Long Beach Firefighters Ordered Reinstated

Firefighters/Paramedics Josh Rosenstein and Greg Gabel were terminated by the Long Beach Fire Department after what can only be described as trumped up charges caused by a jail nurse trying to cover up her own mistakes and blaming Rosenstein and Gabel for an unfortunate patient death that occurred at the Long Beach City Jail. The Department chose to believe the nurse, even after another patient death she was involved in, over the two firefighters, who had unblemished records and one of which was on the promotion list for Captain. Coincidentally, the same jail nurse was married to retired brass from the Long Beach Fire Department. Attorney Andrew M. Dawson successfully litigated this matter and exposed the blatant misrepresentations and clear motive of the jail nurse and both terminations were overturned by the assigned Administrative Law Judge from the Office of Administrative Hearings.

The terminations stem from an incident that occurred on May 1, 2010, when a DUI inmate was booked into the Long Beach City Jail. The inmate was later found to be unresponsive and the jail staff called Fire Emergency for assistance. Fire Emergency assigned the call to an unrelated response team.

Upon hearing the call over the radio, Rescue 2 (Gabel and Rosenstein) notified dispatch that they were in the area and to reassign the call to them. Within two minutes of the call, Rescue 2 responded to the Jail. Upon arrival, the jail nurse advised the inmate was now arousable and that she was getting ready to cancel the call right before they arrived. She advised that she checked his pulse and found that his vital signs appeared within normal limits. She stated that all she needed them to do was check his blood sugar. She said that the inmate had no injuries and his medical history was unknown. At no time, did she reference a possible seizure, which she tried to later claim when she testified in the hearing.

That day, Gabel’s assignment was the radio person, and he was tasked with documenting information on the Emergency Medical (EM) Form and to handle the radio. Rosenstein’s assignment was the patient person, and his tasks included assessing and treating the patients.

Rosenstein entered the sobering cell and assessed the inmate with the jail nurse standing close by. There was no evidence of injury, as it was a padded room and contained no obstructions or mechanisms that could cause injury. His eyes were open, and he was breathing at a normal rate. The inmate emitted a strong odor of alcohol, and while being assessed by Rosenstein, the inmate told him to leave him alone. While in the sobering cell, the jail nurse repeated that all that was needed was a blood sugar test and that the inmate just needed to sleep it off.

Rosenstein conducted the glucose test and it was normal. The nurse stated that she would watch the inmate and call paramedics again if it was needed.

Gabel was only in the sobering cell momentarily and then he left to radio that the engine could be cancelled and to begin the paperwork. Gabel requested the inmate’s information from the jail staff and began filling out paperwork at the control counter. While Gabel was at the counter, the nurse exited the sobering cell momentarily and reiterated to Gabel that the inmate was just drink and that he needed to sleep it off. Gabel advised the nurse to call 911 if additional assistance is needed.

While Gabel was completing the paperwork, the engine company arrived and Gabel advised that he had just notified dispatch to cancel their call. However, the Fire Captain stayed at the control center with Gabel and the two other firefighters proceeded to the sobering cell. Gabel advised the captain that the nurse only wanted the inmate’s blood sugar checked, which was also confirmed by the jail nurse herself. The two firefighters upon entering the sobering cell were advised by Rosenstein that they tried to cancel them and the jail nurse reiterated the same and stated that she only needed the inmate’s blood sugar level. The jail nurse also stated the inmate was just drunk and was sleeping it off.

Despite the jail nurse’s testimony to the contrary, which was determined by the ALJ to be far from credible, at no time did the captain hear any objections by the nurse about not transporting the inmate. There was also no mention that the inmate had suffered a seizure. At no time did the other firefighter hear anything regarding the jail nurse requesting transport or stating that the inmate had suffered a seizure. Additionally, at no time were Gabel and Rosenstein ever notified of an alleged seizure or requested to transport the patient by the nurse.

Upon returning to the rig, Gabel completed the remainder of the EM Report and conferred with Rosenstein regarding the remaining information. Gabel wrote down the vital signs that Rosenstein gave to him. Rosenstein did not indicate to Gabel that the vital signs were the ones provided by the jail nurse when they first arrived at the jail. He documented that the nurse stated that the patient will remain in custody and she was advised to contact 911 for additional assistance. He documented the advice he gave pursuant to the Against Medical Advise Release, but the Release was not signed. He also errantly marked that the EKG was normal, based on an assumption that an EKG test strip is not included in the report, per practice, if it is normal. Since Rosenstein did not provide him a strip he assumed it was normal. Gabel’s notation regarding the EKG was incorrect, as no EKG was performed on the inmate. While in the rig, Gabel did not call into the base hospital to provide the information for the EM Report or to report the paramedic unit was leaving the inmate at the jail.

The incident that happened after the response by Gabel and Rosenstein is what caused the Department to question their actions during the call. A second call was made on behalf of the inmate approximately two and a half hours later. During the time between the two calls, at no time did the jail nurse check on the condition of the inmate. Eventually, the supervising sergeant asked a jailer to check on the inmate as his feet had not moved as seen on the video surveillance. The jailers were unable to awaken the inmate. The jail nurse was summoned, and she also was unable to awaken him, so paramedics were called. An unrelated rescue unit responded to the call (Rescue Unit 1) and the inmate was unconscious, was not speaking, and his eyes were closed. The paramedics determined the inmate should be transported. While on the gurney outside the cell, the inmate began having a seizure or convulsions. He was transported to the hospital and admitted, where he later died on May 9th, eight days after the incident. The coroner indicated there was a “temporal relationship” between the brain hemorrhage and the inmate’s long‐time cocaine use; however, limited toxicological data prevented that as a final determination of death.

Gabel and Rosenstein heard the radio call go out for the second call to the jail. They learned it was for the same inmate. At that time, Gabel realized he had not called the base hospital for their emergency call at the jail earlier in the day. He then contacted the base hospital to provide a documentation report regarding the previous emergency call. When asked who signed the AMA Release, Gabel replied that it was the nurse. Later that night, at around 11:00 p.m., while making copies of the report, he looked at the back page of the report and realized that the nurse had not signed the AMA release, as he previously assumed. The next day Gabel informed the Department’s Emergency Medical Services coordinator and his station captain that he had not obtained the nurse’s signature. Clearly, there was no intent to deceive or falsify documents when he brought the error to his command staff’s attention.

The Police Department conducted a criminal investigation and obtained written statements from the jail staff. The Fire Department then utilized the reports and documents and conducted a limited administrative investigation. The jail nurse refused to a taped interview by the Fire Department; rather, the Fire Department memorialized the few questions they asked of the jail nurse in a memo. In sum, the City concluded Gabel and Rosenstein ignored their training and made a conscious decision to refrain from providing assistance to a jail inmate in need of medical aid, which action led to the death of the inmate, and that they tried to conceal their conduct by falsifying information and were dishonest. The Assistant City Manager stated while testifying that the inmate’s death could have been prevented; however, no such evidence was ever presented by the Department to support said conclusions and such conclusions were determined to be contrary to the autopsy report.

The ALJ held that the jail nurse was not credible. She refused to be interviewed formally and only answered a couple of questions over the phone with the Deputy Fire Chief. However, during the hearing, she claimed that she could not recall refusing to be interviewed. The nurse also testified that the inmate had urinated on himself and believed he had a seizure prior to the first call, but no evidence supported her testimony and no jail documentation stated such. She also testified that the reason why she did not check on the inmate after the first call was because she was not on that floor of the jail over the next few hours between the two calls. However, video evidence showed she was on that floor and near the sobering cell on 21 separate occasions between the first and second calls. She also initially denied any discipline arising from a second inmate death that happened in August 2010, which was around the same time the final decision to terminate Gabel and Rosenstein occurred. She later acknowledged that the City had placed her on an unpaid leave for four months but claimed she was cleared of wrongdoing but did not receive any written notice confirming such.

The Department also had the investigator testify as an expert witness. However, the ALJ gave less weight to his opinions, based on his purported bias as the investigator and his opinions which were not corroborated by the City and county policies and procedures regarding patient care.

Throughout these proceedings, Gabel acknowledged he made errors on the report relating to the EKG and the AMA. However, they were mistakes and not intentional acts. He immediately reported the error regarding the AMA to his command staff. He also acknowledged that he had forgotten to call the base hospital because the call had been downgraded to “non‐transport” and that he made a mistake when he advised the base hospital that the nurse had signed the AMA, which she in fact had not.

Both Gabel and Rosenstein had letters of references outlining their reputations for being diligent, professional, and honest paramedics. They both had unblemished disciplinary records prior to this event.

The ALJ held Gabel did not falsify any record on the EM Report with intent to decide and Rosenstein was not negligent in his duties in providing medical aid to the inmate. It was determined that the AMA procedures were not applicable in this situation; therefore, the alleged violations surrounding these allegations were not upheld. The ALJ did find that Appellants failed to contact the base hospital; however, such failure did not constitute an inexcusable neglect of duty, as the particular circumstances surrounding the first call mitigated said failure. The charge regarding failure to accurately report pertinent information regarding the AMA Release by Gabel was upheld; however, it did not constitute dishonesty. He never intended to deceive anyone, as he notified command staff as soon as he realized that she did not sign. Overall, the ALJ concluded the Appellants did not fail to heed their paramedic training, did not make the unconscionable decision to treat or transport a patient in need of medical aid, and did not falsify information or records. Appellants’ failure to call the base hospital was an error arising from the circumstances of the emergency response and not reflective of their competency and integrity.

The ALJ found the Department failed to prove the majority of the allegations and the discipline imposed was excessive. The terminations were reduced to short‐term one‐step pay grade reductions and additional training. Both firefighters are pleased to finally have their names cleared from these outrageous allegations and are thankful for the support of their association (Long Beach Firefighters, Local 372) and their attorneys.

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