Jon Campisi Jul. 25, 2012, 8:35am

A federal judge has dismissed a wrongful death complaint against the City of Philadelphia that had been filed by a woman who alleged her mother’s death two years ago was the fault of emergency medical personnel who accidentally dropped the woman on her head during a call.

While he dismissed Dominique Henderson’s wrongful death claim, U.S. District Judge Thomas N. O’Neill, Jr., of the Eastern District of Pennsylvania, did permit the plaintiff to file a second amended complaint on her Section 1983 claims by Aug. 10.

Background information on the case shows that Yvette Henderson, the plaintiff’s mother, died in late October 2010, after emergency medical technicians employed by the city came to the woman’s house after she reported having trouble breathing.

The lawsuit claimed that while attempting to carry Yvette out of the house, the EMTs dropped the woman on her head, an act that ultimately led to her death.

In his memorandum, O’Neill said that in order for the plaintiff to recover on her wrongful death and survival claims, her amended complaint must allege that the decedent’s injury was caused by the negligence of the local agency or its employees, in this case, the City of Philadelphia, and that her claims fall within one of eight exceptions listed in the Tort Claims Act.

The judge determined that the latter wasn’t met.

Furthermore, O’Neill wrote that Henderson’s Section 1983 claims must be dismissed because the city is not constitutionally obligated to provide rescue services or to ensure the competency of rescue services that it has chosen to provide and because the plaintiff hasn’t pled that at the time of the incident the EMTs were acting pursuant to a policy or custom of the city.

“To state a claim against the City under [Section 1983], plaintiff must plead both that the EMTs’ actions deprived her mother of a right, privilege, or immunity secured by the Constitution and laws of the United States and that the EMTs were acting pursuant to a law, policy or custom of the City,” the memorandum states.

O’Neill wrote that even if the allegations set forth in the complaint are taken as true, the facts alleged do not amount to a deprivation of a federal constitutional right.

Citing case law, the judge wrote that the courts have held that there is no federal constitutional right to rescue services.

In this case, O’Neill wrote, the plaintiff cannot make a claim for recovery under Section 1983 because her mother didn’t have a constitutional right to receive competent emergency medical services.

There are exceptions in this regard, the judge wrote, but the plaintiff doesn’t seem to have met them.

“Plaintiff’s amended complaint does not allege that the EMTs were acting willfully, intentionally or in a conscience shocking manner,” the memorandum states. “Because plaintiff’s allegations do not support a finding that the state-created danger exception should apply she has not sufficiently pled a deprivation of her mother’s constitutional rights for liability to attach under [Section 1983].”

O’Neill wrote that even if the plaintiff could amend her complaint to allege a sufficient deprivation of her rights, she still must allege that the EMTs, at the time of the incident, were acting in accordance with a policy or custom of the city.

“Rather than allege that a city policy inflicted the injury set forth in the amended complaint, plaintiff instead claims that the injury at issue arose from the EMTs ‘refus[al] to enforce the rules, policies and regulations of the Commonwealth and City of Philadelphia,’” the ruling states.

O’Neill granted Henderson leave to file an amended Section 1983 claim to the extent that she can allege sufficient facts to support a claim that the EMTs’ conduct “shocks the conscience” and that a City policy or custom caused the deprivation of her mother’s constitutional rights.

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