A wrongful death suit can proceed in behalf of a reveler at a Polar Bear Plunge whose body was found in the icy waters off Sea Isle City the day after.
U.S. District Judge Joseph Irenas granted summary judgment on Oct. 11 dismissing many of the counts in the suit over the death of Tracy Hottenstein, one of thousands of spectators in town on Feb. 14, 2009, for the 15th annual charity event, where costumed participants rush into the frigid Atlantic.
But he let stand the malpractice claims against the doctor who pronounced her dead, finding the “circumstances of [her] death are undoubtedly tragic but remain unclear at the close of discovery.”
He also allowed a punitive damages demand to go forward against the doctor, the city and its police.
In the festivities that followed the event, Hottenstein, 35, had been drinking and wandered away from the Ocean Drive bar at 2:15 a.m. that Sunday morning, Feb. 15. She apparently fell off a public dock and her body was spotted hours later floating near the city marina.
Three responding police officers were unable to detect a pulse and found she was cold, grayish in color and not observably breathing. They concluded that she was dead and taped off the area, treating it as a crime scene.
Sea Isle Ambulance Corps personnel were not allowed near Hottenstein, but a paramedic from Atlanticare Regional Medical Center eventually was let through and called Dr. Zaki Khebzou, an emergency physician from Atlantic Emergency Associates (AEA), for an official death pronouncement.
By phone, Khebzou pronounced Hottenstein dead at 8:22 a.m., a half hour after she was initially found.
Hottenstein’s family sued the municipality, the police, the ambulance corps and other parties.
Irenas found testimony adduced in discovery raised genuine issues of material fact about how she died.
An expert contended she might not have been dead when first found — as severe hypothermia can exhibit symptoms similar to death — and should have received immediate medical attention.
To make a death pronouncement outside a hospital, a doctor, by regulation, is supposed to obtain, if feasible, results of a telemetered electrocardiogram from a paramedic or other medical professional, Irenas noted.
Khebzou acknowledged in his deposition that he knew about this requirement but declared Hottenstein dead without having received any such examination results.
“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,” the judge wrote.
Irenas also upheld vicarious liability claims against AEA, though he dismissed direct negligence counts alleging it failed to implement a policy for handling hypothermia victims.
He also let stand the Hottensteins’ claim for punitive damages against Khebzou as well as the officers, who “cordoned off Tracy’s body and determined her to be deceased without a pronouncement of death.”
Irenas, though “skeptical,” found sufficient allegations that the defendants’ conduct exceeded negligence or gross negligence and amounted to wanton and willful acts.
He dismissed claims under 42 U.S.C. 1983 and the N.J. Civil Rights Act, finding no special relationship or state-created danger that would raise a constitutional guarantee of medical care.
Irenas rejected the Hottensteins’ contentions that the officers and the ambulance corps undertook custodial roles. “As the Plaintiffs’ experts explain, the alcohol and cold weather were the causes of Tracy’s incapacity, not the string of yellow tape,” he said.
Also, none of the defendants’ conduct “shocks the conscience,” and even if it did, they would be covered by qualified immunity, which protects against liability for reasonable mistakes, the judge said.
Irenas knocked out negligence claims against the municipal defendants, finding them covered by the Tort Claims Act’s Good Faith Immunity provision. They “did not fail to render medical care nor did they withhold medical care from an individual in their custody that obviously required such care,” he wrote.
Also struck were claims of negligent hiring, training and retention against AEA and the city, who the Hottensteins alleged were at fault for lacking special policies for treatment of hypothermia victims.
Irenas also dismissed premises-liability claims against the Sea Isle City. The Hottensteins had contended that the dock was in disrepair and poorly lighted.
Christopher Wolk of Jay Blumberg’s Woodbury firm, counsel to Khebzou and AEA, declines comment.
The Hottensteins’ lawyer, Lynanne Wescott of the Wescott Law Firm in Philadelphia, also declined comment.
Neither James Birchmeier of Powell, Birchmeier & Powell in Tuckahoe, the city’s lawyer, nor Michael O’Mara of Mayfield Turner O’Mara & Donnelly, the ambulance corps’ lawyer, returned a reporter’s calls.