Michigan Firefighters Come Out Swinging

Sometimes the best defense is a good offense. That would appear to be the tact taken by four Southfield firefighters whose EMS licenses were suspended by the state following an incident last month where a patient who was declared dead, was found to be alive hours later by funeral home staff.

Firefighter-paramedics Michael Storms and Scott Rickard and firefighter-EMTs Phillip Mulligan and Jake Kroll filed suit this week in US District Court naming the Michigan Department of Health and Human Services (MDHHS), four named employees of the MDHHS, the Oakland County Medical Control Authority (OCMCA), four named employees of OCMCA, four unnamed doctors, one unnamed nurse and two unnamed providers. The suit accuses the defendants of violating the firefighters 5th and 14th Amendment Rights in a rush to judgment in the face of mounting public criticism.

The four employees of MDHHS named as defendants are the Director of the Bureau of EMS, Trauma and Preparedness, Kathy Wahl; Medical Control Authority Coordinator Emily Bergquist; EMS Section Manager Sabrina Kerr; and Compliance Coordinator Scott Minaudo. The four employees of OCMCA are medical director Steve McGraw, D.O.; Executive Director Bonnie Kincaid, Deputy Medical Director Aharon Gedaliah Cooper, M.D.; and chairperson of the OCMCA PSRO, Tressa Gardner.

As explained in the complaint:

  • On Sunday, August 23, 2020, all four Plaintiffs were on duty in their roles as EMTs and paramedics for the City of Southfield Fire Department when they were dispatched to respond to an unresponsive Female.
  • The four provided emergency care but the patient was pronounced deceased by a doctor at Providence Hospital Southfield when Plaintiff Storms telephoned the hospital to report that the patient had been unresponsive for at least 30 minutes.
  • The patient was transported to a funeral home where it was later discovered that she was still alive.
  • Upon information and belief, MDHHS and the individuals employed by MDHHS, exerted pressure on the OCMCA to act swiftly because MDHHS had already decided that it was going to take action against the Plaintiffs.
  • Upon information and belief, as early as Monday, August 24, 2020, the MDHHS defendants intent to suspend all Plaintiffs was communicated to the OCMCA and the OCMCA was urged to hurry up and take action to support the MDHHS defendants’ decision.
  • On Tuesday August 25, 2020, the Plaintiffs were informed that they would have a meeting with the OCMCA PSRO.
  • They were told, by their employer, that they would be allowed to talk about what took place on the scene of the Call and be asked questions.
  • On Wednesday, August 26, 2020, the OCMCA sent a letter to the Plaintiffs’ employer, that stated that the MDHHS had “taken action to evoke” an emergency suspension for Plaintiffs Storms and Rickard, and had issued an “intent to suspend” (or “ITS”) to Plaintiffs Mulligan and Kroll.
  • On Thursday, August 27, 2020, at 9:30 AM, Plaintiffs attended the PSRO meeting, without counsel or union representation, where they were each asked to explain what occurred and asked various questions.
  • At approximately 10:24 AM, the Michigan Office of Administrative Hearings issued two notices of hearings: one for Plaintiff Rickard and one for Plaintiff Storms.
  • The notices set hearings for September 8, 2020, at 9:00 AM and 1:30 PM, respectively.
  • The notices stated that the “Issue” to be addressed was whether proper action was taken by MDHHS.
  • These notices reflect that MDHHS had scheduled a formal hearing on actions that had not yet been taken.
  • Later that same afternoon, at approximately 3:20 PM, the OCMCA issued four letters, one to each Plaintiff.
  • The letters to Plaintiffs Kroll and Mulligan stated that their “participation in this incident investigation has concluded.”
  • It further read that no action would be taken against their EMS licenses and that they were required to complete “an entire AHA BLS for Healthcare Providers course.”
  • Plaintiffs Rickard and Storms each received a letter that stated he would receive a suspension, term of probation, and would be required to go through certain re-education programs.
  • It informed him that he could appeal this decision and told him to “please see protocol 8.27.2 Disciplinary Action Appeal.” These letters were also signed by Defendant Cooper.
  • The four letters from the OCMCA never outlined the reasons why Plaintiffs had been investigated, or the issues with Plaintiffs’ conduct for which they were being disciplined. The letters merely stated the resulting discipline.
  • 27 minutes later, Defendant Minaudo emailed Plaintiffs Storms and Rickard emergency orders suspending their licenses.
  • The orders made numerous allegations, some of which appear to be based on hearsay, information not made available to Plaintiffs, and inaccurate information.
  • The notice of hearing sent out that morning was also included in the emails.
  • The next morning, Plaintiffs Kroll and Mulligan received the Notices of Intent that would automatically suspend them if not contested within 30 days.

The complaint goes on to list all the ways that both MDHHS and OCMCA violated their own procedures in their haste to discipline them. It asserts that the firefighters due process rights were violated and that the MDHHS lacks the statutory authority to issue summary suspensions. Again quoting from the complaint:

  • The above outlined violations demonstrate not only irreparable procedural violations, but a larger and thoughtless intention of the OCMCA Defendants to act swiftly to provide pretense to the predetermined disciplinary outcome.
  • These actions deprived Plaintiffs of a fair, impartial hearing and this deprivation cannot be corrected – the metaphorical bell could not be un-rung once the MDHHS Defendants made their initial decision and Defendants were forced to testify at the PSRO hearing.
  • Defendants further set the stage for an unconstitutional hearing when the MDHHS made a decision and asked its subordinate to rubber stamp its decision through a sham PSRO process.
  • Plaintiffs’ reputations and careers have been irreparably damaged by these actions, especially in light of the significant international media attention this case has garnered, and no corrective action or process can fix the damage caused by these violations.
  • Plaintiffs will continue to suffer if this process is allowed to move forward, with the violations only compounding the damage to their careers.
  • The public interest is best served by barring the Defendants from proceeding with their unconstitutional hearings and discipline determinations as permitting such violations allows Defendants and others like them to wrongfully impact not only the lives of Plaintiffs and other medical providers, but also the public who relies on emergency medical providers for care.
  • Such disruptions to the emergency medical care system should be avoided.

The suit seeks preliminary and permanent injunctions blocking the defendants from taking any further action against the firefighters, and the issuance of an order reinstating their licenses. Here is a copy of the complaint:

Earlier coverage.

About Curt Varone

Curt Varone has over 40 years of fire service experience and 30 as a practicing attorney licensed in both Rhode Island and Maine. His background includes 29 years as a career firefighter in Providence (retiring as a Deputy Assistant Chief), as well as volunteer and paid on call experience. He is the author of two books: Legal Considerations for Fire and Emergency Services, (2006, 2nd ed. 2011, 3rd ed. 2014) and Fire Officer's Legal Handbook (2007), and is a contributing editor for Firehouse Magazine writing the Fire Law column.
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