Legal Lesson of the Month: The Wife’s Pills

EMS can be full of interesting and tricky legal scenarios. While you can’t have an attorney ride with you, it behooves providers to have at least some familiarity with the principles, precedents, and major issues of EMS law. To that end EMS World is pleased to offer the EMS Legal Lesson of the Month.

These cases are presented by prominent attorneys in the EMS field. This month’s comes from Larry Bennett, program chair for fire science and emergency management at the University of Cincinnati. Bennett’s department publishes a monthly Fire & EMS and Safety Law newsletter; subscribe to that by e-mailing Lawrence.bennett@uc.edu or read the latest edition here. Find this case and more in his newsletter archive. 

Case: Antoine Dufrene v. Northshore EMS, LLC

Decided: December 2021

Verdict: The Louisiana First Circuit Court of Appeals ruled 3–0 that the trial judge properly granted summary judgment to the employer, Northshore EMS, which terminated EMT Dufrene for breach of its drug-free workplace policy. Dufrene had alleged he was fired for filing a worker’s compensation claim.

Facts: The defendant hired the plaintiff as an at-will EMT in 2013. On July 30, 2017, the plaintiff allegedly sustained injuries in an altercation involving a patient while on duty as an EMT. The plaintiff reported the incident to the defendant on August 2 and told his operations manager, Eric Reed, that he wanted to submit a claim for worker’s compensation. Reed informed the plaintiff that he needed to prepare an incident report and get a drug screen that same day.

On August 3 the plaintiff submitted the incident report to the defendant. It stated his back pain was so severe from the incident on July 30 that he sought treatment in the emergency room at Lakeview Medical Center on August 1.

On approximately August 22 the defendant learned that the plaintiff tested positive for barbiturates and butalbital from the drug screen administered August 2 at the St. Tammany Parish Hospital emergency room. That same day the defendant contacted the plaintiff and gave him an opportunity to provide a written response as to why he tested positive for the drugs. In his written response the plaintiff said his back pain was so severe from the incident on July 30 that he sought treatment at Lakeview Regional Medical Center on August 1.

Before going to Lakeview the defendant had an appointment with Dr. Harry Jasmin, his treating physician for his opioid addiction, wherein he was randomly drug tested. The plaintiff said his back pain worsened, so he took one of his wife’s prescribed Fioricet tablets the night before he provided a drug screen sample to the St. Tammany Parish Hospital emergency room on August 2.

On August 31 the defendant sent the plaintiff a letter of termination due to his violation of the defendant’s drug-free workplace policy. The letter further said the defendant did not find the plaintiff’s explanation to be sufficient grounds to waive the policy. The defendant later learned that on August 1, the plaintiff tested positive for buprenorphine during the drug screen with Jasmin.

(Jasmin stated in his deposition that the plaintiff did not tell him he had injured himself and was suffering back pain during his August 1 appointment. Jasmin further said the plaintiff was undergoing opioid treatment with suboxone, which is buprenorphine. The plaintiff had been treated for his opioid addiction with suboxone for over five years.)

Dufrene then sued, alleging his termination represented retaliation for filing the worker’s comp claim.

Key quote: “Although the plaintiff may have been upset and insulted after reading his termination letter, the receipt of this correspondence regarding his employment does not rise to a cause of action…as he was clearly aware that violating the defendant’s drug-free workplace policy could result in his termination.”

Legal lesson: Drug-free workplace policies, including post-injury drug testing, are lawful for EMS and other emergency responders.