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Md. high court overturns $3.8M verdict against Baltimore EMTs

Divided Court of Appeals finds no gross negligence

Baltimore paramedics were not grossly negligent in failing to follow protocol in evaluating and transporting to Harbor Hospital a man who died of a heart attack shortly after arriving in the emergency room, a sharply divided Maryland high court ruled Friday in overturning a $3.8 million verdict for the man’s family.

In its 4-3 decision, the Court of Appeals said the emergency medical technicians’ failure to administer specified tests to 28-year-old Kerry Butler Jr. – despite his complaints of chest pain – and their permitting him to climb into the ambulance without a stretcher may have been negligent. However, the paramedics’ response did not amount to the “wanton and reckless disregard” for a patient’s care that constitutes compensable gross negligence, the high court added.

Maryland law immunizes emergency personnel from liability for their simple negligence.

“The mere fact that (the paramedics) inaccurately diagnosed and treated their patient does not elevate their conduct to gross negligence,” Judge Michele D. Hotten wrote for the majority. “We cannot equate a well-intended error in medical judgment – even if it costs the patient’s life – with wanton and reckless disregard for the life of that patient.”

The high court’s decision reinstated and echoed Baltimore City Circuit Judge Althea Handy’s decision that Joseph Stracke and Stephanie Cisneros were not grossly negligent in their emergency response on March 2, 2011, despite a jury’s conclusion that they were.

Handy’s judgment notwithstanding the jury’s $3.8 million verdict was overturned by the intermediate Court of Special Appeals, which reinstated the jury’s finding of gross negligence and the award in an unreported opinion last year. The paramedics then sought review by the Court of Appeals.

The high court’s majority focused on the paramedics’ actions, flawed though they may have been, to illustrate the absence of gross negligence.

“(T)here is not sufficient evidence to conclude that (the paramedics) made a deliberate and conscious choice not to help Mr. Butler survive,” Hotten wrote.

“(I)t is undisputed that (they) made a concerted effort to locate Mr. Butler, assess him, take his vitals, and transport him to the nearest hospital for further review and treatment in less than 10 minutes,” Hotten added. “Under these conditions (they) did not possess a wanton and reckless disregard for Mr. Butler’s life, nor did they present an utter indifference to his rights and well-being. On the contrary, (they) arrived at Mr. Butler’s home, despite initially receiving an incorrect address, and provided the care they assessed as necessary for the situation before them.”

The majority also expressed concern that a finding of gross negligence for the paramedics’ flawed but caring effort to treat Butler would “create a chilling effect” on the life-saving work of first responders and discourage job candidates from joining their ranks.

“First responders must have broad discretion to proceed in their assessment and treatment of patients without the fear of liability,” Hotten wrote.

“In reality, the trier of fact cannot be expected to review the conduct as if they stood in the shoes of the first responders and made split-second decisions that could impact the health and life of those they are treating,” Hotten added. “First responders fulfill a vital role throughout our state, and we must not minimize their service by second-guessing their actions through a 20/20 lens.”

Hotten was joined in the 23-page opinion by Judges Joseph M. Getty, Brynja M. Booth and Clayton Greene Jr., a retired jurist sitting by special assignment.

In dissent, Judge Alan M. Wilner assailed the majority for disregarding the jury’s assessment of the evidence.

“The court today holds, as a matter of law, that what a jury necessarily found was a knowing, conscious, deliberate violation by two paramedics, responding to a Priority 1 emergency 911 call, of what was reported to be and actually was a heart attack, of virtually every protocol adopted by the state agency authorized by law to promulgate such protocols and their own municipal employer, and which led directly to the death of the patient does not constitute gross negligence,” Wilner wrote. “(I) am not aware of any other case in Maryland in which EMTs acted with such utter disregard of a patient’s life and health as the jury found the defendants did in this case; none have been cited by the majority.”

Wilner also criticized the majority for its concern with the “chilling effect” a finding of gross negligence would have on paramedics rather than the protection such a verdict might have for patients.

“To the extent that practical implications should have any bearing on how this court views the evidence in this case, my concern is with the practical implications to the individuals the EMTs are duty-bound to help when responding to a 911 call for emergency assistance if they feel secure in the knowledge that there is no consequence to them for ignoring the whole raft of … protocols specifically designed to assure that those in need of the assistance get it,” wrote Wilner, a retired judge sitting by special assignment. “The applicable principle here is primum non nocere (a loose translation from the Hippocratic Oath: FIRST, DO NOT HARM).”

Wilner was joined in the 31-page dissent by Chief Judge Mary Ellen Barbera and Judge Robert N. McDonald.

Baltimore City Solicitor Andre M. Davis, who represented Stracke and Cisneros, hailed the court’s decision as a victory for two brave paramedics whose “whole lives are dedicated to saving lives” and as a win for all first responders, who can perform their heroic jobs without fear of liability.

“We have to protect our EMTs,” Davis said Friday. “We don’t want them second-guessing themselves.”

The family’s attorney, Alan J. Belsky, said he was “very surprised” by the court’s decision, particularly to the attention placed on the public policy of protecting paramedics from liability and to the short shrift given the emergency response protocols that were not followed.

“I don’t believe that policy grounds have any place in determining whether there was sufficient factual predicate for a jury verdict,” said Belsky, of Belsky, Weinberg & Horowitz LLC in Baltimore. “If this is not a case of gross negligence, what is?”

The Court of Appeals rendered its decision in Joseph Stracke et al. v. Estate of Kerry Butler Jr. et al., No. 64, September Term 2018.

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