From Green v. Kearney (N.C. Ct. App. Apr. 6, 2010) (some paragraph breaks added):
The facts as alleged in plaintiffs’ complaint show that on 24 January 2005, at approximately 8:53 p.m., emergency services were dispatched in Franklin County, North Carolina to the scene of an accident involving a pedestrian-Green-and a motor vehicle. Green suffered an open head wound as a result of the accident. Defendant Wade Kearney (“Kearney”) with the Epsom Fire Department was the first to arrive at the scene and checked Green for vital signs. Kearney determined that Green was dead and did not initiate efforts to resuscitate him.Several minutes later, defendants Paul Kilmer (“Kilmer”) and Katherine Lamell (“Lamell”) with Franklin County EMS arrived. Kearney asked Kilmer to verify that Green did not have a pulse, but Kilmer declined to do so, stating that Kearney had already checked and that was sufficient. Without checking the pupils or otherwise manually rechecking for a pulse, Kearney and Kilmer placed a white sheet over Green’s body.
At approximately 9:00 p.m., defendants Pamela Hayes (“Hayes”) and Ronnie Wood (“Wood”) with the Louisburg Rescue Unit arrived at the scene. After being informed by Kearney and Kilmer that Green was dead, neither Hayes nor Wood checked Green for vital signs. At around 9:31 p.m., Perdue, the Franklin County Medical Examiner, arrived at the scene. He first conducted a survey of the scene, taking notes regarding the location of Green’s body and the condition of the vehicle that struck him.
Once the Crime Investigation Unit arrived, Perdue inspected Green’s body. While Perdue was examining Green, eight people saw movement in Green’s chest and abdomen. Kearney asked Perdue whether Green was still breathing and Perdue responded: “That’s only air escaping the body.” Once Perdue finished examining Green, he directed that Green should be taken to the morgue located at the Franklin County jail.
At approximately 10:06 p.m., Green was transported to the morgue by Hayes and Wood where Perdue examined him. Perdue lifted Green’s eyelids, smelled around Green’s mouth to determine the source of an odor of alcohol that had been previously noted, and drew blood. During this particular examination, Perdue, Hayes, and Wood all observed several twitches in Green’s upper right eyelid. Upon being asked if he was sure Green was dead, Perdue responded that the eye twitch was just a muscle spasm. Plaintiffs claim that Hayes did not feel comfortable with Perdue’s response and went outside to report the eye twitch to Lamell. Hayes then returned inside and asked Perdue again if he was sure Green was dead. Perdue reassured Hayes that Green was, in fact, dead.
Green was then placed in a refrigeration drawer until around 11:23 p.m. when State Highway Patrolman Tyrone Hunt (“Hunt”) called Perdue and stated that he was trying to ascertain the direction from which Green was struck. To assist Hunt, Perdue removed Green from the drawer and unzipped the bag in which he was sealed. Perdue then noticed movement in Green’s abdomen and summoned emergency services.
Green was rushed to the hospital where he was treated from 25 January 2005 to 11 March 2005. Green was alive at the time this action was brought. His exact medical condition is unknown, though plaintiffs allege that he suffered severe permanent injuries.
The court holds that the lawsuit can’t continue in superior court, because of sovereign immunity and official immunity, and has to instead go through the North Carolina Industrial Commission (no word on how that claim, which has already been filed, is going).
Malvolio says:
April 13, 2010, 5:41 pmCraig,AR says:
Nice to know those handling our dead are up to Monty Python’s exacting standards.
April 13, 2010, 5:44 pmRichard Nieporent says:
This story reminds me of the “world’s funniest joke”. They didn’t quite go so far as what happened in the joke, but they came pretty close.
Two hunters are out in the woods when one of them collapses. He doesn’t seem to be breathing and his eyes are glazed. The other guy whips out his phone and calls the emergency services. He gasps, “My friend is dead! What can I do?”. The operator says “Calm down. I can help. First, let’s make sure he’s dead.” There is a silence, then a shot is heard. Back on the phone, the guy says “OK, now what?
April 13, 2010, 5:46 pmMalvolio says:
Snark about government-provided healthcare in five … four …
April 13, 2010, 5:52 pmJMA says:
Holy crap!
In my part of the country at least, it’s my understanding that first responders are not actually allowed to make a judgment like “he’s dead,” which results in a lot of pointless trips to the hospital so that the doctor can say “he’s dead,” (to hear the docs tell it, ‘DOA’ usually means the same as ‘dead at the scene’) but I prefer paramedics making a lot of pointless trips to this kind of thing. Honestly.
Who told this ape that he was qualified to recognize a corpse? Does North Carolina have similar rules on this kind of thing? And does whatever immunity this nut is still qualified for protect him from liability for acting outside his official capacity (which I’m still assuming does not involve declaring someone dead)?
Remind me not to get injured in North Carolina.
April 13, 2010, 6:02 pmjstar says:
With emergency services like these, who needs death panels?
Hey-oh!
April 13, 2010, 6:02 pmChris Travers says:
Wow. Just wow……
April 13, 2010, 6:13 pmMartin says:
If he had been an organ donor, would he indeed now be dead?
April 13, 2010, 6:14 pmHouston Lawyer says:
During my concealed carry class, the policeman teaching the class talked about a crime scene where the victim was DRT. I immediately picked up on the “Dead Right There” reference.
It is hard to get past your most basic assumptions. I think few people would check a body if told that it was already dead.
April 13, 2010, 6:25 pmChrisTS says:
I hope you will not be mocked for this phrasing.
April 13, 2010, 6:26 pmanomdebus says:
Here are a couple links with more information:
The county settled, but there are apparently several outstanding suits:
http://www.ncwanted.com/ncwanted_home/story/6107656/
This one related to this judgment, apparently only relating to the coroner:
April 13, 2010, 6:42 pmhttp://www.examiner.com/x-17800-Raleigh-Headlines-Examiner~y2010m4d7-Court-rules-Family-cannot-sue-Franklin-County-after-man-was-falsely-declared-dead
ChrisTS says:
Even if it’s moving?
April 13, 2010, 6:45 pmLaura(southernxyl) says:
I would. “Trust but verify” is my middle name. And I’ve never done anything so important as to determine that someone is beyond medical help and therefore shouldn’t get any.
April 13, 2010, 6:45 pmMycie says:
Yikes! Last November, I had no detectible pulse or blood pressure in my extremeties for about 15 minutes after a car accident. I was conscious and talking at the time, joking with the paramedics that I was not actually dead. I guess in NC it wouldn’t have been joking!
April 13, 2010, 6:54 pmDave N. says:
That’s a strange middle name for parents to foist on their child.
(Sorry, I couldn’t resist)
April 13, 2010, 6:58 pmDave N. says:
Remind me never to get injured in Franklin County, North Carolina.
April 13, 2010, 6:59 pmJMH says:
I lived near the area where the accident occurred. Based on the coverage from years ago, this guy suffered terrific injuries in the accident and his own mother thought he was dead. I believe this was a hit and run and the victim possibly spent hours in a ditch before being discovered. I don’t think the delay in treatment was a factor in the outcome.
NC is a contributory negligence state. Sovereign immunity is waived up to the value of any liability insurance.
Not really sure the point in suing the State, as medicaid would be picking up his treatment.
April 13, 2010, 8:07 pmRob says:
This happens much more often than you think. Having spent 17 years as an EMT I can tell you that more than once I have
seenheard of one responder says a person is dead, but then someone else figures out he is alive before the family is told or the ME shows up. It never gets reported because, well you can figure it out.The thing that would REALLY mortify the public is the “Well if he ain’t dead yet, he’s about to be” scenario. Someone that is so totally messed up (like multiple shots to the head, but the heart doesn’t know its supposed to stop beating), that there is no way they are going to live, so why bother getting all that equipment out, getting exposed to all that blood, and having to do all that paperwork?
And then there is the ever-present it’s 4:00am, this is our 22nd call this shift, this guy is 98 years old, and has cancer. He’s in cardiac arrest, but there is no way I’m getting down on this urine, feces, and cock-roach infested floor and pumping on this guy’s chest for 40 minutes….DOA.
For those that are repulsed and going to say the people that act like this should get into a new line of work. I will put it in a legal sense: It’s like an attorney accepting a plea agreement even though he MIGHT get a better result going to trial, but the trial isn’t worth the work.
Now I know this a site full of attorneys, so I would like to go on record stating these are all things I have HEARD about. I have no personal, first hand knowledge of any of this.
April 13, 2010, 8:25 pmSyd Henderson says:
What about being zipped inside a plastic bag for an hour?
April 13, 2010, 9:16 pmBenP says:
I’m presently aware of a suit where two nurses refused to attempt to resuscitate someone who subsequently died.
April 13, 2010, 9:55 pmMatthew Carberry says:
You’re lucky they didn’t take you for a zombie, or some other form of undead.
April 13, 2010, 10:19 pmOsiris says:
In my EMT-Basic class we were told that only the coroner or a doctor was allowed to call any but the most obvious deaths in our area. And by obvious I mean decapitation, gunshot wound to the head, massive crush injury to the head, etc.
If there is any sign of a pulse, breathing, eye movement, we must attempt resuscitation.
If there is no detectable vital sign but none of the above causes of death, we must attempt resuscitation.
If a drowning victim has been under water for less then an hour, we must attempt resuscitation. If it’s been over an hour we must attempt unless the medical director directs us not to. The mammalian diving reflex is just weird.
It may be a lot of work, but especially in winter when it’s cold out there may be no possible way to know. It’s also pretty good lawsuit protection.
April 13, 2010, 10:36 pmOsiris says:
This isn’t really surprising. There can be several causes for that reaction especially after blunt trauma. That’s why there are several possible points an EMT must assess.
April 13, 2010, 10:39 pmTim Hulsey says:
On the other hand, there is the situation where I, as a consulting physician, was told that the multiple trauma patient had fractures that would require a trip to the operating room, but was otherwise stable. While I trusted the orthopedic surgeon and ER physician who had already been with the inebriated sometimes uncooperative the patient for several hours, I did my own physical examination. I found a loud heart murmur, indicating an aortic valve injury which required transfer to another facility for valve replacement. Had the patient been taken to the OR for repair of his non-life-threatening injuries, he would likely have crashed and died before anyone could figure out what the problem was. Time-induced sobering and improved cooperation of the patient helped me diagnose what two other competent physicians hadn’t been able to hear. The patient is alive and well 20 years later and is a paramedic. Suffice it to say, trauma patients can be difficult to evaluate. Re-evaluation was the key for my patient and allowed me save a life. Three heads were better than two!
April 13, 2010, 10:44 pmWhat a privilege that was for me!
Mair says:
Yeah…. Thats why a decision on the plea is one of the things explicitly reserved for the defendant.
Sweet! No more lawyer jokes. Lawyers are more ethical than EMTs!
April 14, 2010, 12:00 amPeter Gerdes says:
Given the huge size of the country and the correspondingly high number of deaths and accidents it would be amazing if this never happened. People don’t have a good intuitive sense of just how big 300 million truly is, almost every imaginable fuck up that can happen will happen.
Actually I think it’s a shameful commentary on our irrationality that we find such situations (real or imagined) so dreadful and intolerable.
I mean think about it for a moment. These are situations where the expected loss of QALYs (quality life years) is likely to be quite small but we don’t bat an eye when budget cuts cause the response time to slip from 5 to 7 minutes even though the likely lose of QALYs is surely bigger than failing to perform CPR on 98 year old cancer patients in roach infested rooms.
Indeed, the level of health care we recieve is a direct consequence of the reluctance people have to deal with urine, sweat, blood and other disgusting bodily fluids. One reason that nursing pays relatively well but can’t find workers is that many people find it unpleasent.
In other words people are dying every day because people (including you and I if you aren’t in the medical profession) decide it’s not worth the money being offered to save people’s lives. Medicine is a particularly obvious case of trade offs, doctors are trained to divide their working hours (and don’t have to stay at the hospital 24 hours a day after residency) based on potential benefit. No doubt the more onerous you make the duties of a paramedic the more we will have to pay to have them and the less we will have so either way you slice it paramedics are deciding whether it’s worth the money to do various unpleasant jobs.
–
To be clear I do ultimately think the rules we apply to paramedics and other health professionals mandating treatment in situations like the above ultimately are good but I just wanted to point out it’s hardly obvious and it takes serious thought to discern the benefits. In my opinion the reasons to punish/dissuade such behavior are primarily the risk of corruption or personal influence (maybe you don’t bother to treat the guy with a crush on your wife) and more importantly the public perception of such.
Ultimately, the kind of medical attention that truly improves our quality of life are things like antibiotics, pain killers and a small number of other treatments that relieve suffering. While we all desire to live longer it’s doubtful that we would really be much happier with a 200 year lifespan instead of a 100 year one (and for that matter if we expected a 50 year span we’d probably feel the same about 100). However, because we all love and care for others and don’t want to lose them medical care spends huge sums of money keeping people around in relatively unpleasent situations and increasing our grief when our loved ones can’t be kept alive for as longs as modern car has caused us to hope for.
But hey, I’m in the same boat. I’m not giving up my doctor visits or letting my wife do so.
April 14, 2010, 12:05 amNickM says:
Don’t ever get injured in Franklin County, North Carolina.
Nick
April 14, 2010, 5:07 amNathanM says:
For what it’s worth, if I knew another lawyer had done this I would file a complaint against the lawyer myself if I could, and strongly urge the client to file a complaint if I could not, and I would hope the lawyer would be disbarred.
April 14, 2010, 12:31 pmMatthew Carberry says:
[] Yes [] No [] Remind me again later
April 14, 2010, 2:03 pmThe Drill SGT says:
Actually not :)
In fact the Law recognizes that lawyers are less ethical, which is why the law mandates that the decision is out of their hands and the customer gets to make the call.
Trust a lawyer, not to understand the ethics of a given situation
/snark off :)
April 14, 2010, 3:05 pmAround the Mediverse: April 14, 2010 « The Notwithstanding Blog says:
[...] Volokh tells of litigation that arose after an accident victim was mistaken as dead many, many, many times. I’m not one to second-guess decisions made under tricky [...]
April 14, 2010, 5:57 pmmuriel schwenck says:
When I was in high school in the 70′s a boy shot himself in class about 2PM in the afternoon. He used a .22 . He showed the gun to his best friend, told his plan, but the friend did nothing except try to talk him out of it. He was taken to the local very small community hospital, declared dead, and lay under a sheet until 10PM when someone notices signs of life. I don’t know what steps they took at that point to save him because it was probably way too late. He died soon after. The whole thing just seemed to be forgotten. Those were the days before the Counseling Industrial Complex, so no grief counselors rushed to the scene. I recall my fellow students seemed to enjoy the excitement far more than they were upset.
April 14, 2010, 8:08 pmArt Olph says:
http://www.hulu.com/watch/284/alfred-hitchcock-presents-breakdown#x-0,vepisode,1,0
April 15, 2010, 10:40 amNCAtty says:
You took the words right out of my mouth Mair!!
April 15, 2010, 12:14 pmNCAtty says:
Um, actually, Sarge, the decision is left up to the client because it’s the client’s liberty/money/etc. at risk, not the attorney’s. Has nothing to do with attorneys being unethical (inherently or otherwise). Attorneys act as the “legal representative” of the client, providing counsel and guidance, they do not become the client. At the end of the day and the beginning of the day, it’s up to the client to determine if they’ll take their attorney’s advise or not. That’s why we unethical attorneys are allowed such a thing called “withdrawal” in the event the client and the attorney cannot see eye to eye on the representation. Ok, I digressed. But, as usual, all lawyers catch a bad rap as a result of some, and so I had to speak up…
April 15, 2010, 12:27 pmYadusky says:
Being a previous resident of Franklin County, NC, I’ll just recommend staying down in Raleigh…
April 15, 2010, 9:47 pmSmarty says:
This just shows that the folks involved were dullards, suitable for routine work but tempermentally unqualified to lead or make decisions.
Like a union guy who says “I do what I am told” with the end of the sentence unspoken “and not a damn thing more.”
April 16, 2010, 12:02 pm