Jon Campisi Nov. 28, 2012, 9:18am

For the second time, a federal judge has dismissed a complaint from a Philadelphia woman that related to the death of her mother at the hands of emergency medical personnel.

U.S. District Judge Thomas N. O’Neill, Jr., on Nov. 26 granted a defense motion by the City of Philadelphia that sought to dismiss an amended complaint by Dominique Henderson, who had filed suit on behalf of her late mother, Yvette Henderson.

The elder Henderson was pronounced dead at Temple University Hospital back in late October 2010, where she had been taken after being dropped on her head by EMS workers who had been called to her home after the woman complained of breathing difficulties.

The incident occurred while Yvette Henderson was being carried by the medical personnel from her home to an awaiting ambulance.

On July 23, O’Neill granted the city’s motion to dismiss the plaintiff’s wrongful death claim, but allowed Dominique Henderson to amend a Section 1983 civil rights claim to the extent that she could allege sufficient facts to support a claim that the EMTs’ conduct shocked the conscience and that a city policy or custom caused the deprivation of her mother’s constitutional rights.

In her amended complaint, the plaintiff alleged that the city’s EMS workers created a special relationship when they took custody of her mother, restrained the woman’s liberty so as to render her unable to care for herself, and at the same time failed to provide her basic human needs, court papers show.

Dominique Henderson asserted that her mother’s injuries, and subsequent death, were a direct and proximate result of the “intentional, willfully wanton and/or conscious shocking actions of the Defendant, City of Philadelphia.”

While there is ordinarily no federal constitutional right to rescue services, there are two exceptions to this general rule, the judge wrote: the special relationship exception and the state-created danger exception.

In this case, Dominique Henderson argued that the conduct alleged in her complaint falls within the latter.

O’Neill, however, disagreed with this contention, writing that the allegations in the plaintiff’s amended complaint are not sufficient to demonstrate that she has a ‘plausible claim for relief.’”

The judge wrote that the plaintiff’s amended complaint contains no factual allegations to support a finding that the involved emergency service workers acted in a conscience-shocking manner.

“She does not claim that they intentionally dropped plaintiff’s decedent or that they otherwise acted with a purpose to harm her,” the ruling states. “Instead, plaintiff’s amended complaint contains only ‘conclusory allegations which find no particularized support in the Amended Complaint to lend them any plausibility.’”

O’Neill went on to write that while the circumstances outlined in the lawsuit are “tragic,” they don’t demonstrate a deprivation of the plaintiff’s mother’s Fourteenth Amendment rights by the defendant.

Even if the plaintiff had sufficiently pled facts supporting conscience shocking conduct by the EMS personnel, the judge wrote, the argument would still fail, since it does not allege with any specificity a municipal policy, practice or custom that was the moving force behind the alleged violation of the plaintiff’s mother’s constitutional rights.

“Plaintiff asserts that ‘discovery may reveal that the City of Philadelphia may have a policy and/or custom in place of hiring and/or providing unlicensed and/or inadequately trained and/or inadequately equipped emergency medical service personnel,’” O’Neill wrote. “This speculation is not enough to allow plaintiff to overcome defendant’s motion to dismiss.”

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