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It could have been a kitchen-table conversation in any firehouse in America. There were strongly held (and expressed) views on controversial issues, humor, "war stories" about incidents in the firehouse and while out on calls, and much more. It was the first Firehouse Emergency Services Expo Lawyers Panel.
The program brought together three lawyers to discuss legal issues of importance to the fire service. Instead of the dry legal exposition that some might have feared, there was lively talk about real-world problems and solutions. No doubt, this was in part true because each of the panelists is also an active firefighter who knows firsthand what happens in the firehouse and on the street.
The panel was effective in demonstrating the importance of the law to firefighters' everyday lives and illustrating the wide range of legal issues that are important to the fire service. The session, however, did not merely provide time for lawyers to lecture firefighters about points of law. Members of the audience participated throughout, offering a number of interesting questions and comments.
Panelist Lee Sachs, a Towson, MD, attorney who has been talking to fire service groups on legal topics for many years, opened by discussing the always controversial Fair Labor Standards Act (FLSA). The act prohibits paid firefighters from also volunteering for the departments where they are employed. Sachs reported that about 20 percent of the nation's firehouses are affected and losing volunteers because of the law.
The structure of fire departments varies widely across the country. With mutual aid and other cooperative agreements among departments, there continues to be uncertainty regarding the law's prohibition. Decisions have been rendered regarding specific cases, but there is no definitive general guidance that departments or individuals can rely upon. Given the strongly held positions of the firefighters' union and volunteer groups, this is a legal issue with large political implications that is not likely to disappear any time soon.
No one enjoys writing reports, but Gary Horewitz, EMS program manager for the International Association of Fire Chiefs (IAFC), addressed the importance of writing complete incident reports, especially following EMS calls. He noted we much prefer doing things when we know why they are important, then illustrated the legal protection that a properly written incident report offers.
EMS operations are fraught with potential legal liabilities. There are horror stories of liability suits (justified and unjustified) being filed against EMS providers by patients not satisfied with their treatment.
Call sheets can lead to trouble if the information is inaccurate or incomplete. As Horewitz graphically demonstrated, however, properly completed reports can build a wall of protection around the EMS provider. They provide the documentation of our actions and the reasons we acted. He argued that the key to an effective report is to "give yourself credit." Write down all that was done, and make sure to give the information to the hospital.
As Horewitz noted, properly completed reports can protect us in three primary areas: consent, abandonment and negligence. A report should answer these questions:
- Did the patient consent to be treated?
- Was the patient assessment reasonable and adequate?
- Was the care reasonable and appropriate for the circumstances?
- Was the patient left in safe enough or qualified hands?
Suffolk County, NY, Fire Commis-sioner David Fischler then brought a very different perspective to the question of liability. He looked at the matter from the viewpoint of the fire chief. As he illustrated through vivid stories, the chief potentially can be held responsible for errors by his or her department that occur in the station or on any call.
In almost every jurisdiction, the department (or more likely the local government itself) will have a lawyer on staff or on retainer. However, as Fischler noted, the job of these attorneys is to represent the city or the department; the chief is not the lawyer's client. There are cases when volunteer and career chiefs find that their legal interests are not exactly the same as the departments'. In such a situation, the attorney will represent the department, not the chief. Thus, Fischler argued that chiefs need their own attorneys. They cannot be assured of legal protection from their employers in every instance.
This was illustrated in a case in which a fire chief was personally named in a wrongful-death lawsuit involving a woman who died in an apartment fire. The chief prohibited the woman's common-law husband from re-entering the burning building to rescue the woman, then ignored the man's exhortation to breach a particular wall to gain access to the woman. The course of the litigation has been complicated, but a critical issue has been whether the chief acted reasonably and within the scope of his training and responsibility. If the answer is "yes," then the chief is not liable, but the department may be. If the answer is "no," then the chief is liable, but the department is not.
Another example involved the hazing of a rookie firefighter. The incident led to legal action against the department, the chief and officers who were involved. Officers who participated and/or knew of the practice were held liable, as was the department. The chief was dismissed as a defendant from the lawsuit only because there was a policy prohibiting harassment and he was not aware of the incident. As an aside, Fischler condemned such harassment. Not only can it lead to severe legal consequences, but it is totally inappropriate in today's fire service.
Steve Blackistone, a Firehouse® contributing editor, is an attorney and a member of the Bethesda-Chevy Chase Rescue Squad in Montgomery County, MD.