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Negligence claim, punitive damages barred in case of man wrongly ruled dead

The widow of Michael E. Cleveland, an Amherst man who was pronounced dead in the DeGraff Memorial Hospital emergency room – even though he was alive – will not be allowed to demand punitive damages or sue for experiencing emotional distress.

That was the unanimous ruling Thursday from a five-judge panel of the Appellate Division of State Supreme Court in Rochester.

The ruling seemed to have been foreshadowed by some of the skeptical questions the judges asked the Cleveland family's attorney during arguments in May.

The appellate judges upheld and expanded a ruling by State Supreme Court Justice Frank Caruso in Niagara Falls, who is expected to preside over a trial, yet to be scheduled.

In limiting the types of claims allowed by the widow, Tammy A. Cleveland, the court decided the trial will be only on the topics of medical malpractice and wrongful death.

Although the appellate panel upheld Caruso's ruling on what can and cannot be argued at the trial, it did lift a gag order that Caruso imposed on the parties.

That allowed Charles F. Burkwit, Tammy Cleveland's attorney, to blast the decision and the DeGraff medical team.

"To me, the decision indicates that if you have a loved one who was originally pronounced dead, and if even if family and the coroner see signs of life, it is lawful and OK for the doctor and nursing staff to ignore you and the patient," Burkwit said. "The hospital and staff are now immune from punitive damages for their conscious and deliberate disregard for the right of Mr. Cleveland to emergency medical care."

Michael P. Hughes, Kaleida chief of staff, called Burkwit's comments "outrageous and inflammatory."

"We are pleased with the judges' ruling," Hughes said. "Our staff and physicians do phenomenal work each and every day taking care of our community. We don’t want this case and the continual misrepresentation of it to overshadow that fact."

Kathleen Sweet, the managing attorney representing Kaleida, said she would not comment on pending litigation. Jenna W. Klucsik, Perry's attorney, did not respond to requests for comment.

Tammy Cleveland, who now lives in Monroe County, sued Kaleida Health, owner of DeGraff, and Dr. Gregory C. Perry after Perry pronounced her 46-year-old husband dead of a heart attack at 8:29 p.m. Oct. 10, 2014.

Even though Mrs. Cleveland and others – including a Niagara County coroner – testified in pretrial depositions that they saw Michael Cleveland breathing and moving in the North Tonawanda hospital, Perry allegedly refused to change his opinion for two hours and 40 minutes.

"Dead people don't move," Coroner Joseph V. Mantione said he told the nurses as he left after being summoned to make the official death declaration.

Mantione also testified that Perry told Tammy Cleveland that her husband would stop moving after the drugs he had been given wore off.

By 11:10 p.m., witnesses said, Michael Cleveland was struggling to get off the gurney and trying to yell despite the tube Perry had left in his throat.

The heart attack victim then was transferred to Buffalo General Medical Center, where he underwent emergency surgery but died the next morning. The lawsuit contends that if Perry had acted more quickly to change his death pronouncement, Michael Cleveland's life might have been saved.

However, Dr. William M. Morris, who treated him at Buffalo General, said in an affidavit that he didn't think he had any chance of saving Cleveland. Morris said that Cleveland was in shock and had a fully blocked coronary artery, a collapsed lung and fractured ribs. The injuries apparently were caused during attempts at cardiopulmonary resuscitation by first responders after Cleveland collapsed while shopping at Tops Market in the City of Tonawanda.

To win a case charging intentional infliction of emotional distress, the facts must show "extreme and outrageous conduct," the appeals court said.

To claim negligent infliction of emotional distress, the widow and her son, Ellis Cleveland, would have had to show their distress was directly caused by the DeGraff team, not the loss of a loved one, the judges said.

"It is undisputed that Perry and members of the emergency department nursing staff at DeGraff believed that decedent was dead, and thus defendants’ conduct, considered in that context, cannot be deemed so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized community," the ruling read.

In rejecting the demand for punitive damages, the panel wrote, "We cannot conclude that defendants’ conduct constituted a reckless indifference equivalent to willful or intentional misdoing."

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