Failure To Dispatch: A Civil Rights Violation?

From Emergency Medical Technician Legal Bulletin
James E. George, M.D., J.D., editor
Spring 1988, Vol. 12, No. 2

Errors in ems dispatching can result in tragic consequences. Dispatching errors may stem from several sources. The dispatchers may underestimate the urgency of a situation or may err in gathering or recording essential information. Should harm result to an ill or injured person because of the dispatching error, the dispatcher as well as his employer risk liability for negligence.

Negligence has been defined as the failure to exercise that degree of care which a person of ordinary reasonable prudence would exercise under the same or similar circumstances. For example, conduct which falls below the standard established for the protection of others against the unreasonable risk of harm is considered negligent conduct. The dispatcher’s response and skill must be as good as those of any prudent, competent dispatcher acting under the same or similar circumstances.

However, the use of reasonable common sense may not always be enough to defend against a charge of negligence. Courts have sometimes found the customary practice of as particular industry to be unnecessarily risky. Modern courts are reluctant to permit industries to set their own uncontrolled standards. Consequently, meeting the standard of other ordinary and prudent EMS dispatchers may not insulate an EMS dispatcher from potential liability if the EMS system standard is itself inadequate.

EMS systems must develop reasonable procedures to minimize the risks inherent in dispatching. Where serious risks can be reasonably anticipated, the law requires that precaution be taken.

A recent case in federal court, Archie v. City of Racine, 627 F. Supp 766 (E.D. Wis 1986), and on appeal Archie v. City of Racine, 826 F.2d 480 (7th Cir. 1987), illustrates personnel fail to follow procedures and protocol designed to reduce the risk of error. This case is particularly interesting in that it is a civil rights case, not the usual negligence suit.

The Archie Case

According to the facts contained in the opinion of the Court, the following persons played a part in this case:

Rena DeLacey, deceased (the suit was brought by the administrator of the estate);

Les Hiles, a person in the community and a friend of the deceased;

George Giere, a dispatcher for the Racine Fire Department on duty during the incident

Ronald Chiapete, Racine Fire Chief who was responsible for rescue services.

On May 27, 1984, at 7:19 a.m., the following call was made:

Giese:   Fire Department, Giese.

Hiles:     Hi. Say, this is Les Hiles, and we have a lady that’s really, ahh, I don’t know, I’m not a doctor, hyperventilating. She can’t can’t hardly breathe, and I aid, well, let’s go down to the emergency ward. Say’s, “I cant walk,” Ahh, so I says, well, I thought call a rescue squad together, okay. 818 College Avenue.

Giese:   What’s the address?

Hiles:     818 College Avenue. I’ll meet you out front.

Giese:   What’s the problem with her?

Hiles:     She just don’t-just breathing like, you know, she just can’t get her breath or nothing.

Giese:   How old is she?

Hiles:     Ah, excuse me. Rena, how old are you? Forty-three.

Giese:   Let me talk to her, please.

Hiles:     Okay. Come here, come here. Wants to talk to you. She ain’t big enough. Four hours don’t people—(Makes sound of a person breathing very hard). See, I’m, les Hiles you know and I could be the best act in the world but-

Giese:   Let me talk to her. Put her on the phone.

Hiles:     She’s coming. She ever gets here. I know what’s wrong with her.

Rena:     Hello.

Giese:   Hi, what’s, what’s, what’s the problem?

Rena:     Hyperthermia.

Giese:   Hyper what?

Rena:     Thermia. Having a hard time breathing.

Giese:   have you ever had this trouble before?

Rena:     Once, once.

Giese:   Why don’t you slow down just a little bit and relax?

Rena:     And stay in my own apartment?

Giese:   Just relax and don’t breathe like you’re breathing.

Rena:     Okay.

Giese:   Do me a favor.

Rena:     Yes.

Giese:   Get, get a little paper bag.

Rena:     A little what?

Giese:   A paper bag.

[The dispatcher told the patient to breathe into a paper bag. (Archie case)

Rena:     Paper bag.

Giese:   And put it over your mouth and breathe into that. That will slow your breathing down.

Rena:     Okay, thank you.

Giese:   Okay, bye.

Rena:     Bye.

The tape conversation clearly shows that the woman was in distress and that Hiles was anxious to get help for her.

Almost eight hours later, still on May 27, Hiles again called the Racine Fire Department.

Giese:   Fire Department, Giese.

Hiles:     Hi, this is Les Hiles, Giese.

Giese:   Yeah.

Hiles:     Listen, this, this lady, ah, my little black friend, I, I, called before and tried the paper bag. She’s still hyper-how do you say that word, hyperventilating?

Giese:   M’hm.

Hiles:     But she sat here for six hours. I mean, did, and I asked, Did you ever do this before? She said, (slurred words) only once in a while. But it scares me, you know, me.

Giese:   Well, if she’s hyperventilating, just, just have her do what I told you to do. She’s going to have to breath into that bag.

Hiles:     Yeah, but.

Giese:   Over her nose and her mouth and then slow her breathing down. ]

Hiles:     Listen to me now. Is there anything do with the heart?

Giese:   No.

Hiles:     Cause I know…like my chest when…I’m talking. You know who I am. Les Hiles.

Giese:   M’hm.

Hiles:     The swimmer? Okay, what I thought, my God, man, maybe it’ll wear her heart out.

Giese:   No.

HIles:     No? Okay. Say, what’s your first name?

Giese:   George.

Hiles:     Ok, thanks a lot.

Giese:   Okay.

Hiles:     Thank you very much.

Giese:   Yeah.

Hiles:     Bye.

Early on May 28, 1984, Hiles found DeLacey dead in her apartment. He told the investigating polive officers of his calls to the rescue squad, but police were unable to find any record of them.

Testimony by the investigating officers at trial indicated that the lack of records made them suspicious that the situation had been inappropriately handled. The coroner, following the autopsy, listed the cause of death as respiratory failure due to bilateral vesicular pulmonary emphysema, with superimposed broncho-pneumonia.

At trial, Chief Chiapete testified that he would have sent the rescue squad to DeLacey, but could understand how one could reach a different conclusion. The department’s official response was the following press release:

“Addressing the specific incident of May 27, 1984 my conversation with Pvt. Giese indicated to me that he came to the conclusion, based on the conversation with Ms.DeLacey and Mr.Hiles, that an emergency situation did not exist. My review of the tapes of those conversations indicates that his conclusion is not entirely unwarranted. It is my view that, Pvt. Giese made a judgement call based on his present analysis of the conversations with the calling parties. I believe that his decision was honestly made without any intent on his part to refuse service or harm any person.

In view of my analysis of the situation, it is my present intention not to impose disciplinary action on Pvt. Giese.

Viewing the entire situation from the perspective of hindsight, however, I believe that it may have been better judgement if Pvt. Giese had dispatched the rescue unit. Hindsight is, of course, always perfect, and it is difficult to say what any individual would or would not do at the time an incident arises.

At present my department does not have a written policy with respect to the discretion of dispatchers, and that matter is presently under review by Assistant Chief Jeffrey Peterson who recently assumed the duties of the department training officer.

The department naturally regrets the unfortunate death of Rena DeLacey but cannot assume responsibility for it. At worse, the department can be faulted for an error of judgement which we believe is understandable in view of the circumstances, and must be judged from the perspective of thousands of calls received by our department each year, and the great number of persons who are helped by our rescue service. We have never refused and never will refuse to send our rescue units in known emergency situations”

Why wasn’t the rescue squad sent to Rena DeLacey? Was it because she was black? Was it because the dispatcher didn’t believe Hiles? Or didn’t he think a real emergency existed?

The trial court found that race had nothing to do with the dispatcher’s failure to respond. There was no doubt that his response to DeLacey’s calls was inappropriate, but it was not found to be racially motivated. The judgement of the dispatcher was not at issue here. Plaintiffs raised a violation of civil rights, so the court had to decide if the failure to provide rescue services to DeLacey violated a constitutional duty owed to her.

To prove a violation of DeLacey’s rights, it must be shown that rescue squad policies allowed this incident to happen. A single incident will not support such a claim, there must be a pattern of incidents. Since this was not the case here, the Fire Chief and the City of Racine were dropped from the case.

Regarding the dispatcher, the plaintiffs also charged that there was a “special relationship” between Racine and its citizens since it decided to provide emergency services. But, the court found that providing such services does not create a special relationship between the city and its citizens. Thus, the dispatcher’s failure to send the rescue squad, while wrong, did not violate DeLacey’s constitutional rights.

The Court of Appeals disagreed. It found that the dispatcher’s conduct could have amounted to a violation of DeLacey’s rights on a theory of abuse of state power. To prevail, on this theory, plaintiffs must show that Giese was acting in his official capacity (not disputed here), and that he was under a duty to disperse those protective services undertaken by the state. If he does this in a way that deprives a person of life or property, that person’s constitutional rights have been violated.

In the Court’s analysis, the dispatcher had a duty to send an ambulance if one was available. So, if his failure to send one was reckless or arbitrary such that it caused DeLacey’s death, a violation of her constitutional rights occurred. Giese knew the situation was serious, yet he advised DeLacey to breathe into a paper bag and refused to send the rescue squad. With the second telephone call, Giese knew his “unsolicited medical advice” didn’t work. Thus, his continued refusal to send an ambulance could be found to raise an ordinary act of negligence into a violation of DeLacey’s constitutional rights. The fact that he never refused to send an ambulance before this incident, only strengthens this argument.

The District Court’s findings were enough to show that Giese exercised state power in a reckless and arbitrary manner in twice refusing to send the ambulance. But, the record was not sufficient to say that as a matter of law there was an actionable abuse of power, so the Court of Appeals sent the case back to the District Court. The District Court must now determine if Giese’s actions cross the line from tort to constitutional violation. To find this, it must be shown that Giese had reason to foresee the risk to DeLacey if rescue services were withheld, and that he deliberately and consciously imposed risk on her. In addition, Giese’s failure to act must have been for more reasons other than honest error or mistaken judgment. Finally, if there was an abuse of power, it must have caused DeLacey’s suffering and death.

The Court of Appeals also noted that in advising DeLacey to “breathe into a bag,” Giese deliberately assumed control over DeLacey’s physical welfare. This could create the “special relationship” that was alleged during the original trial. It was perfectly forseeable and reasonable for DeLacey and Hiles to rely on advice given by Giese. Thus, a violation of DeLacey’s rights could be found under a special relationship theory.

At the time of this writing, we are unaware of any further actions by the District Court.

Commentary

The DeLacey case points out the importance of taking all rescue calls seriously. The Court of Appeals specifically noted that because there were two calls, Giese had no excuse not to send the rescue squad.

What kind of safeguards might prevent or reduce error of the kind reported here? At minimum, EMS dispatchers should confirm all information given to them by the caller.

In addition, the practice of tape recording calls and responses is an excellent method of instantly assuring that the information written down by the dispatcher is the information received.

Finally, dispatchers and complaint writers should be trained and retrained in proper procedures to be followed and communication skills.

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