ORDERS:
FINAL ORDER AND DECISION
STATEMENT OF THE CASE
This matter comes before the Administrative Law Court (“ALC” or “Court”) pursuant to a request for a contested case hearing by Stuart Platt (“Respondent”). Respondent seeks review of the South Carolina Department of Health and Environmental Control’s (“DHEC” or “Department”) Administrative Order (“Order”) dated May 8, 2006, which seeks to revoke his Emergency Medical Technician (“EMT”) – Paramedic certification for alleged violations of 24 S.C. Code Regs. 61-7, Emergency Medical Services. A hearing on the merits of this action was held before me in Columbia, South Carolina on February 6, 7, 8, 13, 14, and 22, 2007.
FINDINGS OF FACT
Having observed the witnesses and exhibits presented at the hearing and closely passed upon their credibility, taking into consideration the burden of persuasion of the parties, I make the following findings of fact by a preponderance of evidence:
Respondent Platt
1. Respondent holds an EMT – Paramedic Certificate (No. 81216) issued by the Department. He has been certified as an EMT – Paramedic for since 1987.
2. Respondent is employed by Lexington County Emergency Medical Services (“LCEMS”), where he began working in 1985. In 1989, Respondent became a Senior Paramedic with LCEMS, and in 2000 he was promoted to Shift Supervisor.
3. Respondent’s role as LCEMS Shift Supervisor is partially administrative and partially fieldwork. As Shift Supervisor, his duties include supervising the daily operations of his shift, monitoring all unit responses to ensure promptness, communicating as to the disposition of each unit, and offering assistance and advice as needed. Further, he is responsible for ensuring that there are enough EMT’s in each unit, each unit is stocked and equipped, policies and procedures are followed, and that help and assistance is provided when needed. Additionally, his job responsibilities include that he serve as a Paramedic Crew Chief as required, and operate and maintain a wide variety of tools and equipment utilized in the delivery of emergency medical treatment. He must also monitor radio transmissions in order to monitor all units and what is happening at scenes to which the units are dispatched.
4. As a Shift Supervisor, during all on-call shifts, Respondent operates a supervisor’s truck. A supervisor’s truck is equipped with a full array of extrication equipment, including a power unit with a hydraulic pump, spreaders, cutters, rams, and hose reels, which may be helpful in any type of extrication. Further, a supervisor’s truck contains specialty equipment that ambulances may not carry. Since the EMT’s at an accident scene are limited in working with their extrication equipment because of the need to provide emergency patient care, the Shift Supervisor is able to and is responsible for providing extra assistance and equipment in entrapment situations.
5. Respondent has extensive training and experience in extrication and is considered an expert in extricating individuals from vehicles. He received this training from various sources, including in-house training in Lexington County, through the South Carolina Association of Rescue Squads Extrication course, and other training from York Technical College, DHEC, and the South Carolina Fire Academy. Also, he received extensive experience in extrication skills while working with a mentor in Lexington County during the early 1990’s. Presently, he teaches extrication to individuals at county fire departments.
EMT Certification
6. There are three levels of EMT certification: Basic, Intermediate, and Paramedic. An EMT-Basic is trained in and certified to provide very basic care. They can perform patient assessment, splint, bandage, and administer plain oxygen. EMT-Intermediates, in addition to providing basic care, can start IV lines and intubate patients. The EMT-Paramedic level is the highest level certification; individuals certified at this level can perform many more advanced skills than those with intermediate and basic certification. In addition to possessing all the skills that EMT-Basics and EMT-Intermediates have, an EMT-Paramedic can administer medications, provide appropriate drug therapy, perform pleural decompressions, and use cardiac monitors. Also, an EMT- Paramedic can insert a breathing tube into a person’s trachea via his/her nostrils; this is commonly done in cases of severe trauma. Further, EMT-Paramedics are skilled at and may perform Rapid Sequence Induction, where they sedate the individual and insert a breathing tube. EMT-Paramedics have much more training and experience than EMT-Basics and EMT-Intermediates.
7. All levels of certification are extensions of an emergency medical physician, called a medical control physician. Each Emergency Medical Service (“EMS”) is assigned a medical control physician, and all EMT’s operate under the license of that physician. The medical control physician develops standing orders that allow EMT’s to function on the site in the absence of a physician. To perform a function more advanced than those in standing orders, an EMT must contact the physician while at the site and obtain authorization.
The April 16, 2004 Incident
8. Respondent was working a 12-hour shift as a Shift Supervisor the night of April 16, 2004, and was based out of Station 10 in Lexington, South Carolina. Two units under his supervision that evening included Unit 4, an Advanced Life Support (“ALS”) unit, and Unit 9, a Basic Life Support (“BLS”) unit. LCEMS had a total of ten ambulances on call that night.
9. Billy Burnes and Duane Troutman staffed Unit 4. Mr. Burnes served as Unit 4’s Crew Chief. He is certified as an EMT-Paramedic and served with LCEMS for approximately 24 years. During his time with LCEMS, he also held the position of Shift Supervisor for approximately ten years. He has extensive experience with the extrication tools that EMS, fire departments, and rescue squads use to extricate people from wrecked vehicles.
Duane Troutman holds a certification as an EMT-Intermediate from DHEC, and had served with LCEMS for approximately two and a half years.
10. Jeffrey Matthews and Jason Harris staffed Unit 9. Mr. Matthews served as Unit 9’s Crew Chief. He is certified as an EMT-Intermediate and had approximately six years service with LCEMS. Jason Harris was certified as an EMT-Basic and held a certification from DHEC in extrication methods involving Hurst tools. He had approximately four years service with LCEMS.
11. At approximately 10:20 p.m. on April 16, 2004, a Friday night, a head-on or nearly head-on collision occurred between two automobiles on St. Paul’s Church Road, near Gilbert, Lexington County, South Carolina. The collision resulted in the entrapment of the vehicles’ three occupants: Patient A, Patient B, and Patient C. Each patient sustained serious injuries as a result of the collision. Patients B and C, a father and his young son, survived their injuries. Patient A, a young college-age male, died eight (8) days after the collision.
12. At 10:27 p.m. that evening, Lexington County 911 Dispatch Center’s (“Dispatch”) Dispatcher Amanda Snuffer received a telephone report of the accident. Emergency assistance was requested. Ms. Snuffer entered the information from the call into the Dispatch computer system, called the CAD system. Dispatch immediately alerted multiple agencies of the accident and of a possible entrapment.
13. At 10:28 p.m., Dispatch radioed EMS Unit 9, the unit in closest proximity to the accident scene, and directed it to proceed to the accident scene. Also, it dispatched the Hollow Creek Fire Department (“Hollow Creek”) to the scene.
14. Following standard protocol, Dispatch called Life Reach, the medical emergency helicopter at the top of the rotation list, and notified it that it was on standby. Dispatch designated Hollow Creek as the landing zone for Life Reach if it was directed to proceed to the accident scene.
15. At about this same time, Curtis Caneup, a bystander and volunteer firefighter at Hollow Creek, reported the accident to Dispatch. The accident occurred in front of his home and Mr. Caneup was one of the first individuals to arrive at the scene.
16. Patient A was the sole occupant of one vehicle; Patients B and C were the occupants in the other vehicle. The vehicle driven by Patient A suffered the most damage. The front end of his vehicle, as well as the driver’s side door and fender, were crushed in on his legs. He was unconscious and his breathing was labored. He had suffered severe trauma to his head and was entrapped in the vehicle. The vehicle that Patients B and C were riding in did not suffer as much damage; however, its doors were jammed and both patients were entrapped.
17. At 10:27 p.m. when Dispatch received the first report of the accident, Patient A’s “golden hour” had begun. At that time, Respondent was at the home office, or Station 10, as were Units 4 and 8. As requested by Respondent, Unit 4 had stopped by Station 10 on its way to a standby point to sign some paperwork. Unit 8 had stopped by Station 10 to change its main oxygen tank. All the paramedics heard the radio call by Dispatch sending Unit 9 to the accident scene with the code “1050 I”, which means “vehicle accident with injury, with possible entrapment”. At this time, LCEMS Units 1, 3, and 7 were on other emergency calls. However, six other LCEMS units (Unit’s 2, 4, 5, 6, 8 and 10) were available to provide assistance, if needed.
18. While he was at Station 10, Respondent ordered Unit 4 to proceed to a standby location. Prior to leaving Station 10, Mr. Burnes suggested to Respondent that his unit should go to the accident scene, partly because of the possible entrapment of individuals and partly because the members of Unit 9 were only certified at the basic and intermediate level. Further, Mr. Burnes felt that additional extrication equipment might be needed. Respondent declined the request and Unit 4 then proceeded in the direction of the standby point. Unit 8 proceeded to another standby point.
19. At 10:33 p.m., Unit 9 called Dispatch to clarify the location of the accident. Dispatch informed Unit 9 that the accident was a head-on collision and that Life Reach was on stand-by. About forty seconds later, Unit 4 was directed by Dispatch to proceed to Gilbert for standby purposes.
20. Unit 9 arrived on the scene at 10:35 p.m. The crew saw that the two vehicles had collided almost head-on and had significant damage. They immediately assessed the number and status of the victims and ascertained that Patients B and C were conscious, but in pain; they found Patient A unconscious with severe trauma injuries. Mr. Matthews told Mr. Harris he did not expect Patient A to survive.
21. Once the crew of Unit 9 had completely assessed the status of the three patients, Mr. Harris contacted Dispatch and asked it to dispatch both the Life Reach helicopter and the Care Force helicopter. Dispatch misunderstood the request and only dispatched the Life Reach helicopter.
22. Mr. Matthews and Mr. Harris immediately began providing medical treatment to Patients A, B, and C. Mr. Matthews focused on providing medical care to Patients B and C, and told Mr. Harris, the lesser certified EMT, to provide any care he could for Patient A.
23. Mr. Harris observed that Patient A had agonal respirations of six to eight times a minute and was struggling to breathe. He attempted to give oxygen to Patient A with an oxygen mask (a non-rebreather) but was having difficulty because Patient A was entrapped. Mr. Harris subsequently removed the oxygen mask from Patient A and went to the other vehicle to assist Mr. Matthews in providing medical care to Patients B and C.
24. Almost immediately after Unit 9 arrived at the scene, fire service personnel from Hollow Creek arrived. Christopher Porter, Hollow Creek’s assistant fire chief, established fire command at the scene. Fire service personnel took the extrication equipment (a power unit, cutter, ram, and spreader) from Unit 9’s truck and attempted to extricate Patient A. Quickly it became obvious that it would be more difficult to extricate Patient A from his vehicle than to extricate Patients B and C from their vehicle. Also, fire service personnel quickly realized there was insufficient extrication equipment on the scene to extricate Patient A because of the severity of the damage to his vehicle.
25. Meanwhile, Unit 4 was approaching the intersection where it could either proceed to the accident scene or in the opposite direction to a standby location. At 10:38 p.m., Mr. Burnes radioed Respondent again, stating that Unit 9 might need assistance and requesting to proceed to the accident scene. At that time, Unit 4 was approximately three to four miles from the accident scene. However, Respondent again denied Unit 4’s request and directed Unit 4 to proceed to the standby location. This standby location was an additional five to six minutes in time from the accident scene than its location when it was directed not to proceed to the accident scene.
At 10:38 p.m., Unit 9 had been on location at the accident scene for approximately three minutes. Respondent had remained at Station 10 and LCEMS Units 2, 4, 5, 6, 8, and 10 were available to respond to emergency calls. Although Mr. Burnes had suggested twice to Respondent that Unit 9 might need some assistance, Respondent did not order any unit to proceed to the accident scene to provide any additional medical care or extrication assistance.
26. Life Reach helicopter was dispatched to the accident scene at 10:39 p.m. At 10:40 p.m., fire service personnel on the scene asked the Lake Murray Fire Department to provide some additional extrication equipment. About this same time, a fire rescue vehicle left the accident scene to set up the landing zone for the Life Reach helicopter at Hollow Creek.
27. Meanwhile, Patient A’s father and other bystanders had arrived on the scene. When Mr. Harris checked Patient A to determine his medical condition, he did not observe any agonal respirations or posturing. Because of this lack of movement, Mr. Harris incorrectly assumed Patient A was deceased, stated they had lost him, and ceased providing medical care to Patient A. Patient A’s father overheard the statement and shortly thereafter left the scene to return home to inform his wife of their son’s demise. He did not know that his son was still alive. Mr. Harris then asked Mr. Matthews for a sheet to cover Patient A’s body.
28. Jerry Wise, a certified EMT-Intermediate who worked for the fire department, arrived on the scene about this time and found it to be in a chaotic condition. Mr. Matthews told him that Patient A was deceased and he proceeded to assist in extricating Patient B, who was conscious and in considerable pain. The car doors on this vehicle were jammed and Mr. Wise realized he needed some extrication tools. At that time, the only extrication tools at the scene were still being used to extricate Patient A from his vehicle.
29. At some point, the extrication attempts to remove Patient A ceased and Mr. Wise and other fire service personnel then moved the extrication tools and used them to extricate Patients B and C from their vehicle. During the extrication process of Patients B and C, and while Patient B was being placed on a spine board, Mr. Wise observed that Patient A was still breathing. Also, he observed that Patient A’s respiration was labored and that he was posturing, or experiencing involuntary spasming; this involuntary movement of muscles is common in severe head injury cases. The extrication tools were then moved back to Patient A’s vehicle to be used once again in an attempt to extricate him.
30. The EMT’s in Unit 9 were overwhelmed by the severity of the injuries and the entrapment of all three patients. For an extended time, Patient A received no medical care and no oxygen. During this entire time, Unit 4 sat on standby at Gilbert and Respondent sat on standby at Station 10.
31. At 10:51 p.m., Dispatcher Mills radioed Respondent to discuss the staging of all units in Lexington County. At that time, Respondent assumed that Unit 9 would be able to leave the accident scene in 15 to 20 minutes.
32. At 10:53 p.m., Respondent left Station 10 in his supervisor’s truck, proceeding in the opposite direction from the accident scene toward the Lexington Medical Center Emergency Room (ER) to re-stock supplies and clear a unit. At this time, there was chaos at the accident scene, and four LCEMS units (2, 4, 8, and 10) were available to provide assistance, if ordered to do so.
33. At 10:56 p.m., the Life Reach helicopter arrived at the landing zone. Patients B and C had been extricated and loaded into Unit 9; Patient A was still entrapped in his vehicle. The Life Reach crew, including a Paramedic and a flight nurse, was immediately transported to the accident scene by the landing zone fire command. At this time, a second helicopter had not been dispatched. Instead of leaving the scene with Patients B and C on board, Unit 9 remained and opted to have the Life Reach crew, upon its arrival at the scene, transport Patients B and C to its helicopter so it could remain on location to provide medical assistance to Patient A.
34. At 11:10 p.m., the Life Reach crew arrived at the accident scene. They observed that Patient A had rapid-labored sonorous respirations, that no IV had been given to him, and that an oxygen mask was laying beside him inside the vehicle. Patient A was cold and cyanotic. The Life Reach crew immediately intubated Patient A.
35. Between 10:35 p.m. (when Unit 9 arrived on the scene) and 11:10 p.m. (when the Life Reach crew with its flight nurse and paramedic arrived), Patient A did not receive proper oxygen therapy nor have his airway secured. At 11:10 p.m., Patient A was at least forty-three minutes into his golden hour.
36. At the request of the Life Reach crew, Mr. Porter called Dispatch and requested that a second helicopter and an additional ambulance be sent to the scene. Dispatcher Mills called Care Force to see if it was available and, if so, to launch. Upon ascertaining that Care Force’s helicopter was available, Ms. Mills dispatched it to the scene at 11:31 p.m.
37. By this time, Unit 4 had been on standby for approximately one hour after its initial request to proceed to the scene and provide assistance. During this wait time, Unit 4’s crew monitored the EMS channel. Patient A’s golden hour had passed. At 11:35 p.m., one hour and eight minutes after Dispatch received the first report of the accident, it directed Unit 4 to proceed to the accident scene. The Care Force helicopter left for the scene at 11:36 p.m.
38. At 11:37 p.m., Respondent telephoned Dispatcher Mills and asked about the situation at the accident scene. She informed Respondent that she had received a request for another helicopter, but did not know what was happening at the scene. She told Respondent that the EMT’s at the scene had not reported to Dispatch what was happening at the scene but had requested additional resources. At that time, Respondent had not contacted or attempted to contact Unit 9 to request an update.
39. Meanwhile, Unit 9 transported Patients B and C to a separate landing zone that had been set up for the Care Force helicopter.
40. At 11:45 p.m., Unit 4 arrived at the scene. At about that time, the Care Force helicopter arrived at its landing zone. Patient A remained entrapped and the Life Reach flight crew was continuing to provide medical care to him. Mr. Burnes and a fireman immediately inserted a ram into a door in Patient A’s vehicle to extricate him. They extended it all the way out in order to push the dashboard away from Patient A’s body. Mr. Burnes then reached in, grabbed the legs of Patient A, pulled them free from the floorboard, and assisted with the placement of Patient A on a spine board.
41. Within seven minutes after his arrival, Mr. Burnes was able to extricate Patient A from the vehicle, place him into Unit 4, and begin the transport to the waiting helicopter. Patient A was loaded into Unit 4 and at 11:52 p.m., to begin the transport of Patient A to the Life Reach landing zone; Unit 4 arrived at the Life Reach landing zone at 11:59 p.m. The helicopter departed with Patient A on board at 12:10 a.m., arriving with Patient A at the hospital at 12:18 a.m. Meanwhile, the Care Force helicopter departed with Patients B and C at 11:55 p.m. and arrived at the hospital at 12:04 a.m.
42. Patient A died at a local hospital on April 24, 2004, approximately 8 days after the accident.
Investigations Regarding the Incident
43. Within several days of the accident, Respondent conducted his own qualitative assessment of the accident, reviewing among other items the run reports prepared by Mr. Matthews, Mr. Harris, Mr. Burnes, and Mr. Troutman. He acknowledged and recognized: that the medical care and treatment provided by LCEMS personnel at the accident scene was seriously deficient; that Mr. Matthews and Mr. Harris spent entirely too long at the accident treating Patients A, B and C without any back-up support; that Patient A did not receive necessary medical care for an extended period of time after Unit 9 first arrived on the scene; that he should have more actively monitored the activities and progress of Mr. Matthews and Mr. Harris; and that, although he was not personally requested by Unit 9 to go to the accident scene, he could have responded and could have provided both emergency medical support and extrication support. He reported these deficiencies to his supervisor, Mr. Tom Gross.
44. Subsequently, Thomas Gross, the LCEMS coordinator, conducted a review of the incident. He agreed with Respondent’s reported deficiencies and concluded that: there was poor call-scene management by the EMT’s at the accident scene; Respondent poorly supervised LCEMS resources; Patients B and C were allowed to remain on the scene too long and should have been transported to the hospital much sooner after their extrication; LCEMS, under the supervision of Respondent, did not meet the appropriate standard of care regarding Patient A’s medical treatment in its failure to provide aggressive airway support and timely oxygen therapy; when Respondent became aware of a possible entrapment, he should have initiated inquiries to Unit 9 to maintain up-to-date status on the services being provided and to determine if more providers were needed; Respondent should have realized the severity of the situation earlier, especially when learning of the requests by his on-scene EMT’s that two helicopters be sent to the accident scene, and should have initiated calls to the on-scene EMT’s to see if help was needed; Respondent should have initiated more communication with the on-scene EMTs based upon the two requests by his most experienced EMT, Mr. Burnes and that the EMTs at the scene were less experienced; Respondent had ample opportunities to initiate inquiries and send a more experienced crew (Unit 4 or one of the other crews not on an emergency call) to the scene or proceed to the scene himself to provide more expert medical care and extrication support; Respondent, even after hearing Unit 9’s request at 11:31 p.m. (more than an hour after the initial report of the accident) that a second helicopter be sent, failed to initiate any inquiry, except to Dispatch which was unable to provide him with any information or updates on the activities at the scene.
45. After the review, Tim James, Lexington County’s Director of Public Safety and its Assistant Sheriff, took personnel action against Respondent for his failures of duty as a Shift Supervisor. In a letter of concern, hr listed findings of fault and stated that: Respondent dispatched a unit to the accident scene that was not equipped with either manpower or resources to handle a call of this level of severity, without additional support or guidance from others; Respondent’s supervisory overview and presence were required but he failed to go to the scene, failed to have a backup unit respond to the scene, and failed to provide needed support, advice, and assistance; there was insufficient on-scene supervision, substandard medical care was provided, and the equipment and manpower at the scene was inadequate. Also, the letter provided that some of the patients were not provided constant proper medical care, and that Respondent performed inefficiently on multiple levels as a supervisor.
46. Respondent received administrative sanctions in May 2004 that consisted of a two-week disciplinary suspension, without pay, and a six-month probation, effective May 16, 2004, during which time management would review his job performance to ensure he was performing at the level of a Shift Supervisor. During the probationary period, his salary was reduced in grade; however, it was reinstated upon his successful completion of the probation.
47. Terry Horton, the Department’s chief investigator, and two other employees of the Department conducted an investigation of this incident. Also, Mr. Horton reported their findings to his supervisor, who reported them to the Department’s Director of EMS, Mr. Alonzo Smith. Mr. Smith reviewed the matter with Dr. Edgar Deschamps, the State Medical Physician and, subsequently, Mr. Smith asked the Investigative Review Committee (“Committee”), a committee of EMS peers which includes physicians and EMS trainers, to conduct a review and make a recommendation. Later, Mr. Smith made the Department’s final decision concerning discipline.
48. The Department’s initial investigation found that Respondent, aware of or on notice of the seriousness of the situation at the scene and the need to send an ALS team as support, was negligent in failing to direct Unit 4, an ALS team in a stand-by posture only minutes away from the accident scene, to respond to the scene for approximately one hour after the first call reporting the accident. It found that Unit 4 could have provided assistance sooner. Second, the report found that Respondent failed in his duty by not personally responding to the scene to assist in the extrication of the patients, particularly since his vehicle was fully equipped with extrication tools and he was an expert in their usage. Finally, the report found that Respondent failed in his duty to act by not monitoring the accident scene by initiating contact with and requesting status reports from Unit 9, especially since Unit 9 was at the scene for a lengthy period.
49. The Committee recommended revocation of Respondent’s certification. It felt that Respondent, an experienced paramedic and supervisor, was in the best position to fully assess the totality of the life-threatening situation at the accident scene. Further, it found that Respondent was on notice that he should make inquiry of the situation when Unit 9 requested a second helicopter at the scene and because of the lengthy extrication. In conclusion, it found that, as a result of Respondent’s failure to make inquiries to the accident scene to keep informed of the activities there, he failed to take those actions necessary to ensure that adequate medical care and extrication services were provided. Further, it found that these actions or inactions by Respondent were so egregious that they directly contributed to Patient A’s death. The Committee felt that Respondent failed in his duty as a Paramedic and supervisor.
50. Mr. Smith and the Department’s Commissioner jointly issued an Administrative Order on May 8, 2006, revoking Respondent’s certification. The Department found that Respondent violated S.C. Code Ann. § 44-61-80(f) by committing misconduct, in that by his actions or inactions he created a substantial possibility that death or serious physical harm could result. Also, it provided that Respondent, on notice of the seriousness of the situation, failed in his duty to act by refusing to authorize Unit 4 to respond to the scene; instead, he directed Unit 4 to remain in standby for approximately one hour while the situation at the scene became more chaotic with each passing minute. Further, the Order provided that Respondent failed in his duty to act by not personally responding to the scene. Finally, the Order provided that Respondent failed in his duty to act by failing to initiate contact with Unit 9 to stay apprised of the activity at the scene and any possible support needs.
Expert and Other Relevant Opinion Testimony
51. Dr. Edgar Deschamps, Dr. V. Scott Carroll and Dr. Andrew Donato were qualified as experts in the field of emergency medicine. Dr. Deschamps and Dr. Carroll testified that the potential effects of oxygen deprivation include severe brain injury, anoxic brain injury, cerebral edema, permanent neurological damage, learning disabilities, and memory disabilities, as well as death. Further, they testified that brain death can ensue within five minutes of being deprived of oxygen. Patient A went forty minutes without oxygen therapy and without a secure airway until the Life Reach crew arrived on scene.
52. According to Dr. Carroll, the Life Reach crew had difficulty intubating Patient A because his jaw was clenched and he was entrapped. He opined that the chances of an EMT-Intermediate being able to put Patient A on life support was close to zero and that an EMT-Intermediate was “way over his head” in this kind of situation. Further, he opined that if Patient A had been transported to a hospital sooner, it could have affected his outcome. Notwithstanding, Dr. Carroll noted that Patient A had a “Revised Trauma Score” of “7” and that a patient with a score of “7” is probably going to die.
53. Dr. Donato, after reading the entire file and interpreting the “Glascow Coma Score” number of “4” which was applied to Patient A by the on-scene paramedics, opined that Patient A’s likelihood of survival was fairly low. He stated that the relevant and reliable medical literature indicates anywhere from a 50 to 75 percent mortality rate for patients with a “Glascow Coma Score” reading of “4.” Further, the relevant and reliable medication literature indicates that only 6.3 percent of patients who initially present with a “Glascow Coma Scale” of “4” achieve any kind of functional recovery.
CONCLUSIONS OF LAW
Based upon the foregoing findings of fact, I conclude the following as a matter of law.
1. This Court has jurisdiction over this contested case pursuant to S.C. Code Ann. § 1-23-310 to -390 (2005 & Supp. 2006); S.C. Code Ann. § 1-23-600(B) (Supp. 2006); S.C. Code Ann. § 44-1-60(F) (Supp. 2006); and S.C. Code Ann. § 44-61-70(a) (Supp. 2006).
2. The Department is responsible for administering the Emergency Medical Services Act of South Carolina (EMS Act). S.C. Code Ann. § 44-61-30(a) (Supp. 2006). Included in the Department’s administrative responsibilities is the training and certification of emergency service personnel. S.C. Code Ann. § 44-61-30(b)(4) (Supp. 2006).
3. The Department is charged with developing standards and regulations for the improvement of emergency medical services in this State. S.C. Code Ann. § 44-61-30(a) (Supp. 2006). Pursuant to its authority, the Department promulgated Regulation 61-7, Emergency Medical Services, which was revised effective June 23, 2006. 24 S.C. Code Regs. 61-7 (Supp. 2006). The events concerning the alleged violation at issue in this matter occurred on April 16, 2004; thus, the provisions of Regulation 61-7 in effect at the time govern this enforcement action.
4. All ambulance attendants must obtain a valid EMT certificate from the Department. S.C. Code Ann. § 44-61-80(a) (Supp. 2006). An EMT is statutorily defined as an individual possessing a valid basic, intermediate, or paramedic certificate issued by the Department pursuant to the provisions of the EMS Act. S.C. Code Ann. § 44-61-20(k) (Supp. 2006). A “certificate” is official acknowledgement by the Department that an individual has successfully completed the appropriate EMT training courses and requisite examinations, which entitle that individual to perform the functions and duties as delineated by the classification for which the certificate was issued. S.C. Code Ann. § 44-61-20(h) (Supp. 2006).
5. The Department is authorized to utilize inspections, investigations, consultations, and other pertinent documentation regarding an EMT in order to enforce its regulation.
6. The Department may take enforcement action against the holder of an EMT certificate if at any time it determines that the holder is guilty of misconduct as outlined in its EMS regulations. S.C. Code Ann. § 44-61-80(f) (Supp. 2006). Misconduct under the EMS Act means, among other definitions, that the certificate holder “by his actions or inactions, created a substantial possibility that death or serious physical harm could result.” S.C. Code Ann. § 44-61-80(f)(14) (Supp. 2006). When the Department decides to take enforcement action against the holder of an EMT certificate, it may either suspend or revoke the holder’s certification. S.C. Code Ann. § 44-61-80 (Supp. 2006).
7. “Suspension” means that the Department has temporarily voided a license, permit, or certificate and the holder may not perform the function associated with the license, permit, or certificate until the holder has complied with the statutory requirements and other conditions imposed by the Department. S.C. Code Ann. § 44-61-20(z) (Supp. 2006).
8. “Revocation” means that the Department has permanently voided a certificate, and that the holder of the certification no longer may perform the function associated with it. The Department will not reissue the certificate for a period of three years. At the end of the three-year period, the holder may petition for reinstatement. S.C. Code Ann. § 44-61-20(y) (Supp. 2006).
9. “An affirmative legal duty … may be created by statute, contract relationship, status, property interest, or some other special circumstance.” Steinke vs. S.C. Dep’t of Labor, Licensing, and Regulation, 336 S.C. 373, 388, 520 S.E. 2d 142, 149 (1999).
10. Where an expert’s testimony is based upon facts sufficient to form the basis for an opinion, the trier of fact determines its probative weight. See Berkeley Elec. Coop. v. South Carolina Pub. Serv. Comm'n., 304 S.C. 15, 402 S.E.2d 674 (1991). A trier of fact is not compelled to accept an expert's testimony, but may give it the weight and credibility he determines it deserves. See Florence County Dep't. of Social Services v. Ward, 310 S.C. 69, 425 S.E.2d 61 (1992). When several expert witnesses testify regarding a matter in controversy, it is incumbent on the trial court to carefully weigh and consider the evidence presented by each. While the credibility of witnesses is always important, when conflicting opinions are offered by experts, the Court must not only make credibility assessments but also carefully examine the underlying basis or foundation for each expert’s conclusion. The Court must also consider the experience, training, and qualifications of each expert to determine the weight to give to their opinions.
11. Based upon all of the evidence and testimony presented in this case, including expert opinions, I conclude that Respondent had a duty as an EMT and the EMT Shift Supervisor, under the circumstances herein, to be proactive in taking action to prevent harm to Patient A. Respondent should have (1) authorized Unit 4 with its ALS crew to respond to the scene of the accident sooner; (2) responded to the accident personally; and (3) should have timely initiated continuing contact with the unit on the scene to assess its status, needs, and provide guidance and resources, as required. Further, Respondent, aware of the seriousness of the accident based upon the call to Dispatch, failed in his duty to act by directing Unit 4, with its ALS crew, to wait in a standby posture at a location only minutes from the scene for approximately an hour, rather than directing this crew, which included an experienced EMT-Paramedic, to respond to the scene immediately.
At the time the first report of the accident was made to Dispatch and, for at least one hour thereafter, there were no emergency calls or situations in Lexington County as serious as this scene which personally required Respondent’s attendance on-scene. In fact, during the time Unit 9 was first responding and providing assistance, Respondent proceeded to the Lexington County ER, in the opposite direction of the accident scene, to re-stock supplies and clear a unit.
Respondent is an EMT-Paramedic trained in advanced life support and has many years of experience providing emergency medical care. Also, Respondent has years of training in extricating individuals at accident scenes and years of training others in these extrications. Further, Lexington County assigned to Respondent a supervisor’s truck to use while he was performing his duties as a Shift Supervisor; the truck is and was on the incident date fully equipped with extrication tools. Respondent had knowledge of a possible entrapment of individuals at the scene, and with his background and the seriousness of the call, this Court finds that Respondent failed in his duty to act by not personally responding to the scene to provide support or assistance in extricating patients shortly after the reports came into Dispatch. Instead, Respondent chose to proceed elsewhere.
The Department has proved by a preponderance of the evidence that Respondent did not exercise that degree of supervision on April 16, 2004 as required by a certified EMT-Paramedic. The Court finds that Respondent is well skilled in his professions and well regarded for his extrication skills, as well as his paramedic skills. He forthrightly and sincerely acknowledged the deficiencies associated with his supervision of the accident scene during Lexington County’s investigation, the Department’s investigation and during his testimony before this Court. Although I find Respondent to be a credible witness and a sincere person who is an asset to the paramedic community in Lexington County and this state, the Court cannot ignore his acts of misconduct on the night of April 16, 2004.
In his position as a supervisor, the citizens of Lexington County place their trust in Respondent to be vigilant and proactive in overseeing those he supervises, and that he remain in contact with them to provide support when needed. The situation at the scene became chaotic. If he had maintained contact with his on-scene EMT’s, Respondent would have known of the need of additional medical care and extrication support. Further, if such had been provided, Patient A would have been extricated sooner, would have had a better chance of survival, and all three patients would have been airlifted to the hospital sooner. Respondent’s failure to monitor the activities at the accident scene created the possibility of further physical harm to all three patients.
Respondent has already received sanctions from his employer. However, due to the seriousness of his misconduct, I find those sanctions insufficient. Although the Department seeks revocation of Respondent’s certification as an EMT-Paramedic, I find that revocation, the highest punishment, is not warranted in this case since this is Respondent’s first violation. Inherent in and fundamental to the powers of an Administrative Law Judge, as the trier of fact in contested cases arising under the Administrative Procedures Act, is the authority to decide the appropriate sanction. Walker v. South Carolina ABC Comm’n, 305 S.C. 209, 407 S.E. 2d 633 (1991). I find and conclude that Respondent’s certification as an EMT-Paramedic must be suspended for a period of fifteen (15) months. Further, I find and conclude that Respondent must return his certification as an EMT-Paramedic (No. 81216) to the Department within fifteen (15) days of the date of this Order. The suspension period shall begin to run on the date the certification is hand-delivered to the Department.
ORDER
Based upon the foregoing findings of fact and conclusions of law,
IT IS HEREBY ORDERED that Respondent’s certification as an EMT-Paramedic (No. 81216), which was issued to him by the Department, is suspended for a period of fifteen (15) months and must be hand-delivered to the Department within fifteen (15) days of the date of this Order; and
IT IS FURTHER ORDERED that the suspension of the certification shall begin to run on the date the certification is received by the Department.
AND IT IS SO ORDERED.
______________________________
Marvin F. Kittrell
Chief Administrative Law Judge
Respondent received training from Midlands Technical College in 1984 and became an EMT in 1985. In 1987, after completing paramedic school, he became an EMT – Paramedic.
Extrication is the removal of individuals from vehicle entrapments. Special equipment is utilized to extract trapped individuals from the vehicles. This equipment consists of a power unit with a hydraulic pump and a hose, and a vast array of motors, spreaders, cutters, and rams, which can be attached to the hose. A commonly used brand of extrication equipment is Hurst.
Respondent had worked with Lexington County EMS for approximately 19 years and had been a Shift Supervisor for approximately four years as of the date the incident occurred. Also, he had been certified as an EMT-Paramedic by DHEC for approximately 17 years on that date.
LCEMS ambulances are staffed with two EMT’s. Ambulances that have at least one EMT-Paramedic on board are known as ALS units, since Paramedics can provide ALS care. Units without that level of care on board are often referred to as BLS units.
He first served as an EMT-Basic with LCEMS and was later certified by DHEC as an EMT-Paramedic in 1983.
Mr. Burnes was qualified in as an expert witness in emergency medical services, paramedic services, and extrication. He is no longer employed with LCEMS and currently is employed as a sales person, selling and servicing Hurst extrication equipment. He provides training and teaches classes, including training for purchasers of Hurst tools.
For patient confidentiality purposes, this Court directed and the parties consented to these designations.
Emergency calls in Lexington County are received at the Lexington County Emergency Dispatch. When a 911 call is received with information of a vehicle wreck with injuries and possible entrapment, Dispatch’s protocol is as follows: First, Dispatch immediately sends the closest EMS unit to the scene, whether it is a BLS unit or an ALS unit, by contacting that unit over the EMS radio; second, Dispatch immediately tones out the fire service, by setting off a tone at Dispatch that goes out over the radio and causes an alarm to sound at the fire station; third, Dispatch telephones the emergency medical helicopter on top of the rotation list at that time and places it on standby, if it is available; and fourth, Dispatch notifies the appropriate law enforcement agency, such as Highway Patrol or the Sheriff’s Department, of the wreck, either by telephone or by radio.
It is not protocol for a Shift Supervisor to verbally dispatch a unit to a scene; rather, the normal procedure is for all dispatch communications to be made over the EMS radio so the information is recorded by Dispatch. Also, Dispatch and this avenue of communication lets all involved know exactly what is happening and documents the information.
The CAD reports are computer-aided dispatch logs in which dispatchers log important information regarding various times of events occurring with respect to a 911 incident.
Lexington County has entered into mutual aid agreements with other counties and private services which allow Dispatch to ask these providers to proceed to an accident scene and provide assistance when all LCEMS units are engaged in emergency calls.
Fire service personnel in Lexington County are mostly volunteers. Not all of their stations are manned 24 hours a day. In Lexington County, fire service is dispatched to accident scenes with entrapment along with LCEMS, in order to provide the EMT’s on the scene with additional manpower to help with the extrication process. Not all of the fire service units carry extrication equipment. None of the vehicles in the Hollow Creek Fire Department in Lexington County have extraction equipment.
Normally, calls are made to the emergency medical helicopters when there is an accident with entrapment reported. The two emergency medical helicopters serving the Lexington County area are Life Reach, which is based out of Providence Hospital, and Care Force, which is based out of Palmetto Health Richland hospital. When Dispatch places a helicopter on standby, it determines which landing zone in the county is closest to the accident scene, and provides the helicopter with the landing zone number.
The “golden hour” is an important medical concept with regard to trauma calls, and is taught to paramedics throughout the state. It is the first hour after trauma occurs in which it is most advantageous for a trauma patient to receive medical and/or surgical care from a physician. It is significant to transport a trauma victim to a doctor or surgeon within the first hour in order to prevent further harm to the patient. The treatment a trauma patient receives at a hospital will have the best potential outcome within the patient’s golden hour. A patient with a head injury requires ALS care. With a head injury, a patient’s respiratory is usually impaired, and the patient’s airway has to be maintained the entire time. It is important in a case of a severe head injury to have the patient transported via helicopter to get the patient into the emergency room and into surgery as soon as possible.
Unit 8 was staffed with EMT-Paramedic Patricia Labbe, a senior paramedic with LCEMS, and another EMT.
All paramedics and ambulances keep run reports. Run reports are patient care reports that document what treatment is given to patients on each call run by a licensed ambulance service. These reports are required by statute to be kept by licensed ambulance services and delivered to the Department on a monthly basis.
Respondent operates a supervisor’s truck which is equipped with a full array of extrication equipment, including a power unit with a hydraulic pump, spreaders, cutter, rams, and hose reels. Further, Respondent has extensive experience in extrication. Prior to April 16, 2004, he had responded in his truck to accident scenes to assist in the extraction of entrapped individuals.
In Mr. Burnes’ opinion, it would have taken him no longer to remove Patient A if he had arrived on the scene earlier. Further, he opined that Respondent would have been able to extricate Patient A just as well or better than he did that night had he responded to the scene.
According to EMT-Intermediate Matthews, some of the tools on Respondent’s supervisor truck would have been useful with the extrication of Patient A. In his opinion, it would have been advantageous to have been able to use two or more of the same or different tools on two different parts of Patient A’s car. Further, according to Mr. Matthews, considering how chaotic the scene was and how things were falling apart, it would have helped to have had Respondent on the scene.
Mr. Wise has also seen an EMS shift supervisor respond to a call in very bad accidents without the on-scene crew having to call to request the supervisor to come. He would expect the shift supervisor to show up, if it’s possible, or that another Paramedic team would be sent to provide assistance. Also, he stated that when the accident scene is intense and sever, within minutes additional rescourses roll in and keep piling on.
When Mr. Burnes was a supervisor at LCEMS, it was his experience that the shift supervisors responded to all wrecks with entrapment, regardless of whether there was an ALS unit on the scene or not. Ms. Labbe had also seen shift supervisors respond to those scenes without the initial crew on scene first requesting backup.
In addition, according to Mr. Wise, Patient A needed advanced life support care from the moment of impact/injury and that the protocol when finding a person with a severe head injury is to request an advanced life support paramedic. Further, according to Ms. Labbe, a senior paramedic, a paramedic unit that has advanced life care training and certification should have been sent to the accident scene, and, normally, if a helicopter is sent to the scene, the shift supervisor also goes to the accident scene because a request for a helicopter in Lexington County is an indicator of a bad motor vehicle collision.
Trauma patients are given a trauma score based upon the severity of their injuries. A trauma score of 12 is normal.
The Glascow Coma Score is a way of determining a patient’s alertness, with “1” being the lowest score and “4” being the highest. It basically assesses a patient on three determinants: (1) best eye opening response, (2) best verbal, and (3) best motor. A “1” would indicate no response. Patient A had a score of “1” for eye response, “1” for verbal response and “2” for motor response, for a total score of “4.” |
