EMS Law by Tony Dalton

Only about 5% of lawsuits actually go to trial. The rest are either settled by agreement of the parties or dismissed on some technical basis before trial. As a result, a paramedic is more likely to affect the outcome of his or her case–whether it is settled for a small or a large sum, or possibly dismissed upon motion–by the way he or she performs during a deposition than testifying at trial. If the paramedic holds up well during the pretrial deposition, the case is more likely to be settled for a small amount; if the paramedic performs poorly in the deposition, get out your checkbook–settlement is not going to be cheap. Accordingly, it is critical that your paramedic be well prepared before giving a deposition.

A deposition is a judicial proceeding intended to allow lawyers to obtain witness testimony before trial to gather information and to help prepare and evaluate their cases. If the plaintiff’s attorney in an ambulance accident or paramedic malpractice case takes the deposition of your paramedic, he is not on an innocent fact-finding mission; he is trying to get admissions from the paramedic that will strengthen his case against your EMS service.

The number one rule for being a good deposition witness is to always tell the truth. But there are two ways to tell the truth–carefully and carelessly. Unfortunately, I have seen many witnesses who were genuinely good, honest people, but they were careless in their depositions–they meant only to tell the truth, but were careless in how they did so–and their testimony came back to haunt them (or their employer).

Some simple rules can help your paramedic tell the truth carefully rather than carelessly:

1. Listen closely to the question; don’t talk while the questioning lawyer is talking.

2. Make sure you understand the question; lawyers in real life are not nearly as witty or precise in their questioning as lawyers on television shows–they often ask vague, disjointed, rambling questions.

3. If the lawyer uses a term you don’t understand, or you aren’t sure that the lawyer attaches the same meaning to the term as you do, ask for clarification. If you don’t ask for clarification, the lawyer will assume that you understand the question and are trying to answer it truthfully.

4. Don’t guess or speculate. This includes not guessing or speculating as to what other people know or think; you are a witness, not a mind-reader. If you don’t know the answer to a question, the proper response is “I don’t know.”

5. Answer the question that was asked, and only that question. Don’t volunteer extraneous information that is not responsive, even if you think it is helpful to your case.

6. Formulate your answer in your head before you open your mouth to speak. This will help you give a more precise, succinct answer that is responsive to the question without including a bunch of extra, non-responsive information.

7. If the question can be fairly answered with a simple “yes” or “no” without explanation, do so. However, if a simple “yes” or “no” by itself might be misleading, leave the wrong impression, or be less than the complete truth, in most jurisdictions you have the right to explain your answer–e.g., “Yes, but you also have to keep in mind that…..”

8. Be aware that lawyers sometimes mischaracterize your response to a prior question when they transition to a subsequent question. Some lawyers do this on purpose; others probably do it unintentionally because they simply aren’t listening closely to the witness’s answers and hear what they want to hear rather than what the witness is actually saying. Either way, don’t let the questioning attorney get away with mischaracterizing your prior testimony.

9. Before you answer any questions about a document, take time to review the document. If the questioning attorney lays a document in front of you and starts asking questions, ask if you can take a minute to review the document before answering questions about it. Review the whole document; make note of the date, who prepared the document, who received the document; keep in mind that, even if the lawyer’s question is focused on one particular section of the document, there might be information in a totally different section of the document that you should incorporate into your answer.

10. Be firm but polite. Don’t be intimidated into changing your testimony. Don’t lose your composure. If there is any arguing to be done, let your lawyer do it.

These guidelines will be helpful, but they should not be considered a substitute for careful deposition preparation with your attorney. Depositions are very important; a good deposition performance can affect the settlement value of a case tremendously. Accordingly, it is worth spending as much time as necessary (anywhere from a couple of hours to a full day depending on the complexity of the case) to make sure the paramedic is ready for his or her deposition.

Beaumont, Texas EMS student Larry Williams is off to a great start in his career. Williams was recently recognized, along with his two field training paramedics, for helping save the life of a Jefferson County, Texas deputy who was shot outside the juvenile detention facility.

Williams was given a Life Saver Award for his excellent assistance of the two paramedics who treated and transported the deputy to the area trauma center. A paramedic in training helping his field training officers save the life of a fellow public servant who was shot in the line of duty—that is what EMS work is all about in my opinion.

With all of the “bad” news coverage that EMS professionals have to endure (including some of the legal issues we discuss on this blog), I have made a commitment to share “good” news involving EMS personnel as often as I can on this site.

Please join me in commending this young EMS student, who will become a father for the first time in July, for a job well done!

For the full story about Larry Williams, see the article here, EMS Student One of Five Recognized for Saving Deputy’s Life.

A federal court jury in Florida recently awarded an EMT $70,000 in compensatory damages against Collier County EMS Medflight under the Florida Whistleblower Act. The EMT, who previously worked for the service as a pilot, claimed that he was demoted to EMT status and required to perform menial tasks such as cleaning toilets and taking out trash as retaliation for airing workplace safety, maintenance and management concerns.

After a three-day trial, the jury concluded that the pilot’s demotion was in retaliation for his “whistleblowing” activities. The damages awarded were based upon the difference in his rate of pay as a pilot compared to his pay as an EMT. The Florida Whistleblower Act allows recovery only for compensatory damages—damages to make the plaintiff whole—so punitive damages were not available under the statute.

Most states have statutes similar to the Florida law. However, some states’ laws are more liberal and allow punitive damages in addition to compensatory damages.

Like many whistleblowers, this pilot was apparently never a happy employee. According to one news report about the case, Jury Finds County Retaliated Against EMS Whistleblower, Awards $70,000, he had been accused of violating FAA regulations and had been required to undergo a psychiatric examination. But the conduct the EMS service was found to have retaliated against was a December 18, 2007 letter in which he allegedly aired “workplace safety, maintenance and management concerns.”

There is no way to protect your service completely from whistleblower retaliation liability, but there are some steps you can take to minimize the risk:

1. Document the grounds for disciplinary action very thoroughly; so, if an employee is demoted or incurs any other disciplinary action, you have documented in detail the grounds for the discipline, which will undermine any later argument by an alleged “whistleblower” that he was disciplined for reporting safety concerns or the like.

2. Apply your service’s disciplinary policy consistently and in a non-discriminatory manner. If an alleged whistleblower can prove that he was disciplined in a certain way for a particular violation, but another employee who committed the same violation suffered a less severe form of discipline, his whistleblower retaliation claim will get more traction.

3. Consider implementing a confidential “hotline” program for employees to report safety concerns or suspected wrongdoing by fellow employees to a designated company officer. That officer should be someone outside the normal chain of command for rank-and-file employees. He or she would be responsible for initiating an investigation into the matter but would keep the name of the reporting employee confidential.

4. If you have an employee who needs to be disciplined but who has recently reported some safety concerns or made allegations of wrongdoing against other employees, get an attorney involved in the process before making any final decisions about discipline.

Dealing with disgruntled employees is never easy. Following the guidelines described above will provide as much protection as possible against subsequent retaliation claims.