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Perez v. City of Philadelphia

April 5, 2010





Marvin Yamar Perez ("Perez") died on September 23, 2007 after waiting for an ambulance to arrive following a 911 call. Plaintiff Yahaira Perez, the executrix of Marvin Perez's estate, filed the instant suit under 42 U.S.C. § 1983 alleging violations of his rights under the Fourth and Fourteenth Amendments to the United States Constitution. Presently before the Court is the City of Philadelphia's ("the City" or "Philadelphia") Motion to Dismiss. The Court heard oral argument on March 11, 2010. For the reasons discussed below, the motion is granted.


A. Philadelphia's Emergency Medical Services

Philadelphia offers its citizens emergency medical services ("EMS"). (Compl. ¶ 11.) The City directs its citizens to call 911 to request assistance for any and all medical emergencies. (Compl. ¶13.) Seventy-five percent of such calls are for non-life threatening emergencies. (Compl. ¶ 13.) Upon calling 911 in situations where medical attention is required, an operator tells the caller that help is on the way and to await the arrival of emergency medical personnel. (Complaint ¶¶ 13-14.)

If the dispatch of EMS is required, a 911 operator contacts the communication center of the Philadelphia Fire Department. (Compl. ¶ 15.) The communication center then dispatches EMS to the location. (Compl. ¶ 18.) Neither the 911 nor the Fire Department dispatcher operators are permitted to contact private ambulance companies. (Complaint ¶¶ 17, 20.)

The Philadelphia Fire Department has three types of units that can be dispatched to render assistance for medical emergencies. (Compl. ¶ 19.) A First Responder Unit (FRU) is staffed with fire fighters who are also trained as Emergency Medical Technicians (EMTs). (Compl. ¶ 21.) An FRU can provide basic life support services (BLS) but can not transport a patient to the hospital. (Compl. ¶¶ 22, 23.) The second type of unit, a Basic Life Support Unit (BLSU), is staffed by two EMTs, provides the same BLS services as an FRU, travels in an ambulance, and can transport a patient to the hospital. (Compl. ¶¶ 26 - 29.) The third type of unit, an Advanced Life Support Unit (ALSU) travels in an ambulance staffed with two paramedics and can provide advanced life support services (ALS) in addition to BLS. (Compl. ¶¶ 30, 31). ALSUs can intubate patients; FRUs and BLSUs cannot. (Complaint ¶¶ 19-31).

The Philadelphia Fire Department receives an average of 100 emergency calls per eight hour shift. (Compl. ¶ 32.) At any given time, four operators are responsible for EMS dispatch. (Compl. ¶¶ 34, 35.) Although the number of emergency calls rose from 136,887 in 1994 to 209,654 in 2006, the City did not increase the number of operators responsible for these calls. (Compl. ¶¶ 34, 35.) In 2007 at the time of Marvin Yamar Perez's death, as in 1994, there were four operators responsible for EMS dispatch. (Compl. ¶ 36.)

In 2007, the City had forty-two ALSUs to provide emergency services, only 27 of which were available after midnight. (Compl. ¶ 38.) In that year, there were significant periods of time, up to two hours, during which no ALSUs were available. (Compl. ¶ 39.) Based on its population, Philadelphia requires seventy ALSUs to provide safe and reasonable emergency medical services. (Compl. ¶ 40.) Due to the unavailability of ALSUs at times, persons in need of intubation, medication, or transport did not receive those services within the national standard time of eight minutes. (Comp. ¶¶ 43-46.)

Despite knowing that its emergency response services are inadequate, the City of Philadelphia made no changes to its system. (Compl. ¶¶ 49-54.)

B. The Death of Marvin Yamar Perez

Perez, age seven, suffered from pediatric asthma, a disease of the respiratory system which causes swelling and narrowing of the airways. (Compl. ¶ 55.) On September 23, 2007, Perez experienced an asthma attack while in his family's home at 4950 Bingham Street in Philadelphia. (Compl. ¶¶ 56, 58.) The Perez family home is approximately 1.7 miles from the nearest medical facility, St. Christopher's Hospital for Children. (Compl. ¶ 57.)

Veronica Perez called 911 at 8:32:38 P.M. to report the emergency and request medical assistance, informing the operator that Perez was seven years old and could not breathe due to an asthma attack. (Compl. ¶¶ 59, 60.) The operator told Veronica that "help was on the way." (Compl. ¶ 61). The call ended at 8:33:31 P.M. and was entered in the system at 8:33:51 P.M. When there was no immediate assistance Veronica called 911 at 8:35:01 P.M., once again telling the operator that Perez was having an asthma attack. (Compl. ¶ 62.) The operator told her, "You need to stop calling. They are on their way." (Compl. ¶¶ 62, 63.) The second call ended at 8:35:20 P.M. An ambulance was dispatched at 8:34:37 P.M., was in route at 8:35:51 P.M., and arrived at the Perez's home at 8:40:02 P.M.

Relying on these assurances from the 911 operators, Veronica and Yahaira did not immediately take Perez to St. Christopher's Hospital after the first call to 911. (Compl. ¶¶ 64, 69-72.) Instead, they waited for several minutes after the second call to 911 before transporting him to the hospital in a private automobile. (Compl. ¶ 64.) An FRU arrived at Perez's home soon after his family left for the hospital. (Compl. ¶ 65.) Perez arrived at St. Christopher's Hospital for Children at approximately 8:36 P.M. (Compl. ¶ 67.) He was pronounced dead at 9:34 P.M. (Compl. ¶ 68.)*fn2

"[B]ut for the false assurances of the 911 operators" Veronica and Yahaira would have transported Perez to the hospital immediately after the initial 911 call. (Compl. ¶ 72.) Immediate transportation would have saved Perez's life. (Compl. ¶ 72.)

Deficiencies in the Philadelphia's emergency response system were reported to the City before Perez's death. (Compl. ¶ 76.) The City knew, or should have known, that its medical response system could not respond to medical emergencies within the standard national response time. (Compl. ¶ 73.) The maintenance of this deficient system created the danger that caused Perez's death. (Compl. ¶ 75.)

Despite knowledge of the system's deficiency, the City instructed its 911 operators, through training, policies and procedures, to assure callers that help is on the way. (Compl. ¶ 74.) In addition, the City adopted and maintained a policy of providing a deficient public emergency response system that also prevented private rescuers from responding. (Compl. ¶ 77.) Finally, the City had a policy and/or custom of inadequately and improperly investigating citizen complaints regarding the slow response time of EMS. (Compl. ¶ 78.)

The Complaint avers that the City of Philadelphia, through its policies, caused Perez's death in violation of his substantive due process right to bodily integrity protected by the Fourth and Fourteenth Amendments to the United States Constitution. Presently before the Court is defendant's Motion to Dismiss the Complaint for failure to state a claim upon which relief can be granted. The Court has jurisdiction pursuant to 28 U.S.C. § 1331.


Rule 12(b)(6) of the Federal Rules of Civil Procedure provides that, in response to a pleading, a defense of "failure to state a claim upon which relief can be granted" may be raised by motion. In analyzing a motion to dismiss pursuant to Rule 12(b)(6), the Court "accept[s] all factual allegations as true, [and] construe[s] the complaint in the light most favorable to the plaintiff . . . ." ...

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