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BESWICK v. PHILADELPHIA

December 6, 2001

RALPH RAYMOND BESWICK, ET AL.
v.
CITY OF PHILADELPHIA, ET AL.



The opinion of the court was delivered by: Giles, C.J.

MEMORANDUM

I. INTRODUCTION

Ralph Raymond Beswick, Jr. and Rose Wiegand, Co-Administrators of the Estate of Ralph Richard Beswick, Sr., bring a constitutional claim pursuant to 42 U.S.C. § 1983 against the City of Philadelphia ("City") and its former 911 call-taker, Julie Rodriguez, and, asserting pendent jurisdiction, bring state law negligence claims against Julie Rodriguez, and Father and Son Transport Leasing Inc., d/b/a CareStat Ambulance and Invalid Coach Transportation, Inc. ("CareStat"), a private ambulance service, its record owner, Slawomir Cieloszcyk, a purported owner and manager, Gregory Sverdlev, and two CareStat employees, Ruslan Ilehuk and Ivan Tkach (collectively "CareStat defendants").

Before the court are four Motions for Summary Judgment filed by: (1) the City, for alleged failure to establish requisite municipal liability under Section 1983; (2) the CareStat defendants, for alleged failure to establish proximate cause; (3) the CareStat defendants, as to the claims of Wiegand, for alleged failure to establish that a common law marriage existed between her and the decedent; and (4) Sverdlev, Tkach, and Ilehuk, on the grounds that (a) employees of a corporation, absent individual negligence, cannot be held liable for the alleged negligence of that corporation, and (b) there is no competent evidence supporting the claim of Tkach and Ilehuk's employee negligence, and the claim of Sverdlev's ownership and employee negligence.

For the reasons that follow, the City's motion is granted, the CareStat defendants' motions are denied, and the motions of Sverdlev, Tkach, and Ilehuk are denied.

II. FACTUAL BACKGROUND

Plaintiffs' claims all arise from the death of Ralph Richard Beswick, Sr. on February 11, 2000. The circumstances surrounding Beswick's death are described in detail in Beswick v. City of Philadelphia, Civ. A. No. 00-1304, 2001 WL 210292 (E.D.Pa. March 1, 2001), in which this court granted in part and denied in part the City's Motion to Dismiss, pursuant to Federal Rule of Civil Procedure 12(b)(6).

Consistent with the review standards applicable to motions for summary judgment, Fed.R.Civ.P. 56(c), the alleged facts, viewed in the light most favorable to the plaintiffs, follow.

A. The Events of February 11, 2000

On the evening of February 11, 2000, Ralph Richard Beswick, Sr. collapsed on the dining room floor of the South Kensington home that he and Wiegand had shared for 23 years. (Pl. Resp. to CareStat Ds' Mot. for Sum. J., Exh. J, Dep. of Ralph Raymond Beswick, at 12.) From the living room where she had been watching television, Wiegand heard the "thump" of Beswick falling and went to him.*fn1 Upon entering the kitchen and finding Beswick lying prone on the floor, Wiegand immediately dialed the City's medical emergency response number, 911, and told the answering call-taker, Julie Rodriguez, that Beswick had fallen and needed urgent assistance, and requested an ambulance. Rodriguez asked if Beswick was breathing. Wiegand responded that he was. Without obtaining any further information, Rodriguez told Wiegand that "somebody" was "on the way."

Fire Department regulations require 911 operators to refer all emergency medical calls to the Fire Department, which then dispatches Fire Rescue Units appropriately equipped and staffed to respond to medical emergencies. The mechanical protocol of the job of 911 call-taker requires that the call be transferred immediately to the dispatcher upon termination of the emergency call. The last step of the mechanical protocol of the call-taker job is to punch a sequential button on a console to connect the dispatcher and transmit the acquired information from the caller. The dispatcher forwards the call to the Rescue Unit closest to the response site.

Instead of following established procedure, which would have continued the process to trigger the Rescue Unit's response, Rodriguez abandoned protocol and used a telephone located next to her console to call a private ambulance company, CareStat, to see if it could respond to the Wiegand call. Rodriguez, without the knowledge of the City, had recently begun working for CareStat as a dispatcher in her off hours, and had a secret deal with CareStat to refer to it all calls received in her City 911 capacity that she believed CareStat could handle. Under the City's protocol, Rodriguez was required to treat all 911 calls as emergencies requiring the City's Rescue Unit response. She had no discretion to act otherwise.

Immediately after speaking with Wiegand, Rodriguez telephoned Slawomir Cieloszcyk (also known as "Slavik"), the owner and dispatcher of CareStat. Upon telling Cieloszcyk that Ralph Beswick, Sr. was age 65 and unconscious from a fall, Rodriguez asked how long it would take CareStat to get to the Beswick home. (City Mot. for Sum. J., Exh. B.) Neither Rodriguez nor Cieloszcyk knew that the 911 call was, in fact, a situation other than an emergency, such as a heart attack or other serious medical event. (Id.) Cieloszcyk estimated a response time of fifteen minutes. He ended the conversation by saying, "We're on the way."

Arguably, corruptly, in violation of Pennsylvania's statutory requirements applicable to private ambulances, Cieloszcyk undertook a response to a medical situation to which CareStat was not authorized to respond. All 911 calls are assumed to be medical emergencies unless and until actual response and evaluation by the City Fire Department might determine otherwise. CareStat had no permission from the City to use 911 call-taker Rodriguez to refer calls to it and knew that the 911 call was being diverted from the City's established response system. Under these circumstances, Cieloszcyk nevertheless gave the Beswick response assignment to employees Ilehuk and Tkach, neither of whom had completed the requisite training to become a licensed EMT or paramedic. (Pl. Resp. to CareStat Ds' Mot., Exh. A, Page Interrogatories, at 18.) Ilehuk and Tkach, having the same knowledge as Cieloszcyk, including the deal with Rodriguez to compromise her City 911 job responsibilities, accepted the call and set out for the Beswick residence.

Ten minutes after the first 911 call had been made, because there was yet no emergency vehicle at the Beswick home, Wiegand's sister placed another 911 call at 8:02 p.m. to make sure that the City's rescue services had already been dispatched. This call also happened to have been received and handled by Rodriguez. Despite this second urgent call, Rodriguez did not punch it over to the City's emergency dispatch system. She called CareStat again, seeking assurance that its ambulance dispatched would arrive soon. Cieloszcyk assured Rodriguez that the CareStat ambulance was on the way as he had promised her.

Because an emergency equipped unit still had not arrived, Wiegand called 911 a third time. The third call came to a call-taker other than Rodriguez. He followed all Fire Department procedures and within a very short time period a City Fire Department Rescue Unit arrived at the Beswick home. Rodriguez became aware of the third Wiegand call. She promptly called Cieloszcyk at CareStat and told him that a City paramedic unit was responding to the Beswick home, and requested that he hide her involvement in the misdirecting of the 911 calls. By the time that the CareStat ambulance arrived, the Fire Rescue Unit had already removed Beswick from the home. It was then that the Beswick family realized that the 911 call-taker had caused a private ambulance to attempt to respond to their emergency call, and that it was ill-equipped to have dealt with the Beswick medical emergency had it arrived earlier.

B. The Delay in Response to Beswick because of Defendants' Actions

The first emergency telephone call concerning Beswick was received by Rodriguez at the Fire Command Center ("FCC") at 19:53:41. The second call, placed by Wiegand's sister, was received by Rodriguez at 20:02:54. The third Wiegand call was received at the FCC by dispatcher Jose Zayes at 20:04:57, and the City Fire Department response was immediately dispatched.

Fire Battalion Chief William C. Schweizer confirmed that at the time Rodriguez received the first call at 19:53:41, Medic Unit No. 2 would have been available to respond from its base at Kensington and Castor, which was within several minutes of the Beswick home. Medic Unit No. 2, like other City Medic Units, was staffed with paramedics, who have more training than EMTs. However, at 20:04:57, when Zayes received the third call, Medic Unit No. 2 was no longer available. Nor was the next closest Medic Unit, No. 8, based at Boudinot and Hart Streets. In response to the 20:04:47 call, Medic Unit 31, the third closest of the City's Medic Units, was dispatched from Second Street, and Fire Department Engine No. 7 was dispatched from Kensington and Castor. However, Engine No. 7 is staffed only with EMTs, and EMTs are not permitted to administer epinephrine or atropine to patients. Medic unit 31 took 8 minutes and 34 seconds to arrive at 959 East Schiller Street. Engine No. 7 took 3 minutes and 34 seconds to arrive. Engine No. 7 and Medic Unit No. 2 — which was available for the first call but was never contacted by Rodriguez — were both based at Kensington and Castor, and would have had to travel the same distance to get to the Beswick residence. Based upon this information, the total delay in getting a Medic Unit to respond to Beswick has been estimated by Battalion Chief Schweizer to be 16 minutes and 16 seconds. (Pl. Resp. to CareStat Mots. for Sum. Jud., Exh. D, Schweizer Dep., at 28.)*fn2

Plaintiffs have introduced evidence that this 16 minute, 16 second delay caused or contributed to the cause of Beswick's death, through the deposition testimony of Kale Etchberger and Joanne Przeworski, the two Fire Department paramedics who arrived on the scene as part of Medic Unit 31. Both testified that when they arrived, Engine No. 7's EMTs were already tending to Beswick. However, those EMTs, unlike paramedics, cannot administer medications. As indicated in these paramedics' depositions, Engine No. 7's Lifepack 500 defibrillator machine received a "shock advised" message at 20:07:48, which suggests that at the time, Beswick was either in a state of v-fib or v-tack; in other words, his heartbeat was not totally flat. Additionally, upon the administration of medications by Etchberger and Przeworski, Beswick's heart rate was temporarily restored. Both paramedics testified that they believed he had a chance to be saved when they first came to the scene. (Pl. Resp. to CareStat Mots. for Sum. Jud., Exh E, Etchberger Dep, at 13; Exh. F, Przeworski Dep., at 12.) Plaintiffs' expert, Dr. Norman Makous, a cardiologist, would opine to a reasonable degree of medical certainty that based on established medical literature regarding observed cardiac arrests due to ventricular fibrillation, and assuming that Beswick was still breathing at the time of the first 911 call, that had Medic Unit No. 2 arrived after the first call, Beswick's chance of survival would have equaled, if not exceeded, thirty-four (34) percent. (CareStat Def. Mot. re Prox. Cause, Exh. C, Makous letter, at 3.)

C. The Fire Department's Custom of Permitting Employees to Refer 911 Calls to Private Ambulance Companies

At the time of Beswick's death, the Fire Department's official policy permitted Medic Unit personnel to refer to private ambulance services persons to whom there had been a City Rescue Unit response if assessment at the scene was that the medical condition was not an emergency. Emergency Medical Services Bulletin 91-42 stated,

All personnel assigned to Medic Units are reminded that it is not the Philadelphia Fire Department's policy to recommend private ambulance companies by name for non-emergency basic life support transportation. In instances where private ambulances are the appropriate mode of patient transportation, the decision as to which ambulance company will be contacted is to be left to the patient or the patient's family.

(Pl. Resp. to City Mot. for Sum Jud., Exh. C (emphasis added).) All private ambulance transports first had to be approved by a medical doctor at the basic command position, whom the medic units would phone with a detailed description of the patient's condition, as well as an estimated response time for a private ambulance. (City Mot. for Sum. Jud., Exh. K, Dep. of Samuel Chen, at 10-11.) This required medics — EMTs and paramedics — first to contact a private ambulance company in order to obtain an estimated response time before calling the basic command position. (Id.) Chen, a City paramedic, testified at his deposition that it was a widespread custom for paramedics following this procedure to refer non-emergency patients to specific private ambulance companies, and that he was not aware of the prohibition on recommending private ambulance companies by name, because he had not read it. It was posted on a bulletin board and not distributed to paramedics individually. He believed that paramedics were too busy responding to emergencies to read the bulletin board. (Pl. Resp. to City Mot. for Sum. Jud., Exh. H, Dep. of Samuel Chen, at 9.)

With knowledge of the City, some Fire Department EMTs and paramedics hold second jobs with private ambulance companies. According to the City's answers to interrogatories, as of February 11, 2000, there were: (1) 276 paramedics employed by the City Fire Department, 57 of whom had Fire Department permission to engage in employment outside of the City Fire Department with a private ambulance company; and (2) approximately 1,269 EMTs employed by the City Fire Department, of whom approximately 141 had Fire Department permission to engage in employment outside of the City Fire Department with a private ambulance company. In the results of a reverse telephone lookup of numbers that had been obtained from telephone records of two City Fire-Rescue personnel under suspicion of violating the City prohibition, six private ambulance companies, including CareStat, were identified as referred companies. (Pl. Resp. to City Mot. for Sum. Jud., Exh. I.)

However, it is undisputed that none of the 51 call-taker/dispatchers employed by the City Fire Department had Fire Department permission to engage in outside employment. Plaintiffs assert Rodriguez could have been influenced by what she might have heard or known that paramedics, like Chen, were able to do in referring medical conditions to private ambulance services for response and must have reasonably believed that her referral of the Beswick 911 medical event to CareStat would have been condoned by the City. There is no evidence that Rodriguez was motivated by any policy or lack of policy by the City. Nevertheless, plaintiffs would offer expert opinion that it would have been easy for Rodriguez, a City Fire Department employee, to become confused as to the boundaries or limitations of her call-taker job.

City policymakers were aware, through patient complaint forms submitted by 911 callers or their relatives, that the City's custom of permitting employee referrals to private ambulance companies had resulted in some instances where EMTs or paramedics had erroneously adjudged a patient's condition as non-emergency and refused to transport them. (Pl. Resp. to City's Mot for Sum. Jud., Exh. K.)

Six weeks after Beswick's death, on March 31, 2000, the City Fire Commissioner issued Memorandum No. 00-25, which stated,

At no time are Philadelphia Fire Department employees permitted to initiate contact with a private ambulance service and/or refer or recommend a specific private ambulance service to a patient. The private ambulance service to be used must be chosen by the patient or the patient's representative.

(Pl. Resp. to City's Mot for Sum. Jud., Exh. B.)

D. Rose Wiegand's Relationship with Decedent Ralph Beswick

Plaintiffs aver, through the deposition testimony of both Ralph Raymond Beswick, Jr. and Wiegand, that she and the decedent were together for 23 years, from 1977 until Beswick's death, during which they held themselves out as husband and wife. (Pl. Resp. to CareStat Mots., Exh. J. Dep. of Ralph Beswick, at 12.)*fn3 Wiegand's sister, Catherine Walerski, testified at her deposition that Wiegand had been "going with" Beswick for "about 27, 28 years." (CareStat Mot. re. Common Law Marriage, Exh. E, at 7.) Wiegand, who responds to both Mrs. Wiegand and Mrs. Beswick, had been legally married to Frank Wiegand, who passed away years before.

Rose Wiegand and Ralph Beswick did not obtain a formal, licensed marriage because Wiegand was concerned that this would have triggered a provision in her father's will necessitating the sale of her home, which she had inherited from her father on the condition that she never formally remarry, else it would have to be divided with her siblings. (Pl. Resp. to CareStat Mots. for Sum. Jud., Exh. I, Wiegand Dep., at 22.) Despite this prohibition, the two decided at some point to undertake the relationship of husband and wife, and to hold ...


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