Ruling in Helicopter Cancellation Case Leaves Chief Alone to Face Trial

A lawsuit filed on behalf of a catastrophically injured Alabama man has been dismissed against a fire department, a 9-11 county dispatch center, and a dispatcher, but will continue against the fire chief who cancelled a medical helicopter despite not being on scene.

Brian Lomanack was critically injured in an all-terrain vehicle accident in 2013. The Echo Volunteer Fire & Rescue responded and based on information from the scene requested a medical helicopter be dispatched.  Ozark Fire Chief Gregory Boutwell then instructed dispatcher Jessica Cauthen to cancel the request despite the fact the incident occurred in Echo VFR’s response district and that Chief Boutwell was not on the scene. Cauthen neglected to mention personnel from Echo VFR were on the scene or that Echo’s fire chief confirmed the request.

The cancellation resulted in a delay in Lomanack’s transport. As explained in the decision:

• Lomanack was involved in an all-terrain vehicle accident in Dale County, Alabama, within the jurisdiction of the Echo Volunteer Fire & Rescue.
• The accident left Lomanack unconscious, bleeding from his ears, and with a “large bulge and/or deformity in his skull and neck area.”
• Someone at the scene of the accident dialed 911 and reported the accident to defendant Cauthen, a dispatcher with the defendant Ozark-Dale County E-911 Board.
• The E-911 Board, which receives emergency calls and dispatches emergency services like the Echo Volunteer unit, works with both that unit and the Ozark Fire Department to respond to emergencies in the area.
• The board’s communication system includes individual channels for different emergency services as well as a channel to which all emergency personnel have access.
• After receiving the emergency call, Cauthen dispatched the Echo Volunteer unit, and a member of the unit arrived at the scene of the accident.
• That person reported to Cauthen (via the unit’s private channel) that Lomanack was “critical” and “barely breathing,” and Cauthen repeated that information on the general channel that all agencies could hear.
• Based on this report, the Echo Volunteer chief–who was not yet at the scene–directed Cauthen to dispatch a medical helicopter to transport Lomanack, and Cauthen proceeded to dispatch the helicopter.
• Enter defendant Boutwell who, according to the allegations in this case, was under the influence of alcohol or other intoxicating substances or medicine.
• As Ozark Fire Chief, he heard Cauthen’s helicopter request over the E-911 general channel.
• Though he was not (and never arrived) at the scene of the accident–an accident that was outside of Ozark’s jurisdiction–Boutwell ordered Cauthen (via the Ozark Fire Department channel) to cancel the helicopter and place everyone on “standby” until he could arrive at the scene.
• Boutwell asked for reports from any unit that arrived at the scene, but Cauthen did not initially share the Echo Volunteer first responder’s report that Lomanack was “critical” and “barely breathing.”
• Instead, Cauthen reached out to a deputy sheriff she believed was on his way to the scene.
• She eventually repeated to Boutwell that Lomanack was critical and described his injuries, but Boutwell continued to instruct Cauthen to delay dispatching the helicopter until he arrived at the scene.
• At this time, the Echo Volunteer unit was unaware that the helicopter dispatch was canceled, and its members waited in vain for the helicopter to arrive.
• After several requests from the Echo Volunteer unit about the status of the helicopter, Cauthen eventually informed the unit that she had canceled the helicopter at Boutwell’s request.
• After the unit again described Lomanack’s condition, Cauthen called Boutwell’s cellphone and had an “off-the-record phone conversation,” after which Boutwell directed Cauthen, via the Ozark Fire Department radio channel, to dispatch the helicopter.
• By the time the helicopter was finally on its way to the scene of the accident, an ambulance had arrived, and the first responders decided it was in Lomanack’s best interest to travel via ambulance instead of continuing to wait for the helicopter. As a result of the delay caused by the initial cancelation of the medical helicopter, Lomanack sustained “substantial [and] permanent cognitive, physical, and economic injuries.”

The suit was filed against Chief Boutwell, the City of Ozark, Dispatcher Jessica Cauthen and the Ozark-Dale County E-911 Board in US District Court alleging due process violations under 42 USC 1983, as well as state law negligence. A magistrate judge recommended that “the defendants’ motions to dismiss be granted except as the federal and state claims against Fire Chief Boutwell and the federal claim against the City of Ozark.”

However, US District Court Judge Myron H. Thompson ruled “[a]fter an independent and de novo review of the record … the court will accept the magistrate judge’s recommendation only in part, and will dismiss all claims except the state claims against Boutwell.” The ruling is complicated and a tough read, addressing due process, qualified immunity, negligence, and state-agent immunity. Here is a copy of the decision handed down today for the Legal Eagles who may feel they are up to it:

Here is the complaint as well:

The case against Chief Boutwell will now move forward. While not discussed in the decision, a question remains whether the Judge Thompson has jurisdiction to hear what is now a state law case, or whether the case must be dismissed and refiled in state court.

Here is earlier Fire Law coverage of the case.