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Badway v. City of Philadelphia

August 19, 2009

RICHARD BADWAY
v.
CITY OF PHILADELPHIA



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

MEMORANDUM

Plaintiff, executor of the estate of Richard Badway, Jr. ("Ricky"), has brought this action against the City of Philadelphia pursuant to 42 U.S.C. § 1983. Plaintiff contends that the City violated Ricky's Fourteenth Amendment substantive due process rights to life and liberty by failing to timely dispatch an Advanced Life Support ambulance after Ricky's girlfriend called 911 on his behalf.*fn1 Before the Court is Plaintiff's Motion for Summary Judgment. For the reasons that follow, the Motion is denied.

I. FACTUAL BACKGROUND

On October 22, 2005, shortly before 1:00 a.m., Ricky told his girlfriend, Erin Whittaker, that his heart felt "funny." (Whittaker Dep. at 30.) She suggested that he lie down on the bed. (Id. at 31.) Ricky briefly lay down. (Id. at 32.) A few minutes later, Ricky attempted to get up, told Whittaker that he felt dizzy, and collapsed. (Id. at 33.) Whittaker helped him back onto the bed and called 911. (Id. at 34-35.) While Whittaker was calling 911, Ricky made "weird" breathing noises, his body shook, and his eyes "rolled back in his head." (Id. at 35-36.)

The City's 911 system received Whittaker's call at 1:00:21 a.m. (Pl. Ex. M.) After 10-15 seconds, Whittaker was connected to Shakeema James, a 911 dispatcher. (Whittaker Dep. at 37; Pl. Ex. P at 1.) Whittaker told James that her boyfriend had collapsed, and James assured Whittaker that "help was on the way, that they were sending an ambulance right now." (Whittaker Dep. at 38.) James asked about Ricky's condition, and Whittaker told her that Ricky's lips were turning blue. (Id.) After Whittaker was unable to locate Ricky's pulse, James told her to perform CPR on Ricky and gave her CPR instructions over the phone. (Id. at 40.) Whittaker asked James a few times during their phone call whether an ambulance was coming and James told her that "help was on the way." (Id. at 41-42.)

The first responders on the scene were firefighters, who were also emergency medical technicians ("EMTs"). (Id. at 45; Davis Dep. at 39; Gough Dep. at 25.) The firefighters were accompanied by a police officer and arrived at Whittaker's apartment at 1:09:26 a.m. (Whittaker Dep. at 45; Pl. Ex. M.) Jason Davis, one of the firefighter EMTs, was the first responder to see Ricky. (Davis Dep. at 39.) Ricky's upper abdominal area, face, neck and upper extremities were blue. (Id.) Ricky did not have a pulse. (Id. at 40.) Davis and Timothy Gough (the other firefighter EMT on the scene), hooked Ricky up to an Automated External Defibrillator (AED), inserted an oral pharyngeal to keep his airway open, "bagged" him, and performed CPR until a paramedic unit arrived at 1:21:53 a.m. (Id. at 40-41; Pl. Ex. M.) The paramedics intubated Ricky, put him on a heart monitor, started an IV and administered the first round of "epi." (Murphy Dep. at 44.) The paramedics transported Ricky to Roxborough Memorial Hospital (1.1 miles from Whittaker's apartment) at 1:34 a.m and arrived at the hospital at 1:36 a.m. (Pl. Ex. R at 1, 3.) Ricky was pronounced dead at 2:10 a.m. (Pl. Ex. S.) The cause of death was cardiac dysrhythmia. (Id.)

Plaintiff contends that the City's policies regarding its 911 service and the manner in which emergency medical services ("EMS") are dispatched placed Ricky "in a position of danger that he would not otherwise have faced, and caused an increase in the likelihood of his death." (Pl. Mem. at 2.) According to Plaintiff, the City's policies contributed to Ricky's death because the City encourages residents to call 911 for emergency services despite being aware that its procedures regarding dispatching emergency services in response to 911 calls are inefficient and could result in considerable delay in the arrival of appropriate emergency services. Consequently, we examine the City's EMS system in detail to determine whether the City's policies created a danger to Ricky, increasing the likelihood of his death.

The City delivers EMS through a tiered system which consists of:

1. Basic Life Support ("BLS") units, ambulances that are staffed with two EMTs. (Pl. Ex. C at 1.) The EMTs can read vital signs, administer oxygen and perform CPR. (Id.) They cannot perform invasive procedures or administer drugs. (Id.)

2. First Responder Units ("FRUs"), fire engines that are staffed with two firefighters who are trained as EMTs. (Id. at 1-2.) The FRUs cannot transport patients to the hospital. (Id. at 2.)

3. Advanced Life Support ("ALS") units, ambulances that are staffed with two paramedics who are certified to "handle advanced pre-hospital emergency medical care of serious illness or injury." (Id. at 1.) Paramedics on ALS units can read electrocardiograms, perform invasive procedures, "such as intravenous cannulation or endotrachael intubation[,]" and can administer medication. (Id.)

The City has 45 ambulances, 28 of which are staffed 24 hours a day, seven days a week. (Id. at 2.) The remaining 17 ambulances are used for peak hours only.*fn2 (Id.) Thirty-six of the City's ambulances are ALS units, nine are BLS units. (Id. at 2 n.2.) Ambulances are assigned to a home firehouse, but can be designated to respond in an area outside of their home boundaries if they are closest to the scene of the next service call. (Id. at 2.) FRUs are able to arrive at the scene of an emergency more quickly than ALS and BLS units because there are 90 engine and ladder companies distributed throughout the City. (Id.)

The City encourages its residents to call 911 for medical emergencies. (Pl. Req. for Admis. No. 12.A.;*fn3 Pl. Ex. C at 3; Moore Dep. at 180.) Once a caller reaches a 911 dispatcher, the dispatcher first determines whether the caller requires fire or EMS services. (Pl. Ex. C at 3.) If the caller requires EMS services, the dispatcher prioritizes the call into one of three categories: (1) Priority 1 (Code Blue), if the person in need of emergency services is not breathing; (2) Priority 2 (ALS/Trauma), if the person in need of emergency services is having difficulty breathing, is in cardiac arrest, is having a stroke, is the victim of a shooting or stabbing, or has fallen more than ten feet and needs ALS or trauma services; and (3) Priority 3 (BLS), if the person requesting emergency services has minor injuries, flu-like symptoms, or is not feeling well. (Id.; Pl. Req. for Admis. No. 12.D.)

Once the 911 dispatcher has classified the emergency call, he or she logs it into a Computer Assisted Dispatch ("CAD") system for dispatch. (Pl. Ex. C at 3.) Calls are dispatched in the order they are entered into the CAD system and not according to their priority. (Id.) The CAD system recommends which ambulance to dispatch based on the closest available fire station to the location of the emergency. (Id.) However, since the BLS and ALS units are not limited to calls in their home area, and frequently handle runs away from their home area, the CAD system's recommendations are generally useless. (Id. at 19.) Instead, dispatchers rely on radio traffic to identify the location of ambulances and determine which ambulance to dispatch. (Id.)

The City uses a benchmark response time of 8 minutes and 59 seconds (8:59) for the time between when the 911 call comes in and the time a properly equipped and staffed ambulance should arrive at the scene of the emergency. (Id. at 34.) In 2005, the average time for a FRU or ambulance unit to arrive at the scene of an emergency from the time it was dispatched was 6:53 minutes. (Id. at 4.) However, according to the City's own statistics for 2005, ambulances responded within 8:59 from the time of dispatch only 64.41% of the time. (Id. at 6.) Moreover, the time the call is received is not the same as the time of dispatch. A 2006 study conducted by the City showed that 911 dispatchers took an average of 42 seconds to process calls and that they were able to timely send out the most appropriate ambulance only 26% of the time. (Id. at 7.) The study further showed that, "once dispatched, it took ambulance teams close to two minutes (1 minute 45 seconds) after receiving the call until they started traveling to the scene. . . ." (Id.) The study also recognized that, "in more serious emergencies -- such as cardiac arrest or shooting victims -- when every second of appropriate pre-hospital care and quick transport to a hospital emergency room is critical to the patient's survival, a 'first responder' response may be inadequate." (Id. at 8.) In 2006, it took an average of 11 minutes from the time a 911 call was received by the City until the EMS unit arrived at the scene of the emergency. (Id. at 37.)

Plaintiff maintains that these failures in the City's EMS policies played a direct role in Ricky's death. When James received Whittaker's 911 call at 1:00:21 a.m., the CAD unit could only recommend a FRU because there were no ambulances available in the first 32 fire stations closest to Whittaker's apartment. (Pl. Ex. M; Pl Ex. P at 1.) James called up a display of all available medic units and dispatched Engine 12 ("E12"), a FRU, and Medic 13 ("M13"), an ambulance, at 1:02:55 a.m. (Pl. Ex. M; Pl. Ex. P at 1.). At 1:04:00 a.m., M13 radioed: "we're coming from presby [sic] we ain't going to get there no time soon." (Pl. Ex. M; Pl. Ex. P at 1.) At 1:05:16 a.m., E12 confirmed that it was responding to Whittaker's address, and James informed E12 that the emergency was a "code blue." (Pl. Ex. M.) At 1:05:55 a.m., ambulance M24, which had previously been off radio and unavailable at Einstein Medical Center, called into the radio and announced that it was available. (Pl. Ex. M; Pl. Ex. P at 1.) At 1:06:24 a.m., James decided to dispatch M24 and recalled M13. (Pl. Ex. M; Pl. Ex. P at 1.) At 1:08:08 a.m., ambulance M22, which had also been off radio and unavailable at Einstein Medical Center, reported by radio that it was available and asked James if she wanted it to respond. (Pl. Ex. M; Pl. Ex. P at 1.) At 1:08:14 a.m., James checked by radio with M24 and learned that M24 had just begun to leave Einstein, nearly two full minutes after it had been dispatched. (Pl. Ex. M; Pl. Ex. P at 1-2.) James then dispatched M22 to Whittaker's apartment at 1:08:17 a.m., and dispatched M24 to another emergency call. (Pl. Ex. M; Pl. Ex. P at 2.) E12 arrived at Whittaker's apartment at 1:09:26 a.m., six minutes and 31 seconds after it had been dispatched, and nine minutes and five seconds after James took Whittaker's 911 call. (Pl. Ex. M; Pl. Ex. P at 2.) M22 arrived at Whittaker's apartment at 1:21:53 a.m., 13 minutes and 36 seconds after being dispatched, but 21 minutes and 32 seconds after Whittaker's 911 call was received. (Pl. Ex. M.)

To establish that the City's delay in providing appropriate emergency services to Ricky contributed to his death, Plaintiff relies on the expert report of cardiologist Sheldon L. Brownstein, M.D., F.A.C.C., who opined that "the tardiness in response to the decedent contributed to his death by falling outside the standard of care in a metropolitan or urban setting." (Brownstein Rpt. at 2.) According to Dr. Brownstein, if Ricky had received advanced life support (which Dr. Brownstein defined as an airway, breathing and CPR), within five to six minutes of the onset of his cardiac dysrhythmia, he would have had a 30-50% chance of survival. (Id.) E12 did not ...


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