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Did the discipline match the infraction?

A legal and ethical deep dive into the firing of 2 EMTs, fire lieutenant in Tyre Nichols’ death

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“As has become the norm in society, incidents like these are viewed through either a lens of emotional subjectivity or through a lens of clinical objectivity, and all of it from the comfort of an armchair on a Monday morning,” writes Givot.

City of Memphis via AP

Appalling. Outrageous. Despicable. Sickening. Inexcusable. Each of these words and countless more can be used to describe what Memphis Police officers did to Tyre Nichols and I do believe that justice will be meted out for each of them.

What about the Memphis Fire Department members who were fired? I suppose from a PR perspective, it was the move the fire chief had to make to keep the peace. But was it the right move? Was it fair? Those questions require a much deeper and more objective analysis.

Far less is known publicly about what the MFD first responders did (or didn’t do) when they arrived on scene. Clearly, the video recorded conduct of the police officers both during and after the event overshadowed whatever it was EMS did or didn’t do. So, we are left to process just what we know from the videos: a non-transporting EMS unit staffed by four members of the MFD responded and arrived; only two of the four got out of the apparatus to treat the patient; the EMTs spent a lot of time doing nothing while Nichols writhed on the ground; definitely did not perform a thorough assessment; and transport was seemingly delayed.

As has become the norm in society, incidents like these are viewed through either a lens of emotional subjectivity or through a lens of clinical objectivity, and all of it from the comfort of an armchair on a Monday morning. Unfortunately, all too often, the subjective, emotional voices drown out all others.

Subjectively, emotionally, it is easy to jump to the conclusion that these providers maliciously failed Nichols and now Nichols is dead. Emotion, understandably, drives many to employ the notion of “post hoc ergo propter hoc,” which, from Latin, translates to “after this, therefore because of this.” The fallacious argument is used to try and conclude that, because an event happened, it must have caused the later event. However, as it all too often does, this argument falls flat because it does not consider all of the evidence and any of the nuance.

Some have opined that Nichols “may” have survived had the EMTs provided standard medical care. This is a dangerous statement as it feeds the mob. It is a classic and provocative example of the “post hoc” fallacy because it cannot be proven by any objective measure. To be true, one would have to prove that – but for the EMTs failing to fully assess and rapidly transport Mr. Nichols – he would have survived. Of course, that is an impossible proposition to validate scientifically.

Is it possible that their delay made the ultimate difference? Sure. It is always possible, but possible is not enough to draw a conclusion upon which to publish such inflammatory opinions at a time when everyone is running very hot. Unfortunately, society has evolved into one in which opinions, speculation and emotion control the news cycle, and objectivity – especially if its conclusions rise in opposition to that of the subjective, emotional side – is silenced. Society has grown accustomed to reacting without all the facts.

In this case, it seems that, subjectively, emotionally and perhaps politically, the Memphis Fire Chief believed that termination was the only option.

Thankfully, the law – as it should be – is intended to be blind to subjectivity and strictly based on objective facts. So, objectively, we must ask whether firing these providers, destroying their careers and livelihoods, was the appropriate response? That answer requires a legal and ethical deep dive.

Duty to plot a proper response

As I have shouted from the mountain tops for decades – both as a paramedic and an EMS defense lawyer – EMS providers, no matter the certification or licensure level, have an absolute duty to regard and treat every call as if it is the single most important, righteous and critical call they have ever gone on ... until they prove, objectively, otherwise. The only way to prove otherwise is by performing a full, thorough, systematic assessment of every patient and every situation. Once the true nature and severity of the call have been established – objectively – then, and only then, can a provider plot the proper course for response. It seems that such was not the case here. It was hard to watch the videos of the EMS providers remain basically idle while the patient was clearly in distress.

The role of any first responder, whether fire, police or EMS, is more heavily dependent upon human relationships and trust than any other, save for our military. I cannot think of another civilian profession that is so uniquely dependent upon the ever-developing relationships between people.

Emergency scenes are hectic at least, and often chaotic, and there is generally little or no time to stop and question the motives of the other responders on scene. Typically, when a provider arrives on a scene where another responder has already begun some sort of action, the later arriving provider will ask for a report or size-up and get to the business of providing service. In this case, EMS arrived and was told that the call involved pepper spray, a generally less-severe situation that usually involves the rinsing of eyes and skin, and little else. It is perfectly understandable that, upon being told by fellow, trusted first responders that pepper spray was the nature of the call, the EMS providers adopted that as their initial working theory.

However, any experienced EMS provider knows that initial working theories serve as nothing more than a starting point; that until they, themselves, establish and prove (objectively) the actual nature of the call, it is a mistake to jump to any conclusions. That seems to be the first mistake in this case. Historically, individuals who have only been pepper sprayed are not found writhing with an apparent altered level of consciousness. Add to that Nichols’ obvious visible trauma, and the initial working theory should go right out the window.

Next, it is objectively improper for EMS providers to forego vital signs and omit a thorough assessment – which we did not see them perform. It was objectively improper for them to ignore the obvious outward signs of distress and lack of responsiveness. It is reasonable to conclude that more rapid, concentrated (and appropriate) attention on the patient would have shown to providers that this situation was far more serious than pepper spray and transport would have been initiated sooner. Maybe.

Whether it would have made a difference is impossible to know and also irrelevant because an immediate and thorough assessment is what they should have done; is what they were supposed to have been trained to do; and is what they promised they would do when they accepted the patch, the badge and the job. There can be zero doubt about the fact that their care was substandard.

The one thing we don’t know, and cannot consider, is the motives of these providers. Did they intend to cause harm to Nichols? There is no reason to think so. Were they trying to fit in with their law enforcement partners? Maybe. That is not uncommon. Were they just not properly trained or supervised? To me, based on the conduct of the lieutenant, the latter seems the most likely.

The fact that the AO and the lieutenant remained – at least for a while – in the engine while the two EMTs handled the scene suggests a failure in supervision and, collaterally, training. Sadly, EMS providers who are not adequately trained and properly supervised will often follow the path of least resistance.

What about remediation?

Did the discipline match the infraction? I can’t say with certainty because there is too much missing information, but my instinct tells me, objectively, that firing the EMTs was a nuclear solution to a conventional problem.

Yes, what we saw was ugly to be sure, but was it enough to fire these providers? If it is the case that these EMTs effectively failed in the exercise of their duties on this call because of a lack of proper training and/or supervision, then remediation seems more appropriate – otherwise the department failed the providers as much as they failed the community. Yet these EMTs were thrown under the bus to distract attention. As for the lieutenant, positions of authority carry a higher responsibility, which, in turn, leads to harsher consequences.

Of course, we don’t know about any of their respective histories. Maybe one or all of them have left a wake of bad decisions behind them. If that is the case, my opinion might be different. However, I am initially inclined to afford each of them the benefit of the doubt and, operating on the assumption that these were otherwise satisfactory providers, the decision to terminate them for this one call because it is what the politics or optics demanded, when significant retraining or remediation, or some other less-aggressive, non-career-ending discipline would have fixed the problem, it is unfair and unjust and emblematic of a much larger problem in an already strained profession. When decisions are based on politics and optics, rather than objective, analyzed facts, nobody will benefit in the end.

Lastly, let me be clear: I am not excusing the failures of these providers; they definitely failed Mr. Nichols. However, if they were fired rather than remediated simply because it was easier and more expedient, then the department failed them, too, and that is a slippery slope down which any of us could fall.



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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