Striking a Patient is Never Warranted

EMS and the Law


 
 

W. Ann "Winnie" Maggiore, JD, NREMT-P | | Wednesday, June 27, 2007


Many EMS services have adopted a "zero tolerance" policy in the wake of allegations of patient abuse by EMS providers. This case, with a series of appeals to higher courts, demonstrates that a court will uphold a termination for striking a patient.

Clifton Noland was a paramedic with the Maryland Aviation Administration, which is part of the Maryland Department of Transportation. He received satisfactory employment evaluations from 1988 to 1992; in 1993 and 1994 he received superior ratings. From 1995 to 1998, he received "exceeds standards" ratings on his performance reviews.

According to the unpublished case, the service issued a Workplace Violence Policy in May of 1997. Each employee was asked to read and sign a copy, certifying that they had read the policy and would comply with it, as a condition of employment. On March 30, 1999, Noland's unit received a call at the Baltimore/Washington Airport, where they were stationed. A police officer requested assistance in transporting a combative psychiatric prisoner to the North Arundel Hospital. The EMTs put on latex gloves and brought their stretcher into the police station, where the patient was in a cell. The police informed Noland that the patient was spitting and drinking water from the toilet in his cell. Noland returned to his unit and obtained protective face shields.

As the police opened the cell, the patient spit onto one of the officers' face, neck and chest. After the paramedics asked that the patient be placed prone on the stretcher, the police restrained the patient with handcuffs, but supine rather than prone as the paramedics had requested. Noland placed a face shield on the patient, secured him to the gurney and began moving him from the police station.

The patient, shouting expletives and threats to kill the paramedics, managed to dislodge the face shield and spit at Noland. Noland struck the patient in the face with a closed fist and then reattached the face shield. The police officers and the second paramedic observed the blow and made no comments. As they continued to push the gurney from the station to the ambulance, the patient again dislodged the face shield and spit at Noland. Noland struck the patient a second time with a closed fist. The patient did not sustain any visible injury, and the paramedics did not report the incident to the hospital staff.

They completed their run report, but did not include any statements about Noland striking the patient. No one reported the incident to the service's EMS Coordinator or to the shift supervisor. However, the second paramedic did discuss the incident with the EMS Coordinator and asked whether it should have been reported. The EMS Coordinator told him that it should have been reported and then reported it to the Division Chief. The Chief instructed the EMS Coordinator to obtain written statements from all witnesses.

Dr. Phillip Phillips, the service medical director, was informed of the incident on April 15, 1999, and immediately suspended Noland's medical control. The next day, the Maryland Institute of Emergency Medical Services System suspended Noland's license for a year as the fire department began its investigation. The investigation was completed a few days later, and the second paramedic was also suspended without pay for five days for failing to report the incident.

Noland was terminated on July 2, 1999, for striking the patient and for failing to report the incident. Noland appealed his termination, and an Administrative Law Judge heard the proceedings on April 20, 2000. The ALJ concluded that Noland did not violate the policy, because he had testified that he struck the patient not out of anger, but instead "to prevent or reduce possible exposure to an infectious disease." However, the judge did conclude that Noland had used excessive force, and had failed to report the incident, recommending a suspension rather than termination. Dr. Phillips and the Fire Chief testified that it is never warranted to strike a patient.

The judge, while admitting that the service could terminate Noland, recommended against termination because of his prior record being free of discipline. Administration appealed, and a final administrative decision was issued on July 27, 2000, with a finding that Noland had, in fact, violated the Workplace Violence policy. Noland appealed to the Circuit Court, which overturned the termination based on a finding that it was disproportionate to the offense. Management again appealed, and the Court of Appeals ultimately held that the circuit court was not authorized to overturn the termination.

This case, released in 2005, illustrated that EMS managers are willing to take their workplace violence policies seriously, and that they are willing to go the extra mile to enforce them. This case took several years to make its way through the administrative tribunals and into the court system with a series of appeals. The question that the courts struggled with was whether the employee's overall employment history should be considered in light of a single offense for which termination is permissible. The courts wanted to insure that the "punishment fits the crime." Ultimately, the courts relied on the testimony of the medical director and the fire chief that there is no circumstance that warrants the striking of a patient.




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Related Topics: Administration and Leadership, Legal and Ethical, Operations and Protcols

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W. Ann "Winnie" Maggiore, JD, NREMT-PWinnie Maggiore is an attorney and paramedic in Albuquerque. She is a shareholder at the law firm of Butt, Thornton & Baehr, PC where she defends physicians, dentists, oral surgeons, nurses, paramedics and other health care providers, as well as law enforcement officers, against lawsuits and administrative enforcement actions. She is an author of many EMS legal publications, a member of the JEMS editorial board, and holds a volunteer faculty position in the Department of Emergency Medicine at the University of New Mexico.

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