'Dead People Don't Move,' a Witness Says; More

Wayne J. Guglielmo, MA


June 18, 2019

In This Article

Are Punitive Damages Warranted in Death of Husband?

The widow of a man who was mistakenly pronounced dead by an emergency department (ED) doctor has asked a New York appellate panel to allow a jury to hear her lawyer's claims of "outrageous conduct" against the physician, according to a report in the Buffalo News, among other media outlets.[1]

On October 10, 2014, Tammy Cleveland's husband Michael, of Amherst, New York, suffered a heart attack and collapsed while food shopping in nearby Tonawanda. Taken by ambulance to the ED at DeGraff Memorial Hospital, in North Tonawanda, Michael was examined by an emergency medicine physician at the hospital. But just 25 minutes after the patient had arrived at the facility, the physician informed Tammy Cleveland that her husband had passed away.

Not long after, however, Cleveland and other family members protested that they'd observed Michael breathing and moving his arm. At their urging, the physician returned to the patient's room five times but each time declined to revise his earlier opinion.

A later deposition by Niagara County Coroner, Joseph V. Mantione, who had been called to the hospital after Michael Cleveland's apparent death, described the emergency medicine physician's attempt to explain the patient's strange behavior to his family: Cleveland would cease to breathe and move, the physician reportedly said, once the drugs he had administered wore off.

That was not the case, however. Nearly 3 hours after his initial call, the physician changed his mind, at which point he had Cleveland transferred to Buffalo General Medical Center, which, like DeGraff Memorial, is owned by Kaleida Health.

The patient died the following morning.

In 2015, Tammy Cleveland filed a multiparty lawsuit against the physician and health system, among others.[2] Her principal claim was that the defendants could have saved her husband had they treated him more promptly and that, as a result of their intentional infliction of emotional distress, she was entitled to punitive damages—that is, damages intended to punish a defendant or defendants that are in excess of simple compensation.[1]

At a preliminary hearing last year before State Supreme Court Judge Frank Caruso, defense attorneys moved to have Tammy Cleveland's entire suit thrown out. Caruso denied that motion, but he nevertheless dismissed the widow's claim of intentional infliction of emotional distress and her demand for punitive damages.

The trial could move forward, the judge ruled, but its focus would be limited to the plaintiff's claims of medical malpractice and to negligent—not intentional—infliction of emotional distress. The effect of the latter change was significant, because it imposed a higher burden of proof on Cleveland and therefore made it more difficult for her claim to succeed.[3] At the same time, Caruso's denial of punitive damages not only reduced the defendants' potential liability but the plaintiff's chances of being handed a sizable award.

It was at this point that Cleveland appealed the lower court decision to the Appellate Division of State Supreme Court, in Rochester.

At the hearing last month before the five-judge appeals panel, Cleveland's attorney, Charles F. Burkwit, argued for reinstating punitive damages in the case. In failing to reassess his patient in a timely manner, Burkwit said, the treating physician had demonstrated "outrageous conduct that transcends the bounds of human decency."[1]

His argument also referred to the earlier deposition of coroner Joseph Mantione, who said he had tried to alert the physician to the fact that his patient was still living, noting tersely, "Dead people don't move."

But the defense attorneys were ready with their counter, arguing that the facts of the case simply didn't rise to the legal standard for punitive damages. For one thing, said attorney Jenna W. Klucsik, there was "no evil or malicious conduct that goes beyond the breach of a professional duty for a physician." In fact, "every medical provider who treated him [Michael Cleveland] up until 11:10 that evening...believed that he was dead."[1] (One doctor who saw the patient at Buffalo General disputed the plaintiff's claim that her husband would have survived had he been treated more promptly.)

For another thing, Klucsik said, there was no evidence that, in alleging intentional infliction of emotional distress, Tammy Cleveland ever sought psychiatric or any other treatment, which survivors typically do in similar situations.

Under questioning by one of the panel members, however, Burkwit, Cleveland's attorney, said that the physician's performance was so poor that the appellate judges should grant an exception and permit punitive damages in the case.

At press time, the appeals panel hadn't announced when it would make a decision.


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