“They treated the patient like a problem, not like a patient.”
That quote from courtroom prosecutor Steve Wirth set the tone for his Thursday keynote presentation, “The Criminalization of Medical Errors – Lessons Learned from the Elijah McClain Trial and Other Criminal Cases Involving EMS Practitioners,” at Fire-Rescue International 2024 in Dallas.
Wirth – who has served as a firefighter, EMT, and paramedic, among other first responder titles – now brings his legal perspective to cases like the paramedics charged in the death of Elijah McClain. What makes this so unique, reported by the Associated Press: “The trial against the paramedics explored largely uncharted legal territory because it is the first case against medical first responders facing criminal charges to reach trial, potentially setting the bar for prosecutors in future cases.”
Wirth addressed two cases in the presentation – that of McClain in Aurora, Colorado, and that of Earl Moore Jr. in Springfield, Illinois. Both patients first interacted with law enforcement, one as police looked for a 911-reported “suspicious person,” the other called by the patient who was reportedly experiencing the effects of detoxification. Note: Wirth emphasized that neither he nor his firm, Page, Wolfberg & Wirth, were involved in the cases, and that his review was based on his observations following the legal proceedings. Further, as he reviewed the calls, Wirth stressed the recognition that the vast majority of calls our responders answer do not involve problems or legal consequences, and criminal actions against providers are largely considered outliers.
Wirth focused on our accountability as providers and our ability to control outcomes through ethical behavior. “You have the control to advocate for your patient,” Wirth said. “That is your number one responsibility as a provider.”
Beyond patient advocacy being the right thing to do, Wirth underscored that cameras and microphones are everywhere, including the body-worn versions on many police officers and some firefighter/EMS personnel. On the topic of action-accountability, Wirth reminded providers that, “you control how you look and sound on body cams.”
Elijah McClain case: Trial of Cichuniec and Cooper
The McClain case was the “suspicious person” call, with police officers wrestling an apparently non-combative 19-year-old McClain to the ground. One officer is heard on bodycam footage saying, “EMS will be here soon and will give him ketamine to calm him down.” It was this medication administration that was later argued to be responsible for the patient’s death, as detailed in this Associated Press news story:
“Police stopped McClain while he was walking home from a convenience store on Aug. 24, 2019, following a suspicious person complaint. After an officer said McClain reached for an officer’s gun — a claim disputed by prosecutors — another officer put him in a neck hold that rendered him temporarily unconscious. Officers also pinned down McClain before Cooper injected him with an overdose of ketamine. Paramedic Peter Cichuniec was the senior officer and said it was his decision to use ketamine.
“Prosecutors said the paramedics did not conduct basic medical checks of McClain, such as taking his pulse, before giving him the ketamine. The dose was too much for someone of his size — 140 pounds (64 kilograms), experts testified. Prosecutors say they also did not monitor McClain immediately after giving him the sedative but instead left him lying on the ground, making it harder to breathe.”
In the end, the jury found the Aurora paramedics guilty of criminally negligent homicide. The jury also found Cichuniec guilty on one of two second-degree assault charges. Jeremy Cooper was found not guilty on the assault charges.
Read more about the case:
- Colo. paramedic sentenced to 5 years in prison in Elijah McClain’s death
- Navigating criminal liability: Lessons from the Elijah McClain case
Earl Moore Jr. case: Charges against Finley and Cadigan
In the case involving the death of Moore, the patient was in detoxification when police arrived and engaged him. The patient was mostly incoherent, and when EMS arrived, the providers were less than professional, as seen on video. With the cot sitting outside, EMS provider Peggy Finley says, “You’re going to have to walk” and “I don’t have time for this.” Police officers helped walk the patient, who fell several times, out to the cot. EMS provider Peter Cadigan can be seen slamming the patient face down onto the cot, then pulling each strap as tight as he could get them.
Finley and Cadigan were ultimately charged with first-degree murder in Moore’s death in December 2022. Officials said Moore died from compressional and positional asphyxia related to how he was strapped to the stretcher. The providers pleaded not guilty.
Read more about the case:
- Ill. EMT accused of first-degree murder has bond refunded
- EMS industry reacts after EMTs charged with first degree murder
Lessons learned and reinforced
There is a lot to unpack with these incidents, some of which unfortunately pit police against EMS. At the end of the day, Wirth offered several important lessons:
- Be patient advocates, and not mere adjuncts with the police.
- Ensure our members and providers understand and live up to reasonable standards of care.
- Ensure that conscious and unconscious biases don’t affect patient care.
- Understand that protocols are not looked at as “guidelines” by the courts; they are increasingly becoming standards of care.
Final thoughts
After the presentation, I couldn’t help but hear Wirth’s words replay in my head: “They treated the patient like a problem, not like a patient.” We indeed control so much of what went wrong with these incidents. We need to ensure that we complete full patient evaluations, follow reasonable standards of care, and train with our response partners. Do the right things and focus on positive and professional response and operations.
