Striking a Patient is Never Warranted

[paramedic70002]

http://www.jems.com/Columnists/Maggi...ticles/243804/

Striking a Patient is Never Warranted
By W. Ann Maggiore

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According to the unpublished case, the service issued a Workplace Violence Policy in May of 1997.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.


More articles by this author

W. Ann Maggiore, JD, NREMT-P, is an attorney and a paramedic in Albuquerque, N.M. She has been a full-time paramedic, an assistant fire chief and a state EMS administrator. Currently, she practices law full time, defending physicians, police and EMS personnel against lawsuits. She is a frequent lecturer on EMS legal issues at national conferences and holds a clinical faculty appointment at the University of New Mexico School of Medicine, where she teaches legal issues to faculty, residents and paramedic students. Contact her via e-mail at desertrose1@wildblue.net.
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My reply to the author:

Dr. Maggiore,

Having just read your column, "Striking a Patient is Never Warranted," I must disagree. Your blanket statement does not recognize the human right of self defense. While most readers are intelligent enough to read between the lines, your published statement has set a standard.

If a patient should suddenly attack me with a lethal weapon, such as a knife or gun, or commence a determined physical assault, I believe that striking the patient is certainly warranted; being struck will be the least of his worries. I am prepared to use whatever force is necessary to protect my life.

If my service should feel the need to terminate my employment over such an incident, at least they will not have to serve notice to my gravesite.

On another note, was the Paramedic also a Law Enforcement Officer? I was under the impression that all Paramedics employed by the State of Maryland were Troopers. If so, was this not a factor?

Alan W. Rose

[DefensiveCarry.com]

[QKShooter]

I've personally seen a petite female (whacked out on dope) become so instantly and explosively violent AKA so totally ballistic/agressive that it took two Medics and two hefty police officers to finally get her restrained on the stretcher.
Her "friends" had tossed her out of their moving car into the street.

The entire ambulance was rocking back & forth once they got her inside and she had gouged one officer across the face (in his eye area) with her finger~nails.
That officer could EASILY have lost his sight in that one eye.

These people who are high on certain drugs act worse than rabid raccoons.

[dimmak]

I have successfully used Aikido to "calm" individuals (patients, family members of patients, etc) which are a bit "excited" many times without fail.... This way one can avoid resorting to strikes and the liability that goes with them.....

It is unfortunate that sometimes the violent individual will "hurt themselves" (fallling, etc) when attempting to continue an assault
on someone who is trying to help them...... However, it is less unfortunate than having to receive medical care myself.....

It is good to advise the offender that it is in their interest to discontinue the assault or they may injure themselves by falling on the slick floor....

If they are armed, then alternative methods are in order of course.....

[HotGuns]

What a bunch of weenies.
You've got a crazy guy that drinks water from toilets spitting at everyone and raising cain.

That should have warranted an azz whoopin right there on the spot...and I dont mean a gentle one.

You've got an paramedic with way abover average ratings and no disciplinary action on record. He did what he had to do to stop the assault on himself. Clear and simple.

You have at least one judge saying yeah, he shouldnt have done it, but it aint wirth firing him over it. Then you have two politically correct,touchy feely fools that feel they must use ZERO tolerance on any patient that is trying to kill everyone around them.

The heck with any one elses rights, lets cater to the crazy man that is a liablity to society and as crazy as the day is long.

Pitiful. Absolutley pitiful.

[Tangle]

The EMS guy did the right thing. He should have gotten an accommodation instead of termination.

[P95Carry]

Dr. Phillips and the Fire Chief testified that it is never warranted to strike a patient.

What a crazy sweeping statement. I sure don't condone violence just because it's the easy option but heck - there are some folks where pretty severe methods are needed to control them and ensure safety of the team.

[WorldPax]

Not to get all touchy-feely liberal on you guys, but isn't the primary law of medicine "First do no harm"? I'd like to think the EMT after already being warned that he was dealing with a spitter, could think of some way to deal with the situation rather than hitting his patient. Perhaps some wide tape to cover his mouth, or toss a pillow case over his head.

It seems obvious the guy was not in his right mind, and the EMT should have used some better judgement.

[Mass-Diver]

Being spit on is pretty rough, it triggers in a instance, violent reaction in most people - even more so than being pushed, or punched. As a nurse, I've been spit on a few times and come close to losing my cool.

That said, I have to agree with the author that (unless it is in self-defense) there is never a reason to strike a patient, espically with a closed fist. The cops should have four pointed the person face down in the first place.

[SIGguy229]

The face shield the paramedic put on the pt was the "first do no harm" step (completed)...after that, it's "go home alive and intact"

I'd be pretty pissed at the 2nd paramedic for not discussing it with the first...not "hey...hypothetically....(proceed to dime out paramedic #1)"

As far as the zero tolerance policy--the rest of the world does not adhere to said policy...it's a violent and dangerous world out there that laughs at "zero tolerance policies" and BGs take that as license to do whatever they want, knowing they can sue and get awarded damages or get plain get away with beating a public servant.

These EMS supervisors need to get out of their office and do a couple of runs over a holiday weekend...remind them where they came from (if they were ever line medics)

[HotGuns]

It seems obvious the guy was not in his right mind, and the EMT should have used some better judgement.

Having have dealt that way with a few whackos at the ER, that it would appear that he used some great restraint.

Sometimes dealing with an angered ,violent drug induced mentally disturbed person is like trying to put a sheet on a tornado.

Its never as easy as it sounds.

[WorldPax]

Character and professionalism. Did the patient deserve it? Man to man, stand up fight, sure. Tied to a gurney, I don't think so. Did the EMT deserve to lose his job? No, there but for the grace go I.

[falcon1]

Not to get all touchy-feely liberal on you guys, but isn't the primary law of medicine "First do no harm"? I'd like to think the EMT after already being warned that he was dealing with a spitter, could think of some way to deal with the situation rather than hitting his patient. Perhaps some wide tape to cover his mouth, or toss a pillow case over his head.

It seems obvious the guy was not in his right mind, and the EMT should have used some better judgement.

"First do no harm"--I'm not trying to "add fuel to the fire" one way or the other, I'm simply asking...do other persons besides physicians in the medical profession take the Hippocratic Oath?

[Bud White]

what i don't get is the work place violence angle you read our policy and it says coworkers management doesnt say anything about customers or anyone else

there have been issues where customers have attacked repair men one just recently thankfully it has happened to me

[QKShooter]

Spitting on another person is also a crime.
It is considered to be an assault crime.

[retsupt99]

What a crazy sweeping statement. I sure don't condone violence just because it's the easy option but heck - there are some folks where pretty severe methods are needed to control them and ensure safety of the team.

You don't see Dr. Phil or Judge X working with the patient do you?

Had a kid in our high school who was quick with the F.U.'s...the principal said that we needed to understand this kid...tough home environment you see...

Well, one day the kid was in the hallway and the principal was trying to move the 'crowd', when this kid put on his 'smarta**' routine. The principal told him to settle down...but the kid told him what he could S**K and added in a few F.U.'s...

Boom...3 days out of school...
Mmmmmm, somehow it was different then...I didn't notice any attempt to try and understand this kid then!

Analogy...
I guess when you are out of work it's a recession, but when I'm out of work it's a depression...Mmmmmm.

OMO

ret