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Since the Constitution does not guarantee any right to rescue services, the cities and states that choose to provide emergency medical technicians are not constitutionally required to ensure that their EMTs are competent, a federal appeals court has ruled. The decision by a unanimous three-judge panel of the 3rd U.S. Circuit Court of Appeals in Brown v. Commonwealth of Pennsylvania Department of Health marked the second time that the court has rejected an appeal, which has been brought by parents who claim their 1-year-old son died after choking on a grape because emergency workers showed up too late and weren’t properly trained. In August 2002, the same panel — 3rd Circuit Judges Richard L. Nygaard and Thomas L. Ambro and visiting 11th Circuit Senior Judge Phyllis A. Kravitch — held that the plaintiffs failed to meet the test for alleging a “state-created danger.” Plaintiffs’ attorneys David J. Berney and Nancy Rhoads of Sheller Badey & Ludwig urged the court to reconsider, arguing that the decision “effectively abolishes” an entire category of state-created danger cases where the plaintiff’s theory is that the defendants “exacerbated” an existing danger. In September, the court vacated the August decision and announced that the three judges would rehear the case. Now, a new version of the decision has been released that includes both significant additions and subtractions. Perhaps most significant is the court’s extension of the shocks-the-conscience test to cover all substantive due process cases in which “the state actor had to act with urgency.” Nygaard found that the 3rd Circuit has consistently applied a shocks-the-conscience test since the U.S. Supreme Court’s decision in Lewis v. Sacramento, which involved injuries suffered in a high-speed police chase. In Miller v. City of Philadelphia, Nygaard noted, the 3rd Circuit held that a shocks-the-conscience test applied in a case where a social worker allegedly wrongfully removed two children from a parent suspected of child abuse. Although the social worker was not in a “hyperpressurized environment” like a high-speed chase, Nygaard said, the court found that “he or she will rarely have the luxury of proceeding in a deliberate fashion.” Likewise, Nygaard found that the same conscience-shocking standard should apply to the actions of emergency medical personnel “who likewise have little time for reflection, typically making decisions in haste and under pressure.” In the suit, plaintiffs Charmaine Brown and Oral Douglas claimed that their son, Shacquiel A. Douglas, died because the baby’s grandmother was repeatedly assured that help was “on its way” but was never told that the two emergency medical technicians were not familiar with the local streets and had gotten lost. The suit alleged that the grandmother placed three calls to 911, and that the EMTs arrived 10 minutes after the first call. Although the grape was removed from the child’s throat during the rush to the hospital, he died two days later. U.S. District Judge Herbert J. Hutton of the Eastern District of Pennsylvania dismissed all claims against the city, the state and the two EMTs — Mark Stewart and John Caffey. Now the 3rd Circuit has once again upheld Hutton’s rulings. But a comparison of the court’s August opinion to the one released this week shows significant changes. In the first version, the court flatly rejected the argument that the EMTs had exacerbated the harm, saying “the danger facing Shacquiel Douglas was a grape that was stuck in his throat. Neither the Commonwealth nor the city nor Stewart and Caffey had anything to do with that; the danger already existed when Stewart and Caffey arrived on the scene.” That text has now been deleted. In its place, Nygaard added a paragraph that focuses on the plaintiffs’ failure to meet the shocks-the-conscience test in their claims against the EMTs. “In cases where the state actor is acting with urgency, the standard is whether the actions shock the conscience of the court. On this record, there are no actions that meet this standard,” Nygaard wrote. “The record depicts an attempt by Stewart and Caffey to ascertain the location of the victim through all available means, as well as their concerted effort to reach him as quickly as possible. The delay in reaching Shacquiel was not caused by Stewart and Caffey purposely delaying their rescue efforts or acting in an otherwise outrageous manner. Instead, the record depicts EMTs who attempted to arrive at the scene of the incident as rapidly as they could,” Nygaard wrote. “Although Stewart and Caffey may have ultimately failed to rescue Shacquiel successfully from a pre-existing danger, we have already said that they had no constitutional obligation to do so. We cannot say that their actions in attempting a failed rescue shocks the conscience.”

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