store clerk who placed a parking boot on an idling ambulance while its personnel were treating a patient in the store, is facing criminal charges. He is also looking for a new job.
Ahmed Sidi Aleywa worked for Quickies Convenience Store on November 30, 2012 when the incident occurred. According to news sources, the boot resulted in a delay in the transport of the patient as a second EMS unit had to be called because the tire that was booted went flat.
Attempting to put the best face possible on an entirely indefensible situation, one of Aleywa’s coworkers, Ali Calone, claimed that Aleywa does not speak English and did not understand that the vehicle was an ambulance.
Left unanswered is why Quickies would allow a non-English speaking person who apparently does not understand what an ambulance is, let alone the significance of emergency lights, to be employed to place parking boots on vehicles.
Aleywa has been charged with simple criminal damage to property.
UPDATE: Federal immigration officials have arrested Aleywa because he overstayed his visitor visa and was working illegally. More on the story.
Posted in EMS, You Can't Make This Stuff Up
Fresno Fire Facing Discrimination Suit
The Fresno Fire Department is facing a race discrimination suit from a firefighter who is also the leading vote-getter in the election for city council in Tulare.
Carlton Jones claims he was wrongly suspended in 2009 when he was arrested for felony assault, and prevented from returning work for six months. He further alleges the department purposefully had his EMT license suspended, and that as a result even though he was found not-guilty of the charges, he had to defend himself before the EMS licensing board (Central California Emergency Medical Services Agency for Fresno).
Jones, who is African American, claims that white firefighters who were similarly situated were not disciplined the same way. He originally filed suit in Frenso County Superior Court in September, but the city removed the case to Federal court last week because the complaint alleges violations of Jones’s civil rights.
The complaint is an interesting read. Without getting into the merits of the case, I get a kick out of how many California attorneys tend to embellish and make what amounts to irrelevant arguments in their pleadings – something my father would never have allowed me to do as a young attorney. Consider these:
- Plaintiff was shocked and appalled at the actions being taken against him, as Defendants had never even attempted to talk with him about the… charges, prior to taking actions against him
- Plaintiff thought it would be only right that he be reimbursed for his lost accrued leave, etc., that he consumed in order to survive during the pendency of the dispute.
- Amazingly, Defendants had the complete lack of fairness or ethics to grant Plaintiff’s request and refused to compensate him for that part of his loss.
- Plaintiff was horrified and depressed by the way he was being trampled and dismissed by Defendants, and proceeded to file a complaint with the Equal Employment Opportunity Commission…
And then there is my favorite comment: “Through years of hard-work, proven skills, and a commitment to excellence, Plaintiff rose through the ranks at the Fresno Fire Department, ultimately reaching the title/position of Engineer.” Keep in mind Jones was hired in 2002, and suspended in 2009. Gotta love how lawyers can embellish…
Here is the original complaint.State Court Complaint
Here is the removal notice. Removal
Boston Medic Accused of Drug Theft
A city of Boston paramedic has been arraigned on 73 counts of stealing pain killers and sedatives from city ambulances and out of storage. Brian Benoit was released today following his arraignment.
One of the conditions of his release was that he not work as a paramedic or EMT while the charges are pending.
Benoit is accused of taking morphine and fentanyl intended for patients and replacing it with saline and vitamin B. The diluted drugs were administered to at least 10 patients. (more…)
Posted in Criminal Law, Disciplinary Action, EMS
Florida FD and County EMS Hit with Wrongful Death Suit
The Niceville Fire and Rescue Department along with Okaloosa County Emergency Medical Services have been sued for wrongful death by the estate of a man who died in 2010.
Vincent L. Donathan of Niceville, died on July 6, 2010 after emergency crews who responded to his house decided not to transport him. A police officer who was at the scene and observed the crew’s decisionmaking transported Donathan to the hospital in his cruiser, but apparently Donathan coded and died while enroute.
Besides Niceville Fire and Rescue and Okaloosa County Emergency Medical Services, the suit also names Niceville Fire Chief Tommy Mayville, along with Paramedic Caleb Eiriksson and EMT Peggy Marion of Okaloosa County Emergency Medical Services.
The facts seem a bit complicated, so here are some of the key allegations in the case [quoting from the complaint so I get them as accurate as possible]:
- That upon arrival at the decedent’s home; Defendants, Mayville, Eiriksson and Marion found Vincent L. Donathan sitting in his bed in his own feces and unable to respond or speak.
- Defendant, Marion, advised the City of Niceville Police Officer Joseph Boyles that Defendant Eiriksson wanted him to come inside of Vincent L. Donathan’s home to observe Defendant Eiriksson ‘s request as to whether or not decedent wanted to receive treatment or refuse treatment.
- At the time Police Officer Boyles entered the room, Defendant Eiriksson was asking decedent if he wanted to receive treatment or refuse treatment. Decedent at no time said yes or no.
- Next, Defendant Eiriksson grabbed his portable radio from his belt and advised his dispatch that he was getting a “partial refusal” and would be back in service shortly. Defendant Eiriksson instructed the decedent’s room mate John Mutchler, that he needed to sign the refusal for treatment since decedent could not sign it.
- Defendant Fire Chief Mayville who also observed the interaction between the decedent and Defendant Eiriksson informed decedent and his room mate John Mutchler, not to call unless it was a “real emergency”. The Niceville Fire and Rescue under the supervision of Defendant Fire Chief Mayville also failed to render aid or treatment of any kind after Defendant Eiriksson refused to treat decedent.
- After the lack of treatment given to the decedent by Defendants Eiriksson, Marion, and Mayville, Officer Joseph Boyles determined that the whole situation did not seem right considering the situation that the decedent was in so he contacted his supervisor and subsequently transported the decedent in his police car to Twin Cities Hospital, Niceville, Florida.
- Upon arrival at Twin Cities Hospital, Niceville, Florida, it was determined that decedent had coded in the back seat of Officer Boyles police car and the emergency personnel at Twin Cities Hospital began performing CPR and life saving measures.
- In addition to Defendant Mayville’s statements to the decedent and his room mate, Defendant Eiriksson informed the decedent and his room mate in a joking manner, that they would return if it was an emergency and obviously they would return “if he was dead.”
The suit alleges that defendants “Mayville, Eiriksson and Marion” were guilty of negligence, breach of a duty to render aid, and wilful and wanton disregard for human rights and safety. The suit also claims the Okaloosa County Emergency Medical Services and the Niceville Fire and Rescue Department were “negligent in their hiring, training, retention, and supervision of Defendants, Mayville, Eiriksson and Marion”.
Here is a copy of the complaint. Niceville Complaint
Posted in Civil Suit, Duty to Act, EMS, Municipal Liability, Negligence, Wrongful death
Four Florida Firefighters Facing Criminal Charges Over CPR Recerts
Four Florida firefighters and a former firefighter are facing a number of serious criminal charges for their roles in a scheme to involving fraudulent CPR certificates.
Fort Lauderdale Firefighters Freddie Batista, Greg Jones, Joseph Perri and Steve Loleski were arrested earlier this week. The charges include conspiracy to commit perjury, forgery, grand theft, and official misconduct.WSVN-TV –
Posted in Criminal Law, Disciplinary Action, EMS, Training, You Can't Make This Stuff Up
Mass Chief Charged With Drug Theft
A Massachusetts fire chief has been charged with stealing drugs from the town’s ambulance. Fire Chief David F. Cobb of the Princeton Fire Department has been placed on administrative leave and charged with one count of larceny of a drug, and one count of obtaining drugs by fraud.
Cobb, 45, was the town’s first full-time fire chief and was the department’s only full-time employee. In June 2012, pharmacists at St. Vincent Hospital in Worcester and Heywood Hospital in Gardner informed authorities that the Princeton Fire Department appeared to be using excessive amounts of narcotics.
Police conducted an audit of the drugs and discovered discrepancies in Princeton’s inventory of Fentanyl, morphine, valium and versed. The department’s stock of drugs did not match the drugs dispensed from the two hospitals.
Chief Cobb was the primary record keeper for the narcotics and personally signed for the drugs at the hospitals. Some of the missing drugs were reported as “wasted” but no explanation was provided as to how the drugs were wasted. Log entries for the narcotic drug count in the ambulance were changed without any specific reason.
The incident is not Chief Cobb’s first brush with the law. Back in 2010 he was indicted along with another firefighter for transporting wood cut from quarantine zone, to a site outside the quarantine zone in connection with his side business, Branch Manager Tree Service.
Chief Cobb was charged on Monday and released on personal recognizance. He is scheduled to appear back in court on December 3. 2012. More on the story.
Posted in Criminal Law, Disciplinary Action, EMS
Video Recording on EMS Units
Today’s burning question: My fire department is installing video cameras on each ambulance, covering both inside the cab and box, and outside as well. Is this is legal? I think the administration is merely trying to spy on us and I also wonder about patient confidentiality.
Answer: Interesting question and one that police departments confronted years ago. Let me start off by saying that cameras have caught more than a few police officers doing bad things. In the big picture, is that a good thing or bad thing? I think we’d all agree that it is a good thing. So wouldn’t we be a bit hypocritical to use a different set of standards when it comes to ourselves?
Perhaps the bigger point to consider with regard to law enforcement and videos is – as much as cameras have captured some police officers acting improperly – they have caught way more bad guys acting improperly… including many who try lie about it and accuse the officers of misconduct. By far, most police officers now believe in dash cams and most can recite story after story where officers have been exonerated from allegations of wrongdoing by virtue of video surveillance.
But your question was not about whether video cameras were a good idea or bad idea… right? Your question was about the “legality” of video surveillance.
There are a number of issues that can arise when an employer decides to use video surveillance in the workplace. Arguably it is a change in working conditions that in a union environment must be negotiated. Some states (Connecticut) require advanced written notice to employees before an employer can engage in any form of electronic surveillance in the workplace.
In an EMS environment there are also patient privacy and medical confidentiality issues. Confidentiality issues can be addressed by ensuring that videos are properly secured and that personnel do not violate confidentiality by improperly accesses, viewing or disseminating them. In most respects managing the videos would be no different than how we manage patient information in our run reports.
The bigger legal question is privacy. In this regard states differ tremendously.
There are two sets of concerns: audio and video.
In regards to audio, it is illegal for someone to secretly record a conversation they are not a party to. This principle holds true in all 50 states.
While employees can be required in advance to consent to audio recording as a condition of employment (assuming any collective bargaining hurtles are successfully cleared), the same cannot be required of patients and third parties. Therefore, to the extent that the video cameras record audio and capture conversations between parties who have not consented, the recordings may violate state law. Most states require the consent of at least one party to a conversation for it to be recorded, and 12 states require the consent of all parties. The consent issue can be addressed in most states by placing warning signs cautioning others that they are being recorded – but it needs to be thoroughly researched on a state level… and it is not a perfect solution.
In regards to recording video, there are a number of states that prohibit the use of cameras in certain areas. Some states limit photo and/or video recording in areas such as bathrooms, changing rooms, locker rooms, bedrooms, and patient treatment areas. Other states refer to any location where people have an “expectation of privacy”. The back of an ambulance could be one such place where a patient believes he/she has an expectation of privacy. Again, it is important to know your state laws.
In terms of a overcoming a patient’s expectation of privacy in the back of an ambulance, that can be addressed through the proper placement of signs, similar to the way we would address audio recording. However, with regard to signs there remains the issue of language barriers, folks who cannot read, and the blind…. Lots to think about!
So the bottom line is – there are a few legal issues that need to be addressed in order to put video cameras on EMS units. Using cameras that record both audio and video raises a few more issues than cameras that record video only, but in either event it is probably doable in most jurisdictions if done right.
Posted in Apparatus, Burning Question, Confidentiality, Constitutional Rights, EMS
Termination of Flight Medic Over Facebook Post Upheld
A Texas flight medic who was terminated for a Facebook post has lost her appeal.
Janis Roberts, a flight medic for Careflight, was terminated after she posted on the Facebook walls of two coworkers, paramedic Robert Sumien and helicopter pilot Scott Schoenhardt.
The exchange was explained by the court as follows:
Roberts was “friends” on the website Facebook.com with fellow CareFlite paramedic Robert Sumien and CareFlite helicopter pilot Scott Schoenhardt. Roberts posted on the Facebook wall of Schoenhardt that she had transported a patient who needed restraining and that she wanted to slap the patient.
Sheila Calvert is a compliance officer with CareFlite. Her sister, Delicia Haynes, is a CareFlite member. Haynes saw Roberts’s wall posting and notified Calvert. Calvert sent a message to Roberts through Facebook. In her message, Calvert stated:
I just wanted to remind you that the public sees your posts. People outside of CareFlite and outside of EMS. In fact, my sister saw your post to Scott Schoenhardt where you stated you wanted to slap a patient[,] and she thought she wouldn’t want anyone such as that taking care of her and made the comment that maybe she didn’t want to renew her CareFlite membership. People you don’t expect to see your posts do. I’ll bet Scott has many friends in EMS[,] and all any of them would have to do is a screen shot and send it in to the state and you could be looking at a suspension of your EMS license and fines. Believe me, I’m not trying to come down on you about this. I’m trying to help you realize that people out there are losing their jobs and livelihood because of such posts[,] and I don’t want to see that happen to you. If you don’t believe me, just google it or if you like I can send you some links to articles. I hope you will consider removing that post.
Roberts responded with a message to Calvert that stated:
Yeah, whatever. YOU weren’t there. Whenever I have to have a firefighter ride in with me because of a patient’s attitude, and I fear for MY safety, I truly believe a patient needs an attitude adjustment. Think about that the next time YOU correct someone!!
Calvert responded to Roberts, again with a message sent through Facebook’s messaging feature, stating:
I was trying to be nice about the situation and provide you a courteous reminder of the regulations in which you practice in the state and the public’s perception. [Rule 157.36(b)(28) of the Texas Administrative Code[3]] states you cannot engage in activities which betray[] the public’s trust in EMS. I believe your comment could have done that. Additionally, CareFlite has policies against employees calling into question our honesty, integrity[,] or reputation. I understand you had a difficult call and patient. I’ve also had my share of those. That information should not be broadcasted[,] however. I can show you an article where a Kansas medic had his license suspended for 90 days, tons of legal bills, and had to bag groceries during that time because he posted a derogatory remark about his obese patient. As far as me “thinking about that before I correct someone[,]” . . . I’m the Compliance Officer for CareFlite[,] and it’s my job. We can have that conversation later and off [Facebook].
Roberts responded with a message stating, “[By the way], I didn’t slap the patient, I was not rude to the family OR the patient and the call went very smoothly, thank you for asking.” Roberts did delete her comment from Schoenhardt’s wall.
Roberts later posted on her own Facebook wall, stating
Yes, I DO get upset on some calls when my patient goes off in the house and I have to have a firefighter ride in with me because I fear for MY own safety. I think that is a valid excuse for wanting to use some sort of restraints. Just saying!!
Sumien then posted a comment on this post, which stated, “Yeah like a boot to the head . . . . . . ;^) Seriously yeah restraints or actual HELP from PD instead of the norm.”
Roberts and Sumien were terminated and both filed separate suits alleging wrongful termination and violation of privacy. Roberts also made a claim that she was fired in retaliation for her reporting a coworker for misconduct.
The trial court granted summary judgment to Careflite in both cases, and the employees appealed to the Texas Court of Appeals for the Second District.
In the Robert’s case the Court of Appeals concluded:
Roberts makes no argument about why CareFlite’s review of Roberts’s messages to Calvert or of her comments on Schoenhardt wall—comments that could be viewed by third parties—constituted an intrusion upon Roberts’s seclusion, and she cites to no cases that would support such an argument
The Court of Appeals did not address the retaliation claim, and as it had in the Sumien case, upheld Roberts’ termination.
It is worth noting that as private sector employees, the First Amendment offers no protection to Roberts or Sumien. Municipal firefighters and paramedics who post on Facebook would likely have had some level of First Amendment protection on these facts.
In addition, while Roberts raised the National Labor Relations Board’s position that social media use between coworkers is a ”protected” activity, it does not appear that such an argument is viable in a non-union environment.
Here is a copy of the Roberts decision. Roberts v Careflite
Here is a copy of the Sumien decision. Sumien v Careflite
Boston Medic Exposed 64 Patients Via Contaminated Needles
A Boston paramedic has been fired and is facing criminal charges following a lengthy investigation into allegations that he injected himself with narcotics intended for patients, then returned the preloaded syringes to apparatus to be used on patients.
The outrageous conduct allegedly occurred during the summer of 2011, and prompted the Boston Public Health Commission to notify 57 people that they may have been exposed to blood borne pathogens. Seven other patients who were similarly exposed died shortly after being transported.
The name of the medic has not been released, nor have the criminal offenses been announced.
Posted in Criminal Law, Disciplinary Action, EMS, You Can't Make This Stuff Up
