Kranson v. Valley Crest Nursing Home, 84-5255

• Decision Date: 12 February 1985
• Docket Number: No. 84-5255,84-5255
• Citation: 755 F.2d 46
• Parties: Gail M. KRANSON, Administratrix of the Estate of Harry Gritz, Deceased, Appellant, v. VALLEY CREST NURSING HOME, a/k/a Luzerne County Institution District, Appellee.
• Court: U.S. Court of Appeals — Third Circuit

Page 46

755 F.2d 46

Gail M. KRANSON, Administratrix of the Estate of Harry Gritz, Deceased, Appellant, v. VALLEY CREST NURSING HOME, a/k/a Luzerne County Institution District, Appellee.

No. 84-5255.

United States Court of Appeals Third Circuit.

Argued Nov. 27, 1984.

Decided Feb. 12, 1985.

David I. Fallk (argued), Barristers' Row, Ltd., Scranton, Pa., for appellant.

George A. Spohrer (argued), Hourigan, Kluger, Spohrer & Quinn, P.C., Wilkes-Barre, Pa., for appellee.

Before HUNTER and WEIS, Circuit Judges, and THOMPSON, District Judge. ^*

OPINION OF THE COURT

WEIS, Circuit Judge.

Plaintiff sued a municipally owned nursing home for the death of her father. She charged a violation of his constitutional rights because of a failure to administer cardiopulmonary resuscitation, allegedly as a result of an institutional policy to withhold such treatment. The district court granted a directed verdict against plaintiff because she did not show that the policy was unconstitutional nor did she demonstrate a causal relationship between the policy and the injury. We will affirm on the lack of a causal nexus.

As administratrix of her deceased father's estate, plaintiff brought this suit under Sec. 1983 for violation of constitutional rights and under state law for wrongful death based on negligence. The district court dismissed the negligence count before trial. At the conclusion of the plaintiff's evidence at trial of the federal claim, the district judge directed a verdict in favor of defendant.

The plaintiff's decedent, Harry Gritz, died in August 1980 while a patient at the Valley Crest Nursing Home operated by Luzerne County, Pennsylvania. Mr. Gritz was then sixty-six years of age and was suffering from the effects of a stroke. He was a diabetic and had had a pacemaker implanted. The diagnosis on admission was congestive heart failure, old C.V.A. (cardiovascular accident), diabetes, and chronic coronary insufficiency. Mr. Gritz was paralyzed in his right arm and had only partial use of his left arm. He was unable to ambulate, bathe, dress, or shave without assistance. ¹

Five days after his admission to Valley Crest, Mr. Gritz choked on a piece of meat while eating his evening meal. Mr. Pozda, a practical nurse who was nearby, attempted to aid Mr. Gritz by slapping him between the shoulder blades. When that proved ineffective, a nurse and another attendant nearby assisted by holding Mr. Gritz upright while Pozda performed the Heimlich maneuver. ² The first effort was unsuccessful, but on a second application, the obstruction was forced upward into the plaintiff's mouth. Mr. Pozda removed the piece of meat, and Mr. Gritz was reseated in the wheelchair. At that time his pupils were fixed and dilated. He had no carotid pulse.

A physician who had been summoned, arrived as Mr. Gritz was being wheeled to his room or shortly after he arrived there. The physician pronounced the patient dead. The record shows that after the Heimlich maneuver was performed, no other resuscitative procedures were employed.

Plaintiff contends that cardiopulmonary resuscitation should have been administered to the patient after the piece of meat had been dislodged from his throat. She asserts that the failure to pursue that process was the result of the nursing home's policy not to administer cardiopulmonary resuscitation in every instance in which it was not specifically requested in advance by the patient or his family.

Some time before Mr. Gritz had been admitted, the nursing home, in a memorandum prepared by its medical director, had put forward the following position: "... with the appreciation of diverse opinion, based on philosophical, religious and humanitarian issues, it is impossible to have an absolute policy regarding CPR in this institution." However, the memorandum presented the following suggestions as guidelines on which to base a rational decision appropriate to a given situation.

"1. It is understood that standard C.P.R. is not to be performed routinely on every patient found in cardiac or respiratory arrest.

"2. When resuscitation efforts are requested by the patient or family prior to an unforeseen arrest, this information should be communicated to the physician in charge so that the appropriateness of the request in relationship to the patient's medical condition can be discussed with the family. A specific written order can then be placed on the chart by the physician.

"3. When medical[ly] appropriate, a physician may request C.P.R. upon cardiac or respiratory arrest by placing a written order on the patient's medical chart. Verbal orders may also be taken in emergency situations.

"4. When an unexpected cardiac or respiratory arrest occurs in a patient considered by nursing personnel to be medically stable, who also appears to have a reasonable degree of quality of life and quantity of life, C.P.R. may be initiated at the discretion of the nurse in charge of that floor at that particular time. It is understood that best judgment will be used. The physician in charge will be notified as soon as possible."

Plaintiff testified that she was not made aware of the Home's policy on CPR. The evidence also establishes that no notation indicating that CPR should be administered had been made on Mr. Gritz's chart. After presentation of her case, plaintiff contended that she had demonstrated negligence in the treatment of Mr. Gritz and that this was sufficient to establish liability under Sec. 1983.

The district judge, however, granted the defendant's motion for directed verdict. He stated that negligence was not enough to establish a cause of action under Sec. 1983 against a municipal agency. Under Monell, a plaintiff must show a nexus between municipal policy and the deprivation of some constitutional right. The judge continued, "I find nothing in the record that would allow, in my judgment, a jury to find that policy or that custom was inappropriate under the circumstances of a nursing home or that its use was the cause of death in this case." He also ruled that although the legislature had provided for the tort immunity of a municipal agency in cases such as this, that fact did not give a constitutional gloss to what was essentially a negligence claim.

I.

On appeal plaintiff advances a number of theories, which she maintains required submission of her Sec. 1983 case to the jury. These ideas are not always clearly delineated or developed. She asserts that negligence on the part of the nursing home employees was enough to establish a Sec. 1983 case--indeed that the evidence showed callous indifference. She also contends that the home failed to notify the decedent and his family of the CPR policy.

Defendant argues that plaintiff has not clearly articulated the constitutional violation that is alleged to have occurred and emphasizes that the decedent voluntarily chose to become a patient at the municipal nursing home. Unlike a prisoner or involuntarily committed mental patient, the plaintiff's decedent was free to leave. Defendant maintains that the element of voluntary commitment present in this case negates the duty of care placed on state institutions in situations of involuntary detention.

Plaintiff attempts to raise provocative issues requiring wide-ranging and thoughtful consideration of the policies of health care facilities, the type of care they give to their patients, and particularly the use of certain life sustaining procedures. Measures which may be required for elderly patients in comparatively good health may not be desirable for those with painful, terminal illness. In other instances, heroic treatment may not insure "life" but rather only a vegetative existence, a condition not desired by either the patient or his family. ³ What the Constitution requires of governmental institutions in situations of that nature is a matter which demands the most careful attention of the courts.

The record in this case, however, does not properly present such profound matters for our attention because plaintiff has failed to establish the essential link between policy and injury. In the posture of this case, we must be mindful of our obligation to avoid constitutional issues where an alternative ground of decision is present. Hagans v. Lavine, 415 U.S. 528, 543, 94 S.Ct. 1372, 1382, 39 L.Ed.2d 577 (1974); Ashwander v. T.V.A., 297 U.S. 288, 341, 56 S.Ct. 466, 480, 80 L.Ed. 688 (1936) (Brandeis, J., concurring).

We begin with the basic premise that local municipalities are not liable for the constitutional transgressions of their officers and employees on a respondeat superior theory. In Monell v. Department of Social Services of New York, 436 U.S. 658, 690, 98 S.Ct. 2018, 2035-36, 56 L.Ed.2d 611 (1978), the Supreme Court held that local governing bodies could be liable under Sec. 1983 only when "the action that is alleged to be unconstitutional implements or executes a policy statement, ordinance, regulation or decision officially adopted and promulgated by that body's officers."

Plaintiff points to the CPR policy of the nursing home as forming the predicate for her claims against this local governmental agency. Although she bases her case on this document, much of the confusion and uncertainty of her claims apparently springs from a reluctance to accept the policy as written.

In her brief, plaintiff refers to the defendant's "policy not to provide resuscitative measures." In another sentence she says that defendant "cannot defend that part of its policy which preempts a decision by the medical staff if CPR is requested by a patient or his family." But these excerpts from her brief are not accurate statements of the policy. The parties agree that the document entitled "CPR Policy" introduced into evidence contains the terms of the policy. The exhibit clearly states that "it is impossible to have an absolute policy regarding CPR in this institution...."

The guidelines do state that CPR is not to be performed...