At trial, the prosecution argued that the medics failed to properly assess McClain, failed to properly estimate his weight, failed to monitor him after giving ketamine, and failed to treat him as a patient rather than as a problem to be controlled. The jury convicted Cooper of criminally negligent homicide, and convicted Cichuniec of criminally negligent homicide and second-degree assault.
Now the Court of Appeals has reversed the homicide convictions because the jury was not properly instructed on the standard of care. In plain English, the jury was told to judge the conduct using a general “reasonable person” standard and not the reasonable “provider” standard. The appellate court said that was wrong.
The jury was asked to judge the case based on the question: “What would a reasonable person have done?”
The jury should have been asked to judge the case based on this question instead: “What would a reasonable paramedic, in Aurora, Colorado, in 2019, under those circumstances, with that information, training and protocol, have done?”
That is not just lawyer talk. That is everything, which is why anyone who has ever taken one of my classes knows the “reasonable provider” standard.
EMS is different. We make decisions in ugly places, with bad information, under pressure, surrounded by chaos, noise, fear, police activity, family members, bystanders and sometimes danger. We do not get clean facts. We do not get perfect histories. We do not get time to form committees. We get a few minutes — or sometimes just a few seconds — to make a decision and then years for everyone else to critique it.
When the paramedics arrived, this had been a noisy, chaotic, and dangerous scene, or so they were told. The paramedics were provided only bad information and incorrect history by the police. But even that does not excuse bad medicine. It explains with great clarity, though, why the “reasonable provider” standard matters.
The law cannot fairly judge a paramedic by pretending the paramedic was just some random person on the street — or a police officer. If the allegation is that a medic made a bad medical decision, then the jury has to understand what a reasonable medic would have done at that time and in that system.
