Pro Bono: On-Scene Video from Asiana Airliner Crash Raises Legal Questions

 

 
 
 

Douglas Wolfberg JD, EMT | Steve Wirth, Esq., EMT-P | From the March 2014 Issue | Thursday, March 13, 2014


The crash last July of an Asiana jet at San Francisco International Airport is raising some key operational—and legal—questions. Of the 307 passengers, 304 survived when the airliner slammed into a seawall just short of the runway. One of the three passengers killed was a teenage girl believed to have died not from the crash, but from being run over by responding fire apparatus. Reports now indicate that video both from a firefighter’s helmet-mounted camera and an apparatus dash-mounted camera clearly shows the victim lying on the ground and the incoming truck being alerted to her presence.

Not surprisingly, the victim’s family has retained an attorney and is pursuing claims against the city of San Francisco for the actions and omissions of its fire department. More surprising is the response of the department, at least insofar as a deputy chief was quoted as saying, “This is not a matter of us being careless or callous. It was the fact we were dealing with a very complex environment.”

One of the very reasons that fire and EMS agencies exist is to be called to deal with “very complex environments.” One of the first rules of scene safety, most experts would testify, is for the responders not to kill people who aren’t already dead as a result of the incident. There can be no doubt that a commercial jetliner crash is, indeed, one of the more complex responses that public safety agencies may have to confront. But, like other types of major incidents, responders learn, train, study and practice how to deal with these incidents. And we guarantee that nowhere in their training does running over a patient with fire apparatus figure into the curriculum.

There’s been much discussion in the aftermath of this incident whether the conduct of the fire department constitutes “abandonment.” In reality, in most states, “abandonment” is not a specific type of legal claim (believe it or not), but a principle of patient care that can simply lead to a claim of negligence or malpractice. If responders fail to care for a person in need of assistance, that simply forms the basis of a possible tort claim for negligence in most states.

But running over a patient at the scene of a crash when video evidence suggests that patient was being clearly pointed out to the driver of the responding apparatus may transcend mere negligence. Please note that we’re not privy to the internal investigation of this incident and that our knowledge derives only from published media sources, including JEMS. However, if the facts alleged by the victim’s attorneys are accurate, the fire department will be lucky to settle this only as a negligence case. “Abandonment” implies simply not helping someone. The facts here allege more than just ignoring the patient. If true, these facts suggest harming the patient through specific, dangerous actions, not through neglect. Under the law, this could be seen as gross negligence, if not reckless or intentional misconduct. Media sources report that firefighters told investigators they assumed the girl was dead. The failure to adequately assess a victim, who was allegedly known to be in the path of emergency vehicles, creates serious concerns about professional responsibility as well as liability to the EMS agency.

Should this case go to court, it’s hard to imagine the defense being able to find a reputable expert witness who would take the stand and say that it’s acceptable operational conduct to assume a person lying on the ground not yet examined by medical personnel is dead. No credible expert will testify that it’s permissible to drive emergency apparatus over a person when the driver is specifically alerted to that person’s presence. And no reputable expert will (or should) testify that it’s permissible to drive over a person even if you think they’re already dead.

There’s an interesting postscript to this story: The department is quoted as saying they’ve now prohibited the use of helmet cams out of concern over privacy for “victims and firefighters.” Nothing in any state or federal privacy laws of which we are aware would prohibit the use of operational cameras (though any identifiable patient images would need to be secured and used or disclosed only in accordance with the law, the same as, say, a PCR). When used properly and in accordance with well-defined and articulated policies, helmet cams (like drive cams and other similar digital image recording devices) can be a tremendous adjunct to training and can help ensure accountability for the agency’s actions when the public is harmed as well as provide protection to the agency when citizens claim improper conduct occurred that the video shows never happened.

The Asiana case reminds us that responders owe legal duties to all patients and potential patients in complex scenes as well as everyday incidents, and those persons in need aren’t always conveniently located or readily identifiable to us. This is why scene perimeters are established and carefully searched, and steps are taken to establish accurate and complete patient counts. And this case reminds all of us that motor vehicle operations still constitute the single most dangerous aspect of public safety, and the greatest risk of liability. Juries are unlikely to be forgiving when responders cause injury or death in the course of carrying out their operations, particularly when it involves the vehicles they're entrusted to operate safely at all times.

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Related Topics: Administration and Leadership, Legal and Ethical, negligence, helmet camera, dash camera, Asiana Airlines Crash, Asiana Airlines, abandonment, Jems Priority Traffic

 
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Douglas Wolfberg JD, EMT Doug Wolfberg is an EMS attorney and founding partner of Page, Wolfberg & Wirth. He has previously worked as an EMS field provider, EMS educator, county EMS director, and EMS administrator at the state and federal levels.

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Steve Wirth, Esq., EMT-Pis a founding partner of Page, Wolfberg & Wirth, LLC. Steve is an active EMS provider and firefighter, and a national EMS speaker and a member of the JEMS and EMS Insider editorial board. He can be reached at swirth@pwwemslaw.com.

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