Michelle
10-07-2006, 12:26 AM
Court Finds Emergency Crew Ignored Communication Protocol (http://www.law.com/jsp/nylj/PubArticleNY.jsp?hubtype=TopStories&id=1160039129722)
By Mark Hamblett
New York Law Journal
October 6, 2006
A Fire Lieutenant's failure to evaluate whether a disabled man was competent to refuse treatment before transporting him to the hospital can be the basis for a claim against New York City under the Americans with Disabilities Act, a federal court has ruled.
The U.S. Court of Appeals for the Second Circuit reinstated a claim under the ADA brought by the family of the late Walter Green, who suffered from amytrophic lateral sclerosis and could not speak, but could communicate by blinking or through a computer.
The family contended that even though Mr. Green could not speak to Fire Lieutenant Paul Giblin when he was called to the Green home in a medical emergency, Mr. Giblin failed to follow established procedures for communicating with Mr. Green to determine whether he wanted to be taken to the hospital.
But the circuit in Green v. City of New York, 04-1006-cv, also upheld the decision of Southern District Judge Richard Berman to dismiss the family's claim under the ADA against St. Luke's Hospital, finding it was not a state actor, and Mr. Giblin himself. The panel, however, reinstated other claims against Mr. Giblin.
The decision will be published Thursday.
These were just a few of several rulings made on the appeal by Judges Rosemary Pooler and Robert Katzmann. Judge Pooler wrote the opinion.
Mr. Green was diagnosed with amytrophic lateral sclerosis (ALS) in 1993 and even after he began using a mechanical respirator in 1997, he continued to be an advocate for the disabled and participated in wheelchair marathons.
On March 19, 2000, his respirator stopped working and a home assistant called 911. His wife, Susan Ross Green, located an "ambu-bag" - a device that fit into Mr. Green's trachea tube - and tried to revive him.
Though Mr. Green had passed out and his skin began turning green, he regained consciousness and his normal color returned. He then blinked twice, his signal to his family that he was all right. He then blinked five times, which was his code for "I love you" and then entered "I'm OK" on his laptop.
St. Luke's emergency medical personnel and police arrived and Mr. Green allegedly blinked "no" when asked if he wanted to go to the hospital. He then said, on his computer, "no, because I'm fine."
A paramedic allegedly ignored Ms. Green's explanation that he could communicate by blinking. Mr. Giblin told the family he was taking Mr. Green to the hospital.
Mr. Green's daughter, Alixandra, constructed a blockade of furniture to prevent her father's removal from the home.
There was a scuffle as Mr. Green was removed and he later said in deposition, before his death in December 2001, that "I watched my wife get knocked to the floor and told to be handcuffed. I saw my daughter manhandled by large men who claimed to be helping. My home was violated, my self-respect crushed."
Magistrate Judge Gabriel Gorenstein recommended, and Judge Berman agreed, that the defendants should be granted summary judgment.
Guidelines Ignored
Title II of the ADA, 42 U.S.C. §12132, states that "no qualified individual with a disability shall, by reason of such disability, be excluded from participation or be denied the benefits of the services, programs, or activities of a public entity or be subjected to discrimination by any such entity."
The Greens had claimed that the service Mr. Green was denied was the system for evaluating refusals to accept medical assistance.
Under that system, emergency personnel can contact a telemetry service so a doctor can communicate with a non-verbal patient and evaluate whether the patient's refusal is voluntary. If a doctor is not available, a telemetry operator fills out a questionnaire with the help of on-site personnel.
In Mr. Green's case, Judge Pooler said, the system was not the problem. If a problem existed, she said, "it was the failure of on-site and telemetry personnel to use the methods dictated" by city guidelines on refusal of treatment.
"There is ample circumstantial evidence in the record from which a jury could infer that the basis for denying Walter access to the system in place for evaluating a refusal to accept medical assistance was his disability," Judge Pooler said.
Mr. Giblin allegedly ignored repeated claims from the family and a family friend and attorney that Mr. Green could communicate, the judge wrote, and even though the telemetry operator was told Mr. Green could communicate by computer, "the operator did not ask on-site personnel to complete the refusal-to-accept-medical-assistance questionnaire with him using these methods."
And there was "direct evidence" in the record, Judge Pooler said, "that Giblin did not evaluate Walter's refusal because Walter could not speak."
The court endorsed Judge Berman's dismissal of the claim against St. Luke's because it is not a public entity subject to suit under Title II.
Rejecting other theories of liability against the city, Judge Pooler said the plaintiffs had not produced enough evidence to show under §1983 that Mr. Green's injuries were the result of a persistent city practice or a "failure-to-train" emergency personnel.
The city, she said, "did not fail to fulfill any training obligation it may have had. It provided personnel with guidelines that specifically and clearly informed them that they had to evaluate non-verbal refusals of medical treatment."
A defense by Mr. Giblin that he was shielded by qualified immunity on the Green's claim of unreasonable seizure under the Fourth Amendment as well as their claim for excessive force was rejected by the circuit.
Elisa Barnes represented the plaintiffs. Assistant Corporation Counsels Scott Shorr and Ron Sternberg represented the city.
- Mark Hamblett can be reached at mhamblett@alm.com.
By Mark Hamblett
New York Law Journal
October 6, 2006
A Fire Lieutenant's failure to evaluate whether a disabled man was competent to refuse treatment before transporting him to the hospital can be the basis for a claim against New York City under the Americans with Disabilities Act, a federal court has ruled.
The U.S. Court of Appeals for the Second Circuit reinstated a claim under the ADA brought by the family of the late Walter Green, who suffered from amytrophic lateral sclerosis and could not speak, but could communicate by blinking or through a computer.
The family contended that even though Mr. Green could not speak to Fire Lieutenant Paul Giblin when he was called to the Green home in a medical emergency, Mr. Giblin failed to follow established procedures for communicating with Mr. Green to determine whether he wanted to be taken to the hospital.
But the circuit in Green v. City of New York, 04-1006-cv, also upheld the decision of Southern District Judge Richard Berman to dismiss the family's claim under the ADA against St. Luke's Hospital, finding it was not a state actor, and Mr. Giblin himself. The panel, however, reinstated other claims against Mr. Giblin.
The decision will be published Thursday.
These were just a few of several rulings made on the appeal by Judges Rosemary Pooler and Robert Katzmann. Judge Pooler wrote the opinion.
Mr. Green was diagnosed with amytrophic lateral sclerosis (ALS) in 1993 and even after he began using a mechanical respirator in 1997, he continued to be an advocate for the disabled and participated in wheelchair marathons.
On March 19, 2000, his respirator stopped working and a home assistant called 911. His wife, Susan Ross Green, located an "ambu-bag" - a device that fit into Mr. Green's trachea tube - and tried to revive him.
Though Mr. Green had passed out and his skin began turning green, he regained consciousness and his normal color returned. He then blinked twice, his signal to his family that he was all right. He then blinked five times, which was his code for "I love you" and then entered "I'm OK" on his laptop.
St. Luke's emergency medical personnel and police arrived and Mr. Green allegedly blinked "no" when asked if he wanted to go to the hospital. He then said, on his computer, "no, because I'm fine."
A paramedic allegedly ignored Ms. Green's explanation that he could communicate by blinking. Mr. Giblin told the family he was taking Mr. Green to the hospital.
Mr. Green's daughter, Alixandra, constructed a blockade of furniture to prevent her father's removal from the home.
There was a scuffle as Mr. Green was removed and he later said in deposition, before his death in December 2001, that "I watched my wife get knocked to the floor and told to be handcuffed. I saw my daughter manhandled by large men who claimed to be helping. My home was violated, my self-respect crushed."
Magistrate Judge Gabriel Gorenstein recommended, and Judge Berman agreed, that the defendants should be granted summary judgment.
Guidelines Ignored
Title II of the ADA, 42 U.S.C. §12132, states that "no qualified individual with a disability shall, by reason of such disability, be excluded from participation or be denied the benefits of the services, programs, or activities of a public entity or be subjected to discrimination by any such entity."
The Greens had claimed that the service Mr. Green was denied was the system for evaluating refusals to accept medical assistance.
Under that system, emergency personnel can contact a telemetry service so a doctor can communicate with a non-verbal patient and evaluate whether the patient's refusal is voluntary. If a doctor is not available, a telemetry operator fills out a questionnaire with the help of on-site personnel.
In Mr. Green's case, Judge Pooler said, the system was not the problem. If a problem existed, she said, "it was the failure of on-site and telemetry personnel to use the methods dictated" by city guidelines on refusal of treatment.
"There is ample circumstantial evidence in the record from which a jury could infer that the basis for denying Walter access to the system in place for evaluating a refusal to accept medical assistance was his disability," Judge Pooler said.
Mr. Giblin allegedly ignored repeated claims from the family and a family friend and attorney that Mr. Green could communicate, the judge wrote, and even though the telemetry operator was told Mr. Green could communicate by computer, "the operator did not ask on-site personnel to complete the refusal-to-accept-medical-assistance questionnaire with him using these methods."
And there was "direct evidence" in the record, Judge Pooler said, "that Giblin did not evaluate Walter's refusal because Walter could not speak."
The court endorsed Judge Berman's dismissal of the claim against St. Luke's because it is not a public entity subject to suit under Title II.
Rejecting other theories of liability against the city, Judge Pooler said the plaintiffs had not produced enough evidence to show under §1983 that Mr. Green's injuries were the result of a persistent city practice or a "failure-to-train" emergency personnel.
The city, she said, "did not fail to fulfill any training obligation it may have had. It provided personnel with guidelines that specifically and clearly informed them that they had to evaluate non-verbal refusals of medical treatment."
A defense by Mr. Giblin that he was shielded by qualified immunity on the Green's claim of unreasonable seizure under the Fourth Amendment as well as their claim for excessive force was rejected by the circuit.
Elisa Barnes represented the plaintiffs. Assistant Corporation Counsels Scott Shorr and Ron Sternberg represented the city.
- Mark Hamblett can be reached at mhamblett@alm.com.