By Henry Costo
Published Tuesday, March 31, 2009
| From the April 2009 Issue of FireRescue
Americans are constantly bombarded with media reports of civil litigation involving virtually every issue imaginable. In many instances, the actions are so blatantly unfounded and unsubstantiated that only the plaintiff attorney perceives the suit to be anything other than frivolous. Given such a litigious operating environment, it should come as no shock that fire departments throughout this country are increasingly finding themselves embroiled in litigation. In fact, the only real surprise should be that it’s taken as long as it has for such cases to become routine to the fire service.
By now all departments should be cognizant of this reality. With this in mind, jurisdictional leadership must consider and address legal aspects, such as potential civil liability exposure, as part of a department’s continuous personal protective equipment (PPE) planning, selection, care and maintenance processes. In no way am I suggesting that such considerations should assume preeminence. The failure to contemplate the potential legal ramifications, however, will likely engender unpleasant consequences in civil court.
As a general rule, legal proceedings have tended to focus on alleged improprieties during the selection process itself and/or on allegations of product liability related to line-of-duty injuries sustained by firefighters while operating in the selected PPE elements. In other words, litigation can, and will, derive from both pre-purchase and post-acquisition activities, including the selection, care, repair and maintenance processes.
Although there’s no “level-A” legal protection that will render a department litigation-proof, there are most definitely methods of PPE evaluation and selection that will function primarily to ensure firefighter safety, while simultaneously diminishing your department’s liability exposure in the process.
Reducing Successful Litigation
As I have written previously (“A Work in Progress,” FireRescue, November 2007), it’s essential to keep in mind that PPE selection is a documented and continuous process, affected by any number of internal and external forces. Some of the more compelling factors include organizational needs and requirements, technological advancements, evolving national standards and emerging technologies. Additional, less important considerations include color, cost and preference for traditional appearance. Although these secondary aspects, particularly cost, are certainly relevant, they must never be permitted to unduly influence PPE selection and/or purchase decisions to the detriment of firefighter safety.
Ultimately, the most compelling determinants of any department’s PPE requirements must derive from a deliberate, continuous and documented risk-assessment process. The jurisdiction’s minimum requirements for protective performance, such as thermal protective performance (TPP) and total heat loss (THL), should be a function of this considered self-assessment. For specification purposes, these levels must, of course, meet or exceed the minimum levels prescribed by the prevailing edition of NFPA 1971: Standard on Protective Ensembles for Structural Fire Fighting and Proximity Fire Fighting. Documented risk-assessment and a continuous, evaluative selection processes will have a profoundly beneficial impact on a department’s efforts to ensure firefighter operational safety.
One positive ancillary consequence of such an approach is a shield against successful litigation related to the PPE selection process.
3 Stages of Evaluation
Once a department has determined its basic PPE performance requirements, the next phase in the selection process should include a comprehensive evaluation of the competing candidates for purchase. It’s important to recognize that simply conducting a “wear-test” does not constitute a complete and thorough assessment. The emerging consensus among PPE decision-makers is that a truly comprehensive evaluation of a particular element of PPE should actually include three fairly distinct stages. This, by the way, is a view shared by many of the industry litigators with whom I have discussed the topic.
Examination of Garment Elements
The initial step in the vetting process should consist of a thorough examination of the element under consideration by the managing entity of the selection process, in our case the Safety Office. The respective element should be methodically scrutinized to determine consistency with the jurisdiction’s previously identified performance requirements, its required TPP and THL levels, prevailing standards and so forth.
At this point, the project managers must eliminate any competing element that doesn’t satisfy the requisite basic protective performance levels, as determined through the risk-assessment process. Managers must ensure that the remaining elements offered for evaluation by the contending manufacturers and/or distributors are actually comparable.
Note: A vendor may attempt to compromise the evaluative process by knowingly offering a test garment loaded with subjective comfort features (i.e. expensive luxury options not included in competitor test elements). In most cases, the evaluating authority has not requested the inclusion of such features in test gear or has even expressly prohibited their inclusion. Although the basic protective performance of the evaluation garments may still be comparable, the inclusion of luxury features in any, but not all, of the competing products will demonstrably skew the results of the second stage of the evaluation process, the wear-test.
It’s essential that any valid wear-trial be controlled and coordinated through the project manager(s) in your jurisdiction. Best practices strongly recommend that suppliers not be permitted to distribute wear-trial elements directly to individual evaluators without one or more of the jurisdiction’s project managers present. Collective experience shows that allowing vendors unfettered access to evaluators may encourage vendors to attempt to sabotage the process by distributing PPE elements outside of the category of gear being tested.
Upon completion of the managed wear-test portion of the comprehensive evaluation, all wear-test gear should be collected, secured and examined by the project management team. It’s during this crucial final phase of the evaluative process that wearer observations are analyzed and consolidated.
Durability, utility, ergonomic and protective performance, liner system integrity, seam integrity and so forth should be assessed by the project team. At this point, it’s strongly recommended that you subject all wear-test gear to the advanced inspection process as described in NFPA 1851: Standard on Selection, Care and Maintenance of Protective Ensembles for Fire Fighting and Proximity Fire Fighting. It’s only after all relevant data and information has been gathered and documented that an informed, prudent and appropriate selection decision can be made.
Violations of Trust
This three-step process ensures a comprehensive, systematic and deliberative evaluation of the PPE under consideration. Furthermore, this approach will preempt efforts of unscrupulous vendors and manufacturers to unduly influence the outcome of evaluations, an all-too-common occurrence.
To illustrate, a few years ago our department conducted a comprehensive evaluation of turnout coats and pants. As directed, compliant suppliers delivered the garments to be evaluated to the Safety Office for completion of the first-stage examination. Following completion of this initial phase, the project management team distributed the elements to the individual field testers.
At that point, the Safety Officer also provided instruction to the evaluators regarding the nature of the input requested, based upon the garment characteristics being assessed. A rating form specifically designed by the project management team was also distributed to testers to record personal observations and feedback.
Meanwhile, a rogue manufacturer appeared unannounced at a wear-test station and commenced distribution of a complete ensemble of PPE elements clearly exceeding the scope of the evaluation being conducted. This clandestine method of distribution was a willful violation of both the letter and spirit of the process. It was attempted in direct disregard of explicit instructions to all of the competitors that any test turnouts must pass initial examination by the Safety Office before being distributed by that Office to the respective evaluators. In addition, the turnout elements delivered were of the company’s high-end edition—not the model explicitly designated by the Office, and as such, were not comparable to the elements provided by the cooperating manufacturers.
In essence, this recalcitrant PPE “Santa” had heavy-handedly endeavored to bias the assessors by providing his entire top-of-the-line PPE ensemble, including leather boots, leather helmets, gloves, etc., which were clearly not the subject of any department-sanctioned wear-test. Adding insult to injury, the vendor also provided each evaluator with a company designed “evaluation sheet” which was blatantly designed to favor this particular manufacturer.
Perhaps the most brazen transgression by this vendor occurred as he provided free “test” gear to several members of the department outside of his designated field-test company. This unauthorized PPE was given to non-evaluation team members and without the knowledge or consent of anyone in the department other than the receiving individuals. Indeed, significant time elapsed before this violation was discovered, all involved members were identified and all of the conscript gear was recovered from the recipients. At that point, it was an easy decision to immediately return all PPE to the vendor and disqualify it from the selection process.
Under no circumstances should such shenanigans be tolerated, as they tend to strongly bias the perspective of even the most objective rater and thus compromise the integrity and credibility of the entire evaluation. Project managers must remain vigilant for these and other unethical practices. They should establish and promulgate clearly delineated rules of participation and ensure that all vendors adhere to those precepts. Failure to do so could adversely affect firefighter safety by distorting the outcome and legitimacy of the selection process. Furthermore, such process-related deficiencies will surely invite process-related litigation.
It doesn’t matter which mechanism your department employs to manage the evaluative selection process, be it a PPE selection committee, safety officer, project management team or any other method of selection process control—as long as the process is managed, controlled, balanced, transparent and documented. The application of the general principles of the three-part evaluation process described above will promote the achievement of those attributes and thus facilitate the selection and acquisition of jurisdictionally appropriate PPE.
It is important to recognize, however, that notwithstanding its seemingly basic appearance, the elements of the PPE ensemble are relatively sophisticated garments—as are the related design, engineering, standard-making, testing, certification and procurement processes. Therefore, the effective application of these guiding principles requires that all project team members have a solid working knowledge of the department’s risk assessment and related PPE needs, the prevailing standards, manufacturer practices, etc.
It is at least equally important that all involved members recognize that firefighter safety is the transcendent priority in the selection process. Although subsidiary issues, such as preferences for traditional design, color and appearance, can be part of the discussion, such considerations must never be permitted to compromise firefighter safety in any way.
Another key element of the decision-making process is cost. To disregard or to minimize the importance of this issue, particularly in this turbulent economic environment, would be at least naïve, if not disingenuous. There’s no denying the relevance of cost to the discussion, but there’s also no refuting the inviolate principle that firefighter safety is of singularly paramount importance in our decision making.
Cost-related issues should not, and must not, be permitted to preempt legitimate concerns for firefighter safety. On the other hand, attempts to masquerade cosmetic preferences as safety concerns will most likely prove to be counterproductive in the end. Such duplicity will likely damage negotiating credibility, and in the long run, encourage the efforts of those inclined to cut costs even at the expense of firefighter safety.
Ultimately, the implementation of a documented, systematic approach to PPE selection lays the foundation for cogent and compelling arguments for legitimate, perhaps more costly, safety-related PPE features. The incorporation of a comprehensive evaluation process will support and facilitate the selection and acquisition of safe and affordable PPE for any jurisdiction.
Finally, while it should never be the driving force in the decision-making process, the employment of such a systematic, comprehensive, documented and thorough approach will effectively diminish the likelihood of process-related litigation.
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