‘Problem or Patient?’ What the Paramedic Verdicts in the Elijah McClain Case Can Teach Us All

The photo shows a wooden gavel.
Photo by Airman 1st Class Joseph Barron

The charges of reckless manslaughter, criminally negligent homicide and assault against two Aurora (CO) Fire Department paramedics in the Elijah McClain case have rocked the EMS world. And now, the verdict is in: both paramedics have been found guilty of criminally negligent homicide. One was also convicted of second degree assault with a drug.

Lt. Peter Cichuniec was remanded into custody following the verdict, while Paramedic Jeremy Cooper was released pending sentencing. The judge stated under the Colorado law, he was required to remand Cichuniec into custody due to the conviction on the second-degree assault charge.

This case has critical lessons to be learned. A conviction doesn’t mean that paramedics everywhere should despair. The key is for all EMS practitioners and leaders to ascertain the critical lessons from this case.

Every aspect of what the paramedics did or did not do in treating Elijah McClain were under the microscope for all to see as the proceedings were broadcast live. The prosecution and defense covered virtually every detail of the response from dispatch to handoff to the hospital personnel in this three-week trial.

Prosecution’s Case

The theme of the prosecution was that the paramedics ignored Elijah McClain as a patient and did not treat him in the way that a patient in this situation should be treated. The prosecutor said the paramedics treated Elijah as “as a problem and not a patient” and that they failed to adequately attempt communication with him, failed to properly assess and monitor him, and ultimately administered an excessive does of ketamine that was not necessary in the first place.

The Defense Case

The defense attorneys’ theme was that the paramedics met the standard of care established by the treatment protocols and that the prosecution did not prove that Elijah died because of their alleged “reckless behavior.” They argued that there was no proof that the paramedics caused the death of Elijah McClain and that there were quite possibly other causes, including his narrowed coronary artery and the carotid hold by law enforcement.

In essence, the defense argued that failure to provide proper medical care to a patient and making medical mistakes should not amount to criminal conduct by a paramedic confronted with a patient in a difficult situation like this one.

Much can be learned from this case. Virtually everyone we have spoken with about this case has said this: that the tragedy of the loss of Elijah McClain’s life could have been avoided.

But despite this tragedy, there rests a silver lining. The full public view of the prosecution of these paramedics provides an inside look at what happens when dealing with difficult situations involving law enforcement. It’s a microcosm of what many would say if put in a similar situation, that “it could happen here, too” and thus important lessons can be learned.

The testimony and evidence presented not only put the two paramedics under the microscope – it placed all of EMS under the microscope. The trial is filled with take-away lessons that we can all learn from, to prevent a similar tragedy from happening in the future. We will be talking about this case for many months and covering every aspect of the trial from start to finish.

We do not judge the paramedics in this case, as the jury has spoken on that matter. But we will candidly and factually discuss the elements of the case that were put under the microscope – the specific practices and conduct of those involved, the good and the bad, so that we can all make this trial a worthwhile teaching tool for the current and future generation of EMS practitioners.

Plan, Train and Train Some More

No case is the same, but dealing with difficult patients in police custody is a common occurrence in EMS, and historically we have not done a good job in preparing for these situations – and these situations are becoming more frequent than ever before.

The key to improving patient care and reducing the likelihood of a situation from escalating into patient distress is to meet with law enforcement and plan for these types of incidents. Develop EMS intervention policies and conduct realistic scenario-based training.

We typically do that with medical and trauma care, but not the difficult law enforcement situations. Learn and practice de-escalation techniques to prevent a difficult situation from getting out of hand and a patient suffering as the consequence of avoidable escalation of an incident.

Define the Police to EMS ‘Handoff’ as a Collaboration of Care

We must work with law enforcement to develop workable procedures that allow EMS to promptly access a person in custody to conduct an assessment. These cases do not involve a clear-cut “handoff” point between police control and EMS control. These situations should involve a team approach where police and EMS work collaboratively to do what is best for the patient at all phases of the incident.

Sure, at some point there will be a “handoff” of the patient from law enforcement to EMS, but there need not be a clear handoff before EMS can act and intervene to assess and treat the patient before that handoff. In other words, the approach that “the patient is not mine until law enforcement says they are mine” just won’t cut it anymore.

Here are some specific action steps we identified from the trial testimony that can be implemented now to help prevent the next Elijah McClain case from ever happening in your career. These action steps are not intended to “point fingers” or assign blame.

They are provided so that we can all learn how to do better in treating patients in these difficult situations that tax our patience and our ability to keep focused on the needs of the patient.

Treat the Medical Issues, Not the Custody Issues

We have a moral and legal obligation to the patient. No treatment should ever be administered for other than bona fide medical reasons. The Latin phrase, primum non nocere – first, do no harm – should be our first principle that guides our conduct and actions in any situation – even where a patient is uncooperative or struggling with law enforcement.

Our focus must always be on the patient’s needs, and not the needs of law enforcement. If restraint or sedation are to be used, these interventions must only be in furtherance of treatment that is clinically in the best interests of the patient, and not to assist law enforcement in subduing a suspect or to take a person into custody.

Don’t be Tainted by the Dispatch

Often, we get dispatch information that may cloud our judgment or lead us to “jump to conclusions” about the type of patient we may encounter at the scene. This is often based on the location of the call, the type of location, nature of the call, and communications with police.

Bring the Tools of the Trade to the Side of the Patient

Critical equipment for managing airway and circulation should be brought to the side of the patient whenever possible. Apply the cardiac monitor, especially when medications that can affect cardiac function or respiratory drive are used. The “code summary” feature on most monitor/defibrillator units will record every second of the patient encounter which can be a valuable tool for documenting when assessments were done, or treatment actions were taken.

The code monitor provides a second-to-second accounting of when key actions such as first automated vital signs, SpO2, ETCO2, and EKG were acquired. The cardiac monitor is a great tool to use for real time monitoring of the patient’s key vital signs, yet it is underutilized and at times not even brought to the patient’s side when it should be.

Don’t Accept at Face Value What You Are Told

We must always take what others say with a jaded eye and ask questions. Make your own independent assessment. If law enforcement tells you the patient is “uncooperative,” “non-compliant” or “resisting,” ask them exactly what that means.

What specific actions are being exhibited by the patient. Do your own independent assessment to confirm any information you receive from others, including law enforcement – especially when vague or subjective words are used to describe the patient’s actions.

Remember, even when law enforcement gives you information, that is only one piece of the assessment. An EMS provider’s own eyes, ears and common sense must also be used. Keep in mind that information presented by third parties may be for a purpose different than patient care.

Evidence in the Elijah McClain suggests that police officers were communicating information to EMS designed specifically to induce the paramedics to give ketamine to their detainee.

Attempt to Access the Patient and Intervene

Even with several law enforcement officers on top of a person in custody, we need to attempt to get close and assess what is going on with that person. You can’t take the position that the person in custody is not your responsibility until law enforcement says they are. We have an independent obligation as health care professionals to access the person in custody to determine their needs.

In the Elijah McClain case, had there been video of the paramedics speaking up and advocating prompt, direct and unimpeded access to the patient, it would have given the defense strong ammunition that the medics were there to help Mr. McClain and not just to assist law enforcement.

Be Assertive in Advocating for Patient Care

Some providers can be timid in the face of law enforcement officers “in charge” of a situation. But EMS providers need to assert themselves into the situation to evaluate and advocate for the patient. Tell the officers, “I need to get in and assess his vital sings,” or “he seems to be having trouble breathing, let me check his airway,” or “he got quiet, we need to check him.”

Conduct a Prompt Assessment

We need to immediately assess the patient’s airway, breathing and circulation and level of consciousness right away. Focusing on assessing the patient is fundamental, and a complete assessment is necessary to support treatment decisions that are made.

Get Down on the Patient’s Level

You can’t conduct an adequate assessment of a patient, or effectively communicate with a patient by towering over them. We need to kneel and get down to the patient’s level and try to communicate directly with the patient. That puts you in a much better position also to assess the patient’s airway and breathing.

Touch the Patient!

Good EMS requires physical contact with the patient. Assessment of a patient involves using all our senses – we need to touch the patient. That allows us to assess the skin temperature, whether it is dry or clammy, the color of the skin, and to assess peripheral pulses. This may involve exposing the patient appropriately to conduct an assessment.

Assess Vital Signs

We need to assess the patient’s level of consciousness and get an initial set of vital signs as soon as possible. Granted, you might not be able to get a blood pressure right way, or immediately apply a cardiac monitor if the patient is not under control, but we can at least assess respirations and pulses without any tools other than our own hands.

Use the Cardiac Monitor When Possible

Too often the cardiac monitor/defibrillator is left in the ambulance (or fire engine, in the McClain case) and not brought to the side of the patient. Hooking the patient up to the EKG is an excellent way of assessing the patient’s cardiac status and can let you anticipate the patient’s needs.

Of course, it is not always practical to do so, but it should be done as soon as possible, especially when the patient is being physically restrained, and when drugs like ketamine are used.

Talk to Each Other and Get Other Opinions

Strive to ask others their opinion at the scene about the situation. Asking other responders on the scone, “what do you think?” is important to get other perspectives as to what may be going on with the patient.

Accurately Estimate Body Weight

In case you need to administer a medication, such as ketamine or a narcotic where correct dosage may be weight dependent, it is best to ask others what they think the patient weighs. Don’t just rely on your own assessment, as determining body weight in the field can be very subjective.

Use All the ‘R’s’ When Administering a Medication

Paramedics carry potent medications in the field that can harm or kill a patient if administered with the wrong dose or wrong route of administration. In fact, one of the issues in the McClain case was whether ketamine could be classified as a “deadly weapon” for purposes of assault laws.

Practicing the “Six Rights” of medication administration can help avoid fatal medication errors: Ensure that you have the Right Patient, Right Medication, Right Dose, Right Time, Right Route, and Right Documentation. Carefully monitoring and documenting the patient’s response to the medication is also essential.

Follow Your Protocols and Reconsider Exceptions

The standard of care that you will be evaluated on is most likely going to be your treatment protocols. Follow them. Make sure you are familiar with every treatment protocol and have a quick way to check them if necessary.

Sure, there may be exceptions where you go “outside” the protocol in treating the patient, but in most cases medical control should be consulted and any deviations from the treatment protocols should be documented with an explanation as to why the protocol was not followed in that instance.

Document, Document, Document!

It almost goes without saying that we must accurately and completely document every patient encounter. There are many challenges when dealing with patients that are in police custody, and it is essential that all aspects of the encounter and the patient’s conduct and response to EMS intervention are carefully documented.

Not only is comprehensive documentation essential for patient care, it is important for the future as the patient care report may serve as your” substituted memory” in an investigation, deposition, or courtroom testimony down the road.

A complete report that is descriptive and that patients a visual picture of the scene and of the patient can help you remember details of that call that you may have forgotten.

Conduct a Post-Call Review

Every case involving patients in the custody of law enforcement pose unique challenges in patient care and overall scene management. Every one of these situations can be a learning experience that should be reviewed and shared with others in our agency and with law enforcement.

Case critiques with law enforcement can help delineate responsibilities and ensure that the next call goes better than the last one.

Medical Director Involvement is Critical

When developing protocols and procedures for dealing with difficult patients or patients in police custody it is essential that your medica director be directly involved.

The medical director needs to be more than a signature on a form, and the medical director needs to participate actively in the development of the treatment protocols for the use of medications for combative patients and for the review of each of these cases after the incident. And don’t overlook the potential liability of medical directors if protocols are not up to date and if they do not reflect current clinical evidence.

Prepare for the Court Case and Finger Pointing

The reality is that we are each responsible for our own actions or inaction, and there could be a potential civil lawsuit, and even a criminal indictment if the patient is harmed due to the actions of law enforcement, the fire department, or EMS. In a criminal or civil case, each party will be represented by their own legal counsel.

In defending a case, lawyers will tend to throw blame or responsibility to the other party, as we saw in the Elijah McClain case when the police blamed EMS and the ketamine administration, and EMS blamed the police and the restraint procedures and carotid hold that was applied to Elijah McClain.

We need to be prepared for this finger pointing and one party throwing the other party “under the bus” so to speak.

That is why it is essential that our own conduct and actions be above reproach and consistent with our protocols and procedures established. That will always be the case if we provide competent and compassionate care for all our patients, regardless of the situation that prompted our response in the first place.

Finally, we need to ensure that we treat all patients with respect and dignity, regardless of their situation, and whether they put themselves into that situation or not. We can’t just “go along with the show” and follow the direction of law enforcement.

We must be an “advocate for the patient” and treat all people – whether they are in custody or not – with empathy and without judgment as if they were one of our own loved ones, using the skills we possess to give the patient the best possible care we can provide for them.

Editor’s Note: This article was updated on Jan. 5, 2024, with two corrections. The original article stated both defendants were remanded into custody, however, only one defendant was taken into custody. Under the “Defense Case” heading, the authors inadvertently used the word “prosecution” rather than “defense.”

Steve Wirth and Doug Wolfberg are the founding partners of Page, Wolfberg & Wirth, LLC, and are nationally known thought leaders in EMS law.

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