By Phil Davis
The Baltimore Sun
BALTIMORE — A Maryland Court of Appeals has denied a family monetary damages in the 2011 death of a Baltimore man, saying that while medics did not follow protocol when treating him for a heart attack, their conduct did not constitute “gross negligence.”
In a 4-3 ruling, the court wrote that two medics, Joseph Stracke and Stephanie Cisneros, did not act in a grossly negligent way when they “inaccurately diagnosed and treated” Kerry Butler Jr., 28, who died of a heart attack at Medstar Harbor Hospital on March 2, 2011.
The decision overturns a Court of Special Appeals ruling, which upheld a decision in favor of the Butlers, who could’ve received up to $200,000 in damages, according to their attorney, Alan Belsky. The amount is capped by city law for lawsuits against city employees.
With the highest court in the state ruling against the man’s estate after a jury trial ruled in their favor, the family’s attorney warns the court’s decision may scare off other lawyers from filing medical malpractice cases against fire department and emergency medical systems personnel.
“As it relates to fire and emergency personnel … the likelihood of any case being successfully tried to verdict and sustained on any appeal is very unlikely,” Belsky said.
But the majority judges also warned that had they ruled in the Butler family’s favor, it “would have a negative impact on not only the number of individuals who seek employment as first responders in the future, but would create a chilling effect on their conduct.”
A spokeswoman for the Baltimore City Fire Department did not immediately return calls for comment.
While the facts of the case are largely agreed upon — even in the opinion ruling for the two medics, the four judges agreed that the medics “inaccurately diagnosed and treated their patient” — the ruling comes down to the immunity granted to certain emergency personnel and what actually constitutes “grossly negligent conduct.”
In the majority opinion, the judges wrote that following a medical examiner’s autopsy, the medics “did not conform to Mr. Butler’s actual medical condition and needs” when they reported to his home around 1:20 a.m. on March 2, 2011.
The two initially had difficulty finding Butler’s Cherry Hill home, the opinion reads, as Stracke had to get out of the ambulance to locate the home while Cisneros stayed in the vehicle.
Upon locating the house, Stracke saw Butler’s wife waiting outside with Butler seated in a chair inside the house, the opinion reads.
After Butler complained of pain on the right side of his body, he walked to the ambulance without the aid of a stretcher, the opinion reads.
Once inside the ambulance, the two medics took Butler to Harbor Hospital where he ultimately went into cardiac arrest and died after waiting for several minutes.
According to the opinion, the fact that Stracke and Cisneros did not put Butler on a stretcher and then take him to a cardiac-specific center violated fire department protocol.
“The Protocols explain that a patient with such symptoms should be placed into a position of comfort and transported to the nearest hospital cardiac catheterization center,” the opinion reads.
The judges wrote that Butler’s condition began to worsen at the hospital before he went into cardiac arrest and ultimately died, but they ruled that Stracke’s and Cisneros’ actions did not constitute “a reckless disregard for human life or amount to gross negligence.”
“Hindsight is 20/20, and it is clear from the medical examiner’s autopsy that (Stracke’s and Cisneros’) assessment did not conform to Mr. Butler’s actual medical condition and needs,” the opinion reads.
“While this may — or may not — be sufficient to establish negligent conduct, the evidence presented by (the Butlers) is not sufficient to establish gross negligence,” the opinion reads.
And because the court ruled the facts of the case don’t establish gross negligence, the two medics are protected by immunity clauses specifically for municipal fire and rescue teams.
In a lengthy dissenting opinion, Judges Mary Ellen Barbera, Robert McDonald and Alan Wilner — who is retired from the court but specifically assigned to this case — wrote that the original trial saw “two diametrically contradictory versions of what actually occurred.”
The judges wrote that the plaintiff’s version of events described Butler as barely coherent and that he “could barely walk and he could barely talk” while he was holding his chest and bending forward when Stracke arrived.
“Not withstanding Ms. Butler’s statement that her husband could barely walk, Mr. Stracke responded that he ‘was going to have to walk.’” the dissenting opinion reads. “Although there was a stretcher in the ambulance, Mr. Stracke refused to get it and forced Mr. Butler to walk to the ambulance as a condition of being taken to the hospital.”
While Butler was then able to walk himself to the hospital without assistance, he was taken to the emergency room in a wheelchair where his condition worsened, the opinion reads.
“He was sitting in a wheelchair with his hands on his chest, complaining that his chest hurt,” the opinion reads. “One of the paramedics was with him but made no effort to assist him.”
About 10 minutes later, Butler was “hollering for help” and “alone,” according to the opinion.
Then, when Stracke was standing behind Butler, “Butler’s head lurched back and hit Mr. Stracke’s stomach,” the report reads, and he slid out of the wheelchair while Cisneros proclaimed he was having a seizure.
As a doctor worked to resuscitate Butler, who had become unresponsive with no pulse, Cisneros did not inform the medical staff of any signs of a heart attack Butler exhibited earlier in the day.
Rather, Cisneros only told the staff of what Butler had eaten before reporting the chest pains.
A spicy chicken sandwich.
“All (the doctor) could learn from Ms. Cisneros was that the patient ‘was complaining of some discomfort which occurred after he had eaten, like, a spicy chicken sandwich,” the opinion reads, adding that the Emergency Nursing Records shows Butler’s chief complaint as “heartburn eating spicy chicken.”
“The resuscitation efforts, which continued for about an hour, were unsuccessful, and Mr. Butler was declared dead at 2:41 a.m.” the opinion reads.
The three judges wrote that the doctor that examined Butler “believed that Ms. Cisneros had misled the hospital regarding Mr. Butler’s condition” and that he “obviously had a cardiac problem” that went untreated for 10 minutes or more because Cisneros and Stracke made no mention of a medical emergency.
They also pushed back against the idea that Butler’s condition only worsened at the hospital, writing there was “indeed, such evidence — plenty of it — which the defendants ignored, the Majority has taken little to no account of, but the jury must have believed,” the opinion reads.
“What may have killed him was forcing him to walk to the ambulance without conducting the required assessment, to hoist himself or climb steps to get in and out of the ambulance, of having to sit in the wheelchair at the hospital, of affirmatively misinforming the hospital of the real problem,” it continues.
Given the Court of Appeals ruled in June that a Worcester County man who sold a fatal dose of heroin to another man was correctly convicted of grossly negligent manslaughter, Belsky said the court has set a double standard.
“Gross negligence should be a single standard, applicable across the board,” Belsky said.
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