When a North Carolina paramedic was charged with sexual battery for inappropriately touching a female patient in the back of an ambulance many EMS professionals asked, “how could this happen?” or worried that an accusation was enough to make a conviction.
Tou Vang Lee, 43, was arrested in January after a 20-year-old woman claimed he asked her if she had any pain, and before she could answer he began to press on her chest and sternum, palpated her vagina over her clothes, and finished by pressing on her left breast before covering her with a blanket.
Whether the accusations are true or false remains to be seen, but Lee is not the first medic to face sexual assault charges that stem from an incident that occurred on the job.
“It does happen more often than it should,” said Allison Bloom, a Connecticut attorney specializing in EMS law. “We’re hearing about more of them, but we also have to think about the nature of our jobs.”
While there’s no denying the fact that some people may join emergency services to act on their perversions, EMS providers performing life-saving care in the back of a rig or in someone’s home are also a far cry from doctors in white lab coats that have the public’s approval to professionally touch patients’ in ways usually reserved for a spouse or significant other.
“We are not providing health care in an environment people are familiar with,” Bloom said. It’s easy to misinterpret medical treatment, and this can be exasperated by language barriers and a lack of public education on what the role of a responder entails.
So how should an EMS provider accused of sexual assault handle the situation? And how should that provider’s department respond?
Innocence is a not a legal defense for the provider
First thing first: A provider accused of sexual assault should be placed on leave immediately.
“Don’t take it personally,” Bloom said. “You’re going to be emotionally charged, but understand the organization is doing what it needs to do to protect itself.”
The next step is for the agency to launch an internal investigation, and for both the agency and the individual to hire their own lawyers, even if that person claims they are innocent. All too often those being falsely accused think ‘I’ll just go and explain myself,’ Bloom said.
“Next think you know, they’re being handed a plea bargain because there’s enough there to convict them. These people then turn around and call a lawyer and say ‘I don’t know what happened.’”
EMS defense attorney and EMS1 columnist David Givot agrees.
“It’s so easy for things to be misconstrued,” he said.
For instance, a medic who tells police he cut open an unconscious woman’s shirt to perform what was a necessary patient assessment and a normal part of the job, has just admitted to taking off the woman’s clothes and touching her.
“Things can get twisted very quickly, even if your statement seems innocent,” Bloom said.
“If anyone wants to speak with you – an internal investigator or police – know your rights and don’t say anything without a lawyer present.”
Detailed documentation that shows proper procedure is essential, Givot added.
“Documentation is your best defense all around.”
Ways EMS agencies can protect themselves from sexual predators
From an agency perspective, having legal counsel on hand will help department heads navigate what will undoubtedly be a complicated process.
“Once that complaint comes in, all eyes are going to be on that department, and that individual,” Bloom said.
Givot also points out that unfortunately, many agencies skip the internal investigation process and go straight to firing the accused. A recent client of his was met with an allegation, and was out of a job within three days.
While it’s easy to “just cut the mole off,” agencies should put an accused employee on paid leave and look at all the facts before taking further action.
“I would say hire a professional investigator, talk to all witnesses, look at all the factors, and then make a decision,” Givot said.
A lawyer can assist with handling conversations with the media, determining official responses, and advising on which records should be openly shared and which should be protected from being disclosed.
For instance, during an internal investigation the partner of an EMT being accused of a sexual assault is questioned. He states he didn’t notice anything out of the ordinary about the incident in question, but has seen some things in the past that made him uncomfortable and didn’t report it because he didn’t want to get anyone in trouble.
That’s something that could potentially cast a poor light on the department, and a lawyer could help keep those documents from being disclosed.
“A lawyer can help keep that document out of court,” Bloom said.
Givot agreed, saying its better for agencies to keep documents confidential for as long as they can, to comply with a court order that requires they provide them rather than voluntarily making them public.
“Even if records are completely benign, as soon as they turn them over they are waiving a lot of rights,” he said.
For instance in Lee’s case, he was accused for an incident that occurred at Mission Hospital after having moved on to Union EMS. Mission Hospital launched an internal investigation, and initially refused to hand over documents of that investigation to Asheville (N.C.) police detective William Olson.
Olson was referred to the hospital’s attorney, and he was required to file two search warrants before obtaining the information, nearly four months after starting the investigation. Lee’s 807-page personnel file included a previous sexual assault allegation in which no charges were filed.
Yet one of the easiest ways for a department to protect itself from the negativity and legal ramifications that come from an employee being accused of sexual assault is to have a hiring practice that reduces the chances of it happening in the first place.
“Whether a state requires a background check or not, as an agency you really need to be doing background checks. It needs to be part of your onboarding process,” Bloom said, and that applies to both paid and volunteer departments. At the very least it should require a look into motor vehicle history, criminal convictions and a free search of the National Sex Offender Registry.
In addition, job applications should simply ask the question, ‘Have you ever been convicted of a crime?’ If that employee is hired and it’s discovered that he made untruthful statements, he can be easily fired.
Bloom also recommends putting new employees on a probationary period to ensure they’re a good fit, and she suggests managers randomly observe providers during calls.
“You’re more likely to pick up on it if someone skates through,” she said.
Screening and hiring is not a perfect process
Because skate through they do.
“Is it possible for someone to slip through the cracks? Yeah, it’s possible,” Bloom said.
Lee’s case is a good example of how the system is supposed to work once an accusation or arrest is reported.
Kim Sides, compliance manager in the NC Division of Health Service Regulation’s Office of Emergency Medical Services, said that the office receives a daily court document that includes anyone with a state license, including EMS providers, who have been arrested. It could be anything from a speeding ticket to sexual assault, and the office takes the appropriate action.
In Lee’s case, once he was charged Union EMS, his current employer, was notified and he was suspended.
“They acted immediately,” Sides said. “He hasn’t been on an ambulance since.”
Attempts to contact Union EMS were unsuccessful.
If Lee’s charges are dismissed his credentials may be reinstated. If convicted, the state agency has the ability to permanently revoke them. Federal law would also require that the state agency enter Lee’s information into the National Practitioner Databank NPDB http://www.npdb.hrsa.gov/ to communicate to other states that he is no longer able to practice in North Carolina.
But the process doesn’t always go that smoothly. There’s often some lag time in how long it takes for information to appear in the NPDB – if it appears at all, Bloom said.
“It takes a while,” she said. “It can take six months to a year.”
She recalled a client who was convicted on federal charges of embezzlement. He served three years of a five-year sentence, accepted a plea bargain with the state, was placed on probation, and resumed his job as a paramedic.
He then received a notification that the state had submitted his plea bargain to the National Practitioner Database, which was normal, but soon after he was being investigated for the embezzlement charges that he had already served time for.
He asked, ‘Isn’t that double jeopardy?’
The answer was no, because the embezzlement charges and conviction were never submitted to the NPDB in the first place, likely because it wasn’t flagged by the court system, Bloom said.
“We need a better ability to communicate across platforms,” she said. “We don’t have one central clearing house. It would be nice if we had some industry-wide database that was one-stop shopping.”
Moving on from a false accusation of sexual assault
If an EMS provider is convicted of sexual assault that’s one thing, but let’s say he didn’t do it. A paramedic was accused, went through a lengthy internal investigation and a police investigation, had his name splattered across the media, and in the end the charges were dismissed.
It takes an awful lot of hard work to clear your name,” Bloom said.
“It’s brutally unfair,” said Givot. “And it’s career ending. But it happens.”
Although the department could reinstate the accused medic, leaders may question whether that individual will continue to be a good fit for the organization. Although there’s a risk the medic could sue for wrongful termination, most states practice employment at-will, and don’t have to establish ‘just cause’ for termination.
For a provider whose name has been falsely accused in public records and the media, it can be difficult to find a new position. That’s where a professional network works wonders, Bloom said. Hopefully, anybody in that situation will have a proactive reference willing to step up and explain to a future employer the parts of the story that don’t show up in a Google search.
“If you do have people in upper management standing behind you, having those contacts make a phone call or two makes a big difference,” Bloom said.
Givot said aggressive communication and negotiations with the agency and law enforcement, in private, can also help. For instance, if the charges were dismissed after the provider was already fired, the company may agree to withdraw the termination and allow the provider to resign. When applying for a new job, it’s also difficult to determine at what point to bring up the past allegations – if at all.
“If there’s a skeleton in your closet that may come back to bite you during the application process, you want to put it out there,” Bloom said. “The downside is they may automatically not hire you out of the gate. It’s a risk.”
By the same token, if you’ve made it to a second interview, for instance, and the past hasn’t come up, either the employer doesn’t know about it or it’s not a concern for them. If you don’t say anything, “you’re not lying, because you haven’t been convicted,” so it comes down to your own personal choice, Bloom said.
Even if the accusations are false, a sexual assault charge is something that will follow you for the rest of your life.
“Once you have that scar, you will always have that scar,” Givot said. “Even in the best case scenario.”