A judge said Tracy Hottenstein may have been alive and suffering from hypothermia when she was pronounced dead in Sea Isle City on the weekend of the 2009 Polar Bear Plunge.
“In spite of this declaration of death, Tracy may not have been deceased at 8:22 a.m.,” U.S. District Judge Joseph Irenas wrote in his Oct. 11 opinion. “Two experts, upon review of the facts and circumstances of the case, concluded that severe hypothermia may manifest symptoms that look akin to death.”
Irenas made that comment in a 33-page opinion in which he dismissed several counts of negligence against the responding police officers and the city, but he found the negligence case against the doctor who made the pronouncement could proceed to trial. The suit was filed by parents Charles and Elizabeth Hottenstein.
Hottenstein, 35, of Conshohocken, Pa., was in Sea Isle City on Saturday, Feb. 14, 2009, for the annual Polar Bear Plunge. The next day, at 7:52 a.m., a passer-by called 911 to report a body, identified as Hottenstein, had been found on the city’s boat launching ramp.
Three police officers responded and reported trying to find her pulse. When none was found, they determined she was dead and deemed the area a crime scene.
Members of the Sea Isle Ambulance Corps were not allowed to cross a police line cordoning off the body. At 8:22 a.m., a doctor with Atlantic Emergency Associates pronounced Hottenstein dead over the phone, although neither the city’s ambulance corps nor the doctor ever examined her.
Irenas dismissed claims of negligence and civil rights violations filed against the police officers — Thomas McQuillen, Vincent Haugh and Harold Boyer — and he dismissed claims of civil rights violations against the ambulance corps and its Assistant Chief, Phyllis Linn.
“Their actions upon arrival at the scene demonstrate that they attempted to render aid, and when such attempts appeared futile, treated the area as a crime scene. These actions manifest neither a conscious disregard of risk nor an intent to cause Tracy harm,” Irenas wrote of the three police officers.
The judge said experts found “a tragic combination of alcohol and cold weather” resulted in Hottenstein’s death from hypothermia “not the stringing of the yellow tape.”
“The municipal defendants have credibly demonstrated that they acted with subjective good faith and (were) objectively reasonable under the circumstances,” Irenas wrote.
But the judge found that the case against Dr. Zaki Khebzou could continue.
“The facts produced in discovery do not provide grounds for granting Khebzou summary judgment on any of these claims,” the judge found.
He continued, “The plaintiffs have produced sufficient evidence in discovery to suggest that Khebzou’s behavior may constitute negligence increasing Tracy’s risk of harm.”
Irenas found that Khebzou knew state law required he receive results of an examination by another physician, nurse or paramedic, including an electrocardiogram if feasible, but Khebzou pronounced Hottenstein deceased at 8:22 a.m. only after Boyer, Haugh and McQuillen checked for a pulse but without any physical contact or examination by SIAC personnel or paramedics.
“The plaintiffs therefore have produced sufficient evidence to suggest that Khebzou’s actions were a substantial cause of Tracy’s harm, thereby satisfying the substantial factor test.”
Irenas also found that the plaintiff’s expert was not able to demonstrate that “the dangerous condition of the marina could have been a proximate cause of Tracey’s harm.”
He also allowed a punitive damages demand to go forward against the doctor, the city and its police.
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