Beyond the Rule of Thumb
Survival Tip 42
It is no surprise that lawsuits claiming negligence on the part of government officials are a fact of life. First responders face a tremendous burden when tasked with making decisions under adverse conditions with limited information. The unfortunate reality is that the outcome of these decisions can be debated in court under conditions that are no less severe, including lengthy cross examinations by relentless attorneys and listening to expert witnesses, some of whom could be your peers, dispute your actions. Despite your best efforts to aid those in need, you now become the victim. It may be enough to even make you seriously question joining the fire service in the first place.
To survive legal scrutiny, first responders need to make informed and defensible decisions. These are decisions based on your knowledge and experience as well as those based on your organizational guidelines and what is considered acceptable practice by the fire service in general. This is not meant to stifle innovation or interfere with your ability to make immediate decisions during life-and-death, unforeseen situations. Just remember that you must always be prepared to defend your actions. Here are 10 tips that can make it easier to do so.
1. Know your job. You may be a hazardous materials specialist with years of experience and you may be assigned to teach new members of the hazmat team. Although this no doubt will enhance your credibility in court, you need to demonstrate your willingness to keep your knowledge base current. This is best accomplished by attending ongoing in-service training outside of your organization, including conferences and manufacturer training sessions. It is also helpful to have at least one personal subscription to a job-related trade magazine. Although many firefighters today prefer to gather information through Internet sources, it’s harder to prove your online diligence compared to having in your possession a trade journal with your name on the mailing label. Never forget that lawyers will question your interest in maintaining proficiency, especially for hazardous materials responses in which certain skills are rarely used. Therefore, documented participation in ongoing refresher training is vital. If you teach a class when students receive a certificate, get a certificate for your own files as well.
2. Follow manufacturers’ instructions. Regardless of what piece of equipment you are using, there will usually be some form of instructions from the manufacturer. Whether it involves proper use, routine care, or maintenance intervals, failure to follow these instructions will provide you with little defense if your use of any equipment is later questioned. This goes for atmospheric monitoring devices as well as chemical protective clothing and leak and spill equipment. If you decide to wear a particular chemical suit and it fails during an entry, the manufacturer will likely attempt to claim that this was because the suit was inappropriate for the situation or that you failed to properly perform required maintenance and inspection. If you don’t have access to the manufacturer’s instructions, ask for copies and keep them in a secure place. If you go to court, you can bet the lawyers will have them.
3. Document your activities. We’ve all heard the saying, “If it isn’t written down, it didn’t happen.” When dealing with training and equipment maintenance, this is almost an understatement. More important today is that if you maintain electronic records such as a spreadsheet, make a backup after every records entry. This might sound like a commonsense suggestion, yet there are situations when records are “lost,” usually the result of failure to take a disciplined approach to records retention. When preparing records, document training and maintenance activities, but also record who conducted the class and who performed the maintenance and according to whose guidelines.
Most manufacturers will state that maintenance must be performed by “authorized” personnel. If that means that someone from your department needs to be “factory trained,” then a trip to the factory is in order. Some instruments record maintenance activities internally, so your written records need to match. Any irregularities when it comes to recordkeeping damages your credibility as it relates to using equipment that is improperly maintained and can also cause a judge and jury to question the credibility of anything else you say in court. Of course, if you falsify records, such as stating that equipment was calibrated, tested, or inspected when it actually wasn’t, you could face criminal charges along with civil penalties.
4. Watch those expiration dates. Always stay alert for expiration dates, whether you’re dealing with limited-use protective clothing, calibration gas, colormetric tubes, or air purifying cartridges. The best means to do this is to record the expiration dates when you receive the items, and enter this information into some form of a database that can be sorted by these dates. Your department’s procurement process will dictate how far ahead you need to order replacement items, so be sure to subtract this amount of time from the actual expiration date. For example, if calibration gas expires at the end of August and it normally takes your department a minimum of 30 days to process your purchase order, place the order no later than the end of June for a total of 60 days. This will allow an additional 30 days to receive the shipment from your supplier once it is ordered. Don’t forget to follow up on your order to make sure it was placed. My favorite bureaucratic response from those who fail to do their job is that a particular task “slipped through the cracks.” Unfortunately, stating under oath that someone is dead because something “slipped through the cracks” won’t impress anyone. It will just make you look like a fool and make the plaintiff’s settlement check a lot bigger.
5. Use the latest edition of reference sources. Although reference sources don’t necessarily have expiration dates, there are often later editions published after you purchase your copy. Although information in these later editions may have not changed, it is difficult to know for sure without reading every word. If you are using the fourth edition of a book when the ninth edition is being sold, a jury will likely be convinced that you aren’t keeping up with topics in your field. The same holds true for CDs and other electronic forms of information, even material safety data sheets that you have on file. One option is to make a note to periodically review publisher catalogs for your preferred reference sources for the most recent editions. Six-month intervals should be the minimum for such reviews. Budget for these types of purchases each year as well.
6. Confer with recognized authorities. Despite your training, experience, and ability to effectively use technical reference sources, another valuable source of information for making defensible decisions is an industry representative. Whether your decision involves a chemical or a cargo tank or evaluating environmental impact from a spill, you are no match for people who work with these items on a daily basis and have the professional and educational credentials to back up what they say. Unfortunately, the biggest stumbling block to making this call is usually a really large ego on the part of whoever is in charge. There are some who would rather take a chance sending others into harm’s way than admit that they don’t know everything. If you don’t call these individuals for assistance during an incident and something goes wrong, there is a good chance you’ll see these same people in court–they just won’t be on your side.
7. Get all the facts. No one with experience in emergency services can dispute the benefits of a thorough incident size-up. However, during a hazardous materials incident, size-up includes not only what you can see but what you can’t. For example, during a chemical spill on land, your only concern might be containment of the release to prevent it from spreading on the surface. But this same material could also contaminate underground wells and septic systems as it seeps through soil. If you don’t anticipate this happening, you may fail to notify the appropriate authorities and property owners to take the actions necessary to deal with this problem. Don’t wait until someone gets ill after drinking from their well and they claim that you should have notified them of the potential contamination.
Another example would be failure to adequately assess damage to a pressurized container involved in a collision. You may not notice particular damage that could materially affect the tank’s integrity, such as a gouge that crosses a weld line on a tank. This, coupled with a significant increase in ambient temperature during the course of an incident, could cause the tank to explode and catch you off guard. Yet an expert witness may later claim that anyone with your level of training should have been able to detect this problem and take appropriate measures to avoid a surprise. Remember to get all the facts.
8. Know the limits of your authority and training. A cleanup contractor removes contaminated soil following the release of more than a hundred gallons of diesel fuel spilled during a motor vehicle accident. He completes the task and asks for your approval. You respond that the scene “looks good.” The contractor leaves. In another situation, a building was evacuated for a chemical spill. A contractor cleans up the spill and the owner asks you if it is safe to reoccupy the building. Your answer? “Sure.” In yet another incident, a person exposed to a chemical refuses treatment and transport. Your only comment is, “Sign here,” referring to the patient refusal statement on the prehospital care report.
In each of these cases, you made a decision that far exceeded your level of authority and training. Once again, ego can get in the way of making defensible decisions. You may also be motivated by a desire to bring closure to the incident with minimal delay. But there is no excuse for not contacting those with the legal authority and credentials to make decisions such as these. Representatives from environmental protection agencies should decide “how clean is clean.” Likewise, an industrial hygienist should decide when a building is safe for reoccupancy. I don’t recall any technician or specialist training programs with information on industrial health and safety issues. Our job is to protect the public from immediate threats, not to ensure that they have a safe and healthy work place. The building owner can hire an industrial hygienist for a lot less than you can hire a lawyer to defend you if your decision to reoccupy a building results in someone becoming ill.
9. Take your time when making decisions. Don’t be in a hurry to make a decision regarding how to properly respond to a hazardous materials incident. Although some decisions must be made promptly, there are too many instances in which decisions are rushed for political or economic expediency. This is especially true for incidents that involve lane closures on interstate routes or evacuations of prominent buildings. When a high-ranking government official starts calling the fire chief’s office for an explanation, the pressure begins to mount and it always rolls downhill. If you happen to be on-scene (at the bottom of the hill), chances are your boss may accuse you of overplaying the incident and bringing undue pressure on him. Allowing politics to influence your decisions may not result in the most defensible decisions unless you are willing to throw your boss (and your career) under a bus. However, if your decisions are influenced in this manner and they don’t work out, you may very well have to do this to preserve your integrity. Your best hope is to have a boss that will defend you and not worry about getting fired for defying local or state officials who consider your hazardous materials incident an “inconvenience.” Remember, an inconvenience is temporary but dead is forever.
10. Everyone goes home. Although the intent of this article is to ensure that those in positions of authority make informed and defensible decisions to avoid challenges during criminal and civil proceedings, the overriding benefit of making good decisions is to ensure that everyone goes home. If you think it’s tough facing a lawyer who claims that your decision cost someone their life, imagine how tough it is to face the family of the deceased.
For first responders, your decisions will have an immediate impact at the scene of a hazardous materials incident. However, the true scope of your decisions and the number of people affected can be enormous and have long-term implications. Every decision maker has a tremendous responsibility that cannot be taken lightly. Never forget that the costs associated with your decisions are measured not only in dollars but also in lives.
Questions or comments on this or any other monthly Hazardous Materials Survival Tip can be directed to Steven M. De Lisi at HazMatSurvivalTip@comcast.net.
Click here for more info on Steven De Lisi’s book, Hazardous Materials Incidents: Surviving the Initial Response.
Steven M. De Lisi is a program manager at Tetra Tech EM Inc., responsible for planning, training, and exercise activities related to hazardous materials response. He recently retired from the fire service following a 27-year career that included serving as the deputy chief for the Virginia Air Guard Fire Rescue and as a division chief for the Virginia Department of Fire Programs (VDFP). De Lisi is a hazardous materials specialist and as an adjunct instructor for VDFP conducts hazardous materials Awareness and Operations-level training for fire suppression and EMS personnel. De Lisi has a master’s degree in public safety leadership and is the author of Hazardous Material Incidents: Surviving the Initial Response (Fire Engineering, 2006).
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Subjects: Hazardous materials response, firefighter hazmat training, legal issues for hazmat incidents
