EMS experts comment on potential 'stifling effect' of indictment of paramedics in Elijah McClain's death

The Colo. grand jury indictment of two paramedics calls ketamine a "deadly weapon," a category normally used for guns and knives in criminal complaints


Read an in-depth legal analysis of the indictment by Douglas M. Wolfberg, Esq., EMT and Stephen R. Wirth, Esq., EMT-P. They write: 

"It is extremely rare to see criminal charges brought against paramedics involving the care provided to a patient – and we are not aware of any case quite resembling this one. These are extremely serious charges in a high-profile case that will shine a national spotlight on many difficult and important issues."

Read their full analysis of the criminal charges and its impact. Wolfberg and Wirth have also written "8 recommendations for EMS patients in custody and in need of treatment."  

By Elise Schmelzer
The Denver Post

DENVER — The felony manslaughter and reckless homicide charges filed against the two Aurora Fire Rescue paramedics who treated Elijah McClain before his death are likely the first of their kind in the United States and could carry implications for the entire emergency medical profession.

Criminal cases against paramedics for negligence and recklessness are extremely rare, according to nearly a dozen medical practitioners, former prosecutors, civil rights lawyers and medical attorneys interviewed by The Denver Post.

The paramedics who administered ketamine to McClain each face charges of manslaughter and criminally negligent homicide.
The paramedics who administered ketamine to McClain each face charges of manslaughter and criminally negligent homicide. (Family Photo)

None of those interviewed could think of a single criminal case similar to the grand jury indictment announced Wednesday by the Colorado attorney general against Aurora Fire Rescue paramedics Jeremy Cooper and Peter Cichuniec.

"It is extremely rare for criminal charges to be brought against medical providers who commit negligent — or even reckless — conduct," Denver attorney David Woodruff said. "So rare that I have never seen it, and I've been doing medical malpractice for 20 years."

The two paramedics who administered the sedative ketamine to McClain each face charges of manslaughter and criminally negligent homicide, as well as three counts of assault and six sentence-enhancing charges. The three officers who detained McClain also face felony charges for their role in the 23-year-old's death in August 2019. If convicted, each man faces years in prison.

Some attorneys and doctors said the indictment was troubling because the charges against the paramedics seemingly criminalize deviations from emergency medical protocol, which are not usually standards for criminal cases. The indictment states that Cooper and Cichuniec "deviated from the standard protocols governing when to administer ketamine such that the administration of ketamine to Mr. McClain was unlawful."

According to the indictment, Cooper and Cichuniec failed to physically check McClain, incorrectly diagnosed McClain with excited delirium, injected him with a dose of ketamine too large for his size and failed to monitor him for complications after the injection.

Paramedics are often forced to make split-second decisions that might not be mapped out in policy, said Steve Wirth, a former paramedic and attorney whose practice focuses on emergency medicine.

The indictment "could have a stifling effect," Wirth said. "You can't practice check-list medicine because no one patient is the same."

The grand jury classified ketamine as a "deadly weapon," a category normally used to describe guns and knives in criminal complaints.

"The risk of death from ketamine is heightened when it is administered in excess of the recommended dose and without proper monitoring for any possible side effects," the indictment states.

But any number of drugs commonly used by paramedics can be deadly if used improperly, said Dr. Brent Myers, chief medical officer of data company ESO, former president of the National Association of EMS Physicians and longtime emergency medicine practitioner.

"If someone makes an honest mistake, and now that's criminal — that's paralyzing," Myers said. "I'm not saying that errors are OK, but if you're criminalizing honest mistakes?"

It's hard to know whether the paramedics' indictment will have a chilling effect on the profession. A minority of medics might be thinking that the risk is not worth a $20-an-hour salary, said Doug Wolfberg, an attorney who specializes in representing emergency medical providers and a former emergency medical technician.

Jacob Oldefest, a paramedic in the Denver area, sees it differently. The job is inherently risky, he said.

"Everyone's always filming, everything you're doing is being recorded and is going to be evaluated by your boss, your peers, the community at large," he said, noting that's part of the job.

The vast majority of paramedics and EMTs join the profession because they want to help people, said state Senate President Leroy Garcia, who works in Pueblo as a paramedic and a paramedic instructor when he's not legislating.

"It shouldn't make anyone more nervous about this profession because liability is extended in every profession," he said.

The death of McClain prompted lawmakers to severely restrict the use of ketamine outside of hospitals. A bill passed during the 2021 legislative session bans the use of ketamine to treat excited delirium, a controversial diagnosis of a form of extreme agitation. The Colorado Department of Public Health and Environment in July suspended all the waivers that allowed emergency medical providers to use ketamine to treat excited delirium while the department reviewed the new law.

McClain's death and the way he was treated are an embarrassment to the entire EMS profession, Oldefest said, adding that the new law and the suspension of the state's ketamine waiver program have frustrated paramedics. Dozens of paramedics testified against the ketamine bill as it progressed through the legislature.

"It was taken from us for a mistake that another agency made," Oldefest said. "I feel like they should've been reprimanded and not all of us."

Anita Springsteen, a Lakewood councilwoman and lawyer who advocated for the ketamine bill, said she hopes the indictment encourages the attorney general and other prosecutors to examine more cases where paramedics use ketamine while responding to a police call. Springsteen's boyfriend was injected with ketamine last year during a police encounter, and she represents other Coloradans who have been injected.

"If it's a deadly weapon, it's not just a deadly weapon for Elijah McClain," she said.

Civil rights attorney Birk Baumgartner said he hopes the indictment of the two paramedics has a chilling effect on other paramedics using ketamine.

"After this indictment, no rational paramedic should consider getting his ketamine needle out his bag," Baumgartner said. "You could get indicted and you should be if you kill somebody with it."


Patients in custody and in need of treatment

Patients in custody and in need of treatment

Every EMS provider and leader has an obligation to heed the important lessons from the Elijah McClain case. Doug Wolfberg and Steve Wirth have written eight recommendations for EMS providers and leaders.

Denver Post reporter Sam Tabachnik contributed to this report.

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(c)2021 The Denver Post

McClatchy-Tribune News Service

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