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Death Pronouncement Won’t Leave Cops Liable

(CN) - Parents of a woman whose body washed up in Sea Isle City, N.J., in 2009 cannot sue police for allegedly preventing Ambulance Corps staff from treating her, a federal judge ruled.

Charles and Elizabeth Hottenstein sued Sea Isle City and several other defendants for the alleged wrongful death of their daughter, Tracy, four years ago.

After Tracy, 35, jumped into the frigid Atlantic at the city's annual Polar Bear Plunge on Feb. 14, 2009, she went drinking with friends at LaCosta Lounge, and video-surveillance footage shows her leaving the Ocean Drive bar at around 2:15 a.m., according to the complaint.

Tracy's body washed up on the City Marina boat launching ramp hours later, at which point a fisherman called 911, her parents claimed.

When certified EMT Sgt. Harold Boyer and other police officers could not find Tracy's pulse, they thought she was dead, and closed off the area with yellow crime-scene tape.

As a result, neither Ambulance Corps staff nor paramedics were allowed to come within 20 feet away of Tracy, let alone treat her, according to the complaint.

Police allegedly described Tracy's body as pale, grayish, and cold, with "foam coming from mouth" and "eyes extremely dilated."

Paramedic Michael Senisch came within 6 feet of Tracy for a "pronouncement," however, and Dr. Zaki Khebzou pronounced her dead by telephone minutes later, at 8:22 a.m.

But Tracy may not have been deceased at that time, her parents claimed, pointing to two expert reports attributing her symptoms to severe hypothermia.

Earlier this month, U.S. District Judge Joseph Irenas set a $250,000 cap on negligence damages for Atlanticare Regional Medical Center, Atlanticare Mobile Intensive Care Unit Medics at Base 3, and Atlantic City Medical Center.

Finding that that the hospital defendants are nonprofit entities, Irenas said on Oct. 3 that they were eligible for the cap under the New Jersey Charitable Immunity Act.

A week later, Irenas sided with the Sea Isle Ambulance Corps (SIAC); its assistant chief, Phyllis Linn; Sea Isle City and several police officers on all claims.

"There is no allegation in the record that the officers affirmatively ignored Tracy's condition," Irenas wrote on Oct. 11.

"Rather, the record reflects that the officers immediately responded to the 911 call and attempted to render the necessary care to an unconscious victim, and after determining that Tracy lacked a pulse, they provided that information to Linn and the SIAC, as well as the paramedics when they arrived on scene. In light of these circumstances, the officers did not fail to render medical care nor did they withhold medical care from an individual in their custody that obviously required such care."

Tracy's parents cannot allege blame the death on the marina's allegedly dangerous condition because "expert testimony fails to determine the cause of Tracy's fall or how she lost her balance and fell," according to the ruling.

The court also threw out the negligent hiring and federal and state civil rights claims against the Ambulance Corps and municipal defendants.

"As the plaintiffs' experts explain, the alcohol and cold weather were the causes of Tracy's incapacity, not the stringing of yellow tape," Irenas wrote.

The judge refused to award summary judgment to the doctor, whom Tracy's parents say "deliberately ignored" state regulations for death pronouncement outside of a hospital.

"Given that Tracy may have been alive at 8:22 a.m., Khebzou's pronouncement of death may have been premature and cut off Tracy's opportunity to receive medical care," Irenas wrote.

In addition to preserving the direct negligence claim against Khebzou, the judge refused to grant that doctor's employer, Atlantic Emergency Associates, judgment on vicarious liability.

"Khebzou learned from the paramedic that Tracy displayed signs of death, but had not been 'hooked up,'" the opinion states. "Without asking any further questions, Khebzou elected to declare Tracy deceased anyway, even though he knew New Jersey regulations for declaring a patient deceased required such test results, if feasible, and therefore did not follow those regulations."

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