Green v. City of New York
| Decision Date | 05 October 2006 |
| Docket Number | Docket No. 04-1006-cv. |
| Citation | 465 F.3d 65 |
| Parties | Susan Ross GREEN as Executrix of the Estate of Walter Green, deceased, Susan Ross Green, and Alixandra Green, an infant, by her Mother and Natural Guardian, Susan Ross Green,<SMALL><SUP>*</SUP></SMALL> Plaintiffs-Appellants, v. CITY OF NEW YORK, Paul Giblin, and St. Luke's-Roosevelt Hospital Center, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Second Circuit |
Elisa Barnes, Law Office of Elisa Barnes, New York, NY, for Plaintiffs-Appellants.
Scott Shorr, Assistant Corporation Counsel for the City of New York (Michael A. Cardozo, Corporation Counsel, and Ron E. Sternberg, Assistant Corporation Counsel, on the brief), New York, NY, for Defendants-Appellees Paul Giblin and City of New York.
Michael P. Kelly, Schiavetti, Corgan, Soscia, DiEdwards & Nicholson, LLP, White Plains, NY, for Defendant-Appellee St. Luke's-Roosevelt Hospital Center.
Before POOLER and KATZMANN, Circuit Judges.**
This appeal stems from a decision by the individual defendant, New York City Fire Department Lieutenant Paul Giblin, to transport Walter Green ("Walter") to a hospital without evaluating whether Walter was competent to refuse treatment or whether he had done so. On March 19, 2000, Walter, whose amytrophic lateral sclerosis ("ALS") had progressed to the point that he could not breathe on his own, was at home with an assistant, Marcella Lopez, when his mechanical respirator stopped working properly. Because neither Lopez nor Walter's fourteen-year-old daughter, Alixandra, was initially able to locate the ambu-bag used to manually assist Walter with breathing, they blew air into Walter's trachea tube. Alixandra also called 911 for assistance, but while she was still on the phone, Susan Green ("Susan") Alixandra's mother and Walter's wife, returned to the apartment and located the ambu-bag. The three women then succeeded in restoring Walter to consciousness and competence.
After Walter became conscious, several emergency personnel from the New York City Fire and Police Departments and St. Luke's-Roosevelt Hospital ("St.Luke's") came to the Greens' apartment. One of the last to arrive, Lieutenant Giblin, overrode objections from Susan, Alixandra, a family friend, and Walter himself, and ordered that Walter be transported to St. Luke's.
Against this difficult background, which, on this appeal from a grant of summary judgment, incorporates the evidence and adopts the inferences most favorable to plaintiffs, we must answer five primary questions: (1) whether Walter had a right under the Fourth Amendment to the United States Constitution to be free of the seizure that occurred when he was transported to St. Luke's; (2) if so, whether the contours of Walter's Fourth Amendment right were sufficiently established on March 19, 2000, that a reasonable municipal employee would have known that he had such a right; (3) whether Walter had a right under the Fourteenth Amendment to decline to be taken to St. Luke's; (4) if so, whether this right was sufficiently clear and established to defeat the individual defendants' claim of qualified immunity; and (5) whether there is sufficient evidence in the record to require a trial on Walter's claim that the defendants violated the New York Human Rights Law ("HRL"), N.Y. Executive Law § 290 et seq., and the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq, by failing to assess his competence to decline treatment. The appeal also requires us to resolve issues of municipal and employer liability.
The Facts.
As we must in reviewing a grant of summary judgment, we view the facts in the light most favorable to plaintiffs and draw from those facts every favorable inference that a reasonable fact-finder could draw. See Anthony v. City of New York, 339 F.3d 129, 134 (2d Cir.2003).
Walter was first diagnosed with ALS, a neuro-muscular disease, in 1993. By 1997, he was using a mechanical respirator. Even after he began using the respirator, Walter continued athletic activities including wheelchair marathons. Walter was also a long-term advocate for the needs of those with disabilities.
When Walter began using the respirator, his family members were trained in the use of the various machines and devices that Walter's care required including an ambu-bag, a bag that fit into Walter's trachea tube and could be used for manual ventilation when the mechanical ventilator was not working. Between 1997 and the incident in March 2000, Walter's mechanical ventilator malfunctioned four times. On one occasion, the ventilator malfunctioned in the middle of an airline flight to Germany. By taking turns using the ambu-bag for three and a half hours, Susan, Alixandra, and a stewardess were able to provide sufficient oxygen to Walter, and he suffered no adverse health consequences. Family members also used the ambu-bag to help Walter breathe when his digestive processes required so much energy that the mechanical ventilator provided insufficient oxygen.
On March 19, 2000, Walter had pneumonia. At some point, Susan and Alixandra left the apartment, leaving Lopez to care for Walter. After they left, Walter began feeling light-headed. Lopez noticed Walter's distress, called Susan, and told her that "Walter [was] feeling bad" and that Susan should return. Although it appeared that the ventilator was working, Lopez also asked Walter if he was getting enough air. When he replied, "no," Lopez began blowing into Walter's tube as she had been taught by Shirley Barboza, Walter's regular attendant.1
Alixandra arrived at the family apartment approximately ten minutes after Lopez's call. She found her father passed out with his eyes rolled back, his skin green, and his face cold. Lopez was "breathing for him [by] blowing into his trache [a] to give him air." Alixandra assisted Lopez by taking turns blowing into her father's trachea. The two also took turns suctioning mucus from Walter. Alixandra looked for the ambu-bag but was unable to find it. Within five minutes of Alixandra's arrival, Lopez told the teenager to call 911.
The transcript of the tape between Alixandra and 911 indicates that the conversation began at 2:40 p.m with Alixandra telling the operator that her father was having trouble breathing because his ventilator was not working. Alixandra also said "we need help," and the operator indicated an ambulance was on the way. Later in the conversation, Alixandra said that her father was dying, and the emergency operator said, "He's breathing so calm down she can stop screaming." Alixandra then dropped the telephone, so that she could try to fix the ventilator.2
About five minutes after Alixandra arrived at the apartment, her mother returned and found the ambu-bag. With use of the ambu-bag and suctioning, Walter returned to consciousness and regained his usual color in less than five minutes. Asked if he was all right, Walter blinked twice, his signal for "yes." He then blinked five times, which was his code for He also entered "I'm OK" with one finger on his laptop, which spoke the words for him. When Walter returned to consciousness, he noticed only his wife and daughter in the apartment. He was able to think clearly within five minutes of his revival.
After Walter regained consciousness, St. Luke's Emergency Medical Service personnel and police officers came to the apartment. One officer asked Walter if he wanted to go to the hospital. Walter blinked "no," and repeated on his computer "no, because I fine." The computer spoke the words out loud. Walter repeated his desire not to be hospitalized many times as did his wife. Susan also explained Walter's eye-blinking system in which one blink meant "no," and two blinks meant "yes," as well as his computerized method of communication. St. Luke's paramedic Chris Collins ignored Susan's explanation that Walter could communicate by blinking and "could answer for himself if Mr. Collins would only come and look." Susan also thanked the officers for coming but explained that the family had things under control now. In the face of Susan's claim that Walter was now all right, Collins said that he would be the judge of Walter's condition.
At around 3:12 p.m., Collins called the FDNY's Medical Control system ("telemetry"), which allows on-the-scene emergency personnel to talk to a paramedic who, in turn, has access to a physician. Telemetry physicians can help responders evaluate whether a refusal to accept medical assistance has been competently made. He said:
Okay here's my situation.... It's a 60-year old male who has a history of Lou Gehrig's disease.... The patient's vent had died.... When we got there the patient's family was bagging him. The patient is septic.... We initiated [treatment] and the patient's family does not wish to allow him to be removed from the residence....
The telemetry operator asked Collins if Walter could talk, and Collins responded, "he's got a trachea and he is being bagged he can communicate via computer." The telemetry operator then said: "Are they are — well that's not going to help us." Later the operator reported to Collins that the "doc" had said, "standby for the lieutenant and see what he can get you know get done from there."
An EMS report reflects that Walter "start[ed] to respond via eye contact and tr[ied] to communicate by laptop computer" at 3:20 p.m. A Fire Department report states that "around [3:20 p.m.] [patient] became alert communicating via computer and winks."
At 3:29, other officers including Giblin, came to the apartment. Giblin announced that he was in command and told Susan: "[w]e are taking him in." At that time, the words "no hosp" still appeared on Walter's computer screen. However, when Susan asked to call Bill Hill, Walter's respiratory therapist, Giblin told her to go ahead. Susan informed Hill that "[they]...
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