ER doctor wrongly ruled man dead, widow’s lawsuit charges - The Buffalo News

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ER doctor wrongly ruled man dead, widow’s lawsuit charges

Michael E. Cleveland suffered a heart attack at age 46 and was declared dead at 8:29 p.m. Oct. 10 last year.

He died again the next morning.

Only the second death was permanent.

Now his widow has filed a malpractice lawsuit contending that Cleveland might have survived had the doctor responded more promptly rather than insisting he was dead.

On the previous night, a young emergency room physician at DeGraff Memorial Hospital in North Tonawanda incorrectly pronounced Cleveland dead, and for nearly three hours refused to revisit his diagnosis despite numerous reports from Cleveland’s family – and from a Niagara County coroner who refused to take the body – that Cleveland was breathing and moving on his gurney.

The emergency room doctor told Tammy Cleveland that her husband simply “had life expelling out of his body.”

When the doctor finally did return to check on Cleveland at 11:10 p.m., according to court papers, he said, “My God, he has a pulse.”

The ER team then went to work on Cleveland, who was thrashing around on the gurney and had to be restrained before he could be transferred to Buffalo General Medical Center, according to the court papers.

Cleveland underwent emergency cardiac surgery at Buffalo General. But his right lung was saturated with fluid after being punctured, apparently by a rib fractured in the course of someone administering cardiopulmonary resuscitation after he collapsed in the Tops Market on Niagara Street in the City of Tonawanda.

Here is the story, assembled from court papers and interviews, of how Michael Cleveland died twice. Medical professionals involved in the case refused to comment, citing patient confidentiality laws or the pending legal action.

Cleveland, an Amherst resident who was an executive with a telemarketing firm, was shopping at Tops with his son, Ellis Cleveland, then 13, on Friday evening, Oct. 10, when he collapsed.

It appears that bystanders tried CPR with chest compressions, which may have been when the victim’s rib was fractured, the lawyer for Tammy Cleveland said. Someone called 911, and the Tonawanda Fire Department and a Twin City Ambulance arrived at 7:48. The ambulance got Cleveland to the nearest hospital, DeGraff in North Tonawanda, at 8:04.

Tammy Cleveland arrived at the hospital at about 8:20.

At 8:29, resuscitation efforts ended, Cleveland was disconnected from life support and Dr. Gregory C. Perry, the emergency room doctor, who had been a licensed physician for only 15 months, pronounced him dead, said Charles F. Burkwit, Tammy Cleveland’s Rochester-based attorney.

Tammy went to see the body with her adult daughter, Sheena Warner, and her stepson, Ellis, and found otherwise.

“My husband turned his eyes and looked at me,” she said. “He was responding to me. That was the first thing that threw us all back in the room ...

“I told the doctor my husband wasn’t dead and that he was looking at me. He was responding to me,” Tammy recalled.

Perry “told me that it would appear my husband was alive because he had life expelling out of his body,” she said.

“I didn’t know what to think. (Perry) left the room and I continued to basically not believe him. As the night was going on, he was responding more and more. Other attempts were made to get the doctor to believe me.”

Tammy said she never left Michael’s side, but she sent Warner, 27, to “grab the doctor and have him come in so he could see we weren’t crazy. My husband was alive. He came in and he didn’t do anything to my husband. He just told me my husband was young and he had a lot of life to expel out of his body, that, you know, he was only 46 years old.”

But Michael Cleveland was breathing, she said.

“You could see the condensation in his (breathing) tube,” she said. “He would actually draw his legs up and have his feet flat on the gurney. He threw his right arm over the gurney and his leg, to try to hug me.”

Tammy said several attempts were made to get Perry or someone on the ER staff to come back and observe this, but they wouldn’t.

Asked if, in retrospect, she could have done more to get Perry to listen to her, Tammy Cleveland replied, “Short of putting a knife to his throat? No.”

At about 9:30, Niagara County Coroner Joseph V. Mantione showed up.

“I yelled at him, ‘Are you here to prove my husband’s dead? Because look at him. He’s not,’ ” Tammy recalled. “The gentleman looked at my husband and excused himself from the room and left.”

Mantione would not comment when contacted by The News.

“I really can’t comment on it until I give my deposition,” he said.

Mantione was interviewed by private investigator Dennis Adams, a former Buffalo Police detective, hired by Burkwit.

Mantione told the investigator that he saw Michael Cleveland “gasping for air” in the emergency room, “taking short, labored breaths.”

Adams said Mantione related the following:

“His wife was holding his hand and said, ‘He’s been like this for an hour.’ He went and talked to the doctor and the doctor explained to him, ‘It’s just the drugs we gave him wearing off, and the body’s reacting.’ ”

Mantione is a funeral director, not a doctor. But according to Adams, he said he had never seen a dead body do that in 17 years in the field.

“Several times, he went back to the room and saw him moving his limbs, moving his legs,” Adams said of Mantione. “He went back to the doctor and said, ‘I’m not taking his body. I’m leaving. If he ceases to have any life actions, give me a call and I’ll come back.’ ”

Adams said Mantione told him that he advised Perry to check Cleveland’s vital signs.

The family made four attempts to get Perry to recheck his death pronouncement before he finally checked the patient at about 11:10 p.m., Burkwit said.

“My God, he’s got a pulse,” the doctor exclaimed, according to Burkwit.

A decision was made to transfer Cleveland to Buffalo General Medical Center.

But a few minutes later, the family looked into the room and “the doctor was pushing him back down on the gurney and his head was facing the floor … I guess he was trying to get up. He was angry at this point … The doctor was yelling at him to calm down, and I guess they ended up restraining him,” Tammy said.

As far as Tammy knows, Michael never said anything because of the breathing tube that had been in his throat all night.

Mantione, the coroner, returned to the hospital at about 11:30 p.m. according to Adams, and saw the struggle between Cleveland and the ER staff.

“He was pushing them away with his arms and trying to sit up, and they were holding him down restraining him,” Adams said Mantione told him.

“Poor Mike,” Tammy Cleveland said. “Can you imagine laying there and going through all this and nobody will listen to the fact that he’s alive? He’s got to hear everybody saying he’s dead. Can you imagine?”

Michael Cleveland died the second time at 10:48 a.m. Oct. 11 in Buffalo General’s medical intensive care unit.

“Get an autopsy,” a nurse told Tammy Cleveland.

The autopsy showed her husband died of acute myocardial infarction – a heart attack – and hypoxia, oxygen deprivation in the heart, stemming from the collapsed, fluid-filled lung.

Tammy Cleveland, now 52, has moved to the Rochester suburb of Webster since her husband’s death.

She had met Michael, a Bradford, Pa., native, in Endicott, near Binghamton, shortly after Michael’s son Ellis was born in 2001. They were both working at Telespectrum, a telemarketing company. They lived together in Endicott and moved to Amherst in 2005, when Michael was hired by ICT Group, a telemarketing firm, as a director of customer relations. He switched to a rival company, Apac Customer Services, about two years before his death and was earning more than $100,000 a year as director of client services. Tammy has two daughters and a son from her previous marriage.

At the time of Michael’s death, the couple was planning to move to Monroe County to be closer to relatives, because Michael’s job at Apac allowed him to work from home. Tammy carried out that plan.

The lawsuit seeks damages from Kaleida Health, owner of DeGraff and Buffalo General hospitals; Perry and his medical group, FDR Medical Services of Orchard Park, which supplies emergency room physicians to several Kaleida hospitals; and Dr. William M. Morris, who operated on Cleveland at Buffalo General, and his group, Buffalo Medical Group.

The Buffalo News made several attempts to contact Perry by phone and email, until his attorney, Brian Sutter of the Sugarland Law Firm, asked that such efforts cease.

“I really don’t have any comment on this,” Sutter said of the lawsuit.

Kaleida spokesman Michael Hughes told The News by email, “This is a patient care issue, which is covered by federal privacy law. So we are not at liberty to comment at this time.”

Kaleida’s attorney, Mark Arcara, also said he was not authorized to comment.

Morris’ attorney, Gregory T. Miller, said, “It’s our policy not to comment on any pending litigation, other than we stand by Dr. Morris and all the care and treatment he provided. We intend to vigorously defend the case.”


The attorneys in the case met late last month with State Supreme Court Justice Frank Caruso in Niagara Falls, where they discussed how the case will proceed with the sharing of evidence. A telephone conference with the judge is set for Feb. 24.

The malpractice lawsuit doesn’t name a damage figure.

“I think this case has economic value,” Burkwit said.

When the possibility of winning a large damage award was pointed out to Tammy Cleveland, the widow sobbed and said, “I just want to be able to look that doctor in the face and have me tell him that he’ll never do it to another family again.”

email: tprohaska@buffnews.com

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