Kentucky Wrongful Death Case Involving a Lack of 911 Response

by Mandy Hicks

In a 2013 unpublished appellate case, a woman’s estate appealed after the circuit court granted summary judgment on some of the estate’s claims and directed the verdict on the remaining wrongful death claims. The case arose from the death of Cheryl Powers from chronic obstructive pulmonary disease (COPD). Before dying, Powers called 911. A dispatcher took the call. Powers couldn’t speak clearly, but she tried to give her address before the call was disconnected. The dispatcher called the number back, but it went to the woman’s voice mail. The dispatcher called the police dispatcher instead of an ambulance and explained that she thought the woman had given a particular address.

The dispatcher replayed the 911 call and called the police dispatcher again, saying that she thought that the woman had said “Vista Apartments.” The police dispatcher sent an officer to the first address, but the first address did not exist. The police dispatcher told the officer there was no additional information and thereby “cleared” the 911 call. Therefore, no emergency services responded to the woman’s 911 call, and she died. On the following morning, the woman’s boyfriend found her dead in the hallway. The woman’s estate sued for negligence and wrongful death against the City, the police dispatcher, the police chief, and the mayor in both their official and individual capacities. The estate amended the complaint to add several more officials, including the first dispatcher. The estate settled with the police, the second dispatcher and two others. The remaining defendants made a motion for summary judgment arguing (1) sovereign immunity and (2) that there was intervening negligence by the second dispatcher for failing to dispatch an officer to Vista Apartments. The defendants also argued that social security payments couldn’t be the basis for recovery under the wrongful death statute and that the estate wasn’t entitled to punitive damages.

The parties agreed to dismiss the 911 call center, the first dispatcher in her official capacity, and two others. The trial court granted summary judgment in favor of the individual who had trained the first dispatcher. The trial court also found that the first dispatcher’s decision to call the police dispatcher instead of the ambulance involved discretion and judgment that entitled her to qualified immunity for that act. The trial court denied judgment on the first dispatcher’s defense that the police dispatcher had exhibited intervening negligence in failing to dispatch an officer to Vista apartments after her second call to him.

The trial court also ruled that the decedent had not “earned” her disability payment, and therefore the estate was not entitled to recover her future disability payments the way it would have recouped her lost future earnings, if there had been any. The negligence case regarding her handling of the 911 call proceeded against the first dispatcher. The estate presented evidence from a doctor, and after that, the dispatcher moved for directed verdict, arguing the estate had not proved that the initial misinterpretation of the address and delay were a substantial cause or factor in the woman’s death. The judge granted the motion for directed verdict.

The estate appealed this decision. It argued a jury could have found that the death would have been prevented by timely medical attention. It also argued it was an error to rule that the dispatcher and her trainer were entitled to qualified immunity and that it was an error to rule that the estate couldn’t recover the woman’s lost disability payments. A cross-appeal was also filed.

The appellate court explained that the plaintiff had to prove (1) duty of care, (2) breach, (3) consequent injury. The critical inquiry in this case was whether the dispatcher’s misinterpretation of the 911 call and delay in giving the police dispatcher the correct location was a substantial factor or cause in the decedent’s death. In this case, the estate’s only testimony about the decedent’s physical condition that night was from a medical expert who found the decedent died of COPD “decompensation.” He had explained that, if she had been given oxygen effectively, her condition could have been reversed. However, he clarified that it wasn’t possible to decide how effective the treatment would have been or even how long the woman had lived after the 911 call.

The appellate court affirmed the directed verdict for the defense, which made the other issues moot.

This case illustrates the importance of finding the right experts for a wrongful death case. It is important to find an expert who is able to testify as to causation and whether a defendant’s actions were a substantial factor in the decedent’s death.

Although recovery wasn’t possible here, every case is different. We can review the circumstances of your case and help you decide if you should pursue legal action.

Contact us at 270-781-6500 or via our online form.

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