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The EMS system failed McClain and the justice system failed the paramedics

Three takeaways from the conviction of Aurora Fire Rescue paramedics in the death of Elijah McClain

Racial Injustice Elijah McClain

In this Aug. 24, 2020, file photo, a man walks past a display showing an image of Elijah McClain outside Laugh Factory during a candlelight vigil for McClain in Los Angeles.

Jae C. Hong/AP

Aurora Fire Rescue paramedics Jeremy Cooper and Peter Cichuniec were found guilty of criminally negligent homicide in the death of Elijah McClain, who they injected with ketamine after police put him in a neck hold. The jury also found Cichuniec guilty on one of two second-degree assault charges.

Everything about this case stinks. The worst part, of course, this calamitous confluence of utterly avoidable circumstances cost a man his life.

While the testimony recounting the events varies somewhat from witness to witness, the video portrays what actually happened: when officers rolled up on Mr. McClain, he was walking with headphones on – minding his own business. They immediately went hands-on to detain him, escalating the situation. Next, the paramedics arrived and heard a filtered version of events.

If we pause the analysis here for just a moment, we can see two distinct and divergent paths the paramedics could have taken:

  1. Accept the description of preceding events as undisputed fact, or;
  2. Consider the description of preceding events along with the findings of an assessment and weigh the totality of the circumstances when determining the best course forward.

Unfortunately for everyone, the paramedics in this case went with option No. 1. and administered a serious drug without establishing for themselves that the drug was indicated.

Any paramedic with more than 5 minutes on the job knows that the stories told by witnesses tend to be marginally credible at best and should be considered only along with all other available information. This also applies to law enforcement witnesses; not because cops are liars or bad witnesses, but because human perception is filtered by training and experience; and police officers and EMS providers are trained differently and have vastly differing experiences and perspectives. A non-medically trained police officer and a 20-year paramedic can look at the same person and see two completely different things.

In this case, option 2 – including a patient assessment – could have yielded more information. Paramedics can talk to patients who are on the ground and in handcuffs. Paramedics can ask questions before beginning an assessment. Paramedics do not need to wait for a “hand-off” to begin providing care. As I’ve told many an intern over the years: you do the best you can with what you have, but you do it right now.

While the blame can be spread like soft butter on warm toast, in this moment it serves no meaningful purpose. The cases have been heard, the juries have spoken, and all that is left for everyone involved is the grieving.

For us, however, on the outside looking in, there are lessons to be learned and applied so this does not happen again.

1. Paramedics are patient advocates and business is business

It’s natural for paramedics to desire to be liked by law enforcement and to not want to step on toes.

Having been a paramedic in a busy urban area, I understand the need to develop and maintain a solid working relationship with law enforcement. Without close cooperation between all first responder agencies, the system is bound to fail.

Moreover, I understand the desire to be liked and respected by our law enforcement counterparts. Mutual admiration, appreciation and approval keep everything running smoothly. However, business is business, and the best interest of the patient always comes first – no matter who the patient is or whether they are in police custody. That did not happen here.

The first take away is to understand and accept that EMS providers do not exist to please or impress law enforcement.

Rather, every EMS provider’s duties begin with primum non nocere – first do no harm – which means, above all, you are a patient advocate first and foremost. Simply put, as you would on any other call, thank the officers/bystanders for the information they provide and do your own assessment, draw your own conclusions and treat accordingly.

2. Communicate, prepare and practice

For nearly 2 decades, I have been suggesting that EMS agencies and law enforcement agencies engage one-another on a leadership level to establish specific policies and procedures for managing any number of possible, predictable situations.

Traffic collisions, assaults and batteries, shootings, chest pains in jail cells, dead bodies found in motel rooms and countless other incident types put EMS and law enforcement together to manage their respective responsibilities daily. So why is it that questions like “who is in charge” and “when can EMS access the patient for an assessment” have to be asked on scene and in the moment?

It seems obvious that law enforcement agency brass and EMS provider agency brass should already be meeting regularly to establish and update various policies and practices in anticipation of the myriad situations where agencies must work in tandem; to ask and answer the hypotheticals before they are no longer hypothetical and debrief when what you planned for happens – because it will, and it will happen again.

Interagency communication and policy creation (preparation) are only part of the equation. Both are useless unless and until agencies practice together. Law enforcement agencies drill and train with one-another on everything from hostage situations, to mass shootings, to DUI investigations; fire departments drill and train on everything from cutting vent holes to interior fire attacks and vehicle rescues; and EMS providers – albeit not with the same consistency – train on MCIs and various and evolving aspects of patient care, so why are agencies not drilling and training together on very foreseeable situations which will converge their worlds?

The second takeaway should be clear: in this case, the question of what the police and paramedics do and when they do it when a patient is in custody should have been established, communicated and practiced long before this situation presented itself. Now is the moment to make the call to your agency counterpart and get the ball rolling.

Read more: Legal analysis: What the paramedic criminal charges in the Elijah McClain case mean for EMS

3. Protocols, policies and procedures save patients and providers

In the simplest of terms, protocols, policies and procedures basically tell providers what to do, when and why to do it, and how to do what needs to be done for any given patient. A skilled provider is able to apply protocols, policies and procedures to common scenarios because that is what they learned in school and what they have been practicing in the field.

What most providers did not learn in school, however, and what the providers in this case learned the hard way, is that while protocols, policies and procedures afford patients the best chance at a full recovery and simultaneously serve as a shield of protection for the provider who employs them correctly, when not followed, it can be a career ender.

In this case, the paramedics were confronted with a patient who, as far as they knew in that moment and based on what police told them, may or may not have been altered, and/or under the influence of a drug granting extraordinary strength, but who was definitely struggling with something, and absolutely in police custody. We don’t know whether the paramedics were actually prevented from commencing an assessment because we never hear them ask on the video.

These paramedics, like every paramedic across America, had protocols and policies to follow that would have, at the very least, protected them if not also the patient. As evidenced in trial, the protocols and polices were not followed and here we are.

Good faith

At the end of the day, any retrospective protocol, policy and procedure analysis is tainted by 20/20 hindsight. For me, in my own analysis, it all boils down to whether these paramedics acted reasonably and in good faith. This is where the prosecution and I disagree.

It is no secret that I maintain a personal and professional bias that tends to favor, protect and defend EMS providers. Nevertheless, I have developed and honed the ability to remain objective when analyzing the predicaments my EMS clients find themselves in, so that I can counsel and guide them most effectively, based on the facts and the law, and with a watchful eye on improving patient care.

Objectively, these paramedics failed their patient. However, in my opinion, that they were criminally charged and convicted is utterly absurd and an absolute travesty – a woeful miscarriage of justice.

Yes, they violated protocol and a patient died. Yes, they acted unreasonably in that a reasonable paramedic with the same level of training and experience, in the same area, and under similar circumstances would have followed protocol and policy before administering ketamine. That is the legal textbook definition of “reasonable.”

However, to me, reasonableness should be only one test in determining whether a crime was committed. The next, more important, question should have been whether the paramedics acted in bad faith – that is, whether they did the wrong thing for the wrong reason. There is absolutely no evidence in the video or in the court record, or in the histories of these paramedics to suggest that their collective or individual intent was nefarious; that they treated Mr. McClain as they did because of some ulterior motivation other than helping him.

In short, it seems to my EMS defense lawyer eyes that the paramedics here did what they thought was best in the moment and with the limited information they had. The primary failure was not following protocol; not determining objectively for themselves what was going on and how to handle it. That may be negligent – if actual and proximate causation can be proven – and punishable administratively, and maybe civilly, but it should never have been charged as a crime.

Read more: Negligence explained for the EMS professional

The worst part of this case will always be that Elijah McClain is dead. The worst part of this case will always be that his mother outlived her son. The worst part of this case will always be that this unspeakable tragedy was entirely preventable. None of that is diminished by the fact that this case has also destroyed the lives and livelihoods of two paramedics who came to work that day simply intending to do good.

EMS1.com columnist David Givot, a seasoned EMS employee with three years of law school under his belt, is looking to the future of EMS. He has created TheLegalGuardian.com as a first step toward improving the state of EMS through information and education designed to protect EMS professionals nationwide.
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