Dead(ish) on arrival | Marcel Strigberger

Law360 Canada (March 10, 2023, 2:49 PM EST) --

Marcel Strigberger

Dead or alive? There may be a new tort in town. Sixty-five-year-old Thomas Maxwell of Clearwater, Fla., went into cardiac arrest. Two paramedics arrived and they declared him dead. His daughter Phebe, however, pleaded with them that her dad was breathing, making noises and ergo still alive. They responded that these actions were just his body releasing gases.

A sheriff’s deputy arrived soon, and he agreed with Phebe and arranged for Thomas M to be taken to hospital where he was treated in ICU and eventually discharged home.

The scene almost sounds like the reverse of the iconic Monty Python dead parrot sketch, where John Cleese returns a dead parrot to the pet shop arguing it is dead while vendor Michael Palin retorts this parrot is alive and well.

Here we have the daughter shouting her dad is alive, and the paramedics insist somewhat like, “your dad is dead, he has ceased to be, he is just emitting gases.”

Given the questionable proficiency of these paramedics, if I were living in Clearwater I’d be careful about eating too many beans.

The local fire chief has more or less admitted liability saying these two have been removed from their normal duties as “they did not follow the strict policies and procedures in place.”

This may be an understatement. I wonder what procedures they did follow? The manual from The Wizard of Oz? I think of that scene where the coroner does a post-mortem on the Wicked Witch of the East and chants, “As coroner I must aver I thoroughly examined her and she’s not only merely dead she’s really most sincerely dead.”

I definitely see a new tort evolving as this type of event has happened a number of times. Recently a lady in Miller’s Place (Long Island, N.Y.) was declared dead in a nursing home and transferred to a funeral home where hours later she was found to be alive.

Query whether there could be a legal impediment in this type of case if it were to take place in Ontario as the defendants might argue that she was dead but the ride in the hearse to the funeral home revived her and her claim is now subject to the provisions of the Insurance Act as she has a claim occasioned by the use or operation of a motor vehicle. She would now have to cross the threshold of an injury that is serious and permanent. And of course there is that nasty $40,000-plus deductible. There is no deductible in a wrongful death case. What about a wrongful non-life case? Yikes!

Another lady in Iowa declared dead was found breathing at a funeral home. They called 911. I’d like to be a fly on the wall of this chat:
We need that new tort to avoid any hurdles. These types of cases go beyond the tort of wrongful detention.

There have been concerns historically about wrongful declaration of death. I once visited an iconic cemetery in New Orleans. The guide pointed out this issue discussing some common expressions which have arisen.

Some places used to attach a bell to a person presumed deceased. If the person was actually alive, he or she could “ring a bell” which hopefully would be heard by the night watchman. And if rescued, this “deceased” would be considered, “saved by the bell.” The person was even referred to as the “dead ringer.”

Learn something every day.

The good news is these events had happy endings I suppose. As Mark Twain might have said, “The reports of my death are greatly exaggerated.”

To life!

Marcel Strigberger retired from his Greater Toronto Area litigation practice and continues the more serious business of humorous author and speaker. His just launched book Boomers, Zoomers, and Other Oomers: A Boomer-biased Irreverent Perspective on Aging is now available on Amazon, (e-book) and paper version by pre-release sale order. Visit www.marcelshumour.com. Follow him @MarcelsHumour.

Interested in writing for us? To learn more about how you can add your voice to The Lawyer’s Daily, contact Analysis Editor Peter Carter at peter.carter@lexisnexis.ca or call 647-776-6740.