Malpractice or murder: When do EMS providers cross the line from negligence to a crime?

By Doug Wolfberg, Esq.; and Steve Wirth, Esq.

On Jan. 10, 2023, an Illinois prosecutor filed first-degree murder charges against two EMS providers over the death of a patient they’d been called to assist on Dec. 18, 2022. While criminal charges against EMS providers regarding acts committed during patient care are not unprecedented, the filing of first-degree murder charges following the death of a patient is virtually unprecedented.

This case holds important lessons for EMS professionals nationwide.

The presumption of innocence

All criminal cases begin with the presumption of innocence. A prosecutor filing criminal charges is merely a first step in the legal process. The EMTs charged in this case have not been found guilty of any crimes in this matter and the prosecutor’s charges are allegations not yet proven in court.

The defendants are scheduled for a preliminary hearing on Jan. 19, 2023, at which time the judge will decide whether there is probable cause that they committed the crime of murder. Following the preliminary hearing, formal charges are then typically filed and the defendants are officially notified of the charges – and enter a plea – at an arraignment. Then, presuming the charges are not dismissed at any point, the case proceeds to discovery and, ultimately, to either a plea bargain or verdict.

EMS murder charge: Facts of the Case

On Dec. 18, 2022, at approximately 2:02 a.m., law enforcement responded to the scene of a call at a private residence where they found a 35-year-old Black man in apparent medical distress. In viewing the bodycam footage, the officers were met at the door by an adult female, who told the officers that Mr. Moore was “hallucinating and having alcohol withdrawals” and having “drunk hallucinations,” stating, “he’s a severe alcoholic who hasn’t had alcohol in four days.” She told police that he was “not violent” and was “seeing stuff that’s not there and hearing voices in his head.”

The woman at the residence also appeared somewhat exasperated when she told the police, “every time I take him to the hospital, they release him, that’s all they do.” When police asked if it was necessary to take him to the hospital, she replied, “Yes, I think he needs help.” The police calmly told her, “if you want us to come in and talk to him, we’d be more than happy to.”

When the officers entered the bedroom in which Moore was located, the bodycam footage revealed that he was conversing inappropriately. He was moaning and appeared lethargic while lying on a bed, moving around and sounding short of breath. An officer noted that Moore was “sweating.” Almost immediately (less than one minute) after making contact with Moore, an officer called for an ambulance. Officers tried to assess Moore’s level of orientation, and when asked if he knew where he was, he responded by giving an incorrect location. He appeared to be in obvious distress. The officers reassured Moore that assistance was forthcoming. While all of this was occurring, ironically, there was calming music with the sounds of a piano and singing birds coming from a speaker in the bedroom.

At one point prior to EMS arrival, the patient sat up and asked for water, and the police brought him some, which he appeared not to drink. The patient removed his jacket and fell back onto the bed, alternating between recumbent, prone and supine positions.

About 12 minutes after law enforcement’s initial call for an ambulance, EMT Peggy Finley is seen entering the bedroom. “This is Earl,” an officer tells the EMT, who in her hands has a small tablet and pen, but no medical equipment.

In her first communication with the patient, EMT Finley asked, “Earl, hey, what’s your birthday?” as she stood over him. She then commanded the patient to “sit up,” which she then repeated more sternly. Shortly after that, Finley repeatedly yelled at Moore to sit up and said, “you know what? I am not playing. Sit up, quit acting stupid.” She added, “I am not playing with you tonight. Sit up! What is your birthday?” The EMT then told the patient, “you’re going to have to walk, because we ain’t carrying you. Because I am seriously not in the mood for this dumb shit.” Finley appeared to make no attempt to physically assess Moore in any manner (including to assess his vital signs) as he continued to moan while she yelled at him to “get up!”

As a law enforcement officer urged the patient to stand up and walk, the patient exhibited significant difficulty and an officer said, “he’s sweating bullets.” Finley then said, “if you’re going to go, you need to get up and walk.” The EMT appeared to make no effort to help Moore stand or walk – two police officers did that. It appeared that at no time was a stretcher or other device brought into the house. EMT Finley held her notepad and pen while she watched the police move Moore. The patient then fell to the floor as the police implored him to “help us out” by walking to the stretcher, which was waiting with the other EMT outside the house.

While the police moved Moore to the outside of the residence, a voice, presumably that of EMT Finley, can be heard saying “bullshit” and “c’mon, you called, you wanted the help, get up.”

Once Moore reached the outside of the house, he knelt on the ground with his arms, upper torso and head resting on the stretcher. “Get on up there, Earl,” a voice is heard to say.

EMT Peter Cadigan, who appeared to be waiting at the cot in the front yard, along with an officer, grasped the patient by his arms and dragged him onto the stretcher, placing him into a face-down position on the cot. EMT Cadigan then slightly lifted Moore’s upper body and – somewhat forcefully – slammed him into position on the stretcher. He then appears to have tightened the cot straps around the patient in the prone position. Moore at this point became quiet.

About 8 minutes after EMS arrival, the patient was loaded into the ambulance, which then departed the scene. According to media reports, the patient was transported to HSHS St. John’s Hospital, which Google Maps shows is about 1 mile from the residence. Although it is not clear whether the patient went into cardiac arrest during the ambulance transport, the autopsy report indicates “resuscitation intervention upon emergency department assessment.”

After resuscitation attempts, Moore was pronounced dead at 3:14 a.m., a little more than an hour after the ambulance transport.

Autopsy and cause of death

The Sangamon County Coroner’s Office completed an autopsy on Moore about 8 hours later.

On Jan. 8, 2023, the Coroner’s office issued its Report of Postmortem Examination. The forensic pathologist’s report to the Coroner ruled the cause of death as “compressional and positional asphyxia” due to, or as a consequence of “prone facedown restraint on a ... cot/stretcher by tightened straps across the back.” Other significant conditions noted found to be “contributing to death but not related to the terminal conditions” were “lethargy and chronic alcoholism.” Toxicology reports indicated that the patient had alcohol and THC in his system at the time of death.

Murder charges filed

On Jan. 10, 2023, two days after the Coroner’s report was issued, and just over three weeks from the date of the incident, Sangamon County State’s Attorney Dan Wright announced the filing of first-degree murder charges against EMTs Peggy Finley and Peter Cadigan. Both EMTs – now criminal defendants – were booked into the county jail on $1 million bond each.

Under Illinois law, a conviction for first-degree murder carries a minimum sentence of 20 years in prison. The maximum punishment is life in prison. In order to find a defendant guilty of first-degree murder in Illinois, the prosecution must prove that the defendant “intends to kill or do great bodily harm” to another, or knows that the defendant’s acts “will cause death” – or a “strong possibility of death.” Illinois law also allows for a first-degree murder conviction for a death that occurs in the commission of a “forcible felony.”

In short, the two EMTs involved in this case now face the most serious criminal charges a person can face as a result of their conduct.

What turns malpractice into murder? The guilty state of mind

EMS practitioners are no doubt becoming increasingly concerned with the filing of criminal charges against providers in recent high-profile, widely publicized cases. As with the manslaughter and negligent homicide charges filed in 2021 against EMS providers in Colorado (cases which are still pending as of this writing) arising from the death of Elijah McClain following ketamine administration, this case sent immediate ripples through the EMS profession. This latest case from Illinois, however, involves the filing of first-degree murder charges – as opposed to the manslaughter and negligent homicide charges in the Colorado case.

What lessons can EMS providers learn from the murder charges filed against these two EMTs?

Let’s first frame out how a murder case unfolds – because the real lessons can be fully appreciated only after knowing how the process works.

After a death under suspicious or violent circumstances, a forensic investigation is nearly always performed. If the medical examiner or forensic pathologist determines that the manner of a death was homicide, a prosecutor must then determine if that homicide was justified – in which case criminal charges are typically not filed – or unjustified, in which case charges may be warranted.

In determining whether criminal charges will be filed and, if so, at what level, a prosecutor has to look at the available charging statutes and decide if one or more of them apply. When it comes to criminal charges resulting from a death, a prosecutor must decide if the facts warrant charges of unintentional or negligent homicide, or intentional murder. This can often be a subjective determination, but the prosecutor uses available evidence to make a charging decision based on what the prosecutor believes can be proven at trial, and what is likely to be accepted by a jury.

The prosecutor does this by making a determination about the defendant’s state of mind at the time of the conduct. In the law, this principle is called scienter, or the “guilty state of mind.” Unintentional mistakes are called negligence and are usually not criminal. Mistakes made with varying degrees of malicious or intentional conduct can result in charges of criminally negligent homicide or, as in this case, intentional murder.

Here is where the true lessons begin for EMS practitioners.

When a prosecutor has bodycam videos (called documentary evidence in the law), that evidence can carry substantial weight in the decision to prosecute, and to what degree. Videos can be unbiased and very credible witnesses to the conduct in question. When EMS interacts with law enforcement, bodycam videos are very often in use, giving prosecutors the ability to watch the defendant’s conduct as it occurs in real-time.

Prosecutors are human. Although charging decisions should be made without passion or prejudice, prosecutors will – like anyone else – be influenced by the words, deeds, body language, tone of voice and other factors exhibited during the commission of an alleged crime. It is the prosecutor’s job to probe the state of mind of the defendant to decide if the defendant possessed a “guilty mind” in their conduct.

A prosecutor can certainly be persuaded that an EMS provider possessed a guilty mind when the documentary evidence plainly reveals:

• A provider taking no steps to initially assess or properly care for an individual who is plainly in distress
• A provider towering over a patient while yelling and swearing in a very disrespectful manner
• A provider saying things to the patient like, “I am seriously not in the mood for this dumb shit”
• A provider taking no steps to perform a clinical assessment of the patient’s condition or take any vital signs at any point while in the residence
• A provider forcefully slamming the patient’s body to the cot
• A provider restraining a person in distress in a prone position, made worse by the lack of any apparent assessment of the patient’s airway

Compare this to a hypothetical case where a prosecutor investigating a death sees video evidence that shows the following:

• A provider displaying concern for the patient’s wellbeing
• A provider attempting to take vital signs or assess pulse and breathing of a patient in distress
• A provider speaking with a calm, professional voice and getting down to the patient’s level to communicate
• A provider displaying care when lifting and moving a patient to ensure safety and comfort for the patient
• A provider exhibiting basic empathy toward others

Evidence that shows poor or deficient EMS care, but where the caregivers acted with empathy and professionalism, may, at worst, constitute negligence. That type of evidence will almost surely lead a prosecutor to conclude that the providers did not act with sufficient scienter or intent to justify the filing of criminal charges. And even if a prosecutor determines that charges are warranted, those charges are more likely to be filed at a lower grade – such as negligent homicide – which, although serious, carries far less punishment than intentional murder.

Documentary evidence will be available to prosecutors in almost all cases involving the conduct of EMS practitioners. At a minimum, there will be dispatch records, radio communications and patient care reports. In a significant number of cases, there will also be video evidence, either from bodycams, surveillance cameras or other recording devices which pervade in most places today.

Every practicing EMS provider can control how they will look to a prosecutor in audio or viewing video evidence. When the documentary evidence shows that the EMS provider simply didn’t care, or even worse, acted with open hostility, aggressiveness or violence toward the patient, a prosecutor’s decision about finding a “guilty mind” becomes easier. When the prosecutor sees and hears compassion, competence and professionalism, even in the face of significant errors being made, it becomes much harder to justify filing criminal charges.

Jurors in a case like this will be ordinary citizens – not law enforcement officers, not lawyers, not EMS providers, not forensic examiners. How will they react to this video evidence? When any person of ordinary sensibilities watches a video and recoils in near disbelief at the bad conduct it reveals – the prosecutor has a case. The prosecutor has a case because they know jurors will find it repugnant too.

EMS providers can shape that evidence by ensuring that every video of them that would ever be recorded shows professionalism and empathy at all times. Presume that every encounter, no matter where it occurs or what time of day it takes place, is being recorded. Always act in a way that would make you proud to have a recording of your conduct played for a jury.

EMS is stressful and difficult work. And it’s easy for negative biases to develop subconsciously as we see people at their worst possible moments and in situations where they may abuse drugs or alcohol or put themselves in difficult situations. Subconscious or inherent biases can impact how we treat others, and we need to work to become more aware of them. We must always treat every patient with respect and dignity – regardless of the color of their skin or other immutable characteristics, whether they are a person with a drug or alcohol addiction, a homeless person or someone who looks or speaks differently from those to whom we are most accustomed.

Simple human kindness in dealing with a difficult or distressed patient can go a long way to improving the outcome of the situation – and avoiding the risk of our conduct being judged harshly – even criminally – when viewed after the fact.

A final word about law enforcement interactions

When writing about the criminal charges filed in the McClain case in Colorado in 2021, we wrote that patient encounters where law enforcement directs EMS providers to administer ketamine or take other actions can be fraught with risk. In this latest Illinois case, many media reports are praising the police for their calm, helpful demeanor and prompt request for EMS. In the videos, their conduct certainly stands in stark contrast to the abrasive and uncaring attitude, words and demeanor displayed by the EMS providers.

But we have other thoughts about this. Accountability was lacking almost across the board in this case. The law enforcement officers here did not question or stand up to the EMS providers when it became so quickly apparent they were providing obviously inadequate care to the patient.

Even though the police officers spoke calmly and promptly summoned EMS, they effectively stood by while watching what any layperson would conclude was inappropriate care by these EMS providers. We do not believe their conduct is as praiseworthy as some in the media – and the police themselves – are portraying it to be.

All of us have a “duty to act” and to exhibit moral courage – to stand up and intervene when bad conduct that could harm another person is observed, even if that means confronting other public safety personnel, others at the scene or even our coworkers engaged in improper conduct. Failure to do so can normalize the bad behavior and then others may feel that it is acceptable to engage in it. The single biggest failure that allows bad behavior to continue is the failure of good people to stand up and do the right thing. Accountability should be practiced by everyone in public safety and healthcare and at all levels – and here it was lacking on everyone’s part.

The EMT defendants in the Moore case have a long road ahead. Much remains to be seen as to whether they will be acquitted or convicted of murder. The prosecution has a tough case to make here to convince a jury that this was first-degree murder. But in the meantime, EMS providers should remember that their conduct in a possible criminal case will – in the final analysis – be measured by their state of mind. When it appears that EMS providers acted with a guilty state of mind, a prosecutor can conclude that criminal charges – even murder – are warranted.

As an EMS provider, whether or not you display a guilty state of mind is always up to you, and you alone.

About the authors

Douglas M. Wolfberg, Esq., EMT; and Stephen R. Wirth, Esq., EMT-P, founders of the national EMS law firm Page, Wolfberg & Wirth, are among the most well-known and respected EMS attorneys in the United States. Both served as EMS providers and administrators prior to becoming lawyers.