Posted on by Stephen Tuck

X v French Republic (2007) H&FLR 2014-56

Dr Eric X v French Republic (2007) H&FLR 2014-56

Court of Cassation (France)

5 June 2007

Coram: Cotte P, Blondet and Farge (conseillers)

Appearing for the Appellant: Didier Le Prado and Jean-Jacques Gatineau
Appearing for the Respondent: Francis Fréchède (Public Prosecutor)

Catchwords: France – criminal law – doctor – surgery – obese patient – pulmonary embolism – death – manslaughter – compensation

Facts: The appellant was a surgeon specialising in plastic and reconstructive surgery.  On 13 January 2000 he performed an abdominoplasty on an obese 56 year old woman patient in order to remove excess skin and fatty tissue.  In the course of the surgery the patient developed a pulmonary embolism which caused her death.

It was found that the danger to the patient had been increased by the appellant’s decision not to delay the procedure pending the patient losing weight by following a dietary regime recommended by an endocrinologist; in the circumstances the surgery performed should have been considered only as a last resort.  It was further found that he had not drawn the attention of the attending anaesthetist to the risk of thromboembolisation and that he had also not drawn those dangers to the patient’s attention.

The defendant was convicted at first instance of homicide involontaire (≈ manslaughter).  The Court of Appeal at Versailles quashed the conviction but declared the defendant liable to pay compensation to the deceased’s heirs pursuant to article 470-1 of the Code du Procedure Pénale*.  The defendant appealed.

Held: Per curiam, dismissing the appeal –

1.  While the doctor’s responsibility relates to the choice of medical means and not to the ultimate result, this principle is displaced where it is established that there has been an error in the carrying out of those means.

2.  While a doctor is obliged to inform their patient of the risks of proposed treatment, the doctor is entitled to adduce a range of evidence (including presumptions) to demonstrate that they have fulfilled that obligation.  It was not open to the Court of Appeal to find that Dr X had failed to fulfil this obligation solely from the absence of a signature by the deceased.

3.  On the available evidence, the Court of Appeal was able to find that Dr X’s errors had directly contributed to the patient’s death and justified it ordering him to make recompense to her heirs.

Judgment

The Court’s judgment is available here.

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* No copy of the decision can be located.

Posted on by Stephen Tuck

Spady v Bethlehem Area School District (2014) H&FLR 2014-48

Mica Spady v Bethlehem Area School District and Ors (2014) H&FLR 2014-48

United States District Court (Eastern District of Pennsylvania)

30 July 2014

Coram: Slomsky J

Appearing for the Plaintiff: Richard J. Orloski and Steven C. Ameche (of Orloski Law Firm)
Appearing for the Defendants: Paul G. Lees (of Marshall, Dennehey, Warner, Coleman & Goggin)

Catchwords: Pennsylvania – school – physical education – death – constitutional violations – officials immunity – exceptions – training

Facts: Juanya Spady was a student at Liberty High School, operated by the defendant. On 2 December 2010 he attended a swimming class as part of Physical Education (PE). During the class he complained to the teacher of feeling unwell but finished the lesson. The evidence was conflicted as to whether the teacher compelled him to complete the lesson. During his next class (which was in a classroom) he collapsed and had difficulty breathing. First aid was administered, including CPR and use of an automated external defibrillator. An ambulance was called, but Master Spady died in hospital later that day. The cause of death was disputed, although one theory alleged toxicity caused by swimming pool chlorine.

The deceased’s mother commenced proceedings on behalf of his estate under 42 U.S. Code §1983, alleging breaches of the deceased’s constitutional rights to personal security, life, liberty and freedom from state-created dangers and unconscionable arbitrary government action. She also brought claims in State law for ‘wrongful death’ as well as a survival action on behalf of his estate. The defendants sought summary dismissal of the constitutional claims.

Held: Rejecting the defendant’s application, that –

1. The State may be liable where it has created or exacerbated a danger which causes a plaintiff to be deprived of their Fourteenth Amendment rights. For the claim to succeed, the plaintiff must show that the harm alleged caused was foreseeable and fairly direct, that a State officer was culpable to a degree that shocks the conscience, that the plaintiff (or a person in the plaintiff’s position) was a foreseeable victim of the defendant’s actions, and that the officer affirmatively used their authority so to endanger (or worsen the danger) to the plaintiff

Morrow v Balaski, 719 F.3d 160 (3d Cir. 2013)

2. Government officials are not liable for civil damages, unless the plaintiff can establish that the official violated a statutory or constitutional right which was clearly established at the time of the alleged wrongful act. For the immunity to be lost, the unlawfulness of the official’s actions should have been apparent to a reasonable official.

Wood v Moss, 572 US __ (2014); Halsey v Pfeiffer, No. 13-1549, 2014 WL 1622769 (3d Cir. Apr. 24, 2014)

3. The School district can be liable under §1983 where it had a policy or custom which lead to the alleged constitutional violation. Where the policy was a failure to train an employee, the failure must amount to deliberate indifference (in the form of disregarding a known or obvious consequence*) to the rights of people who will deal with the employee and also have in fact caused the violation.

Natale v Camden County Correctional Facility, 318 F.3d 575 (3d Cir. 2003); Thomas v Cumberland County, 749 F.3d 217 (3d Cir. 2014)

Judgment

The Court’s judgment is available here.
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* Cf ‘gross negligence’: Stephen Tuck, ‘A Recent Decision of the Florida DCA on Gradations of Negligence‘, Amer. Bar Assoc. Commercial Transp. Litigation Comm. News 10 (Winter 2014).

Posted on by Stephen Tuck

Estate of Shelmovitz v City of Tel Aviv (2014) H&FLR 2014-44

Estate of the late David Shelmovitz & Ors v City of Tel Aviv & Ors (2014) H&FLR 2014-44

Tel Aviv Magistrates Court (Israel)

23 July 2014

Coram: Klein J.

Appearing for the Plaintiffs: Not known
Appearing for the Defendants: Not known

Catchwords: Israel – half-marathon – dehydration – death – negligence – fitness to compete

Facts: In 2011 Mr David Shelmovitz competed in a half-marathon organized by the first defendant (City of Tel Aviv). The first defendant engaged the second defendant (Hands Promotional Marketing Ltd) to manage the event. The second defendant was insured by the third defendant (Harel Insurance Co. Ltd). Under the system set up by the defendants, race entrants were required to complete an online declaration that they were medically certified as fit to compete, but were not required to produce the certificate itself.  The deceased declared that he was certified fit, despite not being so.

During the race the 42-year-old Shelmovitz developed symptoms of heatstroke but continued to run. He collapsed and was hospitalized for heatstroke and dehydration. Some 38 minutes elapsed between when he collapsed and when he reached intensive care. Three days after collapsing he died in hospital from liver damage.

His family brought proceedings against the defendants. It was alleged that they had been negligent in not requiring production of a medical certificate, in allowing excessive delay before the deceased was taken to hospital, and in not having facilities available on the course to cool him directly after the collapse.

The defendants responded that medical certificates are not required in any jurisdiction to compete in a half-marathon, and would impose an unreasonable and excessive burden on race organizers. They contended that adequate care was provided after the deceased collapsed. They also contended that any negligence on their part had not caused harm to the defendant because there was no reason to consider that his doctor would not have certified him as fit to compete, and had previously run a similar distance in a gymnasium. They also alleged contributory negligence against the deceased.

Held: Upholding the claim, that –

1.  In order to establish negligence, the plaintiff must show that the defendant owed both a conceptual and a concrete duty of care, that the duty was breached, and the breach lead to the harm alleged. Given the relationship between the race organizers and the participants, and the competitive setting, such a duty existed. The defendants conceded that a concrete duty of care existed.

Vaknin v Bet Shemesh Local Council (1983) 37(i) P.D. 113, followed.

2.  There was a duty on the defendants to ensure race participants were in fact medically certified.  The defendants had breached that duty.  Requiring entrants to click the “I agree” button is not sufficient to bring to their awareness any risk to their health.

3. The defendants were negligent in not having available a means of cooling the deceased after his collapse, given that the cost of doing so was outweighed by the danger to a runner suffering heatstroke and dehydration*.

4. The defendants’ negligence was found on factual grounds to have lead to Mr Shelmovitz’s death. His Honour noted that the deceased’s running the same distance in a gym was not enough to conclude that he was fit to run in an outdoor event. Fault as between the defendants was apportioned 30% to the first defendant and 70% to the second and third defendants.

5. In assessing contributory negligence, the court must consider whether the plaintiff fell short of the actions of a reasonable person and (if so) to compare the actions of the plaintiff and defendant and assess what proportion of fault was borne by each. In the case, the deceased had been negligent by claiming falsely to have had a medical certificate and by continuing to run after developing symptoms of heatstroke. He was found to have contributed 30% to his own harm.

Alan Shore v State of Israel, IsrSC not (1) 299 and Levi Sternberg v Bnei Brak Municipality, IsrSC Meg (3) 343, applied.

6. His Honour assessed damages at NIS890,000 (US$257,591.62 / A$277,988).

Judgment

The court’s judgment is available here**.   Media reports suggest an appeal will be lodged.

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* Cf Caledonian Collieries Ltd v Speirs, 97 CLR 202 (Austl., 1957)

** I have used a Google translation for the purposes of this report and (due to the sometimes questionable translation) have had to make some inferences as to meaning.  I have been assisted by reports in the Jerusalem Post of 29 July 2014, on reports here and here on the Israeli running website Shvoong, on this report on the News1 website and on this report on the ynet website

Posted on by Stephen Tuck

Leddin v R (2014) H&FLR 2014-42

Eamonn Francis Leddin v The Queen (2014) H&FLR 2014-42

Victorian Court of Appeal

22 July 2014

Coram: Weinberg, Whelan and Beach JJA

Appearing for the Appellant: Mr J McLoughlin (instructed by Victoria Legal Aid)
Appearing for the Respondent: Ms F L Dalziel (instructed by the Office of Public Prosecutions)

Catchwords: Victoria – cyclist – death – culpable driving – daydreaming – sentencing – manifestly excessive

Facts: On 7 April 2011 at about 11:00am the applicant (then aged 19), driving a car, struck a cyclist. The road on which both were travelling was straight with a 100kph (≈ 60mph) speed limit. The weather was fine and visibility good. Roughly half a kilometer before the accident scene was a sign warning of the presence of cyclists. The deceased was an experienced 47 year old cyclist wearing a high-visibility top.  The defendant’s evidence was that while he had seen the sign warning of cyclists and also the cyclist herself, after doing so he had lost concentration and begun to daydream. There was no evidence that he was drugged or intoxicated, distracted by a mobile phone or speeding. There was no clear evidence that he had fallen asleep or been over-tired.

Significant delay by the prosecution resulted in the defendant not being charged with culpable driving causing death (Crimes Act 1958, §318) until January 2013. On 4 December 2013 he pleaded guilty to this charge and was sentenced to 4 years and 3 months imprisonment, to serve a minimum of 2 years and 3 months: Director of Public Prosecutions v Leddin (County Court of Victoria, Judge Taft, 19 December 2013, unreported). The defendant appealed on the basis that the sentence and non-parole period were manifestly excessive

Held: Dismissing the appeal, that –

1. Serious driving offences tend to be committed by young drivers. Because of this, an offender’s youth must be given less weight than might otherwise be the case in considering sentence in these matters

Director of Public Prosecutions v Neethling (2009) 22 VR 466, approved.

2. The maximum penalty for the charged offence is 20 years’ imprisonment. A case would need to be ‘truly exceptional’ for a sentence of 4 years and 3 months to be manifestly excessive. The delay in the prosecution and the absence of speeding, intoxication and disobeying traffic signals did potentially render the matter unusual. On the other hand, there was genuine culpability in the defendant’s failure to avoid a collision with a cyclist despite having seen both her and a warning sign concerning cyclists generally.

Director of Public Prosecutions v Neethling (2009) 22 VR 466; Director of Public Prosecutions v Hill (2012) 223 A Crim R 285; and R v Sherpa (2001) 34 MVR 345, considered.

Judgment

The Court’s judgment is available here.

Posted on by Stephen Tuck

Hinojosa v Livingston (2014) H&FLR 2014-28

Ramona Hinojosa v Brad Livingston and Ors (2014) H&FLR 2014-28

United States District Court (S.D. Texas)

16 January 2014

Coram: Ramos J

Appearing for the Plaintiff: Jeff Edwards (of Edwards Law)
Appearing for the Defendants: Not identified.

Catchwords: Texas – prison – negligence – hyperthermia – hypertension – diabetes – depression – schizophrenia – obesity – death – Americans with Disabilities Act – Rehabilitation Act – Federal Rules of Civil Procedure

Facts:  On 29 August 2012 the plaintiff’s son died of hyperthermia while incarcerated in a prison operated by the Texas Department of Criminal Justice.  The plaintiff alleged that the defendant had failed to accommodate the deceased’s disabilities (particularised as hypertension, diabetes, depression, schizophrenia and obesity), resulting in his death.  It was contended that this breached the Americans with Disabilities Act (42 USC §12132) and the Rehabilitation Act (29 USC §794), giving her a entitlement to recover damages.

The defendant applied to dismiss the proceedings for failure to state a claim under r. 12(b)(6) of the Federal Rules of Civil Procedure, or alternatively that she be required to re-plead sufficient facts to identify the elements of her causes of action under the Acts.

Held: Denying the application, that –

1.  It was sufficient to state a claim for the plaintiff to allege that the defendant knew of the risks and dangers of certain health conditions and medications, that it knew the deceased suffered from those conditions and used those medications, and that despite having that knowledge, the defendant failed to make reasonable accommodations, as a result of which the deceased suffered greater pain and punishment than non-disabled prisoners (i.e. death).  Although all inmates faced the same environmental conditions, they were more burdensome for the deceased because of his disabilities.

2.  If a defendant knows of an individual’s disability and needs but takes no action, it will not be necessary for the disabled person to have requested an accommodation to state a claim under the Americans with Disabilities Act.

McCoy v Texas Department of Criminal Justice, CA No. C-05-370 (S.D. Tex. May 19, 2006), followed

Judgment

The Court’s judgment is available here.