Medical helicopter transports can be a life saver, but after the fact can be a bank breaker.
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
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.
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."
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.
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.
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”….
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.
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.
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.
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….
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.
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.”
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.
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
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…)
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
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 –
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.
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 EMS
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.