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Badway v. City of Philadelphia

March 15, 2010


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


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


This case concerns the City's provision of emergency medical services ("EMS") in connection with Ricky's death. Ricky collapsed at approximately 1:00 a.m. on October 22, 2005, shortly after complaining that his heart felt "funny." (Whittaker Dep. at 30, 33.) Ricky's girlfriend, Erin Whittaker, called 911 at 1:00:21 a.m. (Pl. Ex. M.) After 10-15 seconds, Whittaker was connected to Shakeema James, a female 911 operator in Philadelphia. (Whittaker Dep. at 37; Pl. Ex. P at 1.) Whittaker told James that her boyfriend had collapsed and James told Whittaker that "help was on the way . . . they were sending an ambulance right now." (Whittaker Dep. at 38.) A couple of minutes later, after Ricky's lips turned blue and Whittaker was unable to locate his pulse, James told her to perform CPR on Ricky and gave her CPR instructions over the phone. (Id. at 39-40.) Whittaker asked James a few times whether an ambulance was coming and James responded "Yes, they're on their way." (Id. at 42.)

Unfortunately, the first responders to arrive on the scene did not reach Whittaker's apartment until 1:09:26 a.m. (Pl. Ex. M.) When the first responders, a police officer and two firefighters who were emergency medical technicians ("EMTs"), reached the scene, Ricky's upper abdominal area, face, neck and upper extremities were blue and he did not have a pulse. (Whittaker Dep. at 43, 45; Davis Dep. at 39-40.) The EMTs hooked Ricky up to an Automated External Defibrillator (AED), inserted an oral pharyngeal to keep his airway open, and performed CPR until a paramedic unit arrived at 1:21:53 a.m. (Davis Dep. 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. (Pl. Ex. R.) They arrived at the hospital at 1:36 a.m. (Id.) Ricky was pronounced dead at 2:10 a.m. (Pl. Ex. S at 1.) The cause of death was cardiac dysrhythmia. (Id.)

Plaintiff contends that the City of Philadelphia's policies regarding its 911 service and the manner in which 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 3-4.) According to Plaintiff, the City's policies contributed to Ricky's death because the City encourages residents to call 911 for EMS, despite being aware that its EMS dispatch procedures are inefficient and could result in considerable delay in the arrival of appropriate emergency services.

The City delivers EMS through a tiered system:

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. at 1.) 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 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. (Id.) Thirty-six of the City's ambulances are ALS units, nine are BLS units. (Id. 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 emergency. (Id.) 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;*fn2 Pl. Ex. C at 3; Moore Dep. at 180.) Once a caller reaches a 911 operator, the operator first determines whether the caller requires fire or EMS services. (Pl. Ex. C at 3.) If the caller requires EMS services, the 911 operator prioritizes the call into one of three categories: Priority 1 (Code Blue), the person in need of emergency services is not breathing; Priority 2 (A/T), 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 Priority 3, the person requesting emergency services has minor injuries, flu-like symptoms, or is not feeling well. (Id. at 3, 19; Pl. Req. for Admis. No. 12.D.)

Once the 911 operator has classified the emergency call, he or she logs it into a Computer Assisted Dispatch ("CAD") System. (Pl. Ex. C at 3.) Calls are dispatched in the order they are entered into the CAD System, 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 they 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.)

Plaintiff has asserted claims against the City for violation of his Fourteenth Amendment substantive right to due process pursuant to 42 U.S.C. ยง 1983 and for negligence pursuant to Pennsylvania common law. In support of these claims, he maintains that the City's policies regarding dispatching EMS, and assuring callers that help is on the way, played a direct role in Ricky's death. A timeline of James's actions in dispatching EMS to Whittaker's apartment shows that no ambulances were immediately available to assist Ricky ...

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