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Family Brings Wrongful Death Suit Against Hospital

A man fell in his residential hotel apartment in New York City. A neighbor heard him yelling coming from the apartment and called an ambulance. According to the Ambulance Call Report prepared by the EMS workers, he was found lying in apt, full of feces and was having difficulty breathing. It was also noted in the report that he had an elevated heart rate of 132 beats per minute while in the care of the EMS workers. A New York Injury Lawyer said the Ambulance Call Report also contained the man’s address, date of birth, social security number and a telephone number of a female close friend which named her as his next of kin.

Records revealed that the man was taken by the ambulance to the emergency room of a hospital and the Ambulance Call Report was received by the staff member of the hospital. An Emergency Department Patient Registration Form was prepared after the man’s arrival at the hospital and contained the same pedigree information as the Ambulance Call Report. A triage assessment was performed and the records indicate that the man was still experiencing shortness of breath and was noted to have an elevated heart rate. It appears that no treatment was administered in triage and he was given acute priority and sent to an acute area of the emergency department.

The man was assessed by an attending physician in the emergency room and was found to be in respiratory distress with swelling of the extremities. The emergency room attending physician testified that his preliminary diagnosis was congestive heart failure. He also entertained the possibility of pneumonia and heart ischemia and considered the man to be a critically ill patient. He further testified that he put a non-re-breather face mask on the man with the highest concentration of oxygen and such was documented in the emergency room records. A Westchester County Personal Injury Lawyer said that according to the emergency room attending physician, he administered a medicine to reduce the man’s heart rate and administer a dose of another medicine to get rid of extra body fluid. He further testified that he would have probably given the man an antibiotic in case there was pneumonia. The emergency room records did not indicate that the man was provided with any of the medication treatments discussed by the attending physician at his deposition. Additionally, the attending physician testified that nurses of the hospital assisted in the emergency room treatment provided to the man, however, it does not appear that any nursing notes were generated in connection with such treatment.

The man eventually stopped breathing and became unresponsive four hours after his arrival. The attending physician testified that he had a vague recollection of placing intubation on the man and remembered performing Advanced Cardiac Life Support. These treatments were not noted in the medical records. The attending physician said that he made at least two attempts to contact the next of kin listed in the medical chart but was unable to reach her and there was no recording or ability to leave a message. It appears that no written record was created with respect to the attempt to contact the next of kin. Since he was unable to reach the next of kin, the attending physician informed other hospital personnel and they took over the responsibility of contacting the man’s next of kin. He could not remember specifically who he spoke with regarding the matter, but believes it was the charge nurse and a nursing administrator.

A Suffolk County Personal Injury Lawyer said that the hospital’s rules and regulations relating to notifying a family about the death of a family member specifically sets forth that it is initially a physician’s responsibility to notify the next of kin of a patient’s death. If the physician is unable to contact the next of kin, the physician is to notify the Clinical Nurse Manager/Nursing Administrator, who is required to make further efforts to contact the next of kin by making frequent phone calls, sending a telegram, and making a request of the City Police Department to visit potential residences for next of kin. If the Clinical Nurse Manager/Nursing Administrator is not successful with these aforementioned methods, and as a consequence, fails to locate a patient’s next of kin, they are responsible for contacting the City Police Missing Person’s Unit. After the City Missing Person’s Unit is contacted, a request for police investigation form must be prepared by the hospital in triplicate. One copy of that form remains with the body, one copy is to be kept at the hospital, and the original is to be forwarded to the Receiving City Mortuary with the body, the latter copy to be returned to the City Police Department when the body is released from the mortuary to a legally designated institution.

According to an affidavit submitted by the complainant to the City Police Department in opposition to the hospital’s motion, the City Police Department was never contacted by the hospital to conduct any investigation into the existence and whereabouts of the man’s family following his death. Furthermore, although the rules and regulations require the Nursing Administrator, at the appropriate care center, to maintain a log detailing the attempts made to contact a patient’s next of kin, there are no records indicating that any efforts were made by anyone.

A Certificate of Death form was completed by another emergency room physician and the man’s body was then brought to the hospital morgue. A Staten Island Personal Injury Lawyer said that since the hospital staff was unable to locate next of kin, he was characterized as an unclaimed body. According to the testimony of a hospital employee, once the morgue is in possession of an unclaimed body, it becomes the responsibility of the morgue staff to complete the personal particulars portion of the Certificate of Death. Typically this is completed by a funeral director. Notwithstanding the fact that the hospital records relating to the man contained his pedigree information, his death certificate personal particulars’ were all unknown. The Certificate of Death also indicated that the informant’s name was unknown and the man was to be buried in the City Cemetery.

In addition to the hospital rules, when a body remains unclaimed for 72 hours in the hospital morgue, the Morgue Supervisor is required to notify the Administrator of Pathology. The Administrator of Pathology is then required to communicate with the Care Center Director and complete a decedent follow-up form and forward it to the Care Center Director. Thereafter, under the direction of the Care Center Director, a decision is to be made with respect to the disposition of the body. If further efforts are needed to locate next of kin, the body is to be retained in the morgue. The hospital’s rules and regulations further state that if after 42 hours it is definitely established that there is no next of kin and every source has been exhausted, the Superintendent’s Permission form is completed by the Care Center Director, authorizing a Hospital Post Mortem Examination after which the body is transferred to the City Mortuary. In the instant action it appears that the hospital did not abide by its own rules and regulations.

The Department of Health issued a burial permit in November of 2001 and the man’s body was transferred to the City Morgue. While at the City Morgue, students of County Community College’s Mortuary Science Department were permitted to practice embalming on the man’s body. It does not appear that any efforts were made at any time by the City Morgue to verify that the body was unclaimed. On December 2001, the body was transferred from the City Morgue to the City Cemetery operated by the City Department of Corrections. The man’s body was then buried in a large burial plot by the inmates with approximately 150 other unclaimed bodies. Admittedly, the Department of Corrections would not have made any efforts to determine or contact the next of kin of an unclaimed body.

On February 2002, the man’s niece, a State Police Trooper, received a telephone message from the manager of the residential hotel that her that her uncle had passed away. It appears that the staff of the hotel began to grow concerned when they had not seen the man for quite some time, and began making inquiries at the hospital. Upon learning of the man’s passing, a hotel staff member was able to contact the niece, calling a telephone number contained in the hotel’s records. After contacting the hotel, the man’s niece and her father were informed by a hotel staff that the man was taken to the hospital on October 28, 2001, and passed away on that date. The female friend advised them that she was never called by the hospital to inform her that the man had passed away.

After learning that the man had passed away, his brother made inquiries with the hospital and the City Morgue to find out where his brother had been buried. According to the brother’s deposition testimony during his initial visit to the hospital, he was told by an employee that she could not provide him with details about his brother’s death or advise him as to where the body was located at that time, because the pertinent hospital records had been signed out by another employee who was on vacation at that time. The brother learned that the hospital employee intentionally lied to him in order to conceal the hospital’s wrongdoing. He eventually learned that his brother had been buried and he stated that he was encountering great difficulty when he initially attempted to locate his brother’s remains, and it was not until the media began assisting him, in the search, did he learn the exact whereabouts of the body. The body was exhumed and identified and the man’s family was able to have a wake and a funeral for him.

The brother served a notice of claim upon the hospital and its staff. The complaint asserts causes of actions against all the accused parties for medical malpractice, loss of sepulcher, fraudulent concealment and punitive damages. The City Health and Hospitals Corporation, the City Police Department, the City Department of Corrections and the City Department of Health respectively move to dismiss the action as asserted against them, and by separate motion, the hospital moves to dismiss any and all claims for punitive damages asserted in the complaint, as well as the fraudulent concealment claim. Additionally, the man’s brother moves for leave to amend the complaint.

According to the brother, dismissal of his claim for punitive damages relating to the medical malpractice cause of action is not warranted. As the evidence demonstrates that the attending physician was the physician in charge of providing medical care to emergency room patients, the Court finds that issues of fact exist as to whether such authority amounted to general managerial authority in relation to the nature and operation of the employer’s business. The failure on the part of the hospital to simply transcribe the man’s personal particulars on his death certificate not only stripped him of his identity, but facilitated the unfortunate chain of events that were yet to unfold.

The Court ordered that the motion by the City Health and Hospitals Corporation to dismiss the action as asserted against it is denied to the extent that it seeks dismissal of the sepulcher cause of action, and granted in all other respects. The Court further ordered that the motion by the hospital to dismiss any and all claims for punitive damages asserted in the complaint, as well as the fraudulent concealment claim is granted only with respect to the fraudulent concealment claim asserted against it in the complaint, and denied in all other respects. The Court also ordered that the motion by the City Police Department, City Department of Corrections and City Department of Health to dismiss the action as asserted against them is granted in its entirety. The Court further ordered that the motion by the brother for leave to amend the complaint is granted only to the extent that he may assert a cause of action for gross negligence against the hospital in connection with the alleged acts of medical malpractice, and seek punitive damages in connection with that cause of action.

Negligence of one person results in the injury of the other. If you or a member of your family becomes a victim of malpractice in the field of medicine and sustained injuries in the process, you should seek the advice of an attorney to explore your legal options. Stephen Bilkis and Associates will provide you with legal counsel, and a free consultation, so call us today for an appointment.

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