First Responder Liability : EMS Lawyer & Attorney : Fred Simon Law Firm : First Responder Liability, Emergency Services Response

Effective and responsible communication with the media by emergency services is a necessity for maintaining cooperation and obtaining (as much as possible) fair reporting. However, the general public’s need to know must be balanced by a department’s protection of individual privacy rights, honoring privileged information, and the preservation of evidence for proper authorities. For these reasons it seems, PIOs or Public Information Officers were born.

Recently I discovered Jeff Bressler's The Fire PIO, a blog web site “created to form a community of Public Information Officers who can share thoughts and ideas as well as learn new techniques. The blog focuses in on issues of public relations, social media, marketing, policy, SOP’s, fire ground responsibilities, relevant new product reviews and media outreach.” Jeff is a 20 year veteran of the Smithtown Fire Department located on the North Shore of Long Island’s Suffolk County and I recommend regularly visiting his site for updates and news for these professionals.

While considering PIO duties, perhaps it might also be helpful to mention some important but sometimes overlooked rules that even lawyers tend to forget. In the Legal Crisis Strategies blog, attorneys Lanny Davis and Eileen O’Connor identify “four voices” that should alternatively be used for interviews with the media. Although the blog’s posts are directed to lawyers, the following might be a good primer for PIOs as well:

1. “On the record” is used most often (usually without thinking) and means speaking with attribution, always using the name and identification of the PIO.
2. “On background” essentially stands for "you can use my quotation, but identify me only as a 'spokesperson for' and don’t mention my name.”
3. “Deep background” means that facts provided can be used as long as they are not attributed to the PIO but perhaps a "knowledgeable source" or "source familiar with the situation."
4. “Off the record” should mean just what it says and the information, therefore, is being shared only for the reporter's own understanding and for no other purpose.

If there is any concern about the disclosure, it is essential that a PIO (just like attorneys) define the ground rules with the media for a conversation and confirm in advance how the information is being offered using these “voices” as guidelines.
 

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By now most everyone in the industry is familiar with the story of the recent firing of five DeKalb County Georgia firefighters for failing to investigate a 911 call because they did not see any signs from outside the structure. Their attitude (no doubt casual and atypical) toward handling the incident is as baffling as trying to comprehend the reason for lack of adherence to department policies and procedures on that day.

Certainly by this time local wrongful death attorneys have been reviewing the Incident Report filed by the department itemizing the responding personnel’s failures to follow established SOPs in order to establish liability beyond the qualified immunities afforded first responders.

As is usually the case, there are lessons to be learned at every instance where fire and EMS personnel are taken to task about the manner they perform their duties. These events serve as “wake up calls” to pay attention, take every response seriously, and in almost every instance follow department guidelines to the letter.

Our department’s Mission Statement contains six succinct, but equally important directives, one of which is “solve the problem.” No customer or patient can be satisfied unless first responders solve their problem. The most efficient and effective path to that result is by adhering to department SOPs.

I echo the sentiments of my good friend at firecritic.com and wish only the best for members of the DeKalb County Fire Rescue in weathering the storm that will come from this incident. And I am also confident that they will persevere and demonstrate the professionalism that will ultimately define that department in the years to come.
 

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Is there a place in the fire and emergency services for past criminal offenders?

Last week I received a telephone call from a potential new client complaining that he felt wrongly denied an opportunity to serve as a volunteer firefighter. Bob (not his real name) stated that previously he had been a career member but had pled guilty for theft and was fired from another department several years ago. He was just about to conclude his probationary sentence, would shortly have paid his debt to society and believed he should not now be discriminated against because of his past conduct.

Bob wanted me to present his case before the fire department board and insist that he should be given a second chance because he had made amends for his past criminal behavior and wanted to further offer his professional firefighting experience as a volunteer.

During our conversation it was immediately apparent why Bob’s request was met with resounding resistance by the fire department. While repaying a debt to society for past indiscretions with jail time, a fine, and perhaps the passage of time with good behavior may be all that is required by the judicial system, fire and EMS services might not be so anxious to have personnel within their ranks convicted of offenses involving theft, violent or immoral behavior. The feeling is that departments must operate without knowingly putting assets at risk and their image to the community must avoid even the appearance of compromising the trust that is inherently given in the performance of their duties.

When we enter structures for salvage and overhaul should the homeowner, in addition to being distraught over the damage, be concerned about theft of personal property as well? In EMS transport situations, should the patient, in addition to being anxious about immediate treatment, also need to worry about theft of money or jewelry by responding personnel?

SOPs should be properly drafted to address a department’s position on this issue. But should the professed remorse and desire of a convicted member to volunteer his services in a profession in which he his fully trained and truly loves be offered another chance to participate? If not suppression, would such an individual qualify for support or an auxiliary role for the department?
 

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Although discussions about public display of photographs and videos taken by emergency personnel during working hours have been ongoing for several years it appears to only recently be a genuine legal concern. Technology has provided emergency services with state of the art devices to record events for posterity as well as for official investigations. But most recently it appears that many of these captured moments are being created by career and volunteer members who, to the dismay of some departments (and possibly the horror of their legal counsel) unwittingly post this content (known as “work”) on the internet.

Who owns this work? According to most legal sources any photograph or video recording created by an employee in the course of his or her duty is considered a “work made for hire” under the 1976 U.S. Copyright Act. This means that the employer and not the employee is considered the author, which has rights to protect the work from dissemination as it sees fit. Consequently, a member who, for whatever reason, decides to post the video taken from his personal cell phone on YouTube may certainly be violating the law.

Who owns photographs taken by a volunteer member? The exception to the copyright laws declares that work created by an independent contractor is owned by that individual. But is a volunteer considered an independent contractor? That might depend upon many factors – whether a department offers incentive or other compensation to the individual, whether taxes or other deductions are withheld from pay, whether the department typically controls the manner in which the volunteer performs his services and the circumstances under which the work was created.

To avoid encountering this problem, it is universally suggested that a written agreement or some department policy statement be created declaring that all such works are not subject to mass distribution and/or public consumption without prior approval. There are some very good reasons for doing so, including but not limited to protecting confidential patient information covered by the HIPPA Privacy Rule, avoiding the identification of casualty victims at traumatic events and minimizing the risk of disclosing legally sensitive content from photographs and videos.

A typical SOP might prohibit the use of the camera (and video) function of a personal electronic device while on duty, declare in no uncertain terms that the images taken with authorized cameras or video equipment (as well as inadvertent images taken with personal devices) are solely the property of the department, and prohibit the distribution of any such images on personal web sites, to friends or family, and to any outside agency or media outlet without the prior written consent of the department.

The debate over the public’s right to news and information concerning the particulars of emergency responses as compared to fire, EMS and police department responsibilities to comply with the law and protect legally sensitive content will continue. Each agency must formulate its own policy in this area, educate its personnel as to the reasons for establishing these rules, and be consistent in applying the policy to new technology as it becomes more widespread in the emergency services.
 

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This weekend I attended the Jefferson County (Kentucky) Regional Fire School and participated in the FEMA Incident Safety Officer class ably and energetically presented by Lt. Ryan Hogsten of the Lexington Fire Department. A significant portion of the curriculum was devoted to consideration of risk management, in both discretionary (advance planning) and non-discretionary (real time decisions) situations.

During the course it became apparent that a first response department may neglect to consider appointment of a Health and Safety Officer (or Committee) to analyze and propose SOPs relating to safe operations. An important but perhaps overlooked responsibility might be establishing protocol when things go wrong. One of the unfortunate but irrefutable results of performing emergency services is that departments do suffer personnel injuries and regrettably experience line of duty deaths (LODDs).

While no department wants to dwell on this reality, unfortunately these events do occur and the emotional fallout affects everyone, reaching far beyond the family of the downed member. A Health and Safety Officer’s pre-planning can alleviate the uncertainty and sensitivity of the moment by proposing implementation of actions in the following areas:

• Prompt notification of immediate family; 
• Clergical intervention; 
• Departmental crisis counseling; 
• Public relations management; 
• Event debriefing; and 
• Establishing protocol for investigation to determine what when wrong and why to learn from the tragedy.

Each of these areas merits a separate discussion not presented here but suffice it to say that there are no more important assets than your members. When disaster strikes, a department must respond swiftly and appropriately because it owes that responsibility to its personnel.

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The electronic age is literally playing havoc with emergency services standard operating procedures. Use of cell phones to text message and send photographs plus real time video of events present personnel problems that were non-existent just several years ago.

As Linda Willing writes in her blog at FireFighterNation,com, some departments recognize this as part of a generational gap with the newest members. To partially close that gap, she suggests having SOPs address such topics as use of personal electronics during work shifts and providing consequences for electronic dissemination of inappropriate material, such as videos on YouTube or department-related information on a personal web page.

In Attorney Lawrence Bennett’s most recent Fire, EMS and Safety Newsletter, he offers a legal lesson on the need for clear SOGs on posing for photos while on duty as well as prohibitions against posting them on the internet.

We can all see the benefit in setting and mandating adherence to safety related SOPs and SOGs (like wearing seat belts) to protect our members. Most departments have met the last big challenge and have adopted rules dealing with drug and alcohol use. Isn't it time your department considered updating its policies to address personnel behavior linked to technological innovations? 

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For several years I have been a fan of the Fire, EMS and Safety Newsletter authored by Attorney Lawrence T. Bennett. His analysis of litigation and issues affecting emergency services is insightful and always relevant.

In the most recent newsletter Mr. Bennett suggests that departments consider adopting SOPs that restrict personnel from driving emergency apparatus unless they have had “adequate sleep” before reporting for duty. It is not uncommon that emergency workers, especially firefighters, work consecutive 24-hour shifts with two different departments. If a responder has been awake most of the night performing one job, would you want him driving your emergency vehicle or attending to ALS patients the next morning without rest?

Examining a recent case involving a Texas drilling company’s potential liability for an employee’s fatal accident while driving home following long shifts, Mr. Bennett anticipates that claims could be made against emergency services if they knowingly permit their employees to drive when they are sleep deprived.

Departments may, of course, balk at establishing such rules when they have little opportunity to monitor the physical or mental condition of personnel arriving for duty. However, an SOP establishing this rule is no different than those provisions prohibiting work under the influence of alcohol or drugs. Ultimately it is the responsibility of the first responder to report for work prepared to perform his or her work in a professional unimpaired manner.

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