EMT Found Guilty Of Misconduct
By Colleen M. Arnett and Henry A. Arnett
Livorno and Arnett Co., LPA
1335 Dublin Road, Suite 108-B
Columbus, Ohio 43215
We thought you might be interested in a case involving (1) the obligation of a firefighter/EMT to report a possible violation of the Ohio regulations regarding emergency medical services and (2) the propriety of placing a firefighter on probation as part of disciplinary action against him. On March 26, 2021, the Ottawa County Court of Appeals affirmed the Ottawa County Court of Common Pleas decision and found an Allen-Clay Joint Fire District Battalion Chief guilty of misconduct in office.
THE RELEVANT EMS PROVISIONS
Ohio Administrative Code Section 4765-9-01 contains several provisions relevant to the case:
(E) A person issued a certificate to practice shall not perform any services that exceed the scope of the person’s certificate to practice as set forth in Chapter 4765. of the Revised Code and Chapters 4765-1 to 4765-10 and 4765-12 to 4765-19 of the Administrative Code.
(G) A person issued a certificate to practice shall report to the division as soon as practicable any knowledge of a violation of Chapter 4765. of the Revised Code or Chapters 4765-1 to 4765-10 or 4765-12 to 4765-19 of the Administrative Code.
Essentially, an EMT cannot perform any services that exceed the EMT’s scope of practice and, if someone becomes aware of this violation, that person is obligated to report it.
On August 9, 2018, Battalion Chief Mark W. Stahl, along with one paramedic and six EMT’s, were dispatched to a home in Williston, Ohio, where an elderly man was reportedly unresponsive and not breathing. Upon arrival, the responders noticed that the man was in cardiac arrest. It appeared to be a very hectic run. The patient was moved to the floor and Stahl situated himself at the patient’s left arm to start an IV. The paramedic, C.O., was experiencing difficulty intubating the patient, and Stahl was having problems placing the IV. It was quickly recognized that an intraosseous infusion (“IO”) would be needed to administer medication to the patient.
Out of the eight responders, only two of them carried the necessary certification required to perform the procedure—C.O. and Stahl. However, the procedure was performed, successfully, by an EMT-Basic (J.F.). The patient did not survive, but his death was not attributed to the care rendered by the first responders.
It eventually came to the attention of the District Captain that J.F. performed the IO and an investigation ensued. J.F. reported that Stahl ordered him to perform the IO. Two other EMT’s reported hearing Stahl order J.F. to perform the IO, and the remaining EMTs reported either that they did not know who gave the order or that they heard Stahl say “drill him,” but did not hear him direct this order to J.F. Stahl denied ordering J.F. to perform the IO and denied even knowing that J.F. had performed the IO.
IMPOSITION OF DISCIPLINE
Following the investigation, the Fire Chief submitted a written report which found Stahl guilty of misfeasance and misconduct by nonfeasance. Stahl requested a hearing before the Board of Trustees. Following the hearing the Board concluded that Stahl was not guilty of misfeasance, but was guilty of misconduct in office by reason of nonfeasance, and stated, “The fact that Battalion Chief Mark Stahl may not have directly observed the I/O procedure being performed by EMT-BASIC [J.F.] with knowledge of [J.F.’s] Certification Authority and District Protocol as Battalion Chief Mark Stahl alleges, does not relieve him of his duty to report the violation as soon as the same became known to him, which he did not.” The Board felt that Stahl should have reported J.F.’s exceeding the scope of his practice, regardless of when Stahl became aware of the violation, and so issued a 60-day unpaid suspension; one year probation subject to Stahl’s removal without cause, and; attendance at and successful completion of the Maxwell Leadership Educational Course. Placing Stahl on probation, subjecting him to removal without cause or recourse for a one year period, is tantamount to a last chance agreement, except, of course, for the obvious fact that the employee has not agreed. Stahl appealed the Board’s decision to the Court of Common Pleas.
In his appeal, Stahl claimed that there was no evidence that he knew or saw J.F. perform the IO. He also challenged the one year probation sanction imposed by the Board that would permit his removal without cause, arguing that the sanction violated his due process rights. The trial court agreed with Stahl in this respect and concluded that the probationary removal-without-cause sanction was improper and violated Stahl’s due process rights. However, the trial court affirmed the Board’s decision finding him guilty of misconduct by nonfeasance, upholding the 60 day suspension. Stahl appealed.
According to R.C. 2506.04, the Court of Appeals only has the authority to review the judgment of the common pleas court on questions of law. The Court may not weigh the evidence and may not substitute its judgment for that of the administrative agency or the common pleas court.
The Court of Appeals recognized that the imposition of the one year probation, depriving Stahl of his right to challenge any disciplinary action during that time, was improper. However, the Court upheld the 60 day suspension.
The Court found that the Board’s decision did not turn on whether Stahl “personally witnessed” J.F. perform the procedure—it turned on whether he knew or should have known if someone other than him or C.O. performed the procedure, in violation of the scope of practice. Although disputed, the Court found that there was evidence to support the Board (and trial court’s) finding that Stahl knew or should have known that J.F. performed the IO, either by process of elimination or because J.F. specifically mentioned it to him. Stahl was thus obligated to report the violation, which he did not do. Because the trial court did not abuse its discretion in applying the law when it concluded that the Board’s decision finding Stahl guilty of misconduct was not unconstitutional, illegal, arbitrary, capricious, or unreasonable, and was supported by reliable, probative, and substantial evidence, the Court of Appeals affirmed the judgment of the Ottawa County Court of Common Pleas upholding the 60 day suspension.
Two things stand out in the Court’s decision. First, an employer has no authority to and cannot unilaterally put an employee on “probation,” denying him the right to challenge future discipline. Second, in court appeals challenging discipline (as opposed to an arbitration), great deference is given to an employer’s decision, and its discipline will usually be upheld if there is some evidence to support it.