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Navigating criminal liability: Lessons from the Elijah McClain case

A 13-step action plan to provide compassionate and effective care while navigating the evolving legal landscape

Elijah McClain

Demonstrators carry a giant placard during a rally and march over the death of 23-year-old Elijah McClain outside the police department in Aurora, Colo., June 27, 2020.

David Zalubowski/AP

In the ever-evolving landscape of EMS, the specter of criminal liability looms large. The recent case of Elijah McClain has brought this issue into sharp focus, prompting a national conversation about the intersection of prehospital care and legal culpability. In the recent webinar presented by Doug Wolfberg, Esq.; and Steve Wirth, Esq.; of Page Wolfberg & Wirth, they tackled the issues around this case, conducted an excellent explainer and highlighted the path forward. This article considers the key points made by Wolfberg and Wirth.

Understanding the rarity of criminal liability in EMS

Criminal liability in EMS remains exceedingly rare. The overwhelm majority of EMS practitioners will work throughout their entire careers without being defendants in a criminal case or a civil lawsuit. This rarity underscores the importance of understanding the factors within the control of every EMS professional.

EMS practitioners have a significant degree of control over their actions, ranging from patient assessment and care to interactions with others, including law enforcement. This control extends to how they advocate for their patients and even how they appear on body camera footage. Recognizing this empowers EMS professionals to navigate their roles with confidence and responsibility.

Examining the Elijah McClain Case

The Elijah McClain case, which unfolded on August 24, 2019, serves as a critical study in the interplay between EMS and law enforcement. McClain, a 23-year-old, was walking home when a 911 call led to a confrontation with police. The police applied a carotid control, leading to the involvement of EMS.

A crucial aspect of the case was the decision by EMS to administer ketamine. An inaccurate assessment of McClain’s condition and an overestimation of his weight resulted in a fatal dose, according to the medical examiner. The subsequent legal proceedings, which initially saw no criminal charges, evolved into a complex legal battle involving manslaughter, criminally negligent homicide and assault charges against EMS practitioners.

Lessons from the McClain Case

The legal review of the McClain case reveals several critical lessons for EMS practitioners:

  1. Patient assessment is paramount. Inaccurate assessments can lead to improper diagnoses and treatments, potentially resulting in legal consequences.
  2. Communication is key. Collaboration and communication with law enforcement are essential, but EMS practitioners must prioritize patient care over assisting law enforcement in restraining individuals.
  3. Protocols and training matter. Clear protocols, active medical direction and ongoing training are vital to ensuring proper care and minimizing legal risks.

Looking forward: Addressing disparities and bias in EMS

Although there was no evidence in the trial that race played a role, the McClain case also highlights broader societal issues, including social justice, health equity and bias within the healthcare system. EMS practitioners must recognize and address implicit biases that may influence their actions, and agencies should prioritize diversity, equity and inclusion in their workforce.

Action plan

Based on the webinar and case as presented in the excellent and expert presentation by Wolfberg and Wirth, the following action plan is suggested:

1. Enhance interaction protocols and training
Objective: Improve the collaboration between EMS and law enforcement by establishing clear communication protocols and enhancing scenario-based training.

Action steps:

  • Collaborate with law enforcement agencies to develop joint training programs.
  • Conduct regular scenario-based training exercises focusing on effective communication and collaboration.
  • Review and update interaction protocols to ensure alignment with the latest best practices.

2. Independent assessment and effective communication
Objective: Encourage EMS practitioners to independently assess situations and communicate effectively.

Action steps:

  • Incorporate independent assessment training into EMS education programs.
  • Emphasize the importance of effective communication, including asking questions and seeking opinions.
  • Promote a culture where practitioners feel empowered to question and seek clarification.

3. Patient-centric approach and duty clarification
Objective: Reinforce the legal duty of EMS practitioners to prioritize patient care over assisting law enforcement.

Action steps:

  • Provide legal education sessions to EMS practitioners regarding their duty to the patient.
  • Develop internal policies that explicitly state the primary duty of EMS is patient care.
  • Encourage practitioners to advocate for patients when necessary.

4. Proper use of physical and chemical restraints
Objective: Ensure that the use of physical and chemical restraints aligns with patient care objectives and follows appropriate protocols.

Action steps:

  • Review and update protocols related to the use of restraints.
  • Integrate additional training on restraint usage during patient care scenarios.
  • Emphasize the importance of a thorough patient assessment before resorting to restraints.

5. Patient access and advocacy
Objective: Establish a clear protocol for EMS practitioners to access patients in custody of law enforcement.

Action steps:

  • Define the responsibilities and actions required when law enforcement impedes patient access.
  • Train EMS practitioners on assertive communication and advocacy for patient access.
  • Develop documentation procedures for instances where patient access is delayed.

6. Law enforcement directives and protocols
Objective: Clearly define the boundaries between EMS and law enforcement directives.

Action steps:

  • Reinforce the policy that EMS practitioners must not take medical directions from law enforcement officers.
  • Collaborate with medical directors to actively participate in developing and updating protocols.
  • Clarify when online medical control should be consulted in challenging situations.

7. Revisit key EMS protocols
Objective: Regularly review and update protocols related to law enforcement interactions, patient custody and medication administration.

Action steps:

  • Establish a protocol review committee involving practitioners, medical directors and legal experts.
  • Ensure protocols align with the evolving legal landscape and national guidelines.
  • Provide continuous education to practitioners on updated protocols.

8. Address biases and improve awareness
Objective: Increase awareness of implicit biases and work towards neutralizing their impact on EMS actions.

Action steps:

  • Integrate bias awareness training into regular EMS education.
  • Encourage open discussions on biases within EMS teams.
  • Promote a culture of self-reflection and continuous improvement.

9. Video recording awareness
Objective: Ensure EMS practitioners are aware of the prevalence of video recording and act accordingly.

Action steps:

10. Safety, wellness and accountability
Objective: Prioritize the safety and wellness of EMS practitioners while holding them accountable for their actions.

Action steps:

  • Implement comprehensive safety protocols in collaboration with law enforcement.
  • Provide mental wellness programs and stress management support.
  • Establish clear accountability measures for adherence to protocols and patient advocacy.

11. Regular legal updates and training
Objective: Keep EMS practitioners informed about legal developments and implications.

Action steps:

  • Conduct regular legal update sessions for EMS practitioners.
  • Provide training on legal implications of deviations from protocols and standards of care.
  • Collaborate with legal experts to develop a clear understanding of legal responsibilities.

12. Social justice, health equity and diversity
Objective: Address issues of social justice, health equity and workforce diversity within EMS.

Action steps:

  • Integrate training on social justice and health equity into EMS education.
  • Collect and analyze data to identify healthcare disparities and work towards addressing them.
  • Prioritize diversity, equity and inclusion (DEI) initiatives to create a representative workforce.

13. Continued evaluation and improvement
Objective: Establish a continuous improvement process for EMS protocols and practices.

Action steps:

  • Implement regular evaluations of protocols based on real-world scenarios and legal developments.
  • Encourage feedback from EMS practitioners, legal experts and other stakeholders.
  • Adapt and improve protocols in response to feedback and changing legal requirements.

Navigating the changing landscape

The Elijah McClain case serves as a watershed moment for EMS, prompting a re-evaluation of law enforcement interactions, as well as protocols, procedures and the ethical considerations that guide prehospital care. EMS professionals should embrace this opportunity for learning, ensuring that they continue to provide compassionate and effective care while navigating the evolving legal landscape. By staying informed, adhering to best practices and advocating for patient welfare, EMS practitioners can contribute to positive change within their field.

Rob Lawrence has been a leader in civilian and military EMS for over a quarter of a century. He is currently the director of strategic implementation for PRO EMS and its educational arm, Prodigy EMS, in Cambridge, Massachusetts, and part-time executive director of the California Ambulance Association.

He previously served as the chief operating officer of the Richmond Ambulance Authority (Virginia), which won both state and national EMS Agency of the Year awards during his 10-year tenure. Additionally, he served as COO for Paramedics Plus in Alameda County, California.

Prior to emigrating to the U.S. in 2008, Rob served as the COO for the East of England Ambulance Service in Suffolk County, England, and as the executive director of operations and service development for the East Anglian Ambulance NHS Trust. Rob is a former Army officer and graduate of the UK’s Royal Military Academy Sandhurst and served worldwide in a 20-year military career encompassing many prehospital and evacuation leadership roles.

Rob is a board member of the Academy of International Mobile Healthcare Integration (AIMHI) as well as chair of the American Ambulance Association’s State Association Forum. He writes and podcasts for EMS1 and is a member of the EMS1 Editorial Advisory Board. Connect with him on Twitter.