Burning Question: Medical Exams and Liability

Today’s burning question: Have you ever come across a case where a firefighter suffered an illness such as a heart attack, stroke or cancer, in a department that did not have a formal medical monitoring program and then was sued for not having such a program? The feedback I get is that many firefighters believe fire departments do not have to provide medical monitoring.

Answer: While such a case is plausible, none of the cases in my database make that sort of allegation. As of today, I have 9,106 cases in my database. Not one of them alleges that the failure to have a medical monitoring program caused/contributed to a firefighter death or injury. That is not to say there are no such cases… only that such suits would be few and far between.

Surprisingly, while researching the database I found seven cases where firefighters sued to block implementation of a medical monitoring program. In each case the firefighters alleged it was being used as a pretext to discriminate against a person with a disability. GO FIGURE!!!!

I find myself sounding more and more like a broken record (or for the younger crowd – in an endless digital recording loop) but it is important to remind everyone of the perils of using liability as boogey-man to get people to do the right thing. There are reasons why such suits are unlikely that have nothing to do with whether medical exams are legally required, needed, or smart.

The biggest obstacle to such a suit is a thing called workers compensation exclusivity. Workers comp is considered to be the exclusive remedy for someone who is injured at work. An employee is, in essence, prohibited from suing his/her employer for negligence in causing his/her injuries. Workers comp is a no-fault system: negligence by the firefighter, another firefighter, or the fire department does not change the parties’ respective rights and liabilities.

How this plays out in real life: FF A dies at a house fire from a heart attack. The fire department has no medical monitoring program and the autopsy reveals that FF A had an easily diagnosable medical condition. Thus, A’s death was preventable with a medical exam. FF A’s surviving spouse goes to an attorney. The attorney explains that workers comp exclusivity will block any lawsuit against the fire department for negligence (note – states differ on this issue, but the general rule is the firefighter cannot sue the employer for negligence). They explore other options to recover damages, perhaps from the property owner or (if the fire was caused by a defective product) the party that manufactured the defective product that caused the fire.

The better question: Should a fire department provide medical monitoring? Absolutely yes. In fact, OSHA requires anyone who may wear a respirator to be part of a medical monitoring program. In addition, NFPA standards require medical monitoring for firefighters. Both would serve as evidence of the standard of care that a fire department should be following.

However, failing to provide medical monitoring in violation of OSHA does not ipso facto mean a fire department will be sued, let alone held liable. Workers comp exclusivity serves as a significant obstacle to such suits.

I do have six state OSHA citations against fire departments for not providing a medical surveillance program. My sense is that is just the tip of a very large iceberg. However, most of those citation do not garner headlines.