The emergency room doctor who mistakenly told Tammy Cleveland that her husband had died at DeGraff Memorial Hospital from a heart attack – despite the family's reports that he was breathing and moving his arm – showed "outrageous conduct that transcends the bounds of human decency," her lawyer said this week before appellate judges.
So a jury should have a chance to pass judgment on her claims of intentional infliction of extreme emotional distress and punitive damages against the doctor and hospital, said Charles F. Burkwit, her lawyer.
"We believe that it's extreme and outrageous conduct that a nurse or a doctor would not reassess a patient in this situation," Burkwit said before the Appellate Division of State Supreme Court in Rochester.
State Supreme Court Justice Frank Caruso threw out those claims last year. He allowed the case to proceed on malpractice and negligent infliction of emotional distress claims against Dr. Gregory C. Perry and Kaleida Health, which owns the North Tonawanda hospital. Cleveland appealed his ruling, which led to Tuesday's hearing in Rochester.
Attorneys for Perry and Kaleida Health said the facts of the case don't meet the legal standard for awarding punitive damages.
"There has to be evil or malicious conduct that goes beyond the breach of a professional duty for a physician," argued Jenna W. Klucsik, Perry's attorney. "There is no such conduct even alleged here.
"Dr. Perry believed Mr. Cleveland was dead," Klucsik said. "Every medical provider who treated him up until 11:10 p.m. that evening ... believed that he was dead. There was no malicious conduct. There was no evil conduct."
Also, Tammy Cleveland never underwent any psychiatric or other treatment that plaintiffs often cite to show their distress, Klucsik said.
Justice Erin M. Peradotto, one of the five judges hearing the case, questioned Burkwit on that point.
"I have no doubt that these people suffered enormous grief as a result of their loved one's death," Peradotto said. "But with respect to severe emotional distress, it seems that there's a requirement that some medical treatment be required, that there's some medical evidence, something more than that."
"There are cases where emotional distress is genuine, where it's presumed to be there," Burkwit said.
"You're saying this is one of those cases?" Peradotto asked.
"This is one of those cases," Burkwit replied.
Perry performed so poorly that the appellate judges should grant an exception to the normal standards for damages in medical malpractice cases, Burkwit said.
Michael Cleveland, 46, of Amherst, suffered a heart attack and collapsed while shopping in the Tops Market in the City of Tonawanda on the evening of Oct. 10, 2014. An ambulance rushed him to the DeGraff emergency room, where he arrived at 8:04 p.m.
Burkwit said Perry told Tammy Cleveland that her husband was dead at 8:29, and he refused to change his opinion despite the family's reports that Michael was breathing and moving his arm.
Michael J. Willett, Kaleida's lawyer, said Tammy Cleveland's daughter testified that Perry went back into the patient's room five times at the family's urging.
Burkwit said Perry didn't admit Michael Cleveland was still alive until two hours and 40 minutes after ruling him dead. The victim then was transferred to Buffalo General Medical Center, another Kaleida-owned hospital, where he died the next morning.
Tammy Cleveland's lawsuit asserts that her husband could have been saved if he had been treated more promptly.
Dr. William M. Morris, who worked on Michael Cleveland at Buffalo General, denied that in an affidavit.
In a deposition, Niagara County Coroner Joseph V. Mantione testified that Perry told Tammy Cleveland that her husband would stop breathing and moving after the drugs he had been given wore off.
Mantione said in his deposition that he offered a simpler explanation when he refused to make the legal death pronouncement.
"Dead people don't move," Mantione said before leaving the hospital.
Mantione said he returned to the emergency room after a nurse called to tell him Michael Cleveland had "awakened." The coroner arrived in time to hear the man screaming and see him struggling as a nurse's aide tried to keep him on his gurney.
In a side issue, three of the five judges who heard Tuesday's arguments questioned whether it was appropriate for Caruso to impose a gag order on the parties and attorneys at Kaleida's request.
Burkwit sought to have that order lifted, while Klucsik and Willett said further comments by Burkwit and Tammy Cleveland would endanger the defendants' right to a fair trial.
Tammy Cleveland gave interviews to The Buffalo News, CBS, the Washington Post and other media outlets. Klucsik and Willett contend the media coverage of the case was unfair because Kaleida and Perry were ostensibly barred from responding by provisions in the federal health care privacy law.