I’m not gonna say “I told you so,” but I totally did, and the Colorado Court of Appeals just gave EMS something very important to think about.
The criminally negligent homicide convictions of former Aurora Fire Rescue paramedics Jeremy Cooper and Peter Cichuniec, arising from the death of Elijah McClain, have been reversed. That is a very big deal.
However, it does not mean what want you want it to mean. So, before you begin opining over stationhouse coffee and going around the table spinning a web of misinformation that is sure to become urban legend, let me tell you what actually happened.
This ruling is not a declaration that everything those paramedics did was right. It is not a statement that Elijah McClain’s death was unavoidable. It is not a get-out-of-jail-free card for EMS. It is not absolution.
| MORE: The EMS system failed McClain and the justice system failed the paramedics
What it is, however, is a very important reminder that if the criminal justice system is going to judge paramedics, it must judge them as paramedics; not as ordinary people sitting comfortably in a jury box years later; not as Monday morning quarterbacks; not based on what medicine, policy and public opinion became after the fact.
Simply put, we are entitled to a “jury of our peers” and nobody on this jury had the slightest clue what it means to work in EMS. More simply put, the jury in this case was given the wrong measuring stick.
That matters.
The reasonable provider standard
Elijah McClain died after a terrible chain of events. He was stopped by police while walking home. He was restrained. He said he could not breathe. He vomited. He lost consciousness. Paramedics were called. They were told things by police about his behavior, strength and possible drug use. The medics were told by police that he was suffering from what was then commonly called “excited delirium” and administered ketamine.
But what police said, what the video showed, and what the medics did or didn’t independently assess are not the same thing — and that gap is where this case lives.
Watch the bodycam footage:
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McClain weighed about 143 pounds. He received 500 milligrams of ketamine. After that, he stopped breathing, lost his pulse and later died.
There is no way to make that sound anything other than awful. A young man died. A family lost someone they loved. A community lost trust. Two paramedics were convicted of crimes. Everyone lost.
At trial, the prosecution argued that the medics failed to properly assess McClain, failed to properly estimate his weight, failed to monitor him after giving ketamine, and failed to treat him as a patient rather than as a problem to be controlled. The jury convicted Cooper of criminally negligent homicide, and convicted Cichuniec of criminally negligent homicide and second-degree assault.
Now the Court of Appeals has reversed the homicide convictions because the jury was not properly instructed on the standard of care. In plain English, the jury was told to judge the conduct using a general “reasonable person” standard and not the reasonable “provider” standard. The appellate court said that was wrong.
The jury was asked to judge the case based on the question: “What would a reasonable person have done?”
The jury should have been asked to judge the case based on this question instead: “What would a reasonable paramedic, in Aurora, Colorado, in 2019, under those circumstances, with that information, training and protocol, have done?”
That is not just lawyer talk. That is everything, which is why anyone who has ever taken one of my classes knows the “reasonable provider” standard.
EMS is different. We make decisions in ugly places, with bad information, under pressure, surrounded by chaos, noise, fear, police activity, family members, bystanders and sometimes danger. We do not get clean facts. We do not get perfect histories. We do not get time to form committees. We get a few minutes — or sometimes just a few seconds — to make a decision and then years for everyone else to critique it.
When the paramedics arrived, this had been a noisy, chaotic, and dangerous scene, or so they were told. The paramedics were provided only bad information and incorrect history by the police. But even that does not excuse bad medicine. It explains with great clarity, though, why the “reasonable provider” standard matters.
The law cannot fairly judge a paramedic by pretending the paramedic was just some random person on the street — or a police officer. If the allegation is that a medic made a bad medical decision, then the jury has to understand what a reasonable medic would have done at that time and in that system.
That includes protocols. It includes training. It includes accepted practice in 2019. It includes what was known then, not what became obvious later.
That is why this ruling matters for EMS.
But here is the part no provider should miss: Cichuniec’s second-degree assault conviction was not reversed. The court left that conviction standing. That means the court was not saying, “No harm, no foul.” It was not saying EMS cannot be criminally prosecuted. It was saying the homicide conviction was legally flawed because the jury was not properly instructed. On TV or in the movies, they would call that a “technicality.” I would call it “why our system is better and more fair than all the others.”
To be clear, this is a narrow — and likely temporary — win for the medics, not a full victory.
What happens next?
The prosecution may ask the Colorado Supreme Court to review the case. If that does not happen, or if the higher court lets the ruling stand, prosecutors may choose to retry the homicide charges using proper jury instructions. They may also decide not to retry them. That decision will depend on many things: the strength of the evidence, public interest, resources, witness availability and how the surviving assault conviction affects the overall case.
In other words, this is not over. Yet. Yes, the prosecution gets another bite at the apple, knowing what they learned from the last trial. But the defense gets that second bite, too. The defense will have seen the prosecution’s case and heard from their witnesses; the facts have not changed, so a retrial truly benefits the defense much more, which will make it a much harder case for the prosecution. Both sides will likely play for the revised jury instruction and the entire case will be about that standard. To me, these guys have been through enough. I hope the prosecution lets it go.
5 lessons for EMS
For EMS providers, though, the lessons are very clear; and if you learn from them, they might just save a patient’s life and your career, so pay attention.
- First, you are not an arm of law enforcement. You are a medical provider. Police may secure the scene. Police may give you information. Police may tell you what they saw. But your patient assessment belongs to you. Your treatment decision belongs to you. Your documentation belongs to you. Your license belongs to you. Every decision you make belongs to you.
- Second, chemical restraint is dangerous legal territory. I am not saying never sedate an agitated patient. That would be ridiculous and unsafe. Sometimes sedation is medically necessary. But when the patient is already restrained by police, every decision you make must be based on objective medical need, not convenience, frustration, scene control or pressure from officers.
- Third, dosing matters. Weight estimates matter. Monitoring matters. Airway readiness matters. If you give a powerful medication, you own what happens next. That means reassessment. That means ventilation. That means capnography where available. That means documenting what you saw, what you did, why you did it, and what changed afterward.
- Fourth, words matter. If your report makes it sound like you treated a suspect instead of a patient, you have created your own problem. If your report only repeats what law enforcement told you, you have created your own problem. If your report does not explain your own assessment, your own findings, and your own medical reasoning, you have created your own problem. The thing about your own problem is that you own it.
- Finally, EMS leaders need to stop pretending “just follow the protocol” is enough. Protocols are tools. They are not magical legal force fields. Agencies must train providers on judgment, assessment, documentation and the legal difference between medical treatment and custody control.
The McClain case is tragic. It is also a warning.
The appellate court gave EMS a fairer standard. Good. We needed that. But the court did not give EMS a free pass. Nor should it.
The lesson is simple: Be the clinician. Do the assessment. Make the medical decision. Document the medical reason. Monitor the patient like the medication matters, because it does.
And never forget that when the scene is over, the chart, the body camera, the protocol, the training record and your own words will be all that remains to tell the story. What story will it tell?
